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.

Minn. Public Radio on Minnesota ICWA Gap Fix

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.

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.

News Coverage of Minn. SCT Decision in In re R.S.

Here, via the North Dakota Supreme Court website (and the Grand Forks Herald).

Minnesota Supreme Court Releases In re R.S.

Here is the opinion:

Opinion – Published

The court’s syllabus:

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.

Reversed and remanded.

A link to streaming video of the oral argument.

Here is our posting on our amicus brief and the lower court decision.

Minnesota Supreme Court ICWA Case–In re R.S. and L.S.

The Center wrote an amici brief for this case on behalf of the Center, Leech Lake and Mille Lacs.  Our discussion of the role of the GAL is in the second half of the brief.

Amici Brief for ILPC, Leech Lake and Mille Lacs

Lower court decision in the case:

Court of Appeals Decision