B. Jurisdiction

Whether the family court or tribal court has jurisdiction over a case involving an Indian child depends on where the child resides, whether transfer to the tribal court is requested, and whether an exception to the mandatory transfer provision applies. If a case involves an Indian child, however, the state court proceedings must comply with ICWA, whether or not the tribe intervenes or the case is transferred to a tribal court.

1. Exclusive Jurisdiction on the Reservation

If the child’s residence or domicile is on the reservation, or if the child has been made a ward of the tribal court, the tribal court has exclusive jurisdiction, except when jurisdiction is otherwise vested in the state. 25 U.S.C. § 1911(a).

2.    Emergency Exception

When an Indian child who resides on a reservation is temporarily off the reservation and emergency removal or placement is necessary “to prevent imminent physical damage or harm to the child,” the state child welfare agency may act despite the fact that the tribal court otherwise has exclusive jurisdiction. 25 U.S.C. § 1922. In such circumstances, the state child welfare agency must act promptly to: (1) end the removal or placement as soon as it is no longer necessary to prevent imminent physical damage or harm to the child; and (2) move to transfer the case to the jurisdiction of the tribe or return the child to the parents, as appropriate.

The updated Guidelines clarify that the Guidelines should be followed for emergency removal or placement regardless of whether the Indian child is a resident of or domiciled on a reservation. The new section B of the Guidelines also explicitly states the standard for determining whether emergency removal or emergency placement is appropriate and provides examples.[43]

3.    Concurrent Jurisdiction Off the Reservation

If the child’s residence or domicile is not on the reservation, the tribal and state court have concurrent jurisdiction. 25 U.S.C. § 1911(b). Even in this circumstance, however, there is a presumption of tribal jurisdiction in cases involving an Indian child. Mississippi, 490 U.S. 30 (1989).

4.    Mandatory Transfer to Tribal Court

On motion by a child’s parent, Indian custodian[44] or tribe, transfer of a state court child custody case involving an Indian child to the jurisdiction of the child’s tribe is mandatory, unless either parent objects, good cause is shown or the tribe declines to accept the case. 25 U.S.C. § 1911(b).

5.    Parental Veto of Transfer

A parent’s objection (including a non-Indian parent's veto) is an absolute bar to transfer. 25 U.S.C. § 1911(b).

6.    Good Cause

Under the new Guidelines, if any party asserts, that good cause not to transfer exists, the reasons for such belief or assertion must be stated on the record or in writing and made available to the parties who are petitioning for transfer. Any party to the proceeding must have the opportunity to provide the court with views regarding whether good cause to deny transfer exists. In determining whether good cause exists, the court may not consider:

•   Whether the case is at an advanced stage;

•   Whether transfer would result in a change in the placement of the child;

•   The Indian child’s contacts with the tribe or reservation;

•   Socio-economic conditions or any perceived inadequacy of tribal or Bureau of Indian Affairs social services or judicial systems; or

•   The tribal court’s prospective placement for the Indian child.[45]

Whenever a parent or tribe seeks to transfer the case it is presumptively in the best interest of the Indian child, consistent with the Act, to transfer the case to the jurisdiction of the Indian tribe. The burden of proving good cause is on the party opposing transfer.[46] The case law is not consistent in construing how “good cause” should be analyzed. The only Texas case addressing what constitutes “good cause” rejects the use of a “best interest” analysis for this purpose because doing so defeats the purpose of ICWA by allowing Anglo cultural bias into the analysis and because best interest is relevant to placement, not to jurisdiction, per Yavapai-Apache Tribe v. Mejia, 906 S.W.2d at 169. If transfer is granted, the Guidelines require that the state court provide all records of the proceedings to the tribal court expeditiously.[47]