We would call this a shocking opinion in case #A12-245 for various reasons, but here is one excerpt:
First, the Tribe does not have a fundamental right to fairness under ICWA, even though the parents and children do. ICWA serves as a procedural prophylactic which permits, or compels, a state court to transfer a child custody proceeding to tribal court so that the tribe may exercise its inherent sovereignty over its tribal members. The Tribe, at its option, could invoke that that jurisdiction and have the case transferred into tribal court. However, it elected not to do so. Consequently, state law prevails in the 48-hour hearing, and Indian parents who appear before the Court are subject to those rules at that stage.
Of course, if ICWA doesn’t apply at the 48 hour hearing, it’s hard to figure out how the Tribe would even know to move to transfer the case.
This is one of those most ICWA hostile opinions we’ve read in a while–especially the parts about proceeding informally, and the endless loop the court creates in not applying ICWA in emergency hearings.
Turtle Talk 
48 hours is hardly enough time to review or even consider a case. The fact that a judge would want a snap judgement makes me wonder how he got to the bench in the first place. ICWA was designed to protect the children of Native families and preserve our nations. An attack on this law is not something that should be allowed to go unchallenged. ICWA is far from perfect and it may need adjustments. However that does not mean our children need to be at the mercy of courts that are not even able to police their own well enough. Native Children belong with Native families period end of discussion. Yes its ironic that I say that given I was raised in a loving white family. That I’d love to adopt a native child but as some idiot put white on my birth certificate that may be impossible. However the protection of the child’s rights as a tribal member and the nation as a whole must come first. Never is it a good idea to trust the white society to help out. Sadly they messed up way to many times to be trusted. ICWA must stand and be made strong enough to keep our children safe.
As attorney for the Tribe in this case, I would be interested in reading comments and adviced from readers, particularly attorneys, since the Oglala Sioux Tribe will be challenging this opinion in the State Supreme Court. However, there is no place to leave a comment on this particular piece. Please correct that.–Dana Hanna, Rapid City, SD
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