May 1, 2020
April E. Olson
Rothstein Donatelli LLP
80 East Rio Salado Parkway, Suite 710
Tempe, AZ 85281
480-921-9296
[email protected] 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,
/s/
April E. Olson, Esq.
Rothstein Donatelli LLP