Jurisdiction

23.110 - When must a State court dismiss an action? Subject to 25 U.S.C. 1919 (Agreements between States and Indian Tribes) and 23.113 (emergency proceedings), the following limitations on a State court’s jurisdiction apply:

1. The court in any voluntary or involuntary child-custody proceeding involving an Indian child must determine the residence and domicile of the Indian child. If either the residence or domicile is on a reservation where the Tribe exercises exclusive jurisdiction over child-custody proceedings, the State court must expeditiously notify the Tribal court of the pending dismissal based on the Tribe’s exclusive jurisdiction, dismiss the State-court child-custody proceeding, and ensure that the Tribal court is sent all information regarding the Indian child-custody proceeding, including, but not limited to, the pleadings and any court record.
2. If the child is a ward of a Tribal court, the State court must expeditiously notify the Tribal court of the pending dismissal, dismiss the State-court child-custody proceeding, and ensure that the Tribal court is sent all information regarding the Indian child-custody proceeding, including, but not limited to, the pleadings and any court record.

F.1 Guidelines

With limited exceptions, ICWA provides for Tribal jurisdiction “exclusive as to any State” over child custody proceedings involving an Indian child who resides or is domiciled within the reservation of such Tribe.³⁹ ICWA also provides for exclusive Tribal jurisdiction over an Indian child who is a ward of a Tribal court, notwithstanding the residence or domicile of the child. If the child’s domicile⁴⁰ or residence is on an Indian reservation or the child is a ward of Tribal court, then the Tribe has exclusive jurisdiction over the proceeding, unless “such jurisdiction is otherwise vested in the State by existing Federal law.”⁴¹ To ensure the well-being of the child, State officials should continue to work on the case until the State court officially dismisses the case from State jurisdiction.⁴²

The mandatory dismissal provisions in 23.110 apply “subject to” 23.113 (emergency proceedings) so that the State may take action through an emergency proceeding when necessary to prevent imminent physical damage or harm to the child. Likewise, the mandatory dismissal provisions do not apply if the State and Tribe have an agreement regarding jurisdiction because, in some cases, Tribes choose to refrain from asserting jurisdiction. See section A.5 of these guidelines.

Contacting court prior to determining whether dismissal is necessary

In determining whether dismissal is necessary, the State court may need to contact the Tribal court and/or Tribal child-welfare agency to:

• Confirm the child’s status as a ward of that court; and
• Determine whether jurisdiction over child-custody proceedings for that Tribe is otherwise vested in the State by existing Federal law.43

If the State court does not have contact information for the Tribal court, the Tribe’s designated ICWA agent may provide that information. The BIA publishes, on an annual basis, a list of contacts designated by each Tribe for receipt of ICWA notices in the Federal Register and makes the list available at www.bia.gov. Each Tribe’s ICWA designated contact will have information on whether the Tribe exercises exclusive jurisdiction.

Coordination of dismissal and transfer

State and Tribal courts and State and Tribal child-welfare agencies are encouraged to work cooperatively to ensure that dismissal and transfer of information proceeds expeditiously and that the welfare of the Indian child is protected. The rule requires the court to transmit all information in its possession regarding the Indian child-custody proceeding to the Tribal court. Such information would include all the information within the court’s possession regarding the Indian child-custody proceeding, including the pleadings and any court record.⁴⁴ In order to best protect the welfare of the child, State agencies should also work to share information that is not contained in the State court’s records but that would assist the Tribe in understanding and meeting the Indian child’s needs.

Safety investigative services

The rule does not affect State authority to provide safety investigative services when a child is domiciled on reservation but located off reservation.

See also the definition of “reservation.”

39 25 U.S.C. 1911(a). 40 See definition of “domicile” 41 25 U.S.C. 1911(a); Certain courts have interpreted the ‘existing federal law’ clause as granting state courts in Public Law 280 states concurrent jurisdiction over cases in which jurisdiction would otherwise remain exclusively with the tribe. See, e.g., Doe v. Mann, 415 F.3d 1038(9th Cir. 2005). 42 See 25 CFR 23.110 at Appendix 6. 43 See 25 U.S.C. 1911(a). 44 See 25 CFR 23.110.

23.115 - How are petitions for transfer of a proceeding made?

1. Either parent, the Indian custodian, or the Indian child’s Tribe may request, at any time, orally on the record or in writing, that the State court transfer a foster-care or termination-of-parental-rights proceeding to the jurisdiction of the child’s Tribe.
2. The right to request a transfer is available at any stage in each foster-care or termination-of-parental-rights proceeding.

F.2 Guidelines

Section 1911(b) of ICWA provides for the transfer of any State court proceeding for the foster-care placement, or TPR to, an Indian child not domiciled or residing within the reservation of the Indian child’s Tribe. This provision and 23.115 recognize that Indian Tribes maintain concurrent jurisdiction over child welfare matters involving Tribal children, even off of the reservation.

Applicable proceedings

Provisions addressing transfer apply to both involuntary and voluntary foster-care and TPR proceedings. This includes TPR proceedings that may be handled concurrently with adoption proceedings.

Other proceedings

Parties may request transfer of preadoptive and adoptive placement proceedings, but the standards for addressing such motions are not dictated by ICWA or the regulations. Tribes possess inherent jurisdiction over domestic relations, including the welfare of child citizens of the Tribe, even beyond that authority confirmed in ICWA. Thus, it may be appropriate to transfer preadoptive and adoptive proceedings involving children residing outside of a reservation to Tribal jurisdiction in particular circumstances.⁴⁵

Availability at any stage

The rule provides that the right to request a transfer is available at any stage in each foster-care or TPR proceeding. Transfer to Tribal jurisdiction, even at a late stage of a proceeding, will not necessarily entail unwarranted disruption of an Indian child’s placement. The Tribe or parent may have reasons for not immediately moving to transfer the case (e.g., because of geographic considerations, maintaining State-court jurisdiction appears to hold out the most promise for reunification of the family).⁴⁶

45 See 81 FR 38821 for additional information on how Congress has repeatedly sought to strengthen Tribal courts. 46 See 81 FR 38823 for information on why the rule does not establish a deadline or time limit for requesting transfer.

23.116 - What happens after a petition for transfer is made?

Upon receipt of a transfer petition, the State court must ensure that the Tribal court is promptly notified in writing of the transfer petition. This notification may request a timely response regarding whether the Tribal court wishes to decline the transfer.

F.3 Guidelines

It is important for the State court to contact the Tribal court upon receipt of the transfer petition to alert the Tribal court (usually reachable by first contacting the Tribe’s designated ICWA agent) and provide it with the opportunity to determine whether it wishes to decline jurisdiction. It is recommended that, in addition to the required written notification, State court personnel contact the Tribe by phone as well.

23.117 - What are the criteria for ruling on transfer petitions?

Upon receipt of a transfer petition from an Indian child’s parent, Indian custodian, or Tribe, the State court must transfer the child-custody proceeding unless the court determines that transfer is not appropriate because one or more of the following criteria are met:

1. Either parent objects to such transfer;
2. The Tribal court declines the transfer; or
3. Good cause exists for denying the transfer.

F.4 Guidelines

A keystone of ICWA is its recognition of a Tribe’s exclusive or concurrent jurisdiction over child custody proceedings involving Indian children. When the State and Tribe have concurrent jurisdiction, ICWA establishes a presumption that a State must transfer jurisdiction to the Tribe upon request. The rule reflects ICWA section 1911(b)’s requirement that a child-custody proceeding be transferred to Tribal court upon petition of either parent or the Indian custodian or the Indian child’s Tribe, except in three circumstances: (1) where either parent objects; (2) where the Tribal court declines the transfer; or (3) where there is good cause for denying the transfer.

Either Parent Objects 

The rule mirrors the statute in respecting a parent’s objection to transfer of the proceeding to Tribal court. As Congress noted, “[e]ither parent is given the right to veto such transfer.”⁴⁷ However, if a parent’s parental rights have been terminated and this determination is final, they would no longer be considered a “parent” with a right under these rules to object. While, this criterion addresses the objection of either parent, nothing prohibits the State court from considering the objection of the guardian ad litem or child himself under the third criteria (good cause to deny transfer), where appropriate.

Tribe Declines

If the Tribal court explicitly states that it declines jurisdiction, the State court may deny a transfer motion. It is recommended that the State court obtain documentation of the Tribal court’s declination to include in the record.

Good Cause Exists

This exception is not defined in the statute, and in the Department’s experience, has in the past been used to deny transfer for reasons that frustrate the purposes of ICWA. The legislative history indicates that this provision is intended to permit a State court to apply a modified doctrine of forum non conveniens, in appropriate cases, to insure that the rights of the child as an Indian, the Indian parents or custodian, and the

Tribe are fully protected. State courts may exercise case-by-case discretion regarding the “good cause” finding, but this discretion should be limited and animated by the Federal policy to protect the rights of the Indian child, parents, and Tribe, which can often best be accomplished in Tribal court. Exceptions cannot be construed in a manner that would swallow the rule.

47 H.R. Rep. No. 95-1386, at 21.

23.118 - How is a determination of “good cause” to deny transfer made?

(a) If the State court believes, or any party asserts, that good cause to deny transfer exists, the reasons for that belief or assertion must be stated orally on the record or provided in writing on the record and to the parties to the child-custody proceeding.

(b) Any party to the child-custody proceeding must have the opportunity to provide the court with views regarding whether good cause to deny transfer exists.

(c) In determining whether good cause exists, the court must not consider:

(1) Whether the foster-care or termination-of-parental-rights proceeding is at an advanced stage if the Indian child’s parent, Indian custodian, or Tribe did not receive notice of the child-custody proceeding until an advanced stage;

(2) Whether there have been prior proceedings involving the child for which no petition to transfer was filed;

(3) Whether transfer could affect the placement of the child;

(4) The Indian child’s cultural connections with the Tribe or its reservation; or

(5) Socioeconomic conditions or any negative perception of Tribal or BIA social services or judicial systems.

(d) The basis for any State-court decision to deny transfer should be stated orally on the record or in a written order.

F.5 Regulations

While the statute and the rule provide State courts with the discretion to determine “good cause” based on the specific facts of a particular case, the rule does mandate certain procedural protections if a court is going to conduct a good cause analysis. It also identifies a limited number of considerations that should not be part of the good-cause analysis because there is evidence Congress did not wish them to be considered, they have been shown to frustrate the purposes of ICWA, or would otherwise work a fundamental unfairness. The regulation’s limitations on what may be considered in the “good cause” determination do not limit State judges from considering some exceptional circumstance as the basis of good cause. However, the “good cause” determination whether to deny transfer to Tribal court should address which court is best positioned to adjudicate the child-custody proceeding, not predictions about the outcome of that proceeding.

Standard of Evidence

Neither the statute nor the rule establishes a Federal standard of evidence for the determination of whether there is good cause to transfer a proceeding to Tribal court. There is, however, a strong trend in State courts to apply a clear and convincing standard of evidence.⁴⁸ The Department notes that the strong trend in State court decisions on this issue is compelling and recommends that State courts follow that trend.

Prohibited Considerations

Advanced stage if notice was not received until an advanced stage

The rule prohibits a finding of good cause based on the advanced stage of the proceeding, if the parent, Indian custodian, or Indian child’s Tribe did not receive notice of the proceeding until an advanced stage. This protects the rights of the parents and Tribe to seek transfer where ICWA’s notice provisions were not complied with, and thus will help to promote compliance with these provisions. It also ensures that parties are not unfairly advantaged or disadvantaged by noncompliance with the statute. Parents, custodians, and Tribes who were disadvantaged by noncompliance with ICWA’s notice provisions should still have a meaningful opportunity to seek transfer.

The rule also clarifies that “advanced stage” refers to the proceeding, rather than the case as a whole. Each individual proceeding will culminate in an order, so “advanced stage” is a measurement of the stage within each proceeding. This allows Tribes to wait until the TPR proceeding to request a transfer to Tribal court, because the parents, Indian custodian, and Tribe must receive notice of each proceeding. It is often at the TPR stage that factors that may have dissuaded a Tribe from taking an active role in the case (such as the State’s efforts to reunite a child with her nearby parent) change in ways that may warrant reconsidering transfer of the case.

Prior proceedings for which no petition to transfer was filed

As just discussed, the rule clarifies that “advanced stage” refers to the proceeding, rather than the case as a whole. ICWA clearly distinguishes between foster-care and TPR proceedings, and these proceedings have significantly different implications for the Indian child’s parents and Tribe. There may be compelling reasons to not seek transfer for a foster-care proceeding, but those reasons may not be present for a TPR proceeding.

Effect on placement of the child

The rule provides that the State court must not consider, in its decision as to whether there is good cause to deny transfer to the Tribal court, whether the Tribal court could change the child’s placement. This is not an appropriate basis for good cause because the State court cannot know or accurately predict which placement a Tribal court might consider or ultimately order. A transfer to Tribal court does not automatically mean a change in placement; the Tribal court will consider each case on and individualized basis and determine what is best for that child. Like State courts, Tribal courts and agencies seek to protect the welfare of the Indian child, and would consider whether the current placement best meets that goal.

Cultural connections to the Tribe or reservation

The regulations prohibit a finding of good cause based on the Indian child’s perceived cultural connections with the Tribe or reservation. Congress enacted ICWA in express recognition of the fact that State courts and agencies were generally ill-equipped to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.⁴⁹ As such, State courts must not evaluate the sufficiency of an Indian child’s cultural connections with a Tribe or reservation in evaluating a motion to transfer. Negative perceptions of Tribal or BIA social services or judicial systems. The regulations prohibit consideration of any perceived inadequacy of Tribal or BIA social services or judicial systems. This is consistent with ICWA’s strong recognition of the competency of Tribal fora to address child-custody matters involving Tribal children. It is also consistent with section 1911(d)’s requirement that States afford full faith and credit to public acts, records, and judicial proceedings of Tribes to the same extent as any other entity.

Socioeconomic conditions within the Tribe or reservation

The regulations prohibit consideration of the perceived socioeconomic conditions within a Tribe or reservation. Congress found that misplaced concerns about low incomes, substandard housing, and similar factors on reservations resulted in the unwarranted removal of Indian children from their families and Tribes. These factors can introduce bias into decision making and should not come into play in considering whether transfer is appropriate.

State courts retain the ability to determine “good cause” based on the specific facts of a particular case, so long as they do not base their good cause finding on one or more of these prohibited considerations. If a State court considers the distance of the parties from the Tribal court, it must also weigh any available accommodations that may address the potential hardships caused by the distance.

For additional information on the basis for the parameters for “good cause,” see 81 FR 38821-38822 (June 14, 2016).

48 See 81 FR 38827 (June 14, 2016) for additional information on States’ application of this standard of evidence. 49 25 U.S.C. 1901(5).

23.119 - What happens after a petition for transfer is granted?

1. If the Tribal court accepts the transfer, the State court should expeditiously provide the Tribal court with all records related to the proceeding, including, but not limited to, the pleadings and any court record.
2. The State court should work with the Tribal court to ensure that the transfer of the custody of the Indian child and of the proceeding is accomplished smoothly and in a way that minimizes the disruption of services to the family. 

F.6 Guidelines

Once the State court determines that it must transfer to Tribal court, the State court and Tribal court should communicate to agree to procedures for the transfer to ensure that the transfer of the proceeding minimizes disruptions to the child and to services provided to the family.

If the State court does not have contact information for the Tribal court, the court should contact the Tribe’s ICWA officer. If this occurs, State court personnel should work with the Tribal court and agency to transfer or provide copies of all records in the Indian child’s case file so that the Tribal court and agency may best meet the child’s needs.  State agencies should share records with Tribal agencies as they would other governmental jurisdictions, presumably at no charge.