Here is the opinion in In re Welfare of R.A.J., in which the Minnesota Court of Appeals affirmed a trial court’s vacature of its own order to transfer a case to tribal court. The state court had denied efforts by the Leech Lake Band to transfer the case to tribal court, only transferring the case when the tribe agreed to certain conditions. We wonder whether a state court can place conditions outside of the scope of ICWA in order to agree to transfer a case to tribal court, a case it probably should transfer in the first place. We also wonder how a state court can re-acquire jurisdiction under ICWA without tribal consent.
The court’s syllabus:
The district court had jurisdiction to vacate its order transferring a child-welfare proceeding to tribal court before tribal court proceedings commenced, when the district court found that “misrepresentations were intentionally and wrongfully advanced [to the district court] to gain [its] agreement to transfer” the proceeding.
And an excerpt detailing the “misrepresentations” leading to the vacature of the court’s transfer:
Leading up to the TPR trial, the band, the GAL, and the district court discussed the possibility of transferring the proceeding to tribal court. An agreement was reached and the district court filed an order transferring the proceeding to tribal court on December 2, 2008 (the transfer order). The transfer order set forth, as the basis for the agreement, the GAL’s withdrawal of her objections to transfer based on the band’s agreement to: (1) immediately file a permanency petition in tribal court; (2) immediately pursue permanent placement of the children; (3) oppose placement with V.J. and any other member of R.A.J.’s immediate family; (4) maintain Naomi Paulson as the case manager; and (5) maintain Courtney Haskins as the GAL until permanent placement of the children has occurred. The transfer order also specifically stated that “[u]pon acceptance of jurisdiction by the Tribal Court, jurisdiction in this case shall be terminated.”
Three days later, on December 5, 2008, the GAL moved to stay the transfer order on the ground that the band breached the conditions for transfer. Specifically, the GAL affidavit claimed that the band had terminated Naomi Paulson as the case manager and that tribal family services intended to remove the children from their Native American foster home. Based on the GAL’s motion, on December 8, 2008, the district court concluded there was cause to find that fraud was committed on the court, and the court temporarily vacated its transfer order pending a hearing to show cause on December 18, 2008.
We wonder whether a state court can place conditions outside of the scope of ICWA in order to agree to transfer a case to tribal court, a case it probably should transfer in the first place.
Turtle Talk 