SUMMARY: Denial of transfer to the tribal court was proper where the facts suggested there would be undue hardship on the parties in presenting evidence to decide the case at the tribal court in South Dakota.
Melaya F. and Melysse F., ages 4 and 1, were removed from the mother, Mindy, around December 15, 2010 after police found Mindy unresponsive due to substance use and the children unsupervised and unsafe. Mindy and Melaya are members of the Yankton Sioux Tribe and Melysse is eligible to be enrolled. On January 18, 2011, Mindy filed a motion to transfer the case to the tribe’s jurisdiction. The tribe intervened and also filed a motion to transfer. Evidence was presented at a hearing on February 9, 2011, that roundtrip to the Yankton Sioux Tribal Court is 10 hours, that such travel would be an undue hardship to the witnesses and that the witnesses could testify telephonically. The ICWA director of the tribe was unsure whether the tribe had subpoena power over Nebraska witnesses. Mindy lived on the reservation as a child and had several relatives that lived there. A 2007 case involving Mindy had been transferred to the tribal court, which transferred custody to Mindy’s mother, who returned the child to Mindy. After the hearing, the court denied transfer on the basis of forum non conveniens and Mindy appealed.
The Nebraska Court of Appeals affirmed the denial to transfer. Noting that it was reviewing under a standard of abuse of discretion, the Court of Appeals held that evidence of good cause not to transfer required under ICWA was present in this case in that there would be undue hardship on the parties in presenting the evidence necessary to decide the case before the tribal court. It noted that although witnesses could testify by phone, there was no evidence that the tribe had subpoena power over the witnesses. Under a best interest analysis, the Court of Appeals also found that Mindy was uncooperative, believed the tribe would place the children with her mother, who had a criminal history and was not approved for placement, and had not lived on the reservation since she was a young child.