Comments Needed for Kansas ICWA Pro Hac Vice Rule Exception

The Kansas Supreme Court is seeking comments on an amendment for to the pro hac vice rule to exempt out of state ICWA attorneys from fees and associating with local counsel. Deadline for comments is March 15, 2019. Rule is here.

Kansas Supreme Court accepting public comment on Rule 116
TOPEKA—The Kansas Supreme Court is accepting public comment on amendments to Rule 116 regarding admission of out-of-state attorneys to make it easier for a tribe to exercise its rights to participate in Indian Child Welfare Act Proceedings.

The Supreme Court will accept comment until 5 p.m. Monday, March 18, 2019. Comments are to be sent to rulenotice@kscourts.org with “Rule 116” in the subject line.

Amendments to Rule 116 are requested by the Kansas Judicial Council, on the recommendation of its Tribal-State Judicial Forum.

Among the amendments requested is new language that exempts an out-of-state attorney appearing in an Indian Child Welfare Act proceeding from paying a fee and from a duty to associate with local counsel. The out-of-state attorney would still need to file a motion for admission pro hac vice, accompanied by the attorney’s verified application.

Michigan and Oregon Adopt Pro Hac Vice Court Rules for ICWA Cases

Edited to add that Nebraska deserves credit for codifying this back in 2015, which I knew and forgot until today when I was doing some research. The provision is at Neb. Rev. Stat. 43-1504(3), a citation which I have now memorized so I won’t forget it again. 

This spring both Michigan and Oregon have changed their court rules to allow out of state attorneys to appear in ICWA cases on behalf of a tribe (Michigan and Oregon) or parent or Indian custodian (Oregon). Both waive the pro hac fees, and do not require the attorneys to associate with local counsel.

Michigan’s rule, MCR 8.126, is here. The rule is effective September 1.

Oregon’s rule, UTCR 3. 170(9), is here. The rule is effective August 1.

In both of these cases, the rule was a result of a recommendation and work from the respective Tribal State Judicial Forums.

In the hopes this is something other states may be willing to take on (hi California! Oh hey, Washington!), we’ve started a page with resources here.

Oregon Proposed Pro Hac Vice Waiver for Tribal ICWA Attorneys

Here is the proposed rule:

{(9) An applicant is not required to associate with local counsel pursuant to subsection (1)(c) of this section or pay the fee established by subsection (6) of this section if the applicant establishes to the satisfaction of the Bar that:

(a) The applicant seeks to appear in an Oregon court for the limited purpose of participating in a child custody proceeding as defined by 25 U.S.C. §1903, pursuant to the Indian Child Welfare Act of 1978, 25 U.S.C. §1901 et seq.;

(b) The applicant represents an Indian tribe, parent, or Indian custodian, as defined by 25 U.S.C. §1903; and

(c) The Indian child’s tribe has executed an affidavit asserting the tribe’s intent to intervene and participate in the state court proceeding and affirming the child’s membership or eligibility of membership under tribal law.}

The proposed change is to rule 3.170, and comments in support of the rule change must be made by February 24th. Now both Michigan and Oregon have these proposed rule changes in the works. These are really important state rule changes for tribes and Native families–the cost of pro hac in Oregon alone is $500, and in other states tribal attorneys are still being denied the right of intervention without following long and onerous pro hac requirements–sometimes making it impossible to participate in child welfare hearings involving Native kids. 

Proposed Court Rule in Michigan to Waive Pro Hac Fees and Other Limits for Out of State Tribal ICWA Attorneys

Here.

In ICWA cases, the tribe has a right of intervention in whatever state court is hearing the case of the tribal child. While it is true that the “tribal representative” does not have to be attorneys, when they are attorneys, there may be concerns about practicing without finding local counsel or using the local “pro hac” rule. Michigan has proposed a court rule that would waive those requirements for tribal attorneys representing the tribe in a state court where the attorney is not barred. This proposed rule is in direct response a number of requests from tribal ICWA attorneys nationwide. We are hopeful other states will consider a similar rule (though in Nebraska this is right is guaranteed by statute, which is another great fix). This rule was proposed by the Michigan Tribal-State Judicial Forum.

Also, if you are an out of state attorney who would benefit from this proposed Rule (or in state) please send in comments by March 1.