43-1504. Custody proceeding; jurisdiction of tribe; transfer of proceedings; rights of tribe; tribal proceedings; effect.

(1) An Indian tribe shall have jurisdiction exclusive as to this state over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except when such jurisdiction is otherwise vested in the state by existing federal law. When an Indian child is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child.

(2) In any state court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the primary tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe, except that such transfer shall be subject to declination by the tribal court of the primary tribe.

(3) In any state court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe or tribes shall have a right to intervene at any point in the proceeding regardless of whether the intervening party is represented by legal counsel. The Indian child's tribe or tribes and their counsel are not required to associate with local counsel or pay a fee to appear pro hac vice in a child custody proceeding under the Nebraska Indian Child Welfare Act. Representatives from the Indian child's tribe or tribes have the right to fully participate in every court proceeding held under the act.

(4) If the Indian child is eligible for membership or enrolled in multiple Indian tribes and more than one Indian tribe intervenes in a state court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian child's primary tribe shall be determined in the following manner:

(a) The applicable Indian tribes shall enter into a unanimous agreement designating which Indian tribe is the Indian child's primary tribe for the underlying state court proceeding within thirty days after intervention by one or more additional Indian tribes, after consultation, if practicable, with the parents of the Indian child and with the Indian child if he or she is twelve years of age or older; or

(b) If unanimous agreement is not possible within the thirty-day period, the state court in which the proceeding is pending shall determine the Indian child's primary tribe based upon the amount and significance of the contacts between each Indian tribe and the Indian child.

(5) The State of Nebraska shall give full faith and credit to the public acts, records, and judicial proceedings of any Indian tribe applicable to Indian child custody proceedings to the same extent that the state gives full faith and credit to the public acts, records, and judicial proceedings of any other entity.

Source

Annotations

1. Good cause

2. Miscellaneous

1. Good cause

A determination that the proceeding is at an advanced stage is no longer a valid basis for finding good cause to deny a motion to transfer jurisdiction to a tribal court. In re Interest of Tavian B., 292 Neb. 804, 874 N.W.2d 456 (2016).

In determining whether a proceeding is at an advanced stage for purposes of the good cause analysis, a court must consider foster care placement and termination of parental rights to be separate proceedings. In re Interest of Zylena R. & Adrionna R., 284 Neb. 834, 825 N.W.2d 173 (2012).

The party opposing a transfer of jurisdiction to the tribal courts under the Indian Child Welfare Act has the burden of establishing that good cause not to transfer the matter exists. In re Interest of Melaya F. & Melysse F., 19 Neb. App. 235, 810 N.W.2d 429 (2011); In re Interest of Brittany C. et al., 13 Neb. App. 411, 693 N.W.2d 592 (2005).

Under subsection (2) of this section, a motion to transfer a case to a tribal court was properly denied for good cause where the proceeding was at an advanced stage and the fact that cases involving some of the children were to remain in juvenile court was essentially a forum non conveniens matter. In re Interest of Leslie S. et al., 17 Neb. App. 828, 770 N.W.2d 678 (2009).

2. Miscellaneous

The applicability of the Nebraska Indian Child Welfare Act to an adoption proceeding turns not on the Indian status of the person who invoked the acts but on whether an "Indian child" is involved. In re Adoption of Micah H., 295 Neb. 213, 887 N.W.2d 859 (2016).

The lower standard of proof under subsection (3) of section 43-279.01 for the termination of parental rights to non-Indian children, as opposed to the higher standard of proof under the Nebraska Indian Child Welfare Act does not violate the equal protection rights of parents of non-Indian children. In re Interest of Phoenix L. et al., 270 Neb. 870, 708 N.W.2d 786 (2006).

A motion to transfer to tribal court was not made at an advanced stage of the termination of parental rights proceedings where a previous motion for termination was dismissed for failure to include the Nebraska Indian Child Welfare Act allegations; thus, the current motion for termination constituted a separate and distinct proceeding, and the motion to transfer was filed very shortly after the filing of the current motion for termination. In re Interest of Jayden D. & Dayten J., 21 Neb. App. 666, 842 N.W.2d 199 (2014).

A denial of a transfer to tribal court under the Indian Child Welfare Act is reviewed for an abuse of discretion. In re Interest of Melaya F. & Melysse F., 19 Neb. App. 235, 810 N.W.2d 429 (2011); In re Interest of Brittany C. et al., 13 Neb. App. 411, 693 N.W.2d 592 (2005).

That a state court may take jurisdiction under the Indian Child Welfare Act does not necessarily mean that it should do so, because the court should consider the rights of the child, the rights of the tribe, and the conflict of law principles, and should balance the interests of the state and the tribe. In re Interest of Melaya F. & Melysse F., 19 Neb. App. 235, 810 N.W.2d 429 (2011); In re Interest of Brittany C. et al., 13 Neb. App. 411, 693 N.W.2d 592 (2005).

Pursuant to subsection (2) of this section, if the tribe or either parent of an Indian child petitions for transfer of the proceeding to the tribal court, the state court cannot proceed with the placement of the Indian child living outside a reservation without first determining whether jurisdiction of the matter should be transferred to the tribe. In re Interest of Lawrence H., 16 Neb. App. 246, 743 N.W.2d 91 (2007).

Absent conclusive evidence that an Indian child is a ward of a tribal court or residing within the reservation of a tribe, a juvenile court may properly exercise jurisdiction over an Indian child under this section. In re Interest of Dakota L. et al., 14 Neb. App. 559, 712 N.W.2d 583 (2006).

The denial of a motion to transfer jurisdiction of a juvenile court proceeding to tribal court is an order made in a special proceeding that affects a substantial right and is a final, appealable order. In re Interest of Brittany C. et al., 13 Neb. App. 411, 693 N.W.2d 592 (2005).