Here is the opinion in South Point Energy Center LLC v. Arizona Dept. of Revenue:
Here is the opinion in Hwal’Bay Ba J Enterprises v. Jantzen:
An Indian tribe’s “subordinate economic organization” serves as an “arm of the tribe” and therefore shares its sovereign immunity. This tort case affords us an opportunity to identify factors courts should examine to decide whether a tribal entity serves in that capacity. After doing so, we conclude the tribal entity here did not prove it is a subordinate economic organization entitled to share the tribe’s immunity, and the superior court therefore did not err by denying the entity’s motion to dismiss.
Briefs are here.
This case was originally the In re A.D. case, the same A.D. who was the Goldwater Institute’s named plaintiff in Carter (A.D.) v. Washburn (now on appeal to the 9th Circuit). The Goldwater Institute represented the foster parents in this case in the Arizona state court appeals process.
The court of appeals decision denied the transfer to tribal court issue on the question of whether 25 U.S.C. 1911(b) allows transfer of post-termination proceedings. The Arizona Supreme Court also upheld the denial of transfer to tribal court, but walked back some of the more troubling aspects of the court of appeals opinion. Specifically,
Although the court of appeals correctly held that § 1911(b) did not apply here, that court was mistaken in stating that ICWA does not “allow” the transfer of actions “occurring after parental rights have terminated[.]” Gila River Indian Cmty., 240 Ariz. at 389 ¶ 11. By its terms, § 1911(b) provides that a state court must transfer foster care placement or termination-of-parental-rights cases to tribal court unless the state court finds good cause for retaining the case or unless either parent objects to the transfer. Section 1911(b) is silent as to the discretionary transfer of preadoptive and adoptive placement actions, but we do not interpret that silence to mean prohibition. See Puyallup Tribe of Indians v. State (In re M.S.), 237 P.3d 161, 165 ¶ 13 (Okla. 2010) (“Reading what is contained in the statute . . . does not require us to read into the statute what is not there, i.e., that transfers may only be granted if requested before a termination of parental rights proceeding is concluded.”) (emphasis omitted).
When enacting ICWA, Congress recognized, rather than granted or created, tribal jurisdiction over child custody proceedings involving Indian children. See Holyfield, 490 U.S. at 42 (“Tribal jurisdiction over Indian child custody proceedings is not a novelty of the ICWA.”); Indian Child Welfare Act Proceedings, 81 Fed. Reg. 38,778, 38,821–22 (June 14, 2016) (codified at 25 C.F.R. pt. 23) [hereinafter 2016 BIA Final Rule] (noting that Congress, in enacting ICWA, recognized that inherent tribal jurisdiction over domestic relations, including child-custody matters, is an aspect of a “Tribe’s right to govern itself”); Cohen’s Handbook of Federal Indian Law 840, 842 (Nell Jessup Newton et al. eds., 12th ed. 2012) (“Before the passage of ICWA, tribes exercised jurisdictional authority over custody of their children,” and § 1911(b) “reflects the legislative compromise made when states and others resisted tribes’ exercise of exclusive jurisdiction over all Indian child custody proceedings.”) (emphasis added).
¶21 Thus, tribes have the inherent authority to hear child custody proceedings involving their own children. By enacting ICWA, Congress recognized that authority and clarified the standards for state courts in granting transfer requests of certain types of cases. As a result, although ICWA does not govern the transfer of preadoptive and adoptive placement actions, state courts may nonetheless transfer such cases involving Indian children to tribal courts.
Finally, contrary to the court of appeals and the foster parents’ arguments, we decline to rely on waiver as a basis for affirming the denial of the Community’s transfer motion. See Gila River Indian Cmty., 240 Ariz. at 391 ¶ 18. The Community did not expressly waive its right to seek transfer; thus, the only waiver here would be implied because the Community did not seek transfer until after parental rights were terminated. However, “[t]o imply a waiver of jurisdiction would be inconsistent with the ICWA objective of encouraging tribal control over custody decisions affecting Indian children.” In re J.M., 718 P.2d 150, 155 (Alaska 1986) (emphasis omitted). Moreover, courts have historically been reluctant to imply a waiver of Indian rights under ICWA. Id.; cf. In re Guardianship of Q.G.M., 808 P.2d 684, 689 (Okla. 1991) (“Because of the ICWA objective to ensure that tribes have an opportunity to exercise their rights under the Act, and because of the plain language of § 1911(c), a tribe’s waiver of the right to intervene must be express.”).
However, the general rule remains (in states without state ICWA laws on point) –transfer petitions made after termination of parental rights will likely remain more difficult to achieve than those made before.
Bolick currently represents some non-Indian parents who are suing to overturn the federal Indian Child Welfare Act which requires require state courts when placing Indian children for adoption to give preference to a member of the child’s extended family. That is followed by priority by other members of the child’s tribe and, ultimately, other Indian families. Bolick also named DCS as a defendant because it follows that policy.
Lawsuit documents here, as always.