Looking Both Ways: Transfer Cases Under the Indian Child Welfare Act

Justice Jill Elizabeth Tompkins | Immediate Past President, Board of Directors | National American Indian Court Judges Association

One of the most unique provisions of the federal Indian Child Welfare Act (ICWA) of 1978, is the one by which an American Indian or Alaska Native tribe, an Indian parent or an Indian custodian may petition a state court to transfer an Indian child custody case to the Indian child’s tribe’s jurisdiction. The transfer provision is also one of the sections of the law that received the most attention in the recently revised Bureau of Indian Affairs Guidelines for State Court and Agencies in Indian Child Custody Proceedings. The application of the statutory and Guidelines’ provisions seems straightforward and one might assume that transfers should occur with minimal confusion or delay. ICWA and the Guidelines however, do not take into account the application of tribal law and procedures which may regulate the tribal court’s acceptance of a state court transfer case.

How Transfers Look on Paper
Through the enactment of ICWA, Congress clarified the jurisdiction of tribal courts over Indian child custody matters. The tribal court has exclusive jurisdiction over a custody matter involving an Indian child (a child who is either a tribal member or eligible for tribal membership and the biological child of a tribal member) who resides or is domiciled on the tribe’s reservation. Recognizing that the states lacked understanding about Indian culture and child-rearing practices, Congress sought to place decision-making over Indian child custody matters into the hands of tribes. The transfer provision permits state court proceedings concerning Indian children not living or domiciled on his or her reservation to be handled by the tribal courts. Little is provided in the way of detail about how the transfer is to be carried out once a petition is filed. The Guidelines flesh out the process that is to be followed by the state court. Once the petition to transfer is made either orally on the record or in writing, the state court must “promptly notify the tribal court in writing of the transfer and request a response regarding whether the tribal court wishes to decline the transfer.” The tribal court is to be given at least 20 days from receipt of the notice to make a decision and to respond to the state court. The Guideline advises that “[t]he tribal court should inform the state court of its decision to accept or decline jurisdiction within the time required or may request additional time; provided that the reasons for additional time are explained.”

Varying Tribal Approaches
The Guidelines instruct state courts that, “. . . whenever a parent or tribe seeks to transfer a case it is presumptively in the best interest of the Indian child, consistent with the Act, to transfer the case to the jurisdiction of the Indian tribe.” Although the Act and the Guidelines presume that Indian child custody matters will be transferred (absent objection or a finding of good cause not to transfer) to tribal court, the reality from the tribal perspective is far different. Tribes that are willing and able to accept every ICWA transfer case do exist. On the other hand, there are many reasons why a tribe or tribal court may need to deliberatively consider whether to accept jurisdiction of a state court case. The reasons for hesitation are multiplying as more and more Indian children and families are living off-reservation and moving to urban areas. Many of the cases sought to be transferred to a tribal court can be from a state court located hundreds of miles away from the 2 Indian child’s reservation. Although technology may make it possible for parties and witnesses to participate in remote tribal court proceedings, little can be done to extend the reach of scarce tribal resources. As a consequence, tribes are adopting more of a “look and see” approach. Many tribes have established internal tribal review processes that must be exhausted before their tribal courts are permitted to accept a transferred case. Fortunately, new Guidelines seem to contemplate that a tribal court may have to wait for the completion of an internal tribal review process which may delay notification to the state court of its decision regarding the proposed transfer. In these situations, state courts must understand that they will be receiving requests for extensions of time to respond by the tribal court that are necessitated by operation of tribal law.

Using Anticipation to Improve Transfer Practice Achieving
permanence is of critical importance to children involved in the child welfare system. The existence of tribal approval protocols and procedures may add steps and require additional time before a tribal court will accept the transfer of a case. While that decision is pending, the Indian child’s permanency may be in limbo. There are a range of proactive solutions that state and tribal jurisdictions can pursue to reduce delays:

  • Whenever a transfer petition is filed in state court, the judge should research and review the Indian child’s tribe’s law to ascertain whether there is a tribal process for acceptance of transferred cases. (Many tribal codes are available on their tribal websites or at the National Indian Law Library’s Tribal Law Gateway (http://www.narf.org/nill/triballaw/),
  • Engage in inter-jurisdictional conversations about the transfer petition and acceptance process. These conversations could happen between state and tribal child welfare and social services agencies, prosecutors, and judges.
  • Establish a tribal-state court judicial forum with ICWA transfer procedures being one focus of discussion and cooperation.
  • Develop an inter-jurisdictional agreement setting out the protocols and procedures for transfer and acceptance of ICWA cases.

ICWA’s transfer procedures are a unique effort by Congress to establish that whenever possible American Indian and Alaska Native tribes will have primacy in decision-making in Indian child custody matters involving their “most precious resource“-their children. Tribal courts nonetheless are required to follow tribal law requirements which may involve decision-making by other persons, agencies or entities within the tribe. In order to avoid misunderstanding and needless delays, state court judges need to look both ways in transfer situations--not only at the application of ICWA but to the relevant tribal law as well.

 

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