transfer to tribal court

Yes, in fact, some states and foster parents are back to arguing the Existing Indian Family exception to ICWA.

Our decision in this regard is further supported by guidance from the Bureau of Indian Affairs (“BIA”) set forth in its 2016 BIA Guidelines pertaining to application of the Act’s provisions. Guidelines for Implementing the Indian Child Welfare Act (“2016 Guidelines”), 25 C.F.R. §§ 23.1 to -23.144 (2016). The 2016 Guidelines state, in relevant part:

In determining whether ICWA applies to a proceeding, the State court may not consider factors such as the participation of the parents or the Indian child in Tribal cultural, social, religious, or political activities, the relationship between the Indian child and his or her parents, whether the parent ever had custody of the child, or the Indian child’s blood quantum.

Id. § 23.103(c). This unequivocal statement plainly dispels any notion that the EIF exception is compatible with the ICWA. Accordingly, we join the “swelling chorus of [jurisdictions] affirmatively reject[ing] the EIF exception[,]” ICWA Proc., 81 Fed. Reg. 38778, 38802 (June 14, 2016), and hold that West Virginia does not recognize the Existing Indian Family exception to the Indian Child Welfare Act, 25 U.S.C. §§ 1901 to -1963 (2021). Accordingly, the circuit court erred in adopting the EIF exception and subsequently relying on that exception to determine that the ICWA was inapplicable to this case.

There are also a whole lot of parties citing to the 1979 Guidelines again these days, despite them being not in effect since 2015. It’s giving late 90’s/early 2000’s in ICWA practice these days.

Before this Court several of the parties cited this guidance as a basis for arguing that the Tribe is not entitled to transfer because it knew of these proceedings in December 2021 but did not move to transfer until eight months later in August 2022. What the circuit court and the parties fail to recognize is that the 1979 Guidelines were explicitly abrogated and replaced by the BIA when it promulgated the 2016 Guidelines. See Guidelines for Implementing the Indian Child Welfare Act, 81 Fed. Reg. 96476 (Dec. 30, 2016) (“The [2016] guidelines replace the 1979 and 2015 versions[.]”). Therefore, we do not find the 1979 Guidelines persuasive, nor do we rely upon any guidance contained therein.

But the WV Supreme Court saw through it:

For the reasons stated herein, we grant the Tribe’s petition for writ of prohibition and prohibit enforcement of the circuit court’s September 30, 2022, Order Denying Transfer. We remand this matter to the circuit court with directions to enter an order transferring jurisdiction in this action to the District Court of the Delaware Tribe.

West Virginia Supreme Court Repudiates Existing Indian Family; Orders Transfer to Tribal Court

June 14, 2023Kate Fort

Ex re Delaware Tribe v. Hon. Nowicki-Eldridge

This is, as you might imagine, a description of a mess where the West Virginia agency never contacted the Tribe, and then didn’t respond to attempts by the Tribe to get in contact with the agency. Then foster parents were granted intervenor status as well. The decision doesn’t state who made the EIF argument, but the Indian Law Clinic has been hearing the argument more and more from foster parents seeking to deny transfer to tribal court. While the Clinic was not involved in this case, it is reminiscent current appeals the Clinic is working on. My sense from the opinion is that the tribal briefing was likely excellent. The West Virginia Supreme Court didn’t buy it:

This unequivocal statement plainly dispels any notion that the EIF exception is compatible with the ICWA. Accordingly, we join the “swelling chorus of [jurisdictions] affirmatively reject[ing] the EIF exception[,]” ICWA Proc., 81 Fed. Reg. 38778, 38802 (June 14, 2016), and hold that West Virginia does not recognize the Existing Indian Family exception to the Indian Child Welfare Act, 25 U.S.C. §§ 1901 to -1963 (2021). Accordingly, the circuit court erred in adopting the EIF exception and subsequently relying on that exception to determine that the ICWA was inapplicable to this case.

Another fun thing that has been happening a lot is parties arguing the 1979 Guidelines rather than the 7 year old 2016 Regulations and Guidelines:

Before this Court several of the parties cited this guidance as a basis for arguing that the Tribe is not entitled to transfer because it knew of these proceedings in December 2021 but did not move to transfer until eight months later in August 2022. What the circuit court and the parties fail to recognize is that the 1979 Guidelines were explicitly abrogated and replaced by the BIA when it promulgated the 2016 Guidelines. See Guidelines for Implementing the Indian Child Welfare Act, 81 Fed. Reg. 96476 (Dec. 30, 2016) (“The [2016] guidelines replace the 1979 and 2015 versions[.]”). Therefore, we do not find the 1979 Guidelines persuasive, nor do we rely upon any guidance contained therein.

***

The proceeding regarding termination of the parental rights of Respondent Father was not at all advanced at the time the Tribe filed its motion to transfer the proceeding. Respondent Father had not been adjudicated; indeed, neither a preliminary nor adjudicatory hearing had even been scheduled. While five months passed between March 2022 and the Tribe’s motion to transfer in August 2022, the record reveals that those months were devoted to ascertaining whether the ICWA applied to this case, and not to any consideration of the merits of the amended petition. In short, there was nothing “advanced” about this proceeding when the Tribe moved to transfer.

Finally, this Court did not just send the case back for reconsideration, but rather ordered the lower court to transfer jurisdiction to the Delaware Tribe.

Here is the press coverage on the case: https://www.courthousenews.com/delaware-tribe-of-indians-applauds-west-virginia-supreme-court-decision-affirming-its-jurisdiction-in-child-welfare-case/

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

March 16, 2022Kate Fort

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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.

Unreported Transfer to Tribal Court Decision out of Minnesota

October 29, 2021Kate Fort

opa210522-102521 Download

I get asked a lot–just last week, in fact–to address the claim that Native children are often ripped from loving foster homes where they have been for a long time because the Tribe wants something different. I think the fact pattern in this case is more usual–the child was in the home (an Indian foster home) for five months when the Tribe requested visitation between her and her grandmother. Within a year, the state child welfare department petitioned to move the child to her grandmother. The original placement was always a foster placement and ICWA applied to this child from very early on in the proceedings. Moving a child to a permanent relative home within a year is very fast for a child welfare case. And yet still, the foster family intervened and attempted to stop the transfer to tribal court and regain custody of the child.

The Court of appeals here affirmed the lower court’s decision to transfer.

Transfer, Termination Case out of South Dakota Supreme Court [ICWA]

August 6, 2021Kate Fort

crwsdsct Download

There is a lot going on in this case, including issues involving a GAL (best interests attorney) advocating for best interests rather than the child’s state interests and opposing transfer to tribal court, transfer to tribal court issues, and termination of parental rights issues. The Tribe made a solid run at trying to get the GAL removed for a stated interests attorney. South Dakota law is pretty clear that the appointed attorney for a child should be a BI attorney, and the Court stated:

We adopt this approach as it relates to a child’s attorney appointed in abuse and neglect proceedings pursuant to SDCL 26-8A-18. The child’s attorney appointed pursuant to the statute is required to advocate for the child’s best interest. However, when the attorney’s determination of what constitutes the child’s best interest conflicts with the child’s expressed wishes, the ethical obligations of the attorney require consultation with the child to insure that the child’s objectives are presented to the court, along with the basis for the attorney’s determination of the child’s best interest. This approach “gives priority to the paramount goal of discerning the child’s best interest while enabling the lawyer to advocate an opposing viewpoint without fear of ethical violation.” J.P.B., 419 N.W.2d at 392.

Ultimately the child did testify (which, ooof, if you read the opinion), and the Court affirmed the termination and the denial of transfer.

Transfer to Tribal Court Case from Colorado [ICWA]

June 3, 2019Kate Fort

Here is a case that continues to demonstrate the importance of ensuring a state ICWA law allows transfer of cases post-termination. Navajo Nation intervened and appealed the decision to deny transfer (and to move the children back to the former, non-ICWA compliant foster home, who opposed the transfer to tribal court).

Additional important issues in this case including the appealability of a final order, standing of former foster parents (they had none), and post-termination transfer to tribal court.

We acknowledge that ICWA only addresses a request to
transfer jurisdiction during foster care placement and termination of parental rights proceedings. 25 U.S.C. § 1911(b). It does not mention such a request during preadoptive or adoptive placement proceedings. See id. Even so, the Children’s Code, as it existed at the time the juvenile court denied transfer, permits a juvenile court to consider transfer of jurisdiction to a tribal court “[i]n any of the cases identified in subsection (1) of this section involving an Indian child.” § 19-1-126(1), (4)(a). The cases identified in subsection (1) include “pre-adoptive and adoption proceedings.” § 19-1-126(1).

Active Efforts and Transfer to Tribal Court Case out of Maine [ICWA]

May 31, 2019Kate Fort

Here.

This is a difficult case, but the opinion does a nice job of outlining how a state and Tribe can work together in a state court ICWA case to provide active efforts when reunification with the father would be essentially impossible (based on the facts provided). The Court also correctly identifies legal standards involved with the father’s attempt to transfer the case to tribal court.

South Dakota Supreme Court Denies Transfer to Tribal Court [ICWA]

April 19, 2019Kate Fort

Here

The Tribe requested transfer and the child’s attorney objected. The trial court did not allow testimony regarding bonding and attachment from the child’s doctor. The Supreme Court held

With or without the 2016 regulations, though, circuit courts need the benefit of a sufficiently developed record to assist in the good cause determination. See A.O., 2017 S.D. 30, ¶ 13, 896 N.W.2d at 656; In re M.C., 504 N.W.2d 598, 601 (S.D. 1993). In both A.O. and M.C., we held that the circuit court should have conducted an evidentiary hearing before determining the motion to transfer jurisdiction. In the absence of a developed record, we are unable to conduct meaningful appellate review concerning the merits of the parties’ claims.

[¶17.] As it relates to this case, we conclude that the circuit court abused its discretion when it granted the Tribe’s motion to transfer without hearing the testimony of the child’s physician who was present in the courtroom. Relying upon the impromptu offer of proof by Child’s counsel, the court determined that Dr.
Whitney’s testimony was categorically irrelevant. We disagree.

The Court reversed and remanded for an evidentiary hearing.

Transfer to Tribal Court [ICWA] Decision out of New York

April 8, 2019April 8, 2019Kate Fort

Opinion here

The child’s attorney opposed the transfer, and the appellate court supported the decision of the Family Court to transfer to the tribe.

Transfer to Tribal Court Decision from Maine Supreme Judicial Court

January 8, 2019Kate Fort