| Achieving Permanency
Through Tribal-State Judicial Cooperation
Donna J. Goldsmith, Esq., Chair, NCJFCJ ICWA/ Tribal
Courts Committee
Hon. Korey Wahwassuck, Chief Judge, Leech Lake Tribal
Court and Vice Chair, NCJFCJ ICWA Tribal Courts
Committee1
|
Article Federal and state laws
require permanency for dependent children if they cannot safely
return to their families. Cases involving Indian children that
are governed by the Indian Child Welfare Act (ICWA) require
judges to weigh additional considerations that enrich both the
permanency process—and outcome—for that child. Sections 1911,
1912 and 1915 of ICWA ensure full tribal participation
throughout the entirety of the case. Section 1911(a), expressly
recognizes that when an Indian child resides or is domiciled
within his reservation or is a ward of the tribal court, the
child’s tribe has exclusive jurisdiction over child protection
matters relating to that child.
Section 1911(b) mandates that if an Indian child is not within
the exclusive jurisdiction of his tribe, the child’s tribe has
presumptive but concurrent jurisdiction over child protection
matters affecting that child.2 Section 1911(b) requires the state
court to transfer the case to tribal court unless the child’s
parent objects to the transfer, the tribal court declines to
accept the transfer or there is other good cause not to transfer
the case. Sections 1911 and 1912 guarantee that the tribe
receives proper notice of the proceeding and full information
about the circumstances requiring state intervention and is
allowed to participate meaningfully throughout the state
proceeding if the tribe does not exercise jurisdiction over the
case.
Collectively, the act’s provisions reflect the importance of
permanently ensuring the child’s connections to his tribe and
culture. This priority is reflected most clearly in section
1915, which establishes preferences for foster and adoptive
placement of an Indian child and places a high priority on
foster care and adoptive placement of the child with extended
family or, where family is not available, in an Indian home that
reflects the child’s culture.
When child protection systems properly adhere to both the spirit
and letter of ICWA, they protect and encourage the tribe’s
participation and greatly enhance the decision-making on behalf
of the child. Tribal participation, even at late stages of the
proceeding, improves the likelihood that the permanency decision
will reflect the child’s needs and ultimately enhance the
child’s chance of becoming a healthy, contributing adult member
of his community.
Unfortunately, there is often litigation over tribal
jurisdiction under section 1911(b). As the case moves toward
permanency, state child welfare agencies increasingly resist
transferring the case to tribal court. Those within the state
system who have been working with the child and family do not
want to relinquish decision-making to a court whose procedures
and norms might not be readily available, apparent or understood
by outsiders, even though state protection systems need to rely
upon their tribal counterparts in order to protect the best
interests of the child (and to meet the requirements of federal
law). State judges may want to retain jurisdiction and resist
tribal assistance because they do not fully appreciate the
impact that loss of culture will have on the health and
well-being of that child. Protracted litigation, however, is
rarely in the best interest of the child.
Two state courts in Minnesota have jointly developed a
cooperative cross-jurisdictional model with the Leech Lake
Tribal Court that could, if implemented in the scenario
described above, eliminate these tensions and result in a
decision that bypasses the need to decide which court really
sits in the best position to make the final call on behalf of
the child. Joint tribal-state decision-making maximizes use of
all relevant resources (a must these days); allows both the
state and tribal courts to be as fully informed as possible
prior to making any decision that will affect the child’s
future; and encourages decision-making that will likely better
reflect all of the child’s needs.
In 2006, the Leech Lake Band of Ojibwe Tribal Court teamed up
with the 9th Judicial District Court-Cass County to form a
unique problem-solving court that was the first of its kind in
the nation. The Leech Lake-Cass County Wellness Court is a
post-conviction, post-sentencing adult DWI court founded on the
ten principles of drug courts and handles the cases of both
tribal members and non-Indians. This Leech Lake-Cass County
Wellness Court was made possible by a groundbreaking joint
powers agreement which allows the two jurisdictions to achieve
their mutual goals of improving access to justice, administering
justice for effective results and fostering public trust,
accountability and impartiality. The success of this first joint
effort was duplicated in 2008 when the judges of the 9th
Judicial District Court-Itasca County signed an identical
agreement with the Leech Lake Tribal Court. Under this
agreement, the Leech Lake Tribal Court judge takes the bench in
state district court along side the state judge to preside over
Itasca County Wellness Court hearings involving adult controlled
substance cases. While relationships between the Leech Lake Band
and surrounding counties have historically been strained, the
joint work of the courts is breaking down cultural barriers and
resulting in more effective administration of justice in
northern Minnesota.
Dependency courts could use a similar co-jurisdictional approach
for ICWA cases. While it might not be feasible for all courts to
adopt the precise model described above, state and tribal judges
can develop their own collaborative model to maximize the use of
resources and expertise of both jurisdictions with an eye toward
protecting the best interests of Indian children. Whether
actually sitting together on the bench, or communicating by
phone or email, there really are no insurmountable barriers that
prevent state and tribal judges from working together, within
the bounds of the judicial canons, to ensure that they are
making the best decision possible to protect all of the Indian
child’s needs.
For further information, please feel free to contact Chief Judge
Korey Wahwassuck (218-335-4446) and Judge John P. Smith, 9th
Judicial District Court-Cass County, MN (218-547-7200). |
