The Indian Child Welfare Act (ICWA), 25 U.S.C. §1911, provides for transfer of jurisdiction of state court cases involving an Indian child to that child’s tribal court. Specifically, ICWA provides that “In any State court proceedings 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 tribe…”
For many judges and attorneys, navigating the ICWA can be challenging, but one judge has turned that challenge into an opportunity. Dependency Judge Jose Izquierdo has taken the first step towards the Circuit’s Dependency court partnering with the Tribal Court of the Seminole Tribe. The Tribal Court’s mission is to respect the customs and traditions of the Seminole Tribe of Florida and to ensure that the rights and powers which are inherent to the Tribe’s sovereign status are secure.
Stan Wolfe, the Director of Court Administration for the Seminole Tribal Court, began this initiative by opening lines of communication with the court system including representing the Tribal Court on Florida’s Dependency Court Improvement Panel. Director Wolfe, and Kristi Hill, the Seminole Tribe’s Administrator of Special Projects, worked with Judge Izquierdo to arrange for Tribal Court judges and staff to observe Dependency Court on the Seminole Tribe Reservation. Director Wolfe expressed his gratitude for Judge Izquierdo’s interest, and the Circuit Court’s assistance in developing the process for ultimately transferring dependency cases to the Tribal Court.
There was a lot of work behind the scenes by both the Circuit Court and the Tribal Court to ensure the success of the first of what is expected to be, many dockets held on the Reservation. Judge Izquierdo began by having the cases with Seminole Tribe members transferred to an ICWA Special Division. He then scheduled hearings for these cases to be heard at the Tribal Court on the Seminole Tribe Reservation in Hollywood. coordinating the appearances of service providers as well as social workers and child advocates from the Circuit and the Tribe, guardians ad litem, and attorneys from the Office of the Attorney General which represents the Department of Children and Families and it’s subcontracted agency, Child Net; attorneys who represent parents including attorneys from the Office of Criminal Conflict and Civil Regional Counsel; Attorneys for the Guardian ad Litem Program, as well as Court staff. Coordinating such an effort on both sides was no small feat, but working together ensured that the process was a smooth one.
Conducting the hearings on the Reservation was very significant, in that it provided tribal members a level of comfort being in familiar surroundings at their Tribal court house. As Judge Izquierdo points out, “Dependency court is therapeutic in nature and has as its goal, the reunification of children and their families.” Havby Hilary A. Creary The Honorable Jose Izquierdo 17th Circuit Court Judge Spearheads Collaboration With The Seminole Tribe of Florida Broward County Bar Association Barrister September 2017 | 13 ing the ability to be heard on what can be traumatic issues of abuse, abandonment, and neglect on the Reservation in familiar surroundings made a great deal of difference to the families involved.
Three judges from the Tribal Court joined Judge Izquierdo to observe him conduct the hearings scheduled on the docket. The Tribal judges were able to ask questions about the process, the roles of the participants in the hearings, and the judge’s thought processes during his analysis of the evidence presented, as well as his rulings. This exchange between the judges was a crucial step in ensuring their comfort with eventually conducting the hearings, and the long term success of the Tribal Court once jurisdiction for all the ICWA Dependency cases is transferred to the Tribe. This will be a gradual transition, but the process has begun with these hearings. Another docket is scheduled to be heard on the Reservation in October.
Judge Izquierdo, Director Wolfe, and Administrator Hill all believe this first of many dockets, was successful. Judge Izquierdo said it was a good experience for him because he believes it is extremely important that judges should expand their horizons, as this improves racial, ethnic, and cultural diversity. He is also excited about the many innovative projects in the 17th Circuit which benefit children and families such as drug court, early childhood court and the permanency project, among others. Administrator Hill who has worked with the Seminole Tribe for twelve years, says the Court has been developed for a while, and this is the next step in the transition phase. She reports that having the docket heard on the Reservation was much less stressful for the families, and that the parents really appreciated Judge Izquierdo coming to their facility, as it made attending court much less intimidating.
Director Stan Wolfe moved to South Florida twelve years ago from The District of Columbia after years of work on Capitol Hill, and as a Prosecuting Attorney in Michigan, and Judge for his tribe, the Eastern Band Cherokee Tribe in North Carolina. He has been working on the establishment and expansion of the Seminole Tribal Court for ten years, and is excited at the progress that has now been made towards the transfer of jurisdiction to the Tribal Court of Dependency matters. According to Director Wolfe, the Tribal Court is fully functional and has broad civil jurisdiction. The tribal judges have had extensive training and are currently hearing all types of cases, including Dissolution of Marriage and customary adoption cases.
However, there are still some differences between the two Courts. For example the Seminole Tribe does not recognize termination of parental rights. Their customary adoptions permit children to be adopted without the termination of their parents’ rights. In addition, there is no formal mediation required in Tribal Court. Instead, mediation occurs in the court room, where the parties meet one on one with the judge in a non-adversarial conference. These differences mean that there is still a lot of work to be done. Nevertheless, the collaboration between the courts is innovative, and is the first of its kind in the State of Florida.
There is also ongoing discussion on whether the Tribal Court will adopt its own Rules and Statutes in Dependency and other matters. Judge Izquierdo has recently joined the Tribal Court’s long-standing Tribe/State collaborative group which has been ongoing for several years, and is involved in discussions with the Tribe regarding the continued use of Florida Statute Chapter 39 which governs Dependency proceedings. It seems to be the consensus that although the Seminole Tribe will continue operating under Chapter 39 in the near future, it will most likely implement its own rules and statutes which are consistent with the Tribe’s customs and traditions. Administrator Hill believes the Tribe’s intent is to have its own set of codes for use by the Tribal Court. She expects that the codes will mimic Chapter 39 but will be amended to include Tribal language and customs. Likewise Director Wolfe believes the Tribe’s code will reflect the essence of Chapter 39, with amendments to make sure it works for the people of the Seminole Tribe.
The 17th Circuit is grateful to Judge Izquierdo for his insight and innovative thinking.
By Hillary A. Creary
Hilary Creary is a partner with the Family Law firm, Benjamin-Wise Creary, PLLC located in Pompano Beach. She is also a Guardian ad Litem, and Florida Supreme Court Certified Family Law Mediator. For more information Hilary can be contacted at email@example.com or (954) 783-9737.