California Considering Waiving Pro Hac Vice Requirements for Attorneys Representing Tribes in ICWA Cases

California Considering Waiving Pro Hac Vice Requirements for Attorneys Representing Tribes in ICWA Cases

By:      Ted Griswold | Partner | ted.griswold@procopio.com

In a move that is supported by many Tribal practitioners, the Tribal Court-State Court Forum is recommending an amendment to the California Rules of the Court, Rule 9.40, to waive the requirement that out-of-state counsel appear pro hac vice for the purposes of representing Tribes in Indian Child Welfare Act (ICWA) cases in California.  This proposed move is important for two reasons in California:

  1. California has an extraordinarily high number of appeals of ICWA cases, particularly by Tribes, indicating that at the initial decision level Tribal Governments are often not well represented in ICWA cases.
  2. In addition, California cities were destinations for many of the removal efforts of the federal government in the 20th century when families and children of Tribal communities were removed from reservations in assimilation efforts. As a result, there are a high number of Native American individuals in California whose heritage derives from tribes outside of the state.

A combination of these two factors has raised common concerns for the ability of Indian Children and their Tribal interests to receive proper protection under ICWA and the barriers to out-of-state Tribes’ representation in ICWA cases in the State of California.  The proposal partially stems from a California ICWA Compliance Task Force presentation to California Attorney General Xavier Becerra, which highlighted the problems associated with representation for out-of-state Tribes and recommended the revision for pro hac vice rules.  Review of the rules can be found here.  Comments regarding the proposed rule change, due by June 8, 2018, may be submitted to the Judicial Council of California by clicking here.  If adopted, the revised rule would take effect January 1, 2019.   The Judicial Council’s invitation to comment and additional information can be found here.

Ted GriswoldTed Griswold is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.