There has been a small spate of Uniform Child Custody Jurisdiction Enforcement Act cases this year involving family law cases and tribal courts. In most states, tribes are considered “states” for the purposes of determining a child’s “home state” jurisdiction. These are generally (but not always) non-ICWA cases like parental custody and child support. These kind of cases seem rare to practitioners, but nationally there’s a fair number of them (and will continue to be the kind of reasoning tribal and state judges will need to engage in to as more and more cases arise in this subject area).
McGrathBressette (Michigan, child custody v. child protection)
MontanaLDC (Montana, child custody)
NevadaBlount (Nevada, third party custody)
(And yes, I have a pile of ICWA cases to share with you that have built up in the last month or so.)
Here is that opinion:
This appeal requires us to decide whether, under section 1919 of the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-1963 (2006), a tribal-state agreement respecting child custody proceedings may vest a Nevada district court with subject matter jurisdiction to take a relinquishment of parental rights under circumstances where section 1911(a) of the ICWA, 25 U.S.C. § 1911(a), would otherwise lay exclusive jurisdiction with the tribal court. We conclude that the ICWA, in keeping with fundamental principles of tribal autonomy, allows for tribal-state agreements for concurrent jurisdiction even when the tribe would have exclusive jurisdiction absent an agreement. Therefore, we affirm.
The tribal-state agreement the court relies on is an agreement for this case alone, which arose from what appears to be a great example of tribal-state court cooperation. The state court involved the tribe prior to the children being eligible for membership, and thus prior to ICWA applying. When the children became eligible (based on a change in the tribe’s membership rules), the court began applying ICWA. After termination of parental rights, the state court transferred the case to tribal court for adoption proceedings. The children were not placed with their foster family, which is what led to the mother bringing the case. While it’s possible this case could be used to hurt tribal jurisdiction, from the outside at least, it appears to be a case of cooperation that benefited both the children and the tribe.
Here is Nevada.
In Nevada, tribal interests prevail in 33 percent of cases.
Here are the cases:
Here is the opinion in Pyramid Lake Paiute Tribe of Indians v. Ricci.
In this appeal, we review the State Engineer’s decision to grant Nevada Land and Resource Company, LLC’s (NLRC), change application for its water rights in Washoe County’s Dodge Flat Hydrologic Basin. In 1980, NLRC obtained permits to appropriate Dodge Flat groundwater for temporary use in a mining and milling project. That project failed to materialize, but NLRC kept its water rights valid and in good standing. Twenty years later, NLRC applied to change its use from temporary to permanent and from mining and milling to industrial power generating purposes. The Pyramid Lake Paiute Tribe (the Tribe) opposed the application. After the State Engineer granted the application, the Tribe filed a petition for review in district court. The district court denied the petition, and the Tribe now appeals to this court.
Substantial evidence supports the State Engineer’s conclusion that Dodge Flat Basin contains unappropriated water and that any harm to existing water rights or the public’s interest is the result of the Tribe’s unpermitted use. We therefore affirm the State Engineer’s ruling.
Here is the opinion in In re N.J. This is a disturbing development, especially since the Nevada Supreme Court made no effort whatsoever to engage the very real controversy whether the EIF “exception” is consistent with both the text of the ICWA and Congressional intent.
We hold that the EIF doctrine should be used on a case-by-case basis to avoid results that are counter to the ICWA’s policy goal of protecting the best interest of a Native American child. In the present case, we recognize that N.J.’s interest is protected by the ICWA because her putative father is a member of the Ely Shoshone Tribe. Her father, however, is not contesting the termination, nor is the tribe. The termination will not result in the breakup of a Native American family. Indeed, the only person contesting the termination is the non-Native American parent, Dawn. In addition, the foster family that is taking care of N.J. plans on adopting N.J. and is committed to educating her about her heritage. Those factors lead us to conclude that in this circumstance, the application of the EIF doctrine is appropriate because, while it is an exception to the ICWA, in such scenarios it serves to advance the ICWA’s goal to protect the best interests of Native American children. Because we conclude that the EIF doctrine is applicable, we need not reach the issue of whether DCFS made active efforts, pursuant to the ICWA, see 25 U.S.C. § 1912(d), to reunite Dawn and N.J., as application of the EIF doctrine negates the necessity of that inquiry.