27 Gonz. L. Rev. 353 (1991-1992)
State Court Jurisdiction under the Indian Child Welfare Act and the Unstated Best Interest of the Child Test

handle is hein.journals/gonlr27 and id is 365 raw text is: ARTICLES
STATE COURT JURISDICTION
UNDER THE INDIAN CHILD WELFARE ACT
AND THE UNSTATED BEST INTEREST
OF THE CHILD TEST
Michael J. Dale*
TABLE OF CONTENTS
INTRODUCTION  ....................................... 353
I. OPERATION OF THE INDIAN CHILD WELFARE ACT ............ 359
II. THE BEST INTEREST STANDARD .......................... 365
A.  The Anglo  Test  .................................... 365
B. The Indian Child Welfare Act Test ..................... 370
11. STATE COURT JURISDICTIONAL EFFORTS TO
LIMIT APPLICATION OF THE ACT .......................... 375
A. The Domicle Test  .................................. 376
B. The Indian Child Test  ............................... 376
C. The Indian Family Test .............................. 380
D. Divorce and Intra-Family Custody Disputes ............. 382
E. The Good Cause Test  ............................... 384
IV.  CONCLUSION  ......................................... 390
INTRODUCTION
In 1978, Congress enacted the Indian Child Welfare Act' (the Act) in
*Professor of Law, Nova University Shepard Broad Law Center. B.A. 1967, Colgate
University; JD. 1970, Boston College. The author thanks Laurie Briggs and Craig Trocino
for their assistance in the preparation of this article.
1. 25 U.S.C.  1901-63 (1988). The Act has been the subject of a large body of
scholarship. Several commentators have analyzed the Act in terms of its attitude toward and
ability to protect tribes and women. Barbara Ann Atwood, Fighting Over Indian Children:
The Uses and Abuses of Jurisdictional Ambiguity, 36 UCLA L. REv. 1051, 1054 (1989)
(discussing the tragic discontinuity and negative effect of jurisdictional ambiguity on
Indian children under the Act); Roger M. Baron, The Resurgence of the Tribal Interest

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