Arizona SCT Holds Tribal Company Did Not Establish Status as Subordinate Entity and Was Not Entitled to Immunity

Here is the opinion in Hwal’Bay Ba J Enterprises v. Jantzen:

hwalbay-v.-jantzen-ariz-2020.pdf

An excerpt:

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.

Arizona SCT Materials in Hwal’Bay Ba J Enterprises v. Jantzen

Here are the available briefs:

petition-for-review.pdf

response-in-opposition.pdf

amicus-in-opposition.pdf

arizona-sct-case-summary.pdf

Oral argument video here.

https://supremestateaz.granicus.com/MediaPlayer.php?view_id=11&clip_id=2691

Arizona Supreme Court Decides ICWA Transfer Case

Opinion here: Gila River Indian Community v. Dept. of Child Safety, Sarah H., Jeremy H., A.D.

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.

Lead Litigation Attorney for Goldwater Institute Appointed to Arizona Supreme Court

Here.

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.

Arizona Supreme Court Declines to Review Shirk v. Lancaster — ISDEAA Immunity Case Favoring Tribal Interests

Here:

Arizona SCT Order

Petition for review briefs here.

Arizona COA materials here and here.

Trial court materials here:

(2008) 09.24.08 Order Granting MTD as to GRIC Dfndnts

2011 11.30.11 ME Under Advisement Ruling

Arizona SCT Petition for Review of Dismissal of Tort Claim against Gila River Indian Community — Updated 8-28-13

Here is the petition in Shirk v. Lancaster:

Shirk Petition for Review

Update: Lancaster Response

Lower court materials here.

Split Arizona Supreme Court Holds that Tribal Judges May Serve on State Redistricting Panel

Here is the opinion in  Adams v. Comm’n on Appellate Court Appointments.

An excerpt describing the tribal judge in question, Paul Bender:

Bender, an independent, stated on his application that he serves as “Chief Judge of two Arizona tribal courts.” Bender, a law professor at Arizona State University, serves as the Chief Justice of the Supreme Court of the Fort McDowell Yavapai Nation and the Chief Judge of the Court of Appeals of the San Carlos Apache Tribe.

And from the analysis:

Consistent with the tribes’ distinctive status, Arizona’s constitution and laws generally do not include tribes within the meaning of the word “public.” Cf. Ariz. Const. art. 20, § 4 (referring separately to “public lands” and “lands . . . owned or held by . . . Indian tribes”). As noted above, see supra ¶¶ 23-29, Arizona’s constitution and statutes refer in many places to public office or public officers (for example, in provisions governing recall or financial disclosure), but none of those provisions has been construed to embrace tribal offices. Indeed, at oral argument, counsel could not identify any instance in Arizona law in which the word “public” has been interpreted to refer to Indian tribes.

From the dissent:

Giving the term “public office” the broad construction that § 1(3) suggests, I would conclude that Bender, as chief justice of two tribal courts, holds public office. At oral argument, amicus Valley Citizens’ League’s counsel (advocating for Professor Bender’s eligibility) expressly stated that Bender is a public officer of the respective tribes he serves. The constitutions and bylaws of both the San Carlos Apache and Fort McDowell Yavapai tribes support this acknowledgement, expressly delegating the judicial authority of their respective nations to their judiciaries. And it is indisputable that the judicial powers of a tribal nation are governmental powers of a sovereign. See 25 U.S.C. § 3631 (2006) (recognizing inherent sovereign authority of each tribal government’s judiciary); Penn v. United States, 335 F.3d 786, 789 (8th Cir 2003) (“[A] tribal court judge is entitled to the same absolute judicial immunity that shields state and federal court judges.”). As a judge, therefore, Bender exercises a portion of the governing power of these two sovereigns, making him a public official of these tribes.