Federal Indian Law A Historical by xumiaomaio


									Best Interest of the Child
  Conflicts of Interest
     In Tribal Court

            BIA Providers Conference
           November, 2007

                    Prepared by Lisa Jaeger
              Tribal Government Specialist
                 Tanana Chiefs Conference
                  Fairbanks 1-800-478-6822
Make decisions based on the best interest of the child
             Tribal Version of ICWA

What would be in it?
    Purpose, Authority, and

   Definitions:
     • Best Interest of the Child
     • Child Custody Proceeding
     • Child in Need of Aid

   Procedures for child protection cases
        Best Interest of the Child
In all cases involving children, the Itsa Tribal Court shall
hear all the facts and evidence brought before it and shall
consider the rights of all parties in the case, however,
those of the child shall be most important. The best
interest of the child shall be more important than the rights
of any other person or entity.

 In determining what is in the best interest of the child, the
Court shall consider the following factors:

1. The child's wishes if he or she is old enough and
understands what the proceedings mean; and

2. The love and affection existing between the involved
adults and the child; and
3.   The needs of the child, including educational needs,
     physical and medical needs, emotional needs, mental
     needs, religious needs, cultural needs, and any other
     special needs of the child; and

4.   The stability of the home environment likely to be offered
     by the involved adults; and

5.   Whether the involved adults are likely to encourage a
     loving relationship between the child and the other
     persons with whom the child has emotional ties; and

6.   Any evidence of violence determined by a criminal
     background check and/or by testimony of reliable
     sources, domestic violence, child abuse or child neglect
     in the involved adult's household(s); and
7. Any evidence of substance abuse by the involved adults or
   someone living with them that would or does directly affect
   the emotional or physical well being of the child; and

8. The locations of persons to whom the child has emotional
   ties, whether the child is enrolled in school near one of
   those persons and the desirability of the child remaining at
   that school; and

9. The advantages of keeping the child in the community
   where the child resides; and

10.Any other things the Court feels are relevant to the best
   interest of the child.
         Child Placement Preferences
   The following placement preferences shall be applied in all cases
   where a child is placed out of the home, unless the Court finds
   that it would be in the child's best interest to vary the order of
   preference or place the child not according to these preferences:

1. A member of the child's extended family who resides closest to
   or in the city or village in which the child resides.

2. A member of the child's extended family who resides elsewhere.

3. A member of the Itsa Tribe.

4. A foster home, licensed, approved or specified by the Itsa Tribe.

5. A member of another tribe with whom the child is culturally

6. A resident of Itsa.
                   Conflict of Interest
What is it???

When tribal judges do not make decisions in the best interest
  of the child?

When tribal judges are closely related to the parties in the

When tribal judges may personally benefit in some way from
  the outcome of the case?

When judges cannot be fair for any reason?

Why do tribes need to consider this in their tribal court?
             Defining Conflict of Interest
Different states and federal courts define it differently.

In John v Baker (1999), the Alaska Supreme Court said:

“…superior courts should strive to respect the cultural
  differences that influence tribal jurisprudence, as well as to
  recognize the practical limits experienced by smaller court

“Tribal law is „different‟ but not „inferior‟ ” [just because tribal
   law is different than state law, and state superior courts
   may not agree with tribal court decisions, “it does not
   allow state courts to refuse to enforce a tribal order that „is
   against the public policy of the United States or the forum
   state in which recognition is sought.‟ ”

Tribes can define what is a conflict of interest for them.
                  Tribal Definition
Section 7. Conflict of Interest for Itsa Village Tribal
  Court Judges

  Judges of the Itsa Village Tribal Court shall
  remove themselves from hearing a case
  involving first degree relatives including parents,
  children, spouses or significant others, siblings,
  in-laws, and anyone living in their same home,
  except that in emergency situations where
  temporary decisions are made, Judges may be
  so related. Judges shall remove themselves from
  any cases in which they have any significant,
  direct, personal financial or other interest.
  Judges shall remove themselves from hearing a
  case in which they cannot be fair for any reason.
   Recusal (stepping off a case)

• In what situations should judges
  remove themselves from cases?

• Which relatives are too closely related
  for judges to be fair?

• When should a tribal court clerk
  remove themselves from a case?
      Removing, Recalling Judges

A good judicial code will have
 provisions for removing and
 recalling judges as well as
 • Removal from a case
 • Removal from their judgeship by tribal
   council or by appellate court
 • Recall by tribal members
 • Forfeiture for impropriety, convicted of
     Consequences for not complying with
             conflict of interest

   Parties do not get a fair hearing

   A child may be endangered because of a
    prejudiced judge

   Tribal court is undermined, viewed as being not

   Respect is lost with state court system…comity
    is respect…
 Ways of dealing with conflicts of Interest

 Define   conflict of interest!

 Don‟t   take the case

 Use   judges from another village

 Form    inter-tribal courts
                   Intertribal Courts
Intertribal Courts may be set up and used in many different

   Permanent Intertribal Courts:

    • They may be the only tribal court for member tribes

    • They may be appellate courts for member tribes

    • They may also be set up as a general court service
      supplying judges and other court personnel to tribes
      that they serve.
 Temporary   Intertribal Courts:

  • Intertribal courts are set up frequently
    on a case by case basis when a child is
    a member or eligible for membership in
    two or more tribes.
Make decisions based on the best interest of the child

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