Rule 322 - Transfer to a Tribal Court(a)Generally.At any stage of an involuntary or voluntary foster care or a termination of parental rights proceeding, as defined in 25 C.F.R. § 23.2, a parent, the Indian custodian, or the Indian child's tribe may request the court to transfer jurisdiction of the case to the child's tribe. See ICWA § 1911(b) and 23 C.F.R. §§ 23.115 through 23.119.(b)Procedure.(1)Request to Transfer. The requesting party or tribe may file a motion to transfer or may make the motion orally on the record.(2)Notice to Tribe. A parent or Indian custodian who requests transfer of the proceeding must notify the tribal court promptly in writing of the transfer request. (A) A copy of the requesting party's notice to the tribal court must be filed with the superior court.(B) The notice must ask the tribal court to determine whether the tribal court will accept or decline the transfer.(3)Response to the Request. The superior court must provide each party and the tribe with an opportunity to respond to a request for transfer. (A)Response from a Party. If the request for transfer was in writing, a party's response to the request must be filed pursuant to Rule 316(c) and served on the other parties and the tribe as provided in Rule 106. A party may respond to an oral request to transfer orally in open court. If a party objects to the request for transfer, the party's response must state the basis of the objection and any good cause why the court should deny the request.(B)Response from the Tribe. Regardless of whether the tribe is a party, a response from the tribe may be in writing or provided orally. If the court receives a written response from the tribe that has not been filed, the court must file it with the clerk. The court may consider the tribe's failure to respond as a declination of the request to transfer.(c)Considerations.(1) The court must grant the request to transfer unless one or more of the following criteria are met: (A) either parent objects to the transfer;(B) the tribal court declines the transfer; or(C) there is good cause to deny the transfer.(2) A party who alleges good cause to deny the transfer must demonstrate by clear and convincing evidence the facts that constitute good cause. In determining whether good cause exists, the court must not consider:(A) whether the foster care or termination of parental rights proceeding is at an advanced stage and a parent, Indian custodian, or tribe did not receive notice of the proceeding until an advanced stage;(B) whether there have been prior proceedings involving the child for which no petition to transfer was filed;(C) whether the transfer could affect the placement of the child;(D) the Indian child's cultural connections with the tribe or reservation; or(E) socioeconomic conditions or any negative perception of tribal or BIA social services or judicial systems.(d)Findings. The court must find in a signed minute entry or order: (1) the date the requesting party sent written notification of the request to the tribe required by subpart (b)(2);(2) whether the tribe responded, whether the tribe's response was in writing, and whether the tribe agreed to or declined the request;(3) whether either parent objects to the transfer; and(4) if good cause to deny the transfer was alleged, whether facts constituting good cause were established by clear and convincing evidence and the specific facts that constitute good cause.(e)Orders. The court's order granting or denying a request to transfer must be in a signed minute entry or order. If the court grants the request to transfer jurisdiction, the court must order:(1) the court clerk to expeditiously transfer the file and admitted exhibits to the tribal court;(2) the petitioner to expeditiously transfer any reports or records in the petitioner's possession that were not admitted into evidence or previously disclosed to an intervening tribe;(3) transfer of custody of the child to the tribe;(4) the clerk to dismiss the proceeding and to notify the Foster Care Review Board of the dismissal;(5) that appointed counsel and any appointed GAL is relieved of responsibility; and(6) the entry of other orders as appropriate.(f) Court Oversight of the Transfer. The superior court should communicate with the tribal court to ensure that transfer of the child's custody, the file, admitted exhibits, and documentation is accomplished in a manner that minimizes the disruption of services to the family.Adopted Dec. 8, 2021, effective 7/1/2022.COMMENT TO 2022 AMENDMENT
Parties may request transfer of pre-adoptive or adoptive placement proceedings but the standards for addressing such motions are not dictated by ICWA or the Regulations. Tribes possess inherent jurisdiction over domestic relations, including the welfare of child citizens of the tribe, even beyond that authority confirmed in ICWA. Thus, it may be appropriate to transfer pre-adoptive and adoptive proceedings involving children residing outside of a reservation to tribal jurisdiction in particular circumstances. The case may be transferred to the tribal court, but that request is not governed by ICWA or the regulations. See Gila River Indian Community v. DCS , 242 Ariz. 277 (2017).
Superior courts should communicate with tribes to establish procedures governing requests to transfer. These include identifying the tribal office for receipt of written notice of a request and clarifying the tribe's preferred method for communicating its position on the request. In addition, the superior court and tribe should agree on procedures to ensure that the tribe promptly receives copies of all records in the child's case file after a request for transfer is granted.