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Last Post 21 May 2018 03:35 PM by  State Bar of Arizona
R-18-0013 Supreme Court Rules 38 and 39
 4 Replies
Topic is locked
Author Messages
New Member
Posts:12 New Member

10 Jan 2018 02:11 PM
    Filed on behalf of:
    Hon. Ryan Andrews, Chair
    Arizona State, Tribal, and Federal Court Forum
    Salt River Pima-Maricopa Indian Community Court
    10005 E. Osborn Road
    Scottsdale, AZ 85256
    [email protected]

    Hon. Randall Howe, Vice-Chair
    Arizona State, Tribal, and Federal Court Forum
    Court of Appeals, Division 1
    1501 W. Washington
    Phoenix, AZ 85007
    [email protected]

    Would remove financial burdens on attorneys licensed in other states who represent tribes in Arizona ICWA cases and provide for ongoing special admission without fees of these attorneys for ICWA cases .

    Filed January 10, 2018

    Comments must be submitted on or before May 21, 2018.

    ORDERED: Petition to Amend Rules 38 and 39, Rules of the Supreme Court = DENIED.

    Brandelle Whitworth
    New Member
    Posts:2 New Member

    14 Feb 2018 10:45 AM
    Brandelle Whitworth, Bar No. 6017
    General Counsel, Shoshone-Bannock Tribes
    PO Box 306
    Fort Hall, ID, 83203-0306
    (208) 478-3923
    [email protected]  

    To the Honorable Arizona Supreme Court,

    I fully support and encourage the implementation of the proposed changes to Rules 38 and 39 in Arizona, which are intended to waive certain requirements for out of state attorneys who seek to engage in the limited practice of law in Arizona to represent an Indian tribe in an Indian Child Welfare Act proceeding.

    I have been employed as an in-house attorney with my tribe, the Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho, for nearly 18 years and during that time have appeared in Indian Child Welfare Act cases in approximately 17 different 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. To that end, I encourage your approval and implementation of the proposed amendments of Rules 38 and 39 to better enable Indian tribes’ participation in these types of cases in the great State of Arizona.

    Brandelle Whitworth
    General Counsel
    Shoshone-Bannock Tribes
    Kathryn Fort
    New Member
    Posts:1 New Member

    21 May 2018 02:55 PM
    May 21, 2018

    Clerk of the Arizona Supreme Court

    Re: Comment in Support of the Petition to Amend Rules 38 and 39 of the Supreme Court of Arizona, R-18-0013

    Dear Honorable Justices of the Arizona Supreme Court,

    I am the Director of the Indian Law Clinic at Michigan State University College of Law, and in that role, I run the ICWA (Indian Child Welfare Act) Appellate Project. The ICWA Appellate Project provides high quality research and technical assistance to tribes faced with an ICWA appeal in state court. The Project provides this service for free to tribes and is partly funded to do so by Casey Family Programs. Because this service is free, and because we at times draft briefs for tribes, a large cost of our work is state pro hac vice fees. In addition, finding local counsel to associate with at the appellate level can be particularly difficult and costly. As such, I am writing this letter in support of the amendment to Rules 38 and 39 to allow attorneys to waive pro hac fees and association of counsel.

    In addition to our appellate work, we are contacted frequently by lawyers for tribes in one state trying to find local counsel in another state. Finding local attorneys for these cases can hours of time and research and finding local attorneys with familiarity with ICWA can be nearly impossible. While we maintain a database of attorneys willing to help in pro hac situations, it is far from complete. In 2017 we supported eleven different tribal attorneys in finding pro hac local counsel in another state. A rule change such as this one is needed to ensure the high quality representation of tribes by their own in-house attorneys in ICWA cases. It also ensures that parents and Indian children receive the protections ICWA provides—protections that are often not provided if the tribe is not able to participate.

    Finally, we would like to note that this proposed change to the Arizona rules is not unprecedented. While some states have already adopted this particular change for ICWA attorneys, including Michigan, MCR 8.126(B), Oregon, UTCR 3.170, and Nebraska, Neb. Rev. Stat. 43-1504(3), and other states have current proposals up for comment, including California and Washingon.

    Thank you for your time and consideration of this rule change. I am more than happy to answer any questions or submit additional testimony regarding the issue of representation in ICWA cases across the country.


    /s/ Kathryn E. Fort
    Michigan Bar Number P69451
    Indian Law Clinic
    Michigan State University College of Law
    [email protected]
    April Olson
    New Member
    Posts:2 New Member

    21 May 2018 02:59 PM
    April E. Olson
    Rothstein Donatelli LLP
    80 East Rio Salado Parkway, Suite 710
    Tempe, AZ 85281
    [email protected]
    AZ Bar No. 025281

    I submit this comment in support of the Petition to Amend Rules 38 and 39 of the Supreme Court of Arizona, R-18-0013.

    I am an attorney who has been licensed to practice law in the State of Arizona and the State of California for over 10 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), 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 Indian Child Welfare Act (“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.

    Most recently, 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 has recognized 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 tribes, particularly larger ones, 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 at all. This is contrary to the intent and goals of ICWA. Further, some courts have suggested that denial of a tribe’s participation in an ICWA case is preempted by federal law. See In re Interest of Elias, 277 Neb. 1023 (Neb. 2009)(Trial court denied Tribe’s motion to intervene because it was not signed by an attorney. 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)(the Tribe’s motion to intervene under ICWA denied because it was not signed by an attorney as required by Oregon law. 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 this proposed change in the rules is not without precedent. Several other states have already adopted pro hac vice rules for ICWA attorneys, including Michigan, MCR 8.126(B), Oregon, UTCR 3.170, and Nebraska, Neb. Rev. Stat. 43-1504(3). The States of Washington and California are also considering proposed rule changes. Further, many states provide waivers of pro hac vice licensing requirements for military lawyer spouses. Since military servicemen and women constantly relocate, waivers of pro hac vice licensing requirements allow military lawyer spouses to relocate with their families and still practice law in new states. In June of 2017, Ohio became the 25th state to waive pro hac vice licensing requirements for military lawyer spouses. See Military Spouse J.D. Network, https://www.msjdn.org/2017/06/ohio-adopts-milspouse-licensing/.

    The Petition to Amend Rules 38 and 39 of the Supreme Court of Arizona, R-18-0013, 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

    State Bar of Arizona
    Basic Member
    Posts:164 Basic Member

    21 May 2018 03:35 PM
    Lisa M. Panahi, Bar No. 023421
    General Counsel
    State Bar of Arizona
    4201 N. 24th Street, Suite 100
    Phoenix, AZ 85016-6288
    (602) 340-7236
    [email protected]

    The State Bar of Arizona submits the attached comment to this Petition.
    Topic is locked