At Fleming & Curti, PLC, we handle a lot of guardianship and conservatorship matters in Arizona courts. But what about proceedings involving a Native American? Can we bring an action in the Arizona courts, or do someone have to initiate proceedings in tribal courts? None of us are admitted to practice in any tribal courts, so that would necessitate a referral to another firm.
Enrolled membership and residence
Tribal court have jurisdiction over their enrolled members who reside on their reservation or in some other Native communities. And some tribes accept jurisdiction over their enrolled members who live outside of any Indian or Native community. No tribal court asserts jurisdiction over non-members in the guardianship arena.
Since American reservations are necessarily located in states (or territories), there will also be a state that can assert jurisdiction. State jurisdiction will depend on where the individual actually lives — so if a reservation spans two or more states, only the state where the Native American actually resides will have jurisdiction.
Jurisdiction for guardianship and conservatorship matters is usually “concurrent.” That means that a given proceeding can be brought in either the tribal or state court. One or the other might, though, be the preferable choice. If, for example, the Native American subject of the proceedings owns real estate off the reservation, or has all of their contacts and support systems inside the Native community, those realities might form the basis for selecting jurisdiction.
Are there problems with selecting the “wrong” jurisdiction?
Problems can (but don’t very often) arise because the guardianship or conservatorship is started in one or the other court. It’s at least theoretically possible to transfer a guardianship or conservatorship from one jurisdiction to the other, though tribes can not adopt the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, which could make it easier to complete such transfers. But the reality is that state courts and tribal courts don’t have much interaction with one another.
One other issue: there can be assets, income and benefits available to the Native American subject of a guardianship or conservatorship that are not familiar to the participants in a state court proceeding. Per capita distributions of tribal revenues, for example, may raise uncommon accounting, tax and administration issues. Eligibility for Indian Health Service (IHS) benefits may be equally challenging to navigate. Practitioners in tribal courts may just be more familiar with these programs available to the Native American subject of a proceeding.
Are the rules different for guardianships over children?
Oh, yes. The Indian Child Welfare Act (ICWA), adopted by the federal government in 1978, emphasized tribal courts for proceedings involving Native American children. In general (and there are lots of “yes but” items in this arena), the relevant tribal court has primary — and sometimes exclusive — jurisdiction over proceedings involving Native American minors. And it covers not only enrolled members but also children who would be eligible to be enrolled.
Here’s the upshot: when a Native American elder (or child, or young adult with a disability) is subject to the Arizona court process, rules can be flexible. We occasionally get to work with unknown situations and have to learn to adapt. Sort of like the three sisters growing in our urban gardens in changing (climate) times.
