Statutes | WOTCL Title V Chapter 5 ยง 5.106 | 2020
A. Transfer to State or Other Tribal Court. In any proceeding before the Childrens Court, the Court may transfer the proceedings to an appropriate state Court, or another Tribal Court where the state or the other Tribal Court has a significant interest in the child, and the transfer would be in the best interest of the child and Tribe.
B. Transfer from Other Courts. Except as provided in Section V(D)(1), the Childrens Court may accept or decline, under the procedures set forth in this Statute, transfers of cases that may fall under the purview of this Statute from federal, state or other Tribal courts.
D. Procedures for Intervention and Transfer from State Courts.
1. Receipt of Notice: The Tribal agency for service of notice of state court child custody proceedings, as required by the Indian Child Welfare Act, shall be the Tribal Prosecutor, and the appropriate federal official shall be so notified for the purpose of Federal Register publication.
2. Intervention: If the notice involves a Tribal child, the Tribal Prosecutor shall forthwith file a notice of intervention, or a motion to intervene if necessary, with the state court.
3. Investigation and Pre-Transfer Report: The Department shall conduct an investigation and provide a Pre-transfer report to the Child Welfare Commission and Prosecutor. The Commission shall provide its written recommendation with regard to transfer to the Department which will be placed in the official Department case file and be considered part of the Department record of the case.
4. Decision to Transfer: The Child Welfare Commission may make recommendations to the Tribal Prosecutor on whether the Tribe should petition for a transfer of proceedings from the state court, or not. The Child Welfare Commissions recommendation shall be considered, but is not binding on the independent decision making process of the Tribal Prosecutor, and it is within the discretion of the prosecutor whether to present the Commission&rsquos written recommendations to the Court. The Child Welfare Commission in their recommendation, and Prosecutor in deciding whether to file a petition to transfer, shall consider these factors, and the petition shall include a statement of the evidence to be presented with regard to each of these criteria. The Court shall weigh these criteria in deciding whether to grant a transfer petition.
a. The best interest of the child
b. The best interest of the Tribe
c. Availability of services for the children and their family and
d. The prospects for permanent placement for the children.
5. Petition for Transfer: The Tribal Prosecutor shall make the determination on whether to file a request for transfer in state court. Upon receipt of the state courts granting of the transfer request, the Tribal Prosecutor shall file a request to accept the transfer in the Tribal Court.
6. Acceptance of Transfer: The Childrens Court has discretion whether to accept or deny the transfer of cases arising outside of the exterior boundaries of the reservation based on the criteria in subsection 4 above. The decision to accept or deny transfer shall include findings of fact based on the evidence presented for each of the four criteria.
7. Hearing/s:
a. The Tribal Court shall hold a hearing within fourteen (14) days of receipt of a petition to transfer from the Tribal Prosecutor.
b. Upon the receipt of the transfer of jurisdiction from state court, the Tribal Court shall hold appropriate hearings in accordance with this Statute.
E. Prior State Court Orders.
1. State Court Orders: State orders involving children over whom the Childrens Court could take jurisdiction pursuant to this Statute may be recognized by the Childrens Court only after the Children&rsquos Court finds:
a. The state court had jurisdiction over the child and subject matter
b. The provisions of the Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963, were properly followed
c. The order was not obtained by fraud, duress, or coercion
d. The order was obtained after fair notice and a fair hearing
e. The state court proceeding is not repugnant to the public policy of the Tribe.
f. The order is final under the laws and procedures of the State court.
2. Court Orders of other Tribal Courts: Court orders of other Tribal courts involving children over whom the Childrens Court may take jurisdiction shall be recognized by the Court if the Court has determined:
a. That the other Tribal Court exercised proper personal and subject matter jurisdiction over the parties and
b. Due process was accorded to all interested parties participating in the other Tribal Court proceeding.
(Source: WOS 2012-010, August 5, 2012, Section VI)