TRIBAL ALERT!
Transfer of ICWA Case to Tribal Court Upheld By Court of Appeal
September 12, 2007
On August 28, 2007, the Court of Appeal, First Appellate District, issued a decision in In re M.M., a dependency case. The appeal challenged a state court order transferring the dependency case to the Karuk Tribal Court pursuant to the Indian Child Welfare Act. The central issue on appeal was “whether the transfer of a juvenile dependency case from state court to tribal court pursuant to 25 USC §1911(b) deprived the California courts of jurisdiction thereby precluding an appeal of the transfer order?” The Appeals Court ruled it does.
In a very well-reasoned and pro-sovereignty opinion, the Court of Appeal upheld an order transferring a state dependency case to tribal court. California Indian Legal Services (CILS) represented the Karuk Tribe in the lower court and successfully obtained a transfer of the case to the Karuk Tribal Court. Subsequently, an appeal was filed by the minor challenging the transfer and other orders of the state court. CILS again represented the Karuk Tribe and defended the transfer order. In so doing, CILS convinced the appellate court that it had no jurisdiction over the case to enforce an order against the tribal court to re-transfer the case back to state court. Directing Attorney Sam Hough, with the assistance of Senior Attorney Dorothy Alther and Staff Attorney Michele Fahley, successfully briefed and argued the case before the Appeals Court.
The essence of the Court’s opinion is that the transfer of the minor’s case to tribal court, a “wholly separate sovereign,” deprived the California courts of jurisdiction over the case. “Simply put, the juvenile court may not act in a case over which it no longer has jurisdiction, and, as we shall explain, we have no power to command the Karuk Tribal Court to return the case to us.”
The decision in this case is an important step in recognizing and supporting tribal sovereignty and tribal court jurisdiction, particularly as more California tribes develop Children’s Courts and move state dependency cases to tribal forums.
The case has a long factual history and a copy of the opinion may be viewed at: http://www.courtinfo.ca.gov/opinions/documents/A115771.DOC
