Chapter
5. Domestic Relations and Adoptions
Legislative History.
This revised chapter, which contains several new sections, was originally
enacted by the Tribal Council on September 13, 1988.
Sec. 1. Recording of Marriages. Divorces and Adoptions.
All marriages, divorces and adoptions occurring within Fort McDermitt
Indian Country shall be recorded within 30 days at the Clerk of Court's
office and a copy of the proceeding shall be afforded interested federal
and Nevada and Oregon state officials.
Sec. 2. Marriages. Divorces and Adoptions.
(a) Marriages
and Divorces; Law Applicable. All marriages and divorces shall hereafter
be governed by the law of the states of Nevada or Oregon, depending
on which state they occur in, with respect to marriages and divorces
occurring in the Fort McDermitt Tribal Court, except as may be provided
for otherwise in this chapter.
(b) Adoptions;
Law Applicable. The provisions of the Indian Child Welfare Act (ICWA),
codified at, Title 25, United States Code (U.S.C.A.),
section 1902 et seq., shall hereafter be applied to
all adoption proceedings occurring in the Fort McDermitt Tribal Court
whether or not the ICWA specifically applies to Indian Court proceedings.
As regards other aspects of the adoption process, the Fort McDermitt
Tribal Court shall be governed by the law of the states of Oregon
or Nevada, depending on which state they occur in.
(c) Exercise
of Jurisdiction in Foreign Court Adoptions. In all cases where, in accordance
with the Indian Child Welfare Act, a court of another jurisdiction contacts
the Fort McDermitt Tribal Court to determine whether the Tribal Court
will declare jurisdiction over an any proceedings provided for in the
Indian Child Welfare Act, including any future amendments,
involving a present member or person apparently eligible for membership,
the Clerk of the Court shall cause to be issued a response
in the affirmative and the judges of the Tribal Court shall exercise
jurisdiction or otherwise cooperate with the foreign court.
(d) Tribal Custom (Common Law) Marriage. If two Indians, of the opposite
sex, shall have lived together for more than six months with the consent
and blessing of the man and woman's parents or guardians at the time
the union began, and children are born as a result of the union, the
relationship between the man and woman shall be considered a traditional
Indian marriage and the spouse, upon the other's death, shall be considered
the other's spouse as provided for by the laws of the state of Nevada
in the case Ponica v. Leland, 185 Nev. 263, 454 P.2d 16 (1969)
which holds that Indians living together off the reservation were validly
married, although they had no ceremony, under circumstances resembling
a common law marriage. See Homer H. Clark, Jr., Domestic Relations,
Cases and Problems, Third Edition at 103 (West Publishing Co. 1984).
Sec. 3. Paternity and Support; Determination; Jurisdiction.
The Tribal Court of the Fort McDermitt Tribal Court shall exercise jurisdiction
over all cases and controversies requiring a determination of the paternity
of any child brought before it. A judgment of the court establishing
the identity of the father of the child or children shall be conclusive
of that fact in all subsequent determinations of inheritance.
Sec. 4. Heirs and Non-Trust Property Distribution.
The Tribal Court of the Fort McDermitt Tribal Court shall exercise exclusive
jurisdiction over all cases and controversies requiring a determination
of heirs and distribution of non-trust property located within Fort
McDermitt Indian Country at the time of a person's death where the Administrative
Law Judge of the Department of the Interior cannot, because of restrictions
codified in the Code of Federal Regulations, exercise such jurisdiction.
Sec. 5. Definitions.
(a)
"Fort McDermitt Indian Country", as used in this chapter shall mean
all lands owned by the Fort McDermitt Tribe whether or not held in
trust by the United States or all lands owned by members of the Fort
McDermitt Tribe or other Indians located within the geographical or
contractual jurisdiction of the Tribal Court.
(b) "Foreign
court", as used in this chapter, shall mean any court or any Indian
tribe, Indian group, territory or possession of the United States
or any state or federal court.
(c) "Non-trust
property", as used in this chapter, shall mean any and all property
of any Indian which is not held in trust by the United States for an
individual Indian.
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