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

Here:

Elisa M. Cert Opp

Omaha Tribe Cert Opp

The cert petition is here.

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.

Federal Court to Hear ICRA Habeas Claim in Child Custody Case at Absentee Shawnee

Here are the materials in Rosser v. Rosser (W.D. Okla.):

DCT Order in Rosser

John Rosser Motion to Dismiss

Jennifer Rosser Opposition to John Rosser Motion

Tribal Judge Motion to Dismiss

Jennifer Rosser Opposition to Judge Motion

Complicated, ugly case, like so many family law cases. An excerpt:

As noted above, Plaintiff seeks two forms of relief. First, a writ of habeas corpus ordering the return of her daughter, K.T., and, second, a declaratory judgment determining the jurisdiction of the tribal court. 25 U.S.C. § 1303 provides that a writ of habeas corpus shall “be available to any person, in a court of the United States, to test the legality of his detention by order of an Indian tribe.” Although as a general matter courts will not use this statute to intervene in child custody determinations, the facts as alleged in this case warrant a departure from the usual practice. According to the allegations in Plaintiff’s Complaint, the tribal court has ordered custody of K.T. be awarded to a person who has no legal status to her. Thus, this case is distinguishable from the typical child custody dispute where the losing party is simply seeking a different court’s take on a custody determination between two parties.  Because Plaintiff has set forth allegations which state a plausible claim for relief under § 1303, Defendant Rosser’s Motion to Dismiss pursuant to 12(b)(6) will be denied.

Washington COA Reverses Child Custody Determination Favoring Indian Parent

Here is the unpublished opinion in In re Parentage of Harker.

An excerpt:

For several reasons, we agree that the trial court placed undue emphasis on a single portion of the child’s multi-cultural heritage. First, although factor (v) required the trial court to consider the child’s significant relationships with others, his physical surroundings, his school, and “other significant activities,” see RCW 26.09.187(3)(a)(v), in promulgating this statutory factor, the legislature did not require the trial court to consider the child’s cultural heritage. Instead, RCW 26.09.184(3) provides that the trial court “may consider the cultural heritage and religious
beliefs of a child.” (Emphasis added.) That the legislature “allows,” rather than “requires” trial courts to consider cultural heritage suggests that the legislature did not intend for cultural heritage, though important, to be a determining factor in a child’s residential placement.

Second, although Harker mentioned his Native American heritage and his desire to involve his son in that culture, it was the trial court, rather than Harker, that developed the vast majority of evidence related to this cultural heritage. In addition to developing the cultural heritage component of pro se Harker’s case for him, the trial court then ignored the non-determinative nature of this factor when it expressly found that Harker would promote the child’s cultural
awareness and that this fact “weigh[ed] very heavily” in favor of making Harker the primary residential parent. III VRP at 315. Furthermore, in so ruling, the trial court ignored the lack of evidence that Arviso would interfere with Harker’s involving their child with his Native American culture. Nor did the trial court expressly consider the child’s potential involvement with Arviso’s Hispanic culture.

New Mexico Court Decides Indian Jurisdiction Case

Here is the opinion in Garcia v. Gutierrez, from the New Mexico Supreme Court (Garcia v Gutierrez — NM SCT Opinion). An excerpt:

In this case—a divorce and custody dispute between an Indian father and a
non-Indian mother whose children are enrolled members of the Pojoaque Pueblo—state and
tribal courts have entered conflicting decrees. Regrettably, complete resolution of that

In this case—a divorce and custody dispute between an Indian father and a non-Indian mother whose children are enrolled members of the Pojoaque Pueblo—state and tribal courts have entered conflicting decrees. Regrettably, complete resolution of that conflict lies beyond our reach.

What we can do, however, is conclude that the state court does have jurisdiction. The tribal court—given the importance of the Pueblo’s children to its culture and its future—likely has jurisdiction; and neither is exclusive of the other. As has long been the tradition in New Mexico, the state and tribal courts must share jurisdiction under principles of comity and work out their differences, guided by universally accepted principles of doing what is in the best interests of the children. See Fox v. Doak, 78 N.M. 743, 744, 438 P.2d 153, 154 (1968) (“In making [a child-custody determination, a court’s] controlling influence should be the welfare and best interests of the child.”).

Thanks to T.L.M. for the head’s up.

Duwyenie v. Moran — Arizona COA Case Involving Parallel Tribal and State Custody Actions

Unusual case, involving what likely was the kidnapping of an Indian child in a child custody squabble originating in Arizona. One parent removed the child to South Dakota and initiated proceedings in the Rosebud Sioux Tribal Court after Arizona state court proceedings had begun. The other parent initiated tribal court proceedings on the same matter in Gila River Tribal Court, which was a smart move, since the tribal courts talked to each other, leading the RSTC to dismiss its part of the case and admonish the parent who (likely) kidnapped the child.

Here is the opinion.