ICWA Governs How Other Courts Except for Tribal Handles Matters Involving Indian Children
Video Transcribed: McGirt v Oklahoma, travel sovereignty, reservations, oh, my. I can understand where a lot of this could be confusing to people and you might still be wondering if you aren’t charged with a criminal offense how the Supreme Court ruling in McGirt may apply to you.
My name is Ryan Cannonie, I am the Tahlequah family attorney for Wirth Law Office in Cherokee County. I’ve found out this past week from a friend who’s one of the attorneys for one of the tribes is that we’ve heard in the legal community all about this agreement that the states and the tribes were going to be trying to make to allow for the state courts to handle matters involving native children or children eligible for membership in a tribe.
For those of you who haven’t seen my other videos, there’s a thing called the Indian Child Welfare Act. It’s federal and it’s state and it governs how, well, any other court except for tribal handles matters involving Indian children. This is DHS cases, adoptions, guardianships, anything that involves an Indian child, basically.
With the McGirt ruling, there was a lot of people talking about the fact that, well, maybe all the state courts don’t have the authority to deal with matters involving Indian children. People started breathing into paper bags.
Everything was on fire because they started asking, “What happens when we start having to vacate adoptions because the courts had no jurisdiction or termination of parental rights or are guardianships or are any of these types of things valid?” so the tribes and the state got together and there’s still some tribes working.
I believe the Cherokee tribe maybe hasn’t fully signed off on this yet, some other tribes haven’t, but some have, and so they started working on a system so that the state courts could retain jurisdiction involving Native American children and give it retroactive status, meaning that the cases prior will still be okay, still be valid.
Like I said, it’s not fully intact yet with all the tribes, but those that have signed it, basically, what it means is that if the state courts followed all aspects of the Indian Child Welfare Act, then the tribe is giving them jurisdiction over their Indian children on a reservation.
Now, there are some points to this I think are important to mention. The first is that the state court has to follow ICWA to the letter. Some places like Cherokee County does a pretty good job of it, so does Adair County, but there are certain counties who are a little more relaxed on how they follow ICWA, so this could impact your case, guardianship, adoption, a deprived case.
If you have children anywhere in that, not just if they were your children and are now in a guardianship or where are your children and your rights were terminated, but let’s say you are a guardian and you want to make sure that there’s nothing that can challenge your guardianship or you’ve adopted some children, you’re in that two-year window where you’re worried about it being challenged, you probably need to go talk to an attorney to make sure all aspects of ICWA were complied with and you need to get an attorney that actually understands how the Indian Child Welfare Act works. There’s several out there that are very good.
One thing that we understand here at worthwhile is how ICWA works. I worked in ICWA cases for over seven years, so it’s something that not all attorneys are familiar with, but there’s a good amount, especially in Eastern Oklahoma that are, so if you find yourself in a situation where you’re concerned if ICWA was followed and you want to either check the validity of whatever happened or challenge it, definitely seek out an attorney and you can come to us.
There’s a lot we can talk about and maybe be able to help you with. The other aspect on this is that while the tribes are making agreements with the state, not all tribes are going to be making this agreement.
Whenever I was a prosecutor in a county north of here, there was a case involving a child who was, and I forgot the exact tribe, they were Sioux, but they were from South Dakota, I believe, so the tribe didn’t have any contact, really, with Oklahoma, but if that situation happened today, then there’s some disagreement right now as to whether or not this agreement would cover that tribe because even though the child’s found on a reservation, that tribe is not party to an agreement. There’s others that say, “Well, the tribe has the authority to give jurisdiction to the state based on their reservation status,” so there’s still a lot about this being worked out.
Another aspect I’ll get into in a second video is some questions about can the tribes do this unilaterally, so if you have questions and concerns and you want to talk to someone who knows as much as you can right now about how McGirt is going to affect Oklahoma family law, then please, give us a call.