25 Cfr 11.600-611

Bureau of Indian Affairs, Interior

§ 11.604

superseded by order of the Court of Indian Offenses, or by the existence of inconsistent tribal rules of evidence.

riage would be invalid under any provision of this part or tribal custom, and
upon written application of an unmarried male and unmarried female, both
of whom must be eighteen (18) years or
older. If either party to the marriage is
under the age of eighteen (18), that
party must have the written consent of
parent or his or her legal guardian.

Subpart F—Domestic Relations

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§ 11.600 Marriages.
(a) A magistrate of the Court of Indian Offenses shall have the authority
to perform marriages.
(b) A valid marriage shall be constituted by:
(1) The issuance of a marriage license
by the Court of Indian Offenses and by
execution of a consent to marriage by
both parties to the marriage and recorded with the clerk of the court; or
(2) The recording of a tribal custom
marriage with the Court of Indian Offenses within 30 days of the tribal custom marriage ceremony by the signing
by both parties of a marriage register
maintained by the clerk of the court.
(c) A marriage license application
shall include the following information:
(1) Name, sex, occupation, address,
social security number, and date and
place of birth of each party to the proposed marriage;
(2) If either party was previously
married, his or her name, and the date,
place, and court in which the marriage
was dissolved or declared invalid or the
date and place of death of the former
spouse;
(3) Name and address of the parents
or guardian of each party;
(4) Whether the parties are related to
each other and, if so, their relationship; and
(5) The name and date of birth of any
child of which both parties are parents,
born before the making of the application, unless their parental rights and
the parent and child relationship with
respect to the child have been terminated.
(6) A certificate of the results of any
medical examination required by either applicable tribal ordinances, or
the laws of the State in which the Indian country under the jurisdiction of
the Court of Indian Offenses is located.

§ 11.602 Solemnization.
(a) In the event a judge, clergyman,
tribal official or anyone authorized to
do so solemnizes a marriage, he or she
shall file with the clerk of the court
certification thereof within thirty (30)
days of the solemnization.
(b) Upon receipt of the marriage certificate, the clerk of the court shall
register the marriage.
§ 11.603 Invalid or prohibited marriages.
(a) The following marriages are prohibited:
(1) A marriage entered into prior to
the dissolution of an earlier marriage
of one of the parties;
(2) A marriage between an ancestor
and a descendant, or between a brother
and a sister, whether the relationship
is by the half or the whole blood;
(3) A marriage between an aunt and a
nephew or between an uncle and a
niece, whether the relationship is by
the half or the whole blood, except as
to marriages permitted by established
tribal custom;
(4) A marriage prohibited by custom
and usage of the tribe.
(b) Children born of a prohibited marriage are legitimate.
§ 11.604 Declaration of invalidity.
(a) The Court of Indian Offenses shall
enter a decree declaring the invalidity
of a marriage entered into under the
following circumstances:
(1) A party lacked capacity to consent to the marriage, either because of
mental incapacity or infirmity or by
the influence of alcohol, drugs, or other
incapacitating substances; or
(2) A party was induced to enter into
a marriage by fraud or duress; or
(3) A party lacks the physical capacity to consummate the marriage by
sexual intercourse and at the time the
marriage was entered into, the other

§ 11.601 Marriage licenses.
A marriage license shall be issued by
the clerk of the court in the absence of
any showing that the proposed mar-

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§ 11.605

25 CFR Ch. I (4–1–11 Edition)

party did not know of the incapacity;
or
(4) The marriage is prohibited under
§ 11.603.
(b) A declaration of invalidity may
be sought by either party to the marriage or by the legal representative of
the party who lacked capacity to consent.

marriage is irretrievably broken and
shall set forth:
(1) The age, occupation, and length of
residence within the Indian country
under the jurisdiction of the court of
each party;
(2) The date of the marriage and the
place at which it was registered;
(3) That jurisdictional requirements
are met and that the marriage is
irretrievably broken in that either (i)
the parties have lived separate and
apart for a period of more than 180 days
next preceding the commencement of
the proceeding or (ii) there is a serious
marital discord adversely affecting the
attitude of one or both of the parties
toward the marriage, and there is no
reasonable prospect of reconciliation;
(4) The names, age, and addresses of
all living children of the marriage and
whether the wife is pregnant;
(5) Any arrangement as to support,
custody, and visitation of the children
and maintenance of a spouse; and
(6) The relief sought.

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§ 11.605 Dissolution.
(a) The Court of Indian Offenses shall
enter a decree of dissolution of marriage if:
(1) The court finds that the marriage
is irretrievably broken, if the finding is
supported by evidence that (i) the parties have lived separate and apart for a
period of more than 180 days next preceding the commencement of the proceeding, or (ii) there is serious marital
discord adversely affecting the attitude
of one or both of the parties towards
the marriage;
(2) The court finds that either party,
at the time the action was commenced,
was domiciled within the Indian country under the jurisdiction of the court,
and that the domicile has been maintained for 90 days next preceding the
making of the findings; and
(3) To the extent it has jurisdiction
to do so, the court has considered, approved, or provided for child custody,
the support of any child entitled to
support, the maintenance of either
spouse, and the disposition of property;
or has provided for a separate later
hearing to complete these matters.
(b) If a party requests a decree of
legal separation rather than a decree of
dissolution of marriage, the Court of
Indian Offenses shall grant the decree
in that form unless the other party objects.

§ 11.607 Temporary orders and temporary injunctions.
(a) In a proceeding for dissolution of
marriage or for legal separation, either
party may move for temporary maintenance or temporary support of a child
of the marriage entitled to support.
The motion shall be accompanied by an
affidavit setting forth the factual basis
for the motion and the amounts requested.
(b) As a part of a motion for temporary maintenance or support or by
an independent motion accompanied by
an affidavit, either party may request
the Court of Indian Offenses to issue a
temporary injunction for any of the
following relief:
(1) Restraining any person from
transferring, encumbering, concealing,
or otherwise disposing of any property
except in the usual course of business
or for the necessities of life, and, if so
restrained, requiring him or her to notify the moving party of any proposed
extraordinary expenditures made after
the order is issued;
(2) Enjoining a party from molesting
or disturbing the peace of the other
party or of any child;
(3) Excluding a party from the family
home or from the home of the other

§ 11.606 Dissolution proceedings.
(a) Either or both parties to the marriage may initiate dissolution proceedings.
(b) If a proceeding is commenced by
one of the parties, the other party shall
be served in the manner provided by
the applicable rule of civil procedure
and within thirty days after the date of
service may file a verified response.
(c) The verified petition in a proceeding for dissolution of marriage or
legal separation shall allege that the

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Bureau of Indian Affairs, Interior

§ 11.608
(2) Grant a maintenance order for either spouse in amounts and for periods
of time the court deems just;
(3) Order either or both parents
owing a duty of support to a child to
pay an amount reasonable or necessary
for his or her support, without regard
to marital misconduct, after considering all relevant factors. In addition:
(i) When a support order is issued by
a Court of Indian Offenses, the order
may provide that a portion of an absent parent’s wages be withheld to
comply with the order on the earliest
of the following dates: When an
amount equal to one month’s support
becomes overdue; when the absent parent requests withholding; or at such
time as the Court of Indian Offenses selects. The amount to be withheld may
include an amount to be applied toward
liquidation of any overdue support.
(ii) If the Court of Indian Offenses
finds that an absent parent who has
been ordered to pay child support is
now residing within the jurisdiction of
another Court of Indian Offenses, an
Indian tribal court, or a state court, it
shall petition such court for reciprocal
enforcement and provide it with a copy
of the support order.
(iii) If the Court of Indian Offenses
receives a petition from another Court
of Indian Offenses, an Indian tribal
court or a state court, it shall take
necessary steps to determine paternity,
establish an order for child support,
register a foreign child support order
or enforce orders as requested in the
petition.
(iv) The Court of Indian Offenses
shall assist a state in the enforcement
and collection of past-due support from
Federal tax refunds of absent parents
living within the Indian country over
which the court has jurisdiction.
(v) Any person or agency who has
provided support or assistance to a
child under 18 years of age shall be a
proper person to bring an action under
this section and to recover judgment in
an amount equal to such past-paid support or assistance, including costs of
bringing the action.
(4) Make child custody determinations in accordance with the best interest of the child.
(5) Restore the maiden name of the
wife.

party upon a showing that physical or
emotional harm would otherwise result;
(4) Enjoining a party from removing
a child from the jurisdiction of the
court; and
(5) Providing other injunctive relief
proper in the circumstances.
(c) The court may issue a temporary
restraining order without requiring notice to the other party only if it finds
on the basis of the moving affidavit or
other evidence that irreparable injury
will result to the moving party if no
order is issued until the time for responding has elapsed.
(d) A response may be filed within 20
days after service of notice of a motion
or at the time specified in the temporary restraining order.
(e) On the basis of the showing made,
the Court of Indian Offenses may issue
a temporary injunction and an order
for temporary maintenance or support
in amounts and on terms just and proper under the circumstances.
(f) A temporary order or temporary
injunction:
(1) Does not prejudice the rights of
the parties or the child which are to be
adjudicated at subsequent hearings in a
proceeding;
(2) May be revoked or modified before
the final decree as deemed necessary
by the court;
(3) Terminates when the final decree
is entered or when the petition for dissolution or legal separation is voluntarily dismissed.

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§ 11.608 Final decree; disposition of
property; maintenance; child support; custody.
(a) A decree of dissolution of marriage or of legal separation is final
when entered, subject to the right of
appeal.
(b) The Court of Indian Offenses shall
have the power to impose judgment as
follows in dissolution or separation
proceedings:
(1) Apportion or assign between the
parties the non-trust property and nontrust assets belonging to either or both
and whenever acquired, and whether
the title thereto is in the name of the
husband or wife or both;

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§ 11.609

25 CFR Ch. I (4–1–11 Edition)

§ 11.609 Determination
and support.

of

information that the maker thereof is
deceased. Any custodian who fails to do
so shall be liable for damages sustained
by any person injured thereby.

paternity

The Court of Indian Offenses shall
have jurisdiction of all suits brought to
determine the paternity of a child and
to obtain a judgment for the support of
the child. A judgment of the court establishing the identity of the father of
the child shall be conclusive of that
fact in all subsequent determinations
of inheritance by the Court of Indian
Offenses or by the Department of the
Interior.
§ 11.610

§ 11.702

Appointment of guardians.

The court shall have the jurisdiction
to appoint or remove legal guardians
for minors and for persons who are incapable of managing their own affairs
under terms and conditions to be prescribed by the court.
§ 11.611

Change of name.

The Court of Indian Offenses shall
have the authority to change the name
of any person upon petition of such
person or upon the petition of the parents of any minor, if at least one parent is Indian. Any order issued by the
court for a change of name shall be
kept as a permanent record and copies
shall be filed with the agency superintendent, the governing body of the
tribe occupying the Indian country
under the jurisdiction of the court, and
any appropriate agency of the State in
which the court is located.

§ 11.703 Petition and order to probate
estate.

Subpart G—Probate Proceedings
§ 11.700

(a) Any person having an interest in
the administration of an estate which
is subject to the jurisdiction of the
court may file a written petition with
the court requesting that such estate
be administered in probate.
(b) The Court of Indian Offenses shall
enter an order directing that the estate
be probated upon finding that the decedent was an Indian who, at the time of
his or her death, was domiciled or
owned real or personal property situated within the Indian country under
the jurisdiction of the court other than
trust or other restricted property, that
the decedent left an estate subject to
the jurisdiction of the court, and that
it is necessary to probate such estate.

Probate jurisdiction.

The Court of Indian Offenses shall
have jurisdiction to administer in probate the estate of a deceased Indian
who, at the time of his or her death,
was domiciled or owned real or personal property situated within the Indian country under the jurisdiction of
the court to the extent that such estate consists of property which does
not come within the jurisdiction of the
Secretary of the Interior.
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Proving and admitting will.

(a) Upon initiating the probate of an
estate, the will of the decedent shall be
filed with the court. Such will may be
proven and admitted to probate by filing an affidavit of an attesting witness
which identifies such will as being the
will which the decedent executed and
declared to be his or her last will. If
the evidence of none of the attesting
witnesses is available, the court may
allow proof of the will by testimony
that the signature of the testator is
genuine.
(b) At any time within 90 days after
a will has been admitted to probate,
any person having an interest in the
decedent’s estate may contest the validity of such will. In the event of such
contest, a hearing shall be held to determine the validity of such will.
(c) Upon considering all relevant information concerning the will, the
Court of Indian Offenses shall enter an
order affirming the admission of such
will to probate, or rejecting such will
and ordering that the probate of the
decedent’s estate proceed as if the decedent had died intestate.

§ 11.701 Duty to present will for probate.
Any custodian of a will shall deliver
the same to the Court of Indian Offenses within 30 days after receipt of

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