Split Montana SCT Affirms Denial of Indian Child Welfare Matter’s Transfer to Blackfeet Tribe

Here is the opinion and the various briefs in In the Matter of S.B.C.:

Appellant Brief — Blackfeet Tribe

Appellant Brief — Father

Appellant Brief — Mother

Appellee Brief — Response to Father

Appellee Brief — Response to Tribe

Appellee Brief — Response to Mother

Reply — Blackfeet Tribe

Reply Brief — Father

Reply Brief — Mother

Montana SCT Opinion


N.B. (Birth Mother) and S.B.C. (Biological Father) appeal from the order entered by the Fourth Judicial District Court, Missoula County, terminating both parents’ rights to their minor child, S.B.C, Jr. (S.B.C), and granting the Department of Public Health and Human Services, Child and Family Services Division (Child Services) permanent legal custody with right to consent to adoption. The Birth Mother and Biological Father also challenge the District Court’s order denying transfer of jurisdiction to the Blackfeet Tribal Court. The Blackfeet Tribe (Tribe) has filed a cross-appeal likewise challenging the denial of its motion to transfer jurisdiction to the Blackfeet Tribal Court and the termination of Biological Father’s parental rights. We affirm.


Lastly, the Tribe argues the District Court improperly considered the socio-economic conditions of the Tribal Court. Subsection (c) of the Guidelines prohibit the consideration of the “[s]ocio-economic conditions and the perceived adequacy” of the tribal court system in making a determination of good cause. 44 Fed.Reg. 67591. In an attempt to demonstrate that the court based its decision on the inadequacy of the Tribal Court system, the Tribe draws our attention to a number of assertions the District Court made in its findings of fact and conclusions of law. The District Court remarked throughout its findings of fact and conclusions of law that the Tribe “chose to sit on its hands and delay seeking jurisdiction over [S.B.C] for tribal financial reasons.” Further, the court insinuated that the Tribe believes its children are sacred “only when it is in its best financial interests to do so.”

From the dissent:

I disagree with the majority’s analysis of the “advanced stage” guideline. The State filed its termination petition on March 6, 2013. The Tribe, having intervened early in the case, moved to transfer jurisdiction on April 10, 2013, thirty-five days later. The District Court order faulted the Tribe for seeking transfer after “all the critical court proceedings [were] completed and decisions made,” yet the District Court had not conducted a hearing nor made a decision to terminate the parents’ rights. The hearing was not held until September 10, 2013, and the order of termination was not signed until January 15, 2014, eight months after the motion to transfer was filed. This situation does not implicate the dangers the “advanced stage” rule is designed to protect against and there is no indication of manipulation by any party.


Finally, I agree with the majority that the District Court’s repeated statements that the Tribe “sat on its hands” until it had a financial reason to seek jurisdiction were inappropriate. The BIA Guidelines specifically provide that a state court cannot base the “good cause” determination on “socio-economic conditions and the perceived adequacy of tribal social services or judicial system.” 44 Fed.Reg. 67,591. These statements reflect, at best, a refusal to comply with the Guidelines and, at worst, a strong bias against the Tribe and the Tribal judicial system. Such statements have no place in the District Court’s order and were highly inappropriate.

Nebraska COA Orders Transfer of ICWA Matter to Tribal Court

Here is the opinion in In re Jayden D.

An excerpt:

Because the State did not meet its burden of establishing good cause to deny transfer to tribal court, the juvenile court abused its discretion in denying Yolanda’s motion to transfer. We reverse the order of the juvenile court and remand the cause with directions to sustain the motion to transfer.

SCOTUSBlog Petition of the Day: Nebraska v. Elise M.


The petition of the day is:


Issue: (1) Whether the Indian Child Welfare Act, 25 U.S.C. §§ 1901-63, prohibits a state court from considering the “best interests of the child” when determining whether “good cause” exists to defy the transfer of an ongoing child welfare case; and (2) whether ICWA requires a state court to treat a motion to terminate parental rights as a “new proceeding” for the purposes of determining whether “good cause” exists to defy the transfer of an ongoing child welfare case.

Possibly a candidate for a CVSG.

Briefs in Opposition to Nebraska v. Elise M. Cert Petition


Elisa M. Cert Opp

Omaha Tribe Cert Opp

The cert petition is here.

Minnesota Legislature Passes Bill to “Fix” the Minnesota SCT Decision In re R.S.

Minnesota Legislature Passes Bill to “Fix” the Minn. SCT Decision In re R.S.

HF 252, which was introduced by Rep. Susan Allen, overcame its final hurdle in the Minnesota Legislature by passing the House by a wide margin on May 10th. It passed the Senate with an equally wide margin the previous week and was signed into law on May 16th.

HF 252 reverses the affects of the Minn. SCT’s decision In the Matter of the Welfare of the Child of R.S. and L.S., wherein the Court denied a transfer of jurisdiction to a tribal court in a proceeding at the pre-adoptive stage. HF 252 amends Minnesota Statute 260.771, Subd. 3 to allow for transfers of jurisdiction at all four stages of a child custody proceeding: involuntary foster care placements; termination of parental rights; pre-adoptive; and adoption proceedings. HF 252 is a tremendous accomplishment for the 11 tribes and bands in Minnesota as well as a brave and courageous action by Rep. Allen.

Our prior post on this legislation is here.

Colorado COA Affirms Refusal to Transfer ICWA Case to Tribal Court (Sault Tribe)

Here is the opinion in In re T.E.R.

An excerpt:

In July 2012, mother moved to transfer jurisdiction to tribal court. The Department and the guardian ad litem (GAL) opposed the motion, arguing that good cause existed to deny the transfer because the case was at an advanced stage, and the case could not  be adequately presented in the tribal court without undue hardship to the parties or the witnesses. The Tribe took no position.

Cert Petition Challenging Nebraska SCT Decision on Good Cause “Exception” to ICWA Tribal Court Transfer Rule

Here is the petition:

Zylena R v. Elise M. Cert Petition

The questions presented:

(1) Whether ICWA prohibits a state court from considering the “best interests of the child” when determining whether “good cause” exists to deny the transfer of an ongoing child welfare case.
(2) Whether ICWA requires a state court to treat a motion to terminate parental rights as a “new proceeding” for purposes of determining whether “good cause” exists to deny the transfer of an ongoing child welfare case.
Lower court decision here.

Nebraska SCT Overrules Precedent Designed to Avoid Application of ICWA

Here is the opinion in In re Zylena R.

From the court’s syllabus:

To the extent that In re Interest of C.W. et al., 239 Neb. 817, 479 N.W.2d 105 (1992), permits a state court to consider the best interests of an Indian child in deciding whether there is good cause to deny a motion to transfer a proceeding to tribal court, it is overruled.

Nebraska COA Decides ICWA Tribal Court Transfer Case

Here is the opinion.

An excerpt:

Even if we had not found that Sellers failed to object to the parents’ motion to transfer in the county court, his assignment of error has no merit. He argues that the court abused its discretion by ordering a transfer to the tribal court when good cause was shown not to transfer the case. But the burden to prove good cause was on Sellers. See In re Interest of Leslie S. et al., 17 Neb. App. 828, 832, 770 N.W.2d 678, 682 (2009) (“party opposing a transfer of jurisdiction to the tribal courts has the burden of establishing that good cause not to transfer the matter exists”). And per our standard of review, we review the county court’s decision for abuse of discretion. There was testimony that the tribal court could convene for any necessary hearings in Hall County. Indeed, commentary to the Bureau of Indian Affairs’ guidelines specifically referred to the ability of tribal courts to alleviate hardship on the parties and witnesses “by having the court come to the witnesses” or by appointing members of the tribe who live outside of the reservation as tribal judges. Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,591 (Nov. 26, 1979) (not codified). Furthermore, the tribal representative testified that the tribal court could always receive testimony from witnesses in Hall County via telephone or documentary evidence. Given this evidence, the county court did not abuse its discretion in finding that Sellers failed to prove that there was good cause to deny the transfer based on hardship to potential witnesses.

Utah SCT Dismisses Navajo ICWA Tribal Court Transfer Denial Suit as Moot

Here is the opinion:


An excerpt:

This case involves a dispute over the Division of Child and Family Services’ (DCFS) compliance with the Indian Child Welfare Act (ICWA). The Navajo Nation (Nation) moved the juvenile court to transfer jurisdiction to the Nation. The juvenile court denied this motion. The Nation appealed to the Utah Court of Appeals. The court of appeals dismissed the case. We granted certiorari to determine whether the court of appeals erred in (1) holding that it lacked appellate jurisdiction over the Nation’s direct appeal of the juvenile court’s denial of a renewed motion to transfer jurisdiction and (2) declining to permit full briefing under rule 58 of the Utah Rules of Appellate Procedure. Because the Nation’s consent to the child’s adoption placement renders these procedural questions moot, we decline to address the issues raised on certiorari.