We would call this a shocking opinion in case #A12-245 for various reasons, but here is one excerpt:

First, the Tribe does not have a fundamental right to fairness under ICWA, even though the parents and children do. ICWA serves as a procedural prophylactic which permits, or compels, a state court to transfer a child custody proceeding to tribal court so that the tribe may exercise its inherent sovereignty over its tribal members. The Tribe, at its option, could invoke that that jurisdiction and have the case transferred into tribal court. However, it elected not to do so. Consequently, state law prevails in the 48-hour hearing, and Indian parents who appear before the Court are subject to those rules at that stage.

Of course, if ICWA doesn’t apply at the 48 hour hearing, it’s hard to figure out how the Tribe would even know to move to transfer the case.

This is one of those most ICWA hostile opinions we’ve read in a while–especially the parts about proceeding informally, and the endless loop the court creates in not applying ICWA in emergency hearings.