SUMMARY: The motions to transfer to tribal court were properly denied for good cause because the child were not Indian Children under ICWA at the time of the hearing and because the tribal social service agencies did not have appropriate and necessary services available for the children if transfer were granted.
The children, Bianca H., DOB 2/20/03, and Eternity H., DOB 12/6/04, are the children of Victoria and Antonio H. They were adjudicated under 43-247(3)(a) in 2006 and a subsequent motion to terminated was then filed. The Rosebud Sioux Tribe then made a motion to intervene. In January and February 2008, each parent filed separate motions to transfer the case to the Rosebud Sioux Tribal Court. At the hearing on the motions to transfer on April 17, 2008, an ICWA specialist from the Rosebud Sioux Tribe testified that a motion to intervene was filed by the tribe after the tribe decided to change its eligibility criteria with the result that the children in this case would then become eligible for enrollment. However, at the time of the hearing, the tribe had not yet passed this ordinance. The ICWA specialist further testified that she reviewed the case with the proper social service agency on the Rosebud Sioux reservation and determined that the agency would not accept the children’s case because it did not have available services and foster homes for them. On June 11, 2008, the juvenile court denied transfer of the case to tribal court.
The Nebraska Court of Appeals affirmed the juvenile court’s denial of transfer. Under 43-1504(2), transfer of a proceeding of an Indian Child to a tribal court shall occur upon petition of the parent or tribe unless good cause to the contrary is shown or the tribal court declines transfer. The Court of Appeals held that because the old eligibility criteria was still in place at the time of the hearing on the motions to transfer, the children were not eligible for enrollment in the Rosebud Sioux tribe and therefore not defined as Indian Children under ICWA (43-1503(4): an Indian child as “….(a) a member of an Indian tribe or (b) is eligible for membership….”). It further held that even if the children were defined as Indian Children under ICWA, there was good cause not to transfer because the Indian social service agency did not have the proper services and placement for the children.