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Last Post 14 May 2020 02:36 PM by  Yolanda Fox
R-20-0003 AZ Sup. Crt. Rule 39
 10 Replies
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Author Messages
J. Greene
New Member
Posts:10 New Member

08 Jan 2020 11:11 AM
    Filed on behalf of:
    Hon. Randall Howe, Vice-Chair
    Arizona State, Tribal, and Federal Court Forum
    Court of Appeals, Division 1
    1501 W. Washington
    Phoenix, AZ 85007

    Would amend Supreme Court Rule 39(a) to eliminate pro hac vice requirements in Indian Child Welfare Cases

    Filed January 8, 2020

    Comments must be submitted on or before May 1, 2020.

    Replies must be submitted on or before June 1, 2020.
    Brandelle Whitworth
    New Member
    Posts:2 New Member

    10 Feb 2020 12:54 PM
    Brandelle Whitworth
    PO Box 306
    Fort Hall, ID 83203

    I fully support and encourage the approval of R-20-0003 AZ Sup. Crt. Rule 39, amending Arizona Supreme Court Rule 39(a), to eliminate pro hac vice requirements in Indian Child Welfare Cases.

    I am licensed to practice law in the states of Idaho, Washington, and Utah, as well as the Shoshone-Bannock Tribal Court. I have been employed as an in-house attorney with my Tribe, the Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho, for 20 years and during that time have appeared in ICWA cases in approximately 18 different states. Through the years, the Shoshone-Bannock Tribes has been required to spend thousands of dollars from our limited Tribal budget to pay Pro Hac Vice fees and/or hire local counsel to participate in ICWA cases across the United States, including Arizona.

    I can attest that bar licensure, pro hac vice fees, and/or the hiring of local counsel can be very cost prohibitive and often act as a bar to full participation of the very Indian tribes who’s rights were meant, in addition to the rights of the affected Indian children, to be protected by the Indian Child Welfare Act.

    Although many tribes receive federal grants for child and family services, those funds cannot be used for legal representation or for legal fees for litigation. See, e.g., 25 U.S.C. § 1931(a)(8); 25 CFR §§ 89.40-41. Other federal moneys for social services are similarly restricted and cannot be used to pay for legal services for litigation. 25 U.S.C. §§ 450 et seq. This Rule amendment provides a solution to these funding restrictions. Accordingly, this proposed rule change would improve the welfare of Indian children in Arizona ICWA proceedings by ensuring that their tribes can meaningfully participate in Arizona proceedings related to their children.

    Based on the foregoing, I strongly encourage your approval and amendment of Arizona Supreme Court Rule 39(a), to better enable Indian tribes’ participation in these types of cases in the great State of Arizona. Thank you.

    Brandelle Whitworth
    Michelle Martinez
    New Member
    Posts:9 New Member

    21 Apr 2020 11:21 AM
    Hon. Ann A. Scott Timmer, Chair
    Attorney Regulation Advisory Committee
    1501 W. Washington St.
    Phoenix, AZ 85007

    Committee Staff:
    Mark D. Wilson
    Yolanda Fox
    Basic Member
    Posts:153 Basic Member

    23 Apr 2020 10:20 AM
    Sunshine Whitehair
    Senior Assistant General Counsel
    Gila River Indian Community
    Office of the General Counsel
    Phone: (520) 562-9760

    Stephen Roe Lewis, Governor
    Gila River Indian Community

    Gila River Indian Community’s Comments on the proposed amendment to Arizona Supreme Court Rule 39, “Temporary Authorization to Practice Law”
    Kootenai Tribe
    New Member
    Posts:1 New Member

    29 Apr 2020 01:43 PM
    Gary Aikten, Jr, Chairman
    Kootenai Tribe of Idaho
    P.O. Box 1269
    Bonners Ferry, ID 83805

    Comment in favor of proposed amendment to Rule 39 attached.
    Georgette Boggio
    New Member
    Posts:1 New Member

    30 Apr 2020 04:07 PM

    Georgette Boggio
    Elk River Law Office, P.L.L.P.
    2501 4th Avenue North
    Billings, MT 59101
    (406) 259-8611
    Montana Bar No. 6256
    LaTonia Johnson
    New Member
    Posts:1 New Member

    01 May 2020 01:49 PM
    Filed on behalf of:

    Doreen N. McPaul, Attorney General
    Office of the Attorney General
    Navajo Nation
    Post Office Box 2010
    Window Rock, Arizona 86515
    (928) 871-6343
    Bar No. 021136
    Jason Croxton
    New Member
    Posts:1 New Member

    01 May 2020 03:06 PM
    Jason Croxton, President
    Native American Bar Association of Arizona
    PO Box 1732
    Phoenix, Arizona 85001
    AZ Bar #028956

    The Native American Bar Association (NABA-AZ) submits this comment in support of the Petition to Amend Rule 39 of the Supreme Court of Arizona, R-18-0013.
    April Olson
    New Member
    Posts:2 New Member

    01 May 2020 04:38 PM
    May 1, 2020

    April E. Olson
    Rothstein Donatelli LLP
    80 East Rio Salado Parkway, Suite 710
    Tempe, AZ 85281
    AZ Bar No. 025281

    I submit this comment in support of the Petition to Amend Rule 39 of the Supreme Court of Arizona, R-20-0003. I submit this comment on behalf of myself as an Arizona attorney and an Indian Child Welfare Act (ICWA) practitioner.

    I am an attorney who has been licensed to practice law in the State of Arizona and the State of California for over 12 years. I have also practiced in the Tribal Courts of the Gila River Indian Community, the San Carlos Apache Tribe, the Hualapai Nation, the Havasupai Tribe, the Navajo Nation (pro hac vice), the Pechanga Band of Luiseño Indians, the White Mountain Apache Tribe and the Kaibab Band of Paiute Indians. Prior to law school, I was a social worker for the Fond du Lac Band of Minnesota Chippewa in Minnesota and I currently serve as an Appellate Judge.

    A substantial part of my professional career and law practice has involved working with ICWA, 25 U.S.C. §1901 et. seq., cases. Over the course of my career I have represented at least 8 tribes in 10 states across the country in ICWA cases. I have appeared in ICWA cases both as a tribal representative and as an attorney. I have primarily provided representation to Indian tribes in ICWA cases, although I have also represented families and parents on occasion. I have been denied the right to represent my client, an Indian tribe, in an ICWA case in another state jurisdiction. I have been required to hire, at great expense to the tribe, local counsel and seek pro hac vice status in order to represent the interests of an Indian tribe in another state. I have also observed my colleagues be denied the right to represent a tribe in an ICWA case and heard similar stories from other ICWA attorneys.

    In 2017 I was hired to represent an Indian tribe from another state in an Arizona child custody proceeding. I was hired after a Maricopa County Superior Court Judge denied the tribe’s legal counsel the right to participate in the proceeding. In this case, the Judge refused to accept the out-of-state tribe’s motion to intervene and transfer, until it was filed by an Arizona licensed attorney. This denial came on the eve of a severance trial in a case in which the State had failed to provide notice to the tribe under the ICWA for over a year. Had I not been hired and quickly moved to intervene, the parental rights to the children could have been terminated and the Indian tribe’s connection to these children could have been forever lost. The out-of-state tribes legal counsel in this case was not licensed in Arizona but had practiced law for over 15 years and handled numerous ICWA cases.

    I support this petition because Indian tribes have an absolute right to intervene and participate in child custody proceedings under federal law. See 25 U.S.C. § 1912(a). The United States Supreme Court recognizes that an Indian tribe’s rights under ICWA are separate and distinct from those of the parents. See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 52 (1988). Tribes should not be prevented from participating in ICWA cases, solely because their legal counsel is not licensed in the State of Arizona. Many tribe have ICWA cases in multiple states across the country. Requiring tribal legal counsel to become licensed in each jurisdiction is cost prohibitive and for tribes with less resources, it effectively prevents them from participating. This is contrary to the intent and purpose of ICWA. Further, some courts have held that federal law preempts state statutes that require a tribe to have a licensed attorney to participate in an ICWA case. See In re Interest of Elias, 277 Neb. 1023 (Neb. 2009)(Court held that state statute governing unauthorized practice of law which required an Indian tribe be represented by a Nebraska licensed attorney was preempted in context of state court child custody proceedings under the federal and state Indian Child Welfare Act); State ex rel. Juvenile Dept. of Lane County v. Shuey, 119 Or.App. 185 (1993)(Court held that ICWA preempted state statutes requiring groups and associations to be represented by attorney when applied to Indian tribe’s attempt to intervene in child custody proceeding under ICWA).

    Finally, I note that other states have adopted similar rules including Michigan, MCR 8.126(B), Oregon, UTCR 3.170, Nebraska, Neb. Rev. Stat. 43-1504(3), Washington, APR 8(b)(6), California, California Rules of Court 9.40(g), and Wisconsin, SCR 10.03(4).

    The Petition to Amend Rule 39 of the Supreme Court of Arizona, R-20-0003, should be approved. It achieves a reasonable balance by allowing a limited exception to the standard examination and admission process so that an outside Indian tribe can be adequately represented in ICWA proceedings, while still protecting the integrity of the practice of law in the State of Arizona.

    Respectfully Submitted,


    April E. Olson, Esq.
    Rothstein Donatelli LLP
    Patty Ferguson-Bohnee
    New Member
    Posts:1 New Member

    01 May 2020 04:50 PM
    Patty Ferguson-Bohnee on behalf of the Native American Bar Association of Arizona
    Beus Center for Law and Society
    111 East Taylor Street MC9250
    Phoenix, AZ 85004-4467
    Phone (480) 727-0420
    Fax (480) 727-9270
    AZ 020996

    Yolanda Fox
    Basic Member
    Posts:153 Basic Member

    14 May 2020 02:36 PM
    Bill Anoatubby, Governor
    The Chickasaw Nation
    Post Office Box 1548 • Ada, Oklahoma 74821
    (580) 436-2603 • Fax (580) 436-4287
    http:/ /www.chickasaw.net

    The following comments are provided by the Chickasaw Nation in response to the invitation to comment regarding Arizona Supreme Court Rule 39, regarding the elimination of pro hac vice requirements in Indian Child Welfare cases.
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