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IN RE INTEREST OF TAVIAN B.

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In re Interest of Tavian B., 

under 18 years of age

State of Nebraska, appellee, v. Joseph B.

appellant, and Oglala Sioux 

intervenor-appell

___ N.W.2d ___

Filed February 19, 2016. No. S-15-129.

1. Indian Child Welfare Act: Jurisdiction: Appeal and Error. A denial 

of a transfer to tribal court under the Indian Child Welfare Act is 

reviewed for an abuse of discretion.

2. Constitutional Law: Due Process: Appeal and Error. Procedural due 

process is a question of law, which is reviewed independently of the 

lower court’s ruling.

3. Judges: Words and Phrases: Appeal and Error. A judicial abuse of 

discretion exists when a judge, within the effective limits of authorized 

judicial power, elects to act or refrain from action, which results in a 

decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition.

4. Indian Child Welfare Act: Jurisdiction: Good Cause: Proof. At a 

hearing on a motion to transfer a proceeding to tribal court, the party 

opposing the transfer has the burden of establishing that good cause not 

to transfer exists.

5. Indian Child Welfare Act: Intent. The Indian Child Welfare Act 

is intended to promote the stability and security of Indian tribes and 

families by establishing minimum federal standards for the removal of 

Indian children from their families and the placement of such children 

in adoptive homes or institutions which will reflect the unique values of 

Indian culture.

Appeal from the Separate Juvenile Court of Lancaster 

County: Reggie L. Ryder, Judge. Reversed and remanded w

directions.

Nebraska Supreme Court Online Library

www.nebraska.gov/courts/epub/

02/19/2016 09:22 AM CST
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Joy Shiffermiller, of Shiffermiller Law Office, P.C., L.L.O., 

for appellant.

Joe Kelly, Lancaster County Attorney, and Lory Pasold for 

appellee.

Heavican, C.J., Wright, Connolly, McCormack, MillerLerman, Cassel

Wright, J

NATURE OF CASE

Tavian B. was found to be a child who lacks proper parental 

care by reason of the fault or habits of his parents and to be in 

a situation dangerous to life or limb or injurious to his health 

or morals. See Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008). 

Approximately 16 months later, the State of Nebraska moved 

to terminate the parental rights of both parents. The father then 

filed a motion to transfer jurisdiction to the Oglala Sioux Tribal 

Juvenile Court (tribal court) pursuant to the federal Indian 

Child Welfare Act of 1978 (ICWA). See 25 U.S.C. § 1901 et 

seq. (2012).

Prior to the juvenile court’s ruling on the father’s motion to 

transfer, the State withdrew its motion to terminate parental 

rights. The court found that good cause existed to deny the 

request to transfer jurisdiction to the tribal court, because the 

proceedings were in “an advanced stage.” The father appeals 

the juvenile court’s order overruling his motion to transfer.

For the reasons stated below, we reverse the judgment of the 

juvenile court and remand the cause with directions.

SCOPE OF REVIEW

[1] A denial of a transfer to tribal court under ICWA is 

reviewed for an abuse of discretion. In re Interest of Zylena R. 

& Adrionna R., 284 Neb. 834, 825 N.W.2d 173 (2012).

[2] Procedural due process is a question of law, which is 

reviewed independently of the lower court’s ruling. See In re 

Interest of Landon H., 287 Neb. 105, 841 N.W.2d 369 (2013).
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FACTS

On May 16, 2013, the State filed a petition in the separate 

juvenile court of Lancaster County. It alleged that Tavian 

was a child who lacked proper parental care by reason of the 

faults or habits of his parents, Joseph B. (Appellant) and Tera 

B., and that he was in a situation dangerous to life or limb 

or injurious to his health or morals. See § 43-247(3)(a). On 

July 3, the juvenile court placed Tavian in the custody of the 

Department of Health and Human Services. Pursuant to ICWA, 

an “Affidavit and Notice” of the proceedings was delivered by 

registered mail to the Oglala Sioux Tribe (Tribe) and received 

on August 19.

On October 29, 2014, the State moved to terminate the 

parental rights of Appellant and Tera. Until that time, the 

goal of the proceedings in the juvenile court and the placement with the Department of Health and Human Services 

was reunification with the parents. Both parents denied the 

allegations in the motion on November 14. The Tribe received 

notice of the motion for termination of parental rights on 

November 21.

At a December 12, 2014, review hearing, Appellant testified 

that he had “just been accepted” and enrolled as a member of 

the Tribe, but had not received documentation from the Tribe 

verifying his enrollment. Immediately after the hearing, the 

Tribe moved to intervene, alleging that Tavian was an Indian 

child as defined by ICWA. Appellant orally moved to transfer 

the case to tribal court. The Tribe had not moved to transfer 

jurisdiction, but the tribal court had filed an order accepting 

jurisdiction. The juvenile court overruled Appellant’s motion to 

transfer the case, because neither Appellant nor the Tribe had 

provided documentation verifying tribal enrollment or other 

evidence showing that ICWA applied to the case.

On December 16, 2014, Appellant filed a subsequent motion 

to transfer jurisdiction to the tribal court. At a hearing on 

January 6, 2015, certificates of tribal enrollment for Appellant 

and Tavian were received by the juvenile court. After the court 
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found that the provisions of ICWA applied to the case, the 

State requested and was given leave to withdraw its motion to 

terminate parental rights. The matter was continued for further 

hearing until 2 days later.

On January 7, 2015, the State filed an objection to the transfer, stating:

COMES NOW, [a] Deputy County Attorney for 

Lancaster County, Nebraska, and objects to the transfer of 

the proceedings in this case to the [tribal court] because 

good cause exists to deny such transfer pursuant to Neb. 

Rev. Stat. [§] 43-1504(2).

The State further requests the Court [set] this matter 

for hearing to determine whether good cause exists.

Relying on In re Interest of Zylena R. & Adrionna R., 284 

Neb. 834, 825 N.W.2d 173 (2012), the juvenile court concluded that good cause existed to overrule the motion because 

the proceedings were at an advanced stage. Appellant appeals 

the overruling of his motion to transfer jurisdiction to the 

tribal court.

ASSIGNMENTS OF ERROR

Appellant assigns, summarized and consolidated, that the 

juvenile court erred in finding good cause to deny his motion 

to transfer based on the advanced stage of the proceeding. 

Appellant also claims that his due process rights were violated 

by the court’s making findings based on matters outside the 

scope of the record and not providing Appellant an opportunity 

to dispute and rebut such evidence.

ANALYSIS

[3] The issue is whether the juvenile court abused its discretion in denying Appellant’s motion to transfer the proceeding 

to tribal court. A judicial abuse of discretion exists when a 

judge, within the effective limits of authorized judicial power, 

elects to act or refrain from action, which results in a decision which is untenable and unfairly deprives a litigant of 

a substantial right or a just result in matters submitted for 
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disposition. See In re Interest of L.V., 240 Neb. 404, 482 

N.W.2d 250 (1992).

We apply ICWA to the case at bar. Neb. Rev. Stat. 

§ 43-1504(2) (Reissue 2008) governs motions to transfer jurisdiction to tribal courts under ICWA. At the time this case commenced, § 43-1504 provided:

(2) In any state court proceeding for the foster care 

placement of, or termination of parental rights to, an 

Indian child not domiciled or residing within the reservation of the Indian child’s tribe, the court, in the absence of 

good cause to the contrary, shall transfer such proceeding 

to the jurisdiction of the tribe, absent objection by either 

parent, upon the petition of either parent or the Indian 

custodian or the Indian child’s tribe, except that such 

transfer shall be subject to declination by the tribal court 

of such tribe.

(Emphasis supplied.)

[4] At a hearing on a motion to transfer a proceeding to 

tribal court, the party opposing the transfer has the burden of 

establishing that good cause not to transfer exists. In re Interest 

of Zylena R. & Adrionna R., supra. In In re Interest of Zylena

R. & Adrionna R., we held that a proceeding for termination 

of parental rights should be regarded as a separate and distinct 

proceeding from foster care placement. In the case at bar, 

the Tribe accepted jurisdiction and neither parent objected to 

the transfer. Thus, absent the State’s showing of good cause, 

the juvenile court was required to transfer the proceeding to 

tribal court.

The juvenile court found that the State had met its burden 

of showing good cause because the proceeding was at an 

advanced stage. It reasoned that usually, the date for determining whether the case was at an advanced stage would be 

the date of the filing of a motion to terminate parental rights. 

Because the State withdrew its motion for termination of parental rights on January 6, 2015, the court concluded that May 16, 

2013, was the date of the State’s petition for adjudication. 
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Using May 16, 2013, as the starting date, it concluded that the 

proceeding was at an advanced stage.

The juvenile court expressed concern that an Indian parent 

could play “an ICWA trump card at the eleventh hour” to transfer the case to tribal court. But we point out that the State’s 

dismissal of its motion to terminate parental rights to avoid a 

transfer leaves an Indian child suspended in uncertainty. If the 

State sought a termination of parental rights, the party seeking transfer could file a new motion to transfer and the State 

could again dismiss the termination proceeding. The juvenile 

court’s conclusion that the matter was in an advanced stage 

stemmed from the State’s voluntary dismissal of the termination proceeding.

Good cause to overrule Appellant’s motion to transfer to 

tribal court is not defined in ICWA. But the guidelines published by the Bureau of Indian Affairs (BIA guidelines) provide a basis for determining what constitutes good cause to 

deny motions to transfer. Previously, this court and other 

courts have looked to the BIA guidelines in making such 

determinations. See, In re Interest of Zylena R. & Adrionna 

R., 284 Neb. 834, 825 N.W.2d 173 (2012); In re Interest of 

C.W. et al., 239 Neb. 817, 479 N.W.2d 105 (1992), overruled

on other grounds, In re Interest of Zylena R. & Adrionna R., 

supra. See, also, People ex rel. T.I., 707 N.W.2d 826 (S.D. 

2005); In re Adoption of S.W., 41 P.3d 1003 (Okla. Civ. App. 

2001); In re A.P., 25 Kan. App. 2d 268, 961 P.2d 706 (1998). 

The BIA guidelines provide guidance to state courts and child 

welfare agencies implementing ICWA and promote compliance 

with ICWA’s stated goals by providing a framework and best 

practices for compliance.

At the time of the juvenile court ruling, the BIA guidelines provided that good cause not to transfer may exist if 

the proceeding was “at an advanced stage” when the petition 

to transfer was received and the petitioner failed to “file the 

petition promptly” after receiving notice. See Guidelines for 

State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 
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67,584, 67,591, C.3(b)(i) (Nov. 26, 1979) (not codified). While 

this appeal was pending, the BIA guidelines were amended. 

They now provide that in determining whether good cause 

exists to deny a motion to transfer to tribal court, the state 

court may not consider whether the case is at an advanced 

stage. See Guidelines for State Courts and Agencies in Indian 

Child Custody Proceedings, 80 Fed. Reg. 10,149 and 10,156 

(Feb. 25, 2015) (not codified). This amendment compels us 

to reconsider our prior adherence to the advanced stage of the 

proceedings as a basis for good cause, and on which the juvenile court relied in denying the transfer.

The BIA guidelines state that there may be valid reasons for waiting to transfer a proceeding until it reaches an 

advanced stage. A tribe might decline to intervene during 

foster care placement proceedings when the goal is reunification with the parents, whereas the tribe would likely be 

much more concerned with removal of Indian children in 

termination proceedings. The BIA guidelines note that denial 

of motions to transfer because a proceeding is at an advanced 

stage undermines the presumption of tribal jurisdiction over 

proceedings involving Indian children not residing or domiciled on the reservation. We note that ICWA seeks to protect not only the rights of the Indian child as an Indian, but 

also the rights of Indian communities and tribes in retaining 

Indian children.

In our consideration of whether good cause existed to overrule the motion to transfer, we find the amended BIA guidelines persuasive and instructive. The BIA guidelines were 

amended during this appeal, and we find them applicable to the 

case at bar. We hold that a determination that the proceeding 

is at an advanced stage is no longer a valid basis for finding 

good cause to deny a motion to transfer jurisdiction to a tribal 

court. We conclude that the overruling of the motion to transfer 

denied Appellant a just result.

Also before this court is the State’s argument that the best 

interests of the child should be a basis for determining good 
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cause to deny a transfer to tribal court. It urges us to reconsider 

our holding In re Interest of Zylena R. & Adrionna R., supra, 

that the best interests of an Indian child may not be considered 

when determining whether good cause exists to deny transfer 

to a tribal court. It argues that courts in at least nine states 

have addressed the issue in favor of best interests, finding it 

a relevant consideration in assessing good cause. These courts 

have found that where ICWA left the meaning of “good cause” 

unexplained, its purpose and legislative history suggest the relevance of the child’s best interests. Id.

The State directs our attention to a recent decision by the 

U.S. Supreme Court in Adoptive Couple v. Baby Girl, ___ 

U.S. ___, 133 S. Ct. 2552, 186 L. Ed. 2d 729 (2013). The 

Court stated:

[ICWA] was enacted to help preserve the cultural identity and heritage of Indian tribes, but under the [South 

Carolina] Supreme Court’s reading, [ICWA] would put 

certain vulnerable children at a great disadvantage solely 

because an ancestor—even a remote one—was an Indian. 

As the State Supreme Court read [25 U.S.C.] §§ 1912(d) 

and (f), a biological Indian father could abandon his child 

in utero and refuse any support for the birth mother—perhaps contributing to the mother’s decision to put the child 

up for adoption—and then could play his ICWA trump 

card at the eleventh hour to override the mother’s decision and the child’s best interests.

Adoptive Couple, 133 S. Ct. at 2565 (emphasis supplied).

We decline the State’s invitation to change our holding in 

In re Interest of Zylena R. & Adrionna R., 284 Neb. 834, 825 

N.W.2d 173 (2012), for several reasons. First, we note that 

the amended BIA guidelines expressly provide that it is inappropriate for state courts to conduct an independent analysis of 

the best interests of the Indian child in determining placement 

preferences. While this preclusion of a best interests analysis 

did not specifically refer to transfers of cases to tribal courts, 

the BIA guidelines further state that whenever a parent or tribe 
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seeks to transfer the case to tribal court, it is presumptively in 

the best interests of the Indian child to transfer the case to the 

jurisdiction of the Indian tribe.

Second, we find that the context of the U.S. Supreme 

Court’s statement in Adoptive Couple v. Baby Girl, supra, did 

not indicate that the Court intended to impose the best interests 

standard on motions to transfer.

[5] Third, allowing the state court to determine the best 

interests of the Indian child undermines the purpose of ICWA. 

ICWA is intended to promote the stability and security of 

Indian tribes and families by establishing minimum federal 

standards for the removal of Indian children from their families 

and the placement of such children in adoptive homes or institutions which will reflect the unique values of Indian culture. 

In In re Interest of Zylena R. & Adrionna R., 284 Neb. at 852, 

825 N.W.2d at 186 (quoting Mississippi Choctaw Indian Band 

v. Holyfield, 490 U.S. 30, 109 S. Ct. 1597, 104 L. Ed. 2d 29 

(1989)), we stated:

Permitting a state court to deny a motion to transfer 

based upon its perception of the best interests of the child 

negates the concept of “presumptively tribal jurisdiction” 

over Indian children who do not reside on a reservation and undermines the federal policy established by 

ICWA of ensuring that “Indian child welfare determinations are not based on ‘a white, middle-class standard 

which, in many cases, forecloses placement with [an] 

Indian family.’”

Finally, preclusion of a separate best interests analysis by 

state courts does not suggest that the best interests of the 

child are ignored altogether. To the contrary, the best interests 

of the Indian child are considered regardless of which court 

decides the matter. We discussed this point in In re Interest 

of Zylena R. & Adrionna R., 284 Neb. at 852, 825 N.W.2d at 

186, stating:

The reality is that both a juvenile court applying Nebraska 

law and a tribal court proceeding under ICWA must act in 
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the best interests of an Indian child over whom they have 

jurisdiction. The question before a state court considering a motion to transfer to tribal court is simply which 

tribunal should make that decision. . . . Stated another 

way, recognizing best interests as “good cause” for denying transfer permits state courts to decide that it is not in 

the best interests of Indian children to have a tribal court 

determine what is in their best interests. By enacting 

ICWA, Congress clearly stated otherwise.

For the above reasons, we decline to reconsider our holding 

in In re Interest of Zylena R. & Adrionna R., supra, that the 

best interests of the Indian child is not a basis for good cause 

to deny a transfer of the case to tribal court. Because we have 

determined that the State did not show good cause to deny 

Appellant’s motion to transfer, we need not review Appellant’s 

claim that the juvenile court and the State violated his due 

process rights in denying his motion.

Because the State did not meet its burden of establishing good cause to deny transfer to tribal court, the juvenile 

court abused its discretion in denying Appellant’s motion 

to transfer.

CONCLUSION

For the reasons stated above, we reverse the judgment of 

the juvenile court that overruled Appellant’s motion to transfer 

the proceeding to tribal court and we remand the cause with 

directions to transfer the matter to tribal court.

Reversed and remanded with di

Stacy, J., concurring in part, and in part dissenting

We held in In re Interest of Zylena R. & Adrionna R.

1

that the advanced stage of an Indian child custody proceeding could be good cause to deny a motion to transfer 

1 In re Interest of Zylena R. & Adrionna R., 284 Neb. 834, 825 N.W.2d 173 

(2012).
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to tribal court. Our holding was based in part on nonbinding guidelines published in 1979 by the Bureau of Indian 

Affairs (BIA).2 Based on this precedent, the State argued 

below that the proceeding was at an advanced stage, and the 

juvenile court found this was good cause to deny the motion 

to transfer.

Today, in reliance on significant changes made in 2015 to 

the 1979 version of the guidelines (1979 BIA guidelines),3 we 

now conclude courts may no longer rely upon a determination that a case is at an advanced stage as good cause to deny 

a motion to transfer to tribal court. While I concur that the 

mere advanced stage of the proceeding cannot constitute good 

cause to deny a transfer to tribal court, I write separately to 

clarify why we rely on the amended guidelines (2015 BIA 

guidelines) and to set out what I think is the proper standard 

of review under the circumstances. And because I respectfully disagree with the majority on the appropriate disposition of this case, I write separately to explain why I think the 

proper disposition would be to vacate the order and remand 

the cause for further proceedings applying the new law we 

announce today.

ROLE OF BIA’S GUIDELINES

The majority finds the 2015 BIA guidelines are “persuasive 

and instructive” on what constitutes good cause, and, on the 

facts of this case, I agree. But because the BIA’s guidelines are 

nonbinding4 and do not have the force of federal regulations, 

it is appropriate to explain why we find the guidelines instructive, and clarify why we are, in this case, relying on the 2105 

BIA guidelines to change established law.

2 Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. 

Reg. 67,584 to 67,595 (Nov. 26, 1979) (not codified).

3 Guidelines for State Courts and Agencies in Indian Child Custody 

Proceedings, 80 Fed. Reg. 10,146 to 10,159 (Feb. 25, 2015) (not codified).

4 See, e.g., In re Interest of Zylena R. & Adrionna R., supra note 1.
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As the majority recognizes, the BIA’s guidelines are designed 

to promote compliance with the stated goals of the federal 

Indian Child Welfare Act of 1978 (ICWA)5 and are intended 

to provide a framework of best practices for state agencies and 

courts.6 But the advisory guidelines are simply the Department 

of the Interior’s interpretation of certain provisions of ICWA.7

In other words, the guidelines are interpretive rather than legislative, and we are under no obligation to follow the guidelines 

if we conclude they are not in accord with the language or 

intent of ICWA on a particular point.8

The guidelines were first published in 1979 and were not 

amended until 2015. The 2015 BIA guidelines, which became 

effective February 25, 2015, attempt to respond to national 

developments in ICWA jurisprudence.9 While the 2015 BIA 

guidelines are instructive, it is important to emphasize that 

this court does not change its jurisprudence simply because an 

executive agency has made amendments to nonbinding guidelines. Rather, this court should determine whether to follow the 

2015 BIA guidelines on a particular issue only after carefully 

considering them and judicially determining they are in accord 

with both ICWA and the Nebraska Indian Child Welfare Act 

(NICWA)10 on that issue.

On the issue of the advanced stage of the proceedings, I 

note there is no language in ICWA or NICWA which expressly 

or impliedly limits the timeframe for making a motion to 

transfer to a tribal court. And it is significant that with the 

enactment of 2015 Neb. Laws, L.B. 566, the Legislature 

5 See 25 U.S.C. § 1901 et seq. (2012).

6 See 2015 BIA guidelines, supra note 3, 80 Fed. Reg. 10,146-147, summary.

7 See 1979 BIA guidelines, supra note 2, 44 Fed. Reg. 67,584, introduction.

8 Id. (noting states “are free to act contrary to what the Department [of the 

Interior] has said if they are convinced that the Department’s guidelines 

are not required by the statute itself”).

9 See 2015 BIA guidelines, supra note 3, 80 Fed. Reg. 10,146, summary.

10 Neb. Rev. Stat. §§ 43-1501 to 43-1516 (Reissue 2008 & Supp. 2015).
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amended NICWA in several respects, one of which was to 

expressly recognize that Indian tribes have a “continuing 

and compelling” governmental interest in an Indian child.11

Particularly given the Legislature’s strong language, I think 

it is apparent that denying a transfer merely because the proceedings are at an advanced stage when the motion is made 

would frustrate the purpose underlying ICWA and NICWA, 

and would undermine the presumption of tribal jurisdiction 

inherent in ICWA.12 But I leave for another day the question 

of whether the advanced stage of proceedings, if coupled with 

other compelling circumstances properly considered under 

ICWA and NICWA, can constitute good cause for denying 

a transfer.

Because the 2015 BIA guidelines’ interpretation is more 

consistent with the language and intent of ICWA and NICWA 

on the advanced stage issue than was our precedent to the 

contrary, I agree that the mere advanced stage of the proceeding cannot provide good cause to deny a motion to transfer to 

tribal court. And because the advanced stage of the proceeding 

was the sole basis for the juvenile court’s denial of the transfer to tribal court, I agree the juvenile court’s decision cannot 

be upheld.

STANDARD OF REVIEW AND 

APPROPRIATE DISPOSITION

At the time the motion to transfer was tried and decided, 

settled Nebraska law recognized the advanced stage of the 

proceeding as a ground for a finding of good cause to deny 

transfer.13 Nevertheless, the majority finds the juvenile court 

abused its discretion by finding the proceedings were at an 

advanced stage and there was good cause to deny the transfer. 

In essence, the majority finds the juvenile court abused its 

11 See § 43-1502 (Supp. 2015).

12 See 2015 BIA guidelines, supra note 3, 80 Fed. Reg. 10,149.

13 See In re Interest of Zylena R. & Adrionna R., supra note 1.
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discretion by failing to anticipate we would make a change in 

the substantive law. I think this analysis is imprecise and unfair 

to the trial court.

I have great difficulty with the conclusion that the juvenile 

court abused its discretion by applying settled law to the matter before it. Because we have resolved this appeal based on 

principles of statutory interpretation, rather than by an analysis 

of the court’s factual findings, I respectfully suggest the more 

appropriate standard of review would be that which we apply 

when reviewing questions of law. When reviewing questions 

of law, an appellate court has an obligation to resolve the 

questions independently of the conclusion reached by the trial 

court.14 We have applied this standard of review quite recently 

in a case where we were called upon to consider the meaning of the phrase “‘for good cause shown,’” a phrase which 

appeared in a statute but was undefined by the Legislature.15

There, we determined under the circumstances that our first 

task was to independently determine the meaning of “good 

cause shown” and, after we defined the term in light of the 

entire statutory scheme, we then reviewed the trial court’s factual findings for clear error.16

Here, were we to use the standard of review we typically 

apply when reviewing questions of law, I think the disposition 

of this case would be quite different. Rather than reversing the 

juvenile court’s order for an abuse of discretion and remanding the cause with directions to grant the transfer, we instead 

would vacate the juvenile court’s order denying the transfer 

and remand the cause for further proceedings under the new 

rule announced today.

Vacating and remanding for further proceedings would give 

the parties, and the trial court, the opportunity to apply the law 

14 Pettit v. Nebraska Dept. of Corr. Servs., 291 Neb. 513, 867 N.W.2d 553 

(2015).

15 Id. at 518, 867 N.W.2d at 557.

16 Pettit, supra note 14.
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we have announced today to the specific facts of this case. I 

think simply remanding the cause with directions to grant the 

motion to transfer after announcing a significant substantive 

change in the law unfairly limits the proceedings on an issue of 

critical importance to the parties.

ISSUES ON REMAND: QUANTUM OF 

PROOF, GOOD CAUSE, AND 

BEST INTERESTS

Because I think the proper disposition would be to vacate, 

and remand for further proceedings, I take this opportunity to 

address several aspects of our ICWA/NICWA jurisprudence 

likely to arise on remand.17

Quantum of Pr

We have been clear that the party opposing a motion to 

transfer has the burden of proving good cause not to transfer,18

but we have never specified the quantum of proof which 

must be met. Adopting a quantum of proof would provide a 

clear and consistent standard against which to determine when 

good cause has been proved. I would join the consensus of 

jurisdictions that have required good cause under ICWA to be 

proved by clear and convincing evidence.19 I note this heightened quantum of proof is expressly relied upon elsewhere in 

NICWA when referencing good cause20 and is consistent with 

17 See, In re Interest of Laurance S., 274 Neb. 620, 742 N.W.2d 484 (2007); 

Papillion Rural Fire Prot. Dist. v. City of Bellevue, 274 Neb. 214, 739 

N.W.2d 162 (2007).

18 In re Interest of Zylena R. & Adrionna R., supra note 1.

19 See, e.g., Thompson v. Dept. of Family Services, 62 Va. App. 350, 747 

S.E.2d 838 (2013); People in Interest of J.L.P., 870 P.2d 1252 (Colo. App. 

1994); Matter of Adoption of T.R.M., 525 N.E.2d 298 (Ind. 1988); In re 

A.P., 25 Kan. App. 2d 268, 961 P.2d 706 (1998); Matter of M.E.M., 195 

Mont. 329, 635 P.2d 1313 (1981).

20 See § 43-1508(4) (Supp. 2015).
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the statutory preference for tribal jurisdiction under ICWA 

and NICWA.21

Good Cau

By choosing not to statutorily define “good cause” in the 

context of transfers under ICWA and NICWA, Congress and 

the Nebraska Legislature have left to state courts the primary responsibility for interpreting the term. This is not a 

simple task.

In the past, we have been called upon to interpret the 

undefined phrase “good cause” in statutory contexts outside 

ICWA, and we have recognized the complicated nature of such 

an exercise.22 We have defined good cause, in the context of 

a statute dealing with probate, as “a logical reason or legal 

ground, based on fact or law” and emphasized that the meaning of good cause is to be determined “in light of all of the 

surrounding circumstances.”23 In the context of a criminal case 

considering an extension of time to prepare a bill of exceptions 

for good cause shown, we defined good cause as the intervention of something beyond the control of the litigant.24 We also 

have cited to Webster’s Third New International Dictionary 

to define good cause as “‘a cause or reason sufficient in law; 

one that is based on equity or justice or that would motivate a 

reasonable man under all the circumstances.’”25 Most recently, 

21 See 25 U.S.C. § 1911(b) (“the court, in the absence of good cause to the 

contrary, shall transfer such proceeding to the jurisdiction of the tribe”). 

Accord § 43-1504 (Supp. 2015).

22 Pettit, supra note 14, 291 Neb. at 519, 867 N.W.2d at 558 (recognizing 

it is more complicated than it may seem to define good cause, because it 

“surely depends upon the factual circumstances”).

23 In re Estate of Christensen, 221 Neb. 872, 874-75, 381 N.W.2d 163, 165 

(1986).

24 Bryant v. State, 153 Neb. 490, 45 N.W.2d 169 (1950).

25 In re Estate of Christensen, supra note 23, 221 Neb. at 874, 381 N.W.2d 

at 165 (emphasis omitted); DeVries v. Rix, 203 Neb. 392, 279 N.W.2d 89 

(1979).
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we examined the entirety of the relevant statute in determining 

the meaning of the phrase “good cause.”26

Based on the foregoing, I would hold that good cause to 

deny a transfer under ICWA and NICWA means a compelling 

reason, based in law or fact, which is not contrary to the provisions or purposes of ICWA and NICWA and is sufficient to 

overcome the strong presumption of tribal jurisdiction. And I 

think having a general definition of good cause in the context 

of transfers would assist litigants and courts in analyzing factual situations not otherwise addressed in BIA’s guidelines.

Historically, when interpreting good cause under ICWA, we 

have relied primarily on BIA’s guidelines, rather than applying 

more traditional rules of statutory construction. But continued 

reliance on BIA’s guidelines is problematic, because the 2015 

BIA guidelines do not undertake to define good cause, and 

instead focus exclusively on identifying that which is not good 

cause. This has not always been the case.

Under the 1979 BIA guidelines, good cause to deny a transfer was recognized under four specific scenarios: (1) the proceeding was at an advanced stage when the motion to transfer 

was filed; (2) the Indian child was over 12 years of age and 

objected to the transfer; (3) the evidence necessary to decide 

the case could not be adequately presented in the tribal court 

without undue hardship to the parties or the witnesses; or (4) 

the parents of a child over 5 years of age are not available, 

and the child has had little or no contact with the child’s tribe 

or members of the child’s tribe.27 The 1979 BIA guidelines 

specifically noted that the third scenario, undue hardship, was 

included because 25 U.S.C. § 1911(b) of ICWA was “‘intended 

to permit a State court to apply a modified doctrine of forum 

non conveniens, in appropriate cases, to [e]nsure that the rights 

26 Pettit, supra note 14.

27 1979 BIA guidelines, supra note 2, 44 Fed. Reg. 67,591, C.3(b)(i) 

through (iv).
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of the child as an Indian, the Indian parents or custodian, and 

the tribe are fully protected.’”28

For reasons which are not clear, the 2015 BIA guidelines 

omit all four of the good cause factors identified in the 1979 

BIA guidelines, and instead list only those things the BIA has 

determined courts may not consider in determining whether 

good cause exists.29 As for what may still constitute good cause 

under ICWA, the 2015 BIA guidelines merely recite that good 

cause may be found if “the State court otherwise determines 

that good cause exists.”30

The 2015 BIA guidelines explain why some of the 1979 

good cause factors were omitted (including the factor regarding advanced proceedings)31 but are silent regarding why 

two of the 1979 factors (the factor addressing the preference 

of an Indian child over age 12, and the factor addressing 

undue hardship) were omitted from the 2015 BIA guidelines. 

Because there was no explanation given for omitting these 

factors, it is not possible to judicially determine whether 

the BIA’s rationale for omitting these factors is in accord 

with ICWA and NICWA. But certainly, the lack of guidance 

from the Department of the Interior on this issue should not 

preclude state courts from considering whether these remain 

viable factors when determining good cause under ICWA and 

NICWA. And something must constitute good cause to deny 

a transfer to tribal court, because both ICWA and NICWA 

expressly authorize it:

In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian 

child not domiciled or residing within the reservation of 

the Indian child’s tribe, the court, in the absence of good 

cause to the contrary, shall transfer such proceeding to 

28 Id., 67,591, C.3, commentary.

29 2015 BIA guidelines, supra note 3, 80 Fed. Reg. 10,156, C.3(c).

30 See id., 10,149.

31 See id.
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the jurisdiction of the tribe, absent objection by either 

parent, upon the petition of either parent or the Indian 

custodian or the Indian child’s tribe: Provided, That such 

transfer shall be subject to declination by the tribal court 

of such tribe.32

Statutory language is to be given its plain and ordinary meaning, and an appellate court’s duty in discerning the meaning 

of a statute is to determine and give effect to the purpose and 

intent of the Legislature.33 Recognizing this, we must look 

beyond the notable silence of the 2015 BIA guidelines in order 

to determine and give effect to the good cause language in 

ICWA and NICWA.

In determining whether there is good cause to deny a 

transfer, I think it remains appropriate for courts to consider 

whether the evidence necessary to decide the case could be 

adequately presented in the tribal court without undue hardship 

to the parties or the witnesses. I note the 1979 BIA guidelines 

addressed this specifically:

Consideration of whether or not the case can be properly tried in tribal court without hardship to the parties or 

witnesses was included [as a good cause factor] on the 

strength of the section-by-section analysis in the House 

Report on [ICWA], which stated with respect to the 

§ 1911(b), “The subsection is intended to permit a State 

court to apply a modified doctrine of forum non conveniens, in appropriate cases, to [e]nsure that the rights 

of the child as an Indian, the Indian parents or custodian, 

and the tribe are fully protected.” Where a child is in fact 

living in a dangerous situation, he or she should not be 

forced to remain there simply because the witnesses cannot afford to travel long distances to court.34

32 25 U.S.C. § 1911(b). Accord § 43-1504(2).

33 Pettit, supra note 14; Village of Hallam v. L.G. Barcus & Sons, 281 Neb. 

516, 798 N.W.2d 109 (2011).

34 1979 BIA guidelines, supra note 2, 44 Fed. Reg. 67,591, C.3, commentary.
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The 1979 BIA guidelines went on to observe that “[a]pplication of this criterion will tend to limit transfers to cases 

involving Indian children who do not live very far from the 

reservation.”35 It was suggested that problems with an inconvenient forum might be alleviated by “having the court come 

to the witnesses” or requiring the “tribal court meet in the city 

where the family lived.”36

I find persuasive the rationale provided in the comments to 

the 1979 BIA guidelines that the undue burden factor is actually a modified forum non conveniens analysis, and I note that 

prior to the 2015 BIA guidelines, Nebraska recognized this 

as a valid factor in the good cause analysis.37 I see no principled basis under the operative statutes or our jurisprudence 

to depart from that precedent. When determining whether 

the doctrine of forum non conveniens should be invoked, we 

have said the trial court should consider practical factors that 

make trial of the case easy, expeditious, and inexpensive, such 

as the relative ease of access to sources of proof, the cost of 

obtaining attendance of witnesses, and the ability to secure 

attendance of witnesses through the compulsory process.38

Particular factors to consider in ICWA and NICWA cases may 

include whether alternative methods of participation, such as 

by telephone or videoconferencing, are available.39 I note the 

juvenile court in this case made specific reference in its order 

to the fact that the tribal court was more than 430 miles from 

Lincoln, Nebraska.

35 Id.

36 Id.

37 See In re Interest of Leslie S. et al., 17 Neb. App. 828, 770 N.W.2d 678 

(2009).

38 See In re Interest of C.W. et al., 239 Neb. 817, 479 N.W.2d 105 (1992), 

overruled on other grounds, In re Interest of Zylena R. & Adrionna R., 

supra note 1.

39 See 2015 BIA guidelines, supra note 3, 80 Fed. Reg. 10,156, C.1(d). See, 

also, In re Spears, 309 Mich. App. 658, 872 N.W.2d 852 (2015).
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By specifically mentioning forum non conveniens, I do 

not mean to suggest it is the only “good cause” factor which 

remains viable in the wake of the 2015 BIA guidelines. I note 

that when the Legislature amended NICWA in 2015, it added 

both a definition and a standard of proof for “good cause” in 

the context of placement preferences for Indian children:

Good cause to deviate from the placement preferences 

in subsections (1) through (3) of this section includes: 

(a) The request of the biological parents or the Indian 

child when the Indian child is at least twelve years of 

age; (b) the extraordinary physical or emotional needs of 

the Indian child as established by testimony of a qualified expert witness; or (c) the unavailability of suitable 

families for placement after a diligent search has been 

completed for families meeting the preference criteria. 

The burden of establishing the existence of good cause to 

deviate from the placement preferences and order shall be 

by clear and convincing evidence on the party urging that 

the preferences not be followed.40

This new definition of good cause appears instructive on 

the related task of determining good cause to deny a transfer request and illustrates several possible factors supporting a good cause finding which the Legislature has concluded are not contrary to the provisions or purpose of ICWA 

and NICWA.

Finally, because “best interests” is addressed in the majority opinion, I write separately to suggest that recent legislative 

amendments to NICWA undermine our holding in In re Interest 

of Zylena R. & Adrionna R.,

41 that state courts may not consider the best interests of an Indian child in deciding whether 

there is good cause to deny a transfer to tribal court.

L.B. 566 made significant amendments to NICWA, including expanding the stated purpose of NICWA to recognize the 

40 § 43-1508(4).

41 In re Interest of Zylena R. & Adrionna R., supra note 1.
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state’s commitment to “protecting the essential tribal relations 

and best interests of an Indian child by promoting practices 

consistent with [ICWA]”42 and adding a new definition of 

“best interests of the Indian child”:

(2) Best interests of the Indian child shall include:

(a) Using practices in compliance with [ICWA], 

[NICWA], and other applicable laws that are designed to 

prevent the Indian child’s voluntary or involuntary out-ofhome placement; and

(b) Whenever an out-of-home placement is necessary, 

placing the child, to the greatest extent possible, in a foster home, adoptive placement, or other type of custodial 

placement that reflects the unique values of the Indian 

child’s tribal culture and is best able to assist the child 

in establishing, developing, and maintaining a political, 

cultural, and social relationship with the Indian child’s 

tribe or tribes and tribal community.43

It is significant that the Nebraska Legislature undertook to 

define “best interests of the Indian child” under NICWA and 

that it did so in a manner which does not prohibit consideration 

of best interests altogether, but, rather, narrows the traditional 

concept of best interests to reconcile it with the important 

policy goals and procedural protections afforded by ICWA 

and NICWA.

As such, on the issue of whether some inquiry into an 

Indian child’s best interests is permitted when determining 

whether there is good cause to deny a transfer, I read the recent 

amendments to NICWA as indicating that consideration of 

best interests need not be categorically excluded, but must be 

narrowly applied in a manner that is consistent with the provisions and promotes the goals of ICWA and NICWA. Because 

I think these recent legislative amendments to NICWA compel 

us to reconsider the breadth of our holding in In re Interest of 

42 § 43-1502.

43 § 43-1503(2) (Supp. 2015).
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Zylena R. & Adrionna R., I cannot agree with the majority’s 

broad statement that “the best interests of the Indian child is 

not a basis for good cause to deny a transfer of the case to 

tribal court.”

In summary, I agree with the majority that the mere advanced 

stage of the proceeding should no longer be good cause to deny 

a motion to transfer to tribal court. But because we announce 

a significant change in the law today, I respectfully disagree 

with the majority’s disposition of this case, and suggest the 

better disposition would be to vacate, and remand for further 

proceedings, and in doing so, I would provide further guidance 

on the applicable standard of review, the appropriate quantum 

of proof, and the proper parameters of good cause to deny a 

transfer under ICWA and NICWA. For these reasons, I both 

concur and dissent in the opinion of the court.

Heavican, C.J., and Cassel, J., join in this concurre

and dissent.