Iowa Supreme Court Decision on Notice and Indian Child [ICWA]

Opinion here:


Court page with oral arguments here.

I have delayed in posting this one mostly because I found this one particularly difficult, but I’ve referenced it in multiple presentations, so here it is. In essence, the child is a Lakota child, but due to COVID and tribal citizenship requirements and enrollment delays, ICWA did not apply to their case.

Red Cloud [Oglala Sioux ICWA Director] testified that he first met Mother the day before the hearing. He testified that he had consulted with his supervisor and that it was absolutely the intention of the tribe to intervene in the proceeding. When the State pointed out that the motion to intervene contained a reference to a stranger who was not a party to the proceedings, Red Cloud apologized for the error.

Red Cloud testified that because of staff difficulties and COVID-19, there were two years’ worth of cases that were not followed up on by the Oglala Sioux Tribe. He testified that the Bureau of Indian Affairs (BIA), which ordinarily signed off on tribal enrollments, had not done enrollments since March of 2020. When asked, however, whether Z.K. was “eligible for enrollment” in the Oglala Sioux Tribe, Red Cloud responded “Yes.”

On cross-examination, Red Cloud stated that it was hard to get enrollment certified because of the health issues of a BIA employee responsible for certification. Yet, Red Cloud testified that the tribe could determine whether somebody is a member or eligible for membership without certification by the BIA.


Red Cloud further stated that the Mother is at least half Native American regardless of whether she is a member of the Standing Rock Sioux or Oglala Sioux Tribe, and as a result, “there was no way that [the Court] can determine that [Z.K.] is not an Indian.” Red Cloud added, “[W]e need the time to figure this out.”

Obviously, that time didn’t happen and the Court found ICWA did not apply because the mother was not a citizen of Oglala. This is especially frustrating coming out of Iowa, which has an ICWA statute that attempted to define an “Indian child” as one that was recognized as such by her community. However, in 2007, the Iowa Supreme Court found that portion of the statute unconstitutional.

Transfer to Tribal Court Case from Iowa Supreme Court [ICWA]


This is a very useful decision directly addressing one for the most difficult parts of a transfer process–whether the state court will use a best interest analysis to determine jurisdiction.

These are not reasons to deny a tribe jurisdiction over a child welfare case:

The State argued that transfer should be denied because of the lack of
responsibility by Mother and Father, the efforts of the foster parents to promote
the children’s Native American heritage, and the good relationship between the
current professionals and the children. The guardian ad litem for the children
joined the State in resisting the transfer of the case to tribal court.

Oh, and would you look at that, a CASA:

The juvenile court noted that the court appointed special
advocate (CASA) for the children recommended that the parental rights of the
parents be terminated and the children continue living with the foster parents.

But don’t worry–the Iowa Supreme Court clearly channeled the Washington Supreme Court in its thoughtful discussion of ICWA and its purpose, summarizing that

The federal ICWA and accompanying regulations and guidelines establish a framework for consideration of motions to transfer juvenile matters from state court to tribal court. Although good cause is not elaborated at length, both the statute and regulations state in some detail what is not good cause. Absent an objection to transfer or a showing of unavailability or
substantial hardship with a tribal forum, transfer is to occur. Clearly, Congress
has an overall objective in enacting ICWA to establish a framework for the preservation of Native American families wherever possible.

The Court goes on to discuss the Iowa ICWA at length, along with some bad caselaw in Iowa, specifically the In re J.L. case, which is a really awful decision and has been a pain to deal with for years.

This Court states,

State courts have struggled with the statutory question of whether federal
or state ICWA statutes permit a child to raise a best interests challenge to
transfer to tribal courts. In In re N.V., 744 N.W.2d 634, we answered the
question. After surveying the terms of the federal and state ICWA statutes, we
concluded that the statutes did not permit a child to challenge transfer on best
interests grounds. Id. at 638–39.


In short, there can be no substantive due process violation arising from a
statute that refuses to allow a party to present on an issue irrelevant to the
proceeding. To that extent, we overrule the holding ofIn re J.L. (emphasis ADDED)


In conclusion, if there is no objecting child above the age of twelve, we hold
that the transfer provisions of ICWA which do not permit a child from raising the
best interests of the child to oppose transfer does not violate substantive due


In an ICWA proceeding, the United States Supreme Court observed that
“we must defer to the experience, wisdom, and compassion of the . . . tribal
courts to fashion an appropriate remedy” in Indian child welfare cases. Holyfield,
490 U.S. at 54 (quoting In re Adoption of Halloway, 732 P.2d at 972). These
observations apply in this case

There is a small dissent on whether the Father could appeal this case, but no issues with the Tribe’s appeal. Also, a reminder that the issue of jurisdiction was never a question Brackeen and decisions like this one are tremendously helpful for tribes seeking to transfer cases.

Iowa SCT Acknowledges End of State Jurisdiction over Indian Lands, but Federal Statutory Repeal Not Retroactive

Here are the materials in State v. Cungtion (Iowa S. Ct.):

Appellant Brief

Appellee Brief


Supplemental Brief

United States Amicus Brief

Sac and Fox Tribe Amicus Brief

Cungtion Opinion

And here are the materials in the companion case, State v. Bear:

Appellant Brief

Appellee Brief

Supplemental Brief

United States Amicus Brief

Sac and Fox Tribe Amicus Brief

Bear Unpublished Opinion

Ratified Indian Treaty 216: Sauk and Fox-Rock Island, Dubuque, Wisconsin Territory September 28, 1836 RG 11 General Records of the U.S. Government

Iowa SCT Affirms State Criminal Jurisdiction; Magistrate Judge Richard Vander Mey Had Barred Tribe/State from Invoking Jurisdiction of His Court [updated]

Here is the opinion in State v. Stanton:


An excerpt:

Upon review of the complaints, a magistrate concluded that recent federal legislation removed state jurisdiction for crimes committed on the Settlement. As a result, the magistrate dismissed the three pending misdemeanor charges and assessed costs against the Meskwaki Nation. The magistrate further advised that the Tama County Sheriff should consult with the county attorney to determine whether prisoners such as the defendant should even be received and retained in custody by the Tama County Sheriff. The district court further stated that tribal police officers should be instructed by tribal judicial officers to cease and desist from charging persons with violations of the Iowa Code as such charges “will only serve to clog state courts and result in the imposition of court costs upon the Meskwaki Tribe for cases which must be dismissed.”




Resistance to Application for Discretionary Review [Vander Mey pleading]

Sac and Fox Amicus Brief

US Amicus Brief

Federal and tribal amicus briefs not available. If anyone has them, please send to me. Would also love to read the lower court opinion.

Judge Vander Mey is a repeat player on TT. In 2011, mad about the Iowa Supreme Court’s same-sex marriage decision, he refused to accept the tribe’s immunity defenses in civil actions. He was removed from the bench for a time, but then reinstated.

In 2017, Vander Mey again refused to acknowledge tribal sovereignty in another civil suit.

State Supreme Court Outcomes: Iowa and Nebraska

Here are two grain belt states, Iowa and Nebraska.

In Iowa, tribal interests are successful in 31 percent of cases

In Nebraska, tribal interests are successful in 33 percent of cases.

Here are the Iowa cases:

Continue reading

News Article on Need for Greater Race and Gender Diversity on Iowa’s Supreme Court

Here. An excerpt:

The lone female finalist is Angela Onwauchi-Willig, 37, a University of Iowa law professor who was admitted to practice law in Iowa the day the finalists were announced. Onwauchi-Willig, who is also the only minority nominee, is admitted as a lawyer for state and federal courts in Ohio, and the federal appeals-court circuit that includes Kentucky, Michigan, Ohio and Tennessee.

During her interview with the commission, Onwuachi-Willig pointed to her experience as a scholar but also urged commission members to consider candidates who reflect the gender and race of Iowa’s population. Her research and teaching interests at the law school span a range of family law, employment discrimination, feminist legal theory and evidence.

Women account for roughly one-fourth of all state court judges and magistrates in Iowa, according to judicial branch statistics. None of the current Iowa Supreme Court justices are women; five of the nine-member Court of Appeals judges are women.

By contrast, nearly one-third of the nation’s 340 state supreme court justices are women, according to the National Center for State Courts. Twenty females serve as chief justices, and five supreme courts – California, Michigan, Tennessee, Wisconsin, and the District of Columbia – have a majority of women members.