ICWA tribal court transfer

Nebraska COA Decides ICWA Tribal Court Transfer Case

Matthew L.M. Fletcher1 Comment

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

Matthew L.M. Fletcher

Here is the opinion:

AdoptLO1223041312

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.

 

 

Minn. Public Radio on Minnesota ICWA Gap Fix

Matthew L.M. Fletcher

Here. Our post on the bill is here.

An excerpt:

Minnesota American Indian tribes and their allies in the state Legislature are seeking to plug a gap in child custody laws opened by a state Supreme Court decision last year.

The court’s decision derailed the common practice of giving tribal courts a role during pre-adoption and adoption for off-reservation American Indian kids.

Until the late 1970s, American Indian children across the country were adopted outside their communities at very high rates. The practice had a devastating effect on tribes, as generations of youth were cut loose from their cultural identities.

“People thought they understood that children would fare better if they were raised in white middle class homes,” said Andrew Small, a lawyer and former tribal judge in the state. “When you remove a child from their home, that begins a process that sometimes is impossible to stop… a child is going to be lost to the tribe.”

In 1978, Congress passed the Indian Child Welfare Act, which was designed to allow tribes a say in child custody and adoption proceedings. Since then, Minnesota state courts dealing with custody of an American Indian child off the reservation have been able to transfer jurisdiction to tribal court, even in the later part of the proceedings, which are called adoptive or pre-adoptive stages.

But a Minnesota Supreme Court decision late last year found a gap in the Indian Child Welfare Act. The court decided that neither federal nor Minnesota statute explicitly allowed state courts, when dealing with an American Indian child living away from a reservation, to transfer jurisdiction during the later portion of custody proceedings.

 

Minnesota Legislative Bill to “Fix” the Recent Minn. SCT Decision In re R.S.

Matthew L.M. Fletcher2 Comments

Here:

12-5238

The bill would reverse the Minnesota Supreme Court’s decision in In re R.S., which held that:

1. The plain language of 25 U.S.C. § 1911(b) (2006) is not ambiguous and, with respect to an Indian child not residing or domiciled within the child’s tribe’s reservation, permits transfer to tribal court of only foster care placement and termination of parental rights proceedings.

2. The provision of the 2007 Tribal/State Agreement requiring transfer of “any child placement/custody proceedings” is void to the extent that it purports to require transfer of preadoptive and adoptive placement proceedings involving an Indian child not residing or domiciled on the reservation of the child’s tribe.

3. With respect to an Indian child not residing or domiciled on the child’s tribe’s reservation, Rule 48 of the Minnesota Rules of Juvenile Protection Procedure, providing for transfer of “the juvenile protection matter” to the tribal court of an Indian child’s tribe, is limited to foster care placement and termination of parental rights proceedings.

Briefs in Merrill v. Altman (S.D. ICWA Case Previously Posted)

Matthew L.M. Fletcher

We posted the South Dakota Supreme Court’s opinion from December here.

Here are the briefs:

Merrill Opening Brief

Altman Brief

Merrill Reply

South Dakota SCT Rules against ICWA Tribal Court Jurisdiction

Matthew L.M. Fletcher1 Comment

In what appears to be a kind of factual opposite of Holyfield, the court held that tribal member grandparents cannot establish reservation domicile of off-reservation tribal member children two years after the beginning of state court proceedings.

Here is the opinion in Merrill v. Altman.

Montana SCT Reverses Indian Parental Termination for Failure to Comply with ICWA

Matthew L.M. Fletcher

Here is the opinion in In the Matter of J.W.C.: J.W.C. Opinion

Here is the Court’s synopsis:

The Montana Supreme Court reversed and remanded the District Court’s order terminating parental rights to four Indian children. Mother, Father, and the children were all members of the Fort Peck Assiniboine and Sioux Tribes (Tribes). The Department of Public Health and Human Services petitioned the District Court for emergency protective services, adjudication as youths in need of care, and temporary legal custody for the children upon finding the parents unable to provide food or shelter. As allowed under the Indian Child Welfare Act (ICWA), the Tribes filed a Notice of Appearance and Intervention and Mother moved to transfer the case to the Fort Peck Tribal Court. The Tribes never affirmatively accepted or declined jurisdiction. Acknowledging this, the District Court maintained jurisdiction, terminated the parental rights of Mother and Father, and denied Mother’s request to continue the termination and appoint counsel for
the children.

On appeal, Mother argued the District Court should have transferred the case to tribal court, as required by ICWA, and should have appointed counsel for the children, as required by Montana law. In child custody cases when Indian children reside off the reservation, a district court generally must transfer jurisdiction to the tribal court unless the tribal court affirmatively declines to accept jurisdiction, as specified by ICWA and its interpretive guidelines. The Tribal Court never declined jurisdiction and the District Court never held the requisite jurisdictional transfer hearing. On remand, the District Court was directed to properly determine jurisdiction, hold a transfer hearing, and appoint legal counsel for the children.

Here are the briefs: Continue reading →

Illinois Appellate Court Affirms Denial of Transfer of ICW Case to Bad River Chippewa Tribal Court

Matthew L.M. Fletcher

Here is the opinion in In re M.H.