II. THE CIRCUIT COURT ACTED IMPROPERLY BY DENYING THE MOTION TO TRANSFER BY EMPLOYING A BEST INTEREST TEST BECAUSE IT CONTRADICTS THE PURPOSE OF ICWA. The second question presented by this case is not about what Jolon G.’s best interests are but is a question about which court is best situated to decide what the best interest of Jolon, an Indian Child, are. The Circuit Court decided that it, and a Tribal Court, was best situated to decide the rights of the Indian Child, Jolon. In reaching that decision the Circuit Court impermissibly jumped past that question and applied a “best interests” test to determine it has “good cause” to retain jurisdiction under 25 U.S.C. § 1911(b). First, in enacting ICWA, Congress made a conscious policy choice to establish a presumption in favor of the jurisdiction of Tribal Courts in child custody proceedings involving Indian Children. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 36 (1989); In re Robert T., 246 Cal.Rptr. 168, 172 (1988) (“the tribal court is the preferred jurisdiction under the Act”). Such a policy choice is a legislative prerogative and this Court should grant appropriate deference to it. Second, guidelines promulgated by The Bureau of Indian Affairs, 44 Fed. Reg. 67584 (Nov. 26, 1979) (hereinafter BIA Guidelines), at the behest of the Secretary of the Interior, provide a useful framework for determining the proper scope of the limited exception provided for by the statutory text. In re Lucas, 177 Or.App. 318, 324 (2001); Robert T., 246 Cal.Rptr. 174; In re J.L.P., 870 P.2d 1252, 1257 (Colo. App. 1994). The BIA Guidelines are entitled, as a matter of law, to great weight in this Court’s interpretation of ICWA. Furthermore, the legislative intent behind ICWA shows that Congress intended courts to apply only a limited modified forum non conveniens test to allow for the administration of justice in cases where tribal jurisdiction is impractical and that the standard applied be uniform throughout the nation. 44 Fed. Reg. at 67591. As a policy decision by Congress, this Court should be deferential to the legislative power. Finally, even if this Court does not limit “good cause” solely to the modified forum non conveniens test, there is ample authority to suggest that the “best interest” test as used by the Circuit Court was inappropriate. In re J.L.P., 870 P.2d 1252 (Colo. App. 1994); In re Armell, 550 N.E.2d 1060 (Ill. App. 1990); In re Adoption of Halloway, 732 P.2d 962 (Utah 1986). Oregon should join her sister states in rejecting the “best interests” test. Therefore, this Court should reject the use of a “best interest” test, and instead adopt the narrower standard that provides for broad jurisdiction of the Tribal Courts and, as a result, reverse the judgment of the Circuit Court. A. Because ICWA establishes a presumption in favor of tribal jurisdiction this Court should construe the “good cause” in narrowly to provide a broad grant of jurisdiction. Congress originally passed ICWA in response to a very specific problem, finding “that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies….” 25 U.S.C. § 1901(4). One of Congress’ chosen remedies for this problem was 25 U.S.C. § 1911. At its core, then, the case at bar is an exercise in statutory construction. As previous discussed, because ICWA is a federal statute, the Federal methodology to statutory construction. Hagan, 328 Or. at 545. In interpreting statutes, the methodology is fairly straightforward and similar to Oregon’s approach. See, e.g., Dep’t of Rev. v. ACF Indus., Inc., 510 U.S. 332, 339-46, (1994) (examining text, structure and legislative history of a federal statute). However, the Supreme Court has instructed that the emphasis on the relative elements is different. Justice Kennedy wrote “As we have repeatedly held, the authoritative statement is the statutory text, not the legislative history or any other extrinsic material.” Exxon Mobil Corp. v. Allapattah Services Inc., 545 U.S. 546, 568 (2005). This Court must give primary consideration, therefore, to the statutory text itself. Any extrinsic evidence should be considered only to the extent “they shed a reliable light on the enacting Legislature’s understanding of otherwise ambiguous terms.” Id. The plain language of ICWA shows Congress intended to give a broad presumption of jurisdiction. Further, the Supreme Court of the United States and numerous other courts throughout the nation have interpreted ICWA accordingly. Where ICWA is ambiguous, the BIA Guidelines “shed a reliable light” on the meaning of those ambiguities. 1. The text of ICWA establishes a presumption of jurisdiction in favor of Tribal Courts. The provision of ICWA disputed in the case at bar provides “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....” 25 U.S.C. § 1911(b) (emphasis added). Congress’ use of “shall transfer” is illuminating. Shall means “has a duty to; more broadly is required to.” Black’s Law Dictionary, 1499 (Bryan A. Garner ed., 9th ed., West 2009). Thus Congress intended that the court “has a duty to” or “is required to” transfer jurisdiction to the Tribal Court, subject to the exception of good cause to the contrary. This language strongly suggests that Congress intended to limit the trial court’s discretion narrowly. However, that is not the only expression of Congress’ intent within ICWA. They also codified their findings and intent in the statutory text itself. The Congressional findings of fact that lead to the creation of ICWA state Congress found “that the States . . . have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.” 25 U.S.C. § 1901(5). That finding indicates that Congress found that the state Courts are, generally, not the best jurisdiction to hear Indian custody disputes because they had difficulty reflecting the uniqueness of Indian culture. When read together, the finding of state Court inadequacy regarding child custody and the use of obligatory language in drafting the transfer provision indicate that Congress intended to create a particular remedial scheme. Particularly, it suggests that Congress sought to create a policy that favoured the adjudication of matters involving Indian Children by Tribal Courts as a matter of course, which would be consistent with Congress’ finding “that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children.” 25 U.S.C. § 1901(3). This Court should seek to effectuate this policy intention of Congress and consequently start with the presumption that jurisdiction should be transferred to the tribe. 2. Case law has construed ICWA accordingly. The case law has found this to be true. The Supreme Court of the United States has not had much occasion to visit ICWA, but when it did, it took the opportunity to directly state “At the heart of the ICWA are its provisions concerning jurisdiction over Indian child custody proceedings.... Section 1911(b) ... creates concurrent but presumptively tribal jurisdiction in the case of children not domiciled on the reservation....” Holyfield, 490 U.S. at 1601-02 (emphasis added). The California Court of Appeals, Sixth District stated “the Tribal Court is the preferred jurisdiction under the Act.” Robert T., 246 Cal.Rptr. at 171. Other courts have made similar statements. E.g., In re Adoption of S.S., 167 Ill.2d 250, 258 (1995); In re Welfare of R.S., 805 N.W.2d 44, 51 (Minn. 2011); In re D.A.C., 933 P.2d 993, 996 (Utah App., 1997). This Court would not be breaking any new ground by agreeing to the existence of such a presumption. In fact, it would simply be affirming a proposition it is required to accept due to the decision of the Supreme Court. 3. Because of the presumption for Tribal Court jurisdiction and the underlying policy of ICWA, this Court should read “good cause” as a narrow standard. As discussed above, Congress enacted ICWA as a response to a perceived problem. As such, ICWA is a remedial statute which should be construed liberally to achieve its designed purpose. County of Yakima, 502 U.S. at 269; Quinn, 320 Or. at 257. The plain text of ICWA, discussed above, strongly indicates that Congress’ purpose in enacting 25 U.S.C. § 1911(b) was to have Tribal Court decide matters about Indian Children. It is in light of this purpose that this Court must liberally construe the presumption of jurisdiction in favor of Tribal jurisdiction. The “good cause to the contrary” exception in the statute expressed in ICWA § 1911(b) is a method to rebut the presumption in favour of Tribal Court jurisdiction. Because it is an exception to a provision key to the purpose of ICWA, this Court should construe that exception narrowly to prevent frustrating the purpose of the statute. As discussed below, this Court should limit “good cause to contrary” to a narrow, modified form of the forum non conveniens test which focuses on the ability of the parties to present their case in Tribal Court which does not contain a “best interests” test as applied by the Circuit Court in the case at bar. B. The most appropriate test for “good cause” is a modified forum non conveniens analysis because it is consistent with the BIA Guidelines and the intent expressed by the legislative history. While “good cause to the contrary” is not defined within ICWA, this Court must determine the proper meaning of “good cause to the contrary.” The BIA Guidelines, ICWA’s legislative history and the approach taken by sister courts, especially those in the heart of Indian Country, would suggest that this Court adopt a modified forum non conveniens analysis that does not include any “best interest” test. 1. The BIA Guidelines are persuasive authority that counsel towards a modified forum non conveniens analysis. ICWA delegates primary authority of the determination of “good cause” to the courts. The BIA guidelines do not claim to be binding as force of law but they are the interpretation of the statute that Department of the Interior and the Bureau of Indian Affairs believe is correct. 44 Fed.Reg. at 67584. To the extent that they are correct, violating them would violate the act. Id. Though ultimate authority rests with the courts, administrative interpretations are given important significance. Batterton v. Francis, 432 U.S. 416, 424-425. Additionally, as extrinsic evidence, they should be evaluated under Justice Kennedy’s “reliable light” standard. Justice Kennedy was concerned that extrinsic materials were often themselves “murky” and subject to “manipulation.” Exxon, 545 U.S. at 68. In the case of the Guidelines, they followed the same process as proposed regulations and were promulgated by the Bureau of Indian Affairs in the year immediately following the enactment of ICWA. In the case at bar, the BIA Guidelines provide a principled way of construing “good cause” promulgated in a clear form by an agency not easily manipulated that would appear consistent with the intent of the Legislature as expressed in the statutory text. Furthermore, the Oregon courts have already used the BIA Guidelines as persuasive authority to decide ICWA disputes. In Lucas the Oregon Court of Appeals was faced directly with a question of determining “good cause” under ICWA as well as on a separate provision of ICWA which the BIA Guidelines address. The Court of Appeals considered the guidelines authoritative and decided both accordingly. Lucas, 177 Or.App. at 324-25. In In re Amador, the Court of Appeals was presented with a very similar ICWA dispute which the guidelines addressed. The Court of Appeals stated that while not controlling “they are nevertheless instructive to our interpretation of the statute.” 176 Or.App. 237, 243 (2001). Since the Oregon courts have already used the guidelines as interpretive authority, this Court would simply be approving existing practice by doing so. 2. A modified forum non conveniens analysis is consistent with the BIA Guidelines. The BIA Guidelines provide 5 criteria for good cause: (1) the lack of a Tribal Court, (2) the Tribe did not request transfer until a very late point in the proceedings, (3) the child is 12 or older and objects, (4) the evidence necessary to decide the case cannot be presented without undue hardship on the parties, or (5) the parents are unavailable and the child is older than 5 and has no contact with tribe. 44 Fed. Reg. at 67591. The point behind most of the guidelines is self-evident. In the case at bar, the only guideline potentially applicable under the facts is the guideline that speaks of undue hardship. The only question is what is meant by undue hardship. The guidelines say, “The evidence necessary to decide the case could not be adequately presented in the Tribal Court without undue hardship to the parties or witnesses.” Id. This suggest the test is whether the parties would be burdened by presenting their case in the Tribal Court, either due to personal inconvenience or to their witnesses. This is supported by the commentary provided by the BIA in support of its guidelines. The commentary states “Consideration of whether or not the case can be properly tried in Tribal Court without hardship to the parties or witnesses was included on the strength of the section-by-section analysis in the House Report on the Act....” Id. The House Report, discussed below, expressly endorsed a modified forum non conveniens approach. By choosing to file her petition in Lake County – the same county in which the Coldcreek Reservation is located – Grandmother has waived any possible forum non conveniens argument. Furthermore, Grandmother cannot make any claim that “best interests” should be read into the “undue hardship” language of the guidelines. If this Court accepts the meaning of the BIA Guidelines on their face and in accordance with commentary, the concern is explicitly not the final “best interests” of the child. Forum non conveniens is designed to prevent parties and witnesses from having to appear in a geographically inconvenient forum and thereby prejudicing their ability to present a case effectively. Jolon’s mental health, while indisputably relevant to the final outcome of this case, is not a geographic inconvenience and has nothing to do with whether the evidence can be presented to a competent tribunal. Furthermore, to the extent that having to face his abusers could be detrimental the ability of Jolon as a witness, the tribe merely points out that, should Robert H. be a witness, the concern would be equally valid regardless of which court this case were to tried in. It could be obviated by equally simple measures, such as having Kurt G. take Jolon from the courtroom after his testimony and/or barring Robert H. from the proceedings except for testifying. Any attempt by Grandmother to try and stretch undue hardship to cover “best interests” should thus be rejected. 3. Congress’ understanding of ICWA was that “good cause” would be limited to a modified forum non conveniens standard. The legislative history of ICWA independently supports the interpretation embodied in the BIA Guidelines. Aside from the findings of Congress in 25 U.S.C. § 1901 and the statement of intent in 25 U.S.C. § 1902, there exists a record of legislative material relating to the intent of Congress. While keeping in mind Justice Kennedy’s admonishment that judicial inquiry can become a game of playing favourites, Exxon, 545 U.S. at 568, there is history consistent with the arguments set out above. The report of the House Committee on Interior and Insular Affairs is used as the authority behind much of the BIA Guidelines and their official commentary. The Committee was of the opinion that 25. U.S.C. §1911(b) was “intended to permit a State Court to apply a modified doctrine of forum non conveniens, in appropriate cases, to insure that the rights of the Child as an Indian, the Indian parents or custodian, and the tribe are fully protected.” H.R. Rpt. 95-1386 at 21 (July 24, 1978). The language of the Committee strongly points to an interpretation of ICWA consistent with the BIA Guidelines and with the broad concerns and policies articulated in ICWA itself. Also of interest is the language that the provision intends a triple purpose: protecting the rights of the Child as an Indian, the rights of the Indian parents or custodian, and the rights of the tribe. This would comport with Congress’ acknowledgement of the value of children to the tribe and its dismay at the removal of children from their families and their culture as discussed above. While no one would suggest that the Indian Child in a custody proceeding is not important, the language indicates that this Court should also give great importance to the Tribe. C. Even if the Court does not limit “good cause” to the modified forum non conveniens test, it should not allow the “best interests” test because it would frustrate the idea that Federal law should be applied uniformly across the nation. The text of ICWA indicates that Congress desired that it be interpreted uniformly. ICWA at § 1902. While it is not the case that ICWA has been uniformly interpreted throughout the country, this Court should still seek this goal and adopt the position endorsed by the majority of its sister states. The “best interest” test has been adopted in a very small minority of states. The Montana Court held in In re M.E.M. “The burden of showing ‘good cause’ must be carried by the state with clear and convincing evidence that the best interests of the child would be injured by such a transfer.” 635 P.2d 1313, 1317 (Mont. 1981). Indiana endorsed a similar approach in In re T.R.M., allowing the conclusion that transfer “would likely result is in serious emotional and physical harm to the child.” 525 N.E.2d 298, 308 (Ind. 1988). Similarly, the California Court of Appeals is “satisfied that this is a pertinent and indeed a necessary consideration in deciding whether to grant or deny a transfer request.” Robert T., 246 Cal.Rptr. at 175. None of these cases are persuasive. In M.E.M., the mother was developmentally challenged, having an IQ of only 53, was completely depending on S.S.I. payments for survival, was incapable of supporting herself through employment, was suspected of prostitution by the staff of the rescue mission where she frequently sought emergency housing and the Tribal Court intended to place the child in a situation that would facilitate sexual abuse by the uncles of the child. 535 P.2d at 1314-15. The case at bar is very different. Mother has problems; neither she nor the Tribe deny this. However, in M.E.M. the mother was entirely dependent upon the state. In the case at bar, mother is a competent adult who has, shown herself as capable of supporting herself and a child. Furthermore, the Tribe agrees that if it intended to make a placement that would subject Jolon to a highly damaging, felonious act it would be a perversion of justice to transfer jurisdiction. However, in the case at bar, no such perversion of judgment exists. There is nothing in the record to suggest that the Tribal Court intends to allow Jolon to be abused, and Mother has expressed no intention to revoke the already existing consent order placing Jolon with Grandmother, meaning he is staying there regardless of the final disposition of this case. This Court should not create a general rule based on a situation that is so extreme that it invokes principles manifestly inapplicable to the case at bar. Further, the Montana courts have also suggested that M.E.M. does not stand for the idea that “best interests” means, in Montana, what petitioners would claim it to mean in the case at bar. A later court stated “This ‘best interests of the child’ test should not be confused with the ‘best interests of the child’ test applied under § 40-4-212, MCA in custody determinations between parents in a dissolution. It also should not be confused with the criteria used to determine child abuse, neglect, and dependency and to terminate parent child legal relationships under Title 41, Chapter 3, MCA.” In re T.S., 801 P.2d 77, 80 (Mont. 1990). Exactly what the Montana Supreme Court thinks the test should mean is unclear. The Tribe contends that this Court should also not adopt a test on the authority of a jurisdiction that cannot clearly articulate its own test. Similarly, T.R.M. is distinguishable .There, the mother had asked the adoptive parents to adopt the child, abandoning the child to their care less than a week after the child’s birth, executing a consent decree to the adoption and then – seven years later – filed a habeas corpus petition to have the child returned to her. 525 N.E.2d at 302. There, the Court had no need to reach the question of “good cause” because it first concluded that ICWA did not apply to begin with. Id. at 303. Further, although the court couched it in “best interest” language, arguably it was doing nothing more than applying the BIA Guidelines’ “late stage of the proceeding” test. The Tribe would concede that seven years after the adoption was completed untimely. In the present case, ICWA does apply, Mother has not given up her parental rights and the Tribe moved to intervene and transfer well before trial, much less a final order. This Court should not adopt a rule from a court that was answering a question it need not have reached at all. Nor should this Court adopt a test that could properly be characterized as a different. Robert T. rests its reasoning on a citation to M.E.M., 246 Cal.Rptr. at 175, and this Court should thus be reluctant to extend a case that is doubly problematic: one where ICWA did not apply and the facts were very different. Further, a large number of states have adamantly refused to adopt such a test. Armell, 550 N.E.2d at 1065; In re C.E.H., 837 S.W. 947, 954 (Mo.App. 1992); The Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152, 168 (Tex.App. 1995) affrm’d on other grounds. This Court should adopt the reasoning set forth in these decisions that the “best interest” test is not appropriate in determining jurisdiction and frustrates the purpose of ICWA. In Armell, the Court held that “Considerations involving the best interests of the child are relevant not to determine jurisdiction but to ascertain placement.” N.E.2d at 1065. Further, the Mejia Court considered this issue at length. It noted, “When state courts used this test, they obviously consider the factors from their own perspective, that is, an Anglo-American point of view.” Mejia, 906 S.W.2d at 168. The court concluded such a test was improper because “it defeats the very purpose for which the ICWA was enacted, in that, it allows Anglo cultural biases into the analysis” and that doing so is engaging “in the type of analysis that created the need for the Act in the first place” because “[t]he underlying assumption is that relying on an Indian determination of best interest would not truly result in what is best for the Indian child. We view this as an arrogant idea...” Id. at 169, 170 (emphasis added). This Court should extend that reasoning, as it best embodies the purposes of ICWA. ICWA seeks to insure that Indian children are not taken from their parents and tribes by courts ill acquainted with Indian culture and that, as a result, substitute their Anglo cultural biases in place of the Indian culture. The best way for this Court to avoid that and advance the purpose of ICWA is to hold that “best interests” is not an appropriate consideration at the jurisdictional phase and refuse the implicit assumption that the Tribal Court lacks the wisdom and ability to determine what is in Jolon’s best interest.