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

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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
process.

Therefore,

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.

Omaha Tribe RFP for Appellate Court Services

THE OMAHA TRIBE OF NEBRASKA & IOWA is seeking Requests for Proposals (RFP) for professional legal consultation to support the establishment of a local Appellate Court. Applicants shall be licensed to practice law in any State or Federal jurisdiction and shall be familiar with appellate process. The Applicant shall be responsible for drafting appellate process, accompanying procedures for Clerk of Court, assist in searching and interviewing potential appellate panel and providing educational presentations for community and governmental agencies. RFP’s can be directed to the Omaha Tribal Human Resources Department at P.O. Box 368, Macy, Nebraska 68039, (402) 837-5391, or emailed to the Omaha Tribal Human Resources Director Carlton LeCount at clecount@omahatribe.com .

Omaha Tribe Demands $120 Million from U. Neb. Billion Dollar Fund Raiser

From the Rapid City Journal (thanks to V.H.):

MACY, Neb. — The Omaha Tribal Historical Research Project, a multicultural research group for the Omaha Tribe of Nebraska and Iowa, is demanding that the University of Nebraska Foundation set aside 10 percent of its One Billion Dollar Endowment Campaign, saying the university hasn’t compensated the tribe for its for-profit use in research materials of tribal material and intellectual and cultural property.

That would amount to about $120 million for the tribe.

Dennis Hastings, Omaha Tribal Historical Research Project’s founder, sent a letter to Clarence Castner, University of Nebraska Foundation head, saying that the university has commercialized the ancestral and contemporary culture of the sovereign Omaha Tribe of Nebraska and Iowa through the school’s publications, research and academic activities for the university’s growth and academic gain.

Scores of academic initiatives, programs, private, state and federal grants, research articles and books have been generated about the Omaha, all with little tribal consultation or recompense, Hastings said in the letter.

The letter is part of a larger report alleging institutional racism at the university.

No response from the university was available on Sunday.