3-4-7. PROCEDURE FOR TRANSFER UNDER 25 U.S.C. 1911 (b) - AMENDMENT

1. Authority to Request Transfer: the Rosebud Sioux Tribe’s Children’s Court Judge shall have sole authority to determine whether or not the Tribe will request transfer of jurisdiction to the Tribal Court in a particular case. The ICWA Specialist or the Specialist’s designee shall act as an agent for the Tribe. If the Children’s Court Judge decides not to seek transfer, the Judge may reconsider his or her decision at any time if new information is obtained, or changed circumstances merit a motion to transfer.
2. Pre-Petition Investigation by ICWA Specialist and Recommendation: within ninety (90) days of receipt of Notice that a Rosebud Sioux Tribal child is the subject of a child custody proceeding in state court, the ICWA Specialist shall conduct an investigation of the case, and shall make a written recommendation to the Children’s Court Judge concerning whether the Tribe should move or transfer jurisdiction to the Tribal Court. The recommendation shall consider, among other factors, the following:
   1. The age of the child;
   2. Any special needs of the child;
   3. The location and circumstances of the family;
   4. Whether the state had made active efforts to reunite the family;
   5. The availability of Tribal services that can address the child’s and the family’s needs;
   6. The availability of a suitable Tribal home for placement of the child;
   7. Whether financial assistance for the care of the child will be available if transfer of jurisdiction occurs; and
   8. The child’s ties with the Reservation and/or extended family;
   9. Whether the child is eligible for enrollment or is enrolled in the Rosebud Sioux Tribe;
   10. Whether the child has recently moved from the Reservation;
   11. Whether the child has been abandoned;
   12. Whether the parents requested that the child be returned and raised on the Reservation;
   13. Whether the child desires to return to the reservation;
   14. Whether the child’s on-reservation family is stable and strong;
   15. The reservation has resources available to meet the needs of the child.

4. Informal Meeting on Indian Child Welfare Specialist’s Recommendation: The Court shall schedule an informal meeting on the Indian Child Welfare Specialist’s recommendations at the earliest available time following submission of the Indian Child Welfare Specialist’s recommendations. Prior notice and an opportunity to be heard shall be provided to all named parties in the State Court case. If the Indian Child Welfare Specialist is recommending the Tribal Court accept jurisdiction over the case he/she shall file a Petition to Accept Jurisdiction along with his/her written recommendation.
5. Reasons for Declining Transfer: The Tribal Court may decline to accept transfer of jurisdiction over a state child custody proceeding if the Tribal Court finds that good cause exists to decline to accept jurisdiction. The declination must be based on evidence that the transfer would not be in the best interest of the Rosebud Sioux Tribe, or the child pursuant to the Rosebud Sioux Tribe Juvenile Code, Chapter 1, 3-1-4, H (3)(b). Among the factors that would constitute good cause not to transfer are the following factors:
   1. Child is of mixed marriage where primary family ties and/or identity are with the non-member;
   2. Child is old enough to reason and does not want to return to the reservation;
   3. Child has no ties with the reservation;
   4. Child has problems for which there is no an adequate on-reservation program or resources;
   5. When either parent contests the transfer;
   6. Child is not eligible for enrollment or not enrolled.
6. Procedure upon Acceptance of Transfer: if the Children’s Court Judge approves a transfer of a child custody proceeding, the Tribal Court shall issue an order indicating that it will accept jurisdiction of the state proceedings. The ICWA Specialist shall prepare a motion to transfer the case, under 25 U.S.C. § 1911 (b), for signature of the Children’s Court Judge and shall file a motion to transfer with the state court. The motion shall state that the Tribal Court has issued an order indicating that it will accept the transfer of jurisdiction.
7. If the state court then grants the Tribe’s motion to transfer: The Tribal Court shall immediately file an order accepting transfer of jurisdiction and direct the state court to transfer its files to the Tribal Court. The Court shall schedule a hearing in the case. At such hearing, the court will make rulings concerning temporary placement and custody of the child, case progression, and matters relevant to the protection and well-being of the child.
8. The applicable portions of the Rosebud Sioux Tribe Juvenile Code shall govern any child custody proceedings that are transferred to the Tribal Court: After transfer, the cases shall proceed as a Minor in Need of Care case, in accordance with all the procedures and standards that govern such cases that are set forth in the Juvenile Code.