On Behalf of the Parent’s –
The ICWA - Transferring Proceedings
to Tribal Court and Petitioning to
Invalidate ICWA Proceedings
The Indian Child Welfare Act –
Transferring to Tribal Court
§1911. Indian tribe jurisdiction over Indian
child custody proceedings
The ICWA

The Indian Child Welfare Act enacted in 1978
“was the product of rising concern . . . over the
consequences for Indian children, Indian
families, and Indian tribes of abusive child
welfare practices that resulted in the
separation of large numbers of Indian children
from their families and tribes through adoption
or foster care placement, usually in non-Indian
homes.” Mississippi Band of Choctaw Indians
v. Holyfield, 490 U.S. 30, 32 (1988).
Testimony in 1978
25 to 35% of all Indian children
separated from their families and placed
in adoptive homes, foster care or
institutions
 The adoption rate of Indian children 8
times that of non-Indian children

Congress intended the passage of the
ICWA to preserves tribal sovereignty
with respect to protecting and preserving
Indian families and protecting the best
interests of Indian children
The Holyfield Message 
The ICWA values the tribe’s role in child
custody proceedings impacting tribal children
and protects the Tribe’s fundamental interest
in retaining tribal children within the Tribe

§1911 is the heart of the ICWA – “seeking to
protect the rights of the Indian child as an
Indian and the rights of the Indian community
and tribe in retaining its children in its society”
House Reports, at 23, U.S. Code Cong. &
Admin.News 1978, at 7546.
§1911. Indian tribe jurisdiction over
Indian child custody proceedings
1911(a) Exclusive jurisdiction

Involving an Indian child who
resides or is domiciled within the
reservation of such tribe

Where an Indian child is a ward
of a tribal court
1911(b) Transfer of proceedings;
declination by tribal court
 In any state court proceeding
 Foster care placement or
termination of parental rights
 To an Indian child not domiciled
or living on the reservation
 In the absence of good cause to
the contrary, shall transfer to
tribal court
 Absent objection by either parent
 Upon petition by parent or Indian
child’s tribe
 Subject to declination by the
tribal court
Discussing transfers to tribal court
•Permanency
•Tribal values regarding permanency
•Customary adoptions
•right to object
“veto power”
•right to bring transfer motion
•Timelines
•Case planning
•resources
Parent’s
attorney
•Distance
•Placement
•Services
•Witnesses
•Representation
•Social workers
•Guardian ad litems
Barriers to Transfer to Tribal Court

Tribal Court does not accept the case

Objection by other parent

“good cause to the contrary”
Fact specific – case-by-case determination
The court may find good cause to
deny transfer if . . .
Indian child’s tribe does not have a tribal
court
 Filed at an advanced stage
 Undue hardship to the parties


“Socio-economic conditions
and the perceived adequacy
of tribal or Bureau of Indian
Affairs social services or
judicial systems may not be
considered in a
determination that good
cause exists”
See Bureau of Indian Affairs
Guidelines, 44 Fed. Reg.
67,584,67,595 at C.#(b)(i)(iv), (c), (d)(Nov. 26, 1979)
Inherent Sovereignty of Tribes

Any consideration of Tribal Court
jurisdiction must consider inherent
sovereignty of Indian tribes

Indian Tribes do not receive the authority
to govern and protect their members
through any act of Congress nor do they
receive if through any State or Federal
Court decision
A
Tribe’s right to govern and
protect its members is one
of its most fundamental rights
Practical considerations for Transfers to Tribal Court –
‘the Minnesota Model’
A
“transfer of jurisdiction over Indian child
custody matters to tribal authorities is
mandated by the Indian child Welfare Act
whenever possible.” In re the Matter of the
Welfare of B.W., 454 N.W.2d 437, 446 (Minn.
Ct. App. 1990).
 Minnesota
Rules of Juvenile Protection
Procedure, Rule 48. Transfer to Child’s
Tribe
Minnesota Transfer Rules

Rule 48.01. Transfer of Juvenile
Protection Matter to the Tribe

Subd. 1 Motion to Request to Transfer,
Indian child’s parent, Indian custodian, tribe
(a) written
 (b) on-the-record, oral


Subd. 2, Service and Filing Requirements for Motion,
Request, or Objection to Transfer Matter to Tribe

Subd. 3, Transfer Required Absent Objection by
Parent or Good Cause Findings –

THE ORDER TRANSFERRING THE JUVENILE
PROTECTION MATTER TO THE INDIAN CHILD’S TRIBE
SHALL ORDER JURISDICTION OF THE MATTER
RETAINED UNTIL THE INDIAN CHILD’S TRIBE
EXERCISES JURISDICTION OVER THE MATTER
Subd. 4, Objection to Transfer by Parent
 Subd. 5, Request to Deny Transfer by
Child or Party Who is Not a Parent
 Subd. 6, Hearing on Request to Deny
Transfer to Tribal Court
 Subd. 7, Retention of District Court
Jurisdiction until Notice from the Indian
Child’s Tribe

Rule 48.02 Communication Between District Court and
Tribal Court Judges
to . . .
(1) inquire whether the tribal court will accept the
transfer
(2) inquire of the child’s tribe what district court
orders should be made regarding the child’s
safe transition to the jurisdiction of the Indian
child’s tribe
How . . .


In writing, by telephone or electronic means
Parties may be allowed to participate including
a hearing or telephone
 A record shall be made of communication –
Court shall promptly notify parties did not
participate and grant access to the record
 Communication between courts on
administrative matters may occur without
informing the parties and a record need not be
made

Rule 48.03, Upon receiving an order
transferring a juvenile protection matter to
tribal court, the court administrator shall file the
order and serve it on all parties . . .

The court administrator shall forward a
certified copy of the complete court file by U.S.
Mail, courier, hand-delivery, or any other
means to ensure timely receipt of the file by
the tribal court.
“Whatever feelings we might have as to where the
twins should live; however, it is not for us to
decide that question. . . Rather, we must defer to
the experience, wisdom, and compassion of the
[Choctaw] tribal courts to fashion an appropriate
remedy.”
Mississippi Band of Choctaw Indians v. Holyfield, 490
U.S. 30, 32 (1988).
Petitions to Invalidate

§1914.Petition to court of competent
jurisdiction to invalidate action upon
showing of certain violations

Any Indian child who is the subject of any
action for foster care placement or termination
of parental rights under state law, any parent
or Indian custodian from whose custody such
child was removed, and the Indian child’s tribe
may petition any court of competent
jurisdiction to invalidate such action upon a
showing that such action violated any
provisions of sections 1911, 1912 and 1913

§1911, Indian tribe jurisdiction over Indian
child custody proceedings

§1912, pending court proceedings






(a) notice
(b) appointment of counsel
(c) examination of reports
(d) active efforts
(e) foster care, qualified expert witness
(f) termination of parental rights, qualified expert
witness, beyond a reasonable doubt

§1913, Parental rights; voluntary
termination
Consent in writing and before a judge
 10 days after birth
 Withdrawal of consent anytime prior to final
decree or termination or adoption


“Had the mandates of the ICWA been followed
in [1986], of course, much potential anguish
might have been avoided, and in any case the
law cannot be applied so as automatically to
“reward those who obtain custody, whether
lawfully or otherwise, and maintain during any
ensuing (and protracted) litigation.” Mississippi
Band of Choctaw Indians v. Holyfield, 490 U.S.
30, 54 (1988).