Figuring out where the California Court of Appeal courts are on the initial inquiry duty when a child is removed from their home is about as easy as detangling a ball of Christmas lights. The Samantha F. case does a nice job of going through where everything is, and what courts have held. This issue is fairly specific to California, which has certain ICWA inquiry requirements in state law and court rules for the removal of any child from their home. The question at issue seems particularly frustrating, because certain California courts have held there is no duty for contacting a child’s extended family re. tribal citizenship if the child was removed from the home with a warrant. However, there is such a duty if they were removed from the home without a warrant. In reading the cases, it feels like there was an oversight in drafting the state laws rather than some kind of legislative intent to suss out. Regardless, this has been the top litigated issue in California ICWA cases for almost a year now. In fact, it was nearly a year ago I posted about this at length. Apparently filing is finally underway in the In re Ja. O. case now. Briefing in the other set of cases appears to be complete but oral argument has not yet been set.
Author: Kate Fort
AFCARS Model Comment Available
As a reminder, comments for the ICWA AFCARS are due April 23. The Indian Law Clinic has developed a model comment for tribes to edit and use if they so wish. For a copy of the comment, please contact Cody Fowler, who has done the heavy lifting on this work, is an MSU grad and is helping out the Clinic for a few weeks! He can be contacted at:
fowler48@msu.edu
The proposed rule is here, as well as the link to submit comments:
https://www.federalregister.gov/documents/2024/02/23/2024-03373/adoption-and-foster-care-analysis-and-reporting-system
As a reminder, this is a proposed rule to require nationwide data collection about ICWA children in foster care. We have never had nationwide data on ICWA cases, despite nearly ten years of active litigation to try to get the 2016 rule back, and many years of activism before that to get the 2016 rule.
Washington Governor Signs Bill into Law Authorizing State LE to Enforce Tribal Warrants
Press release here. The bill is here.
OLYMPIA — People who commit crimes on tribal lands would not be able to escape justice by fleeing into Washington state lands, under legislation passed unanimously by the House Wednesday.
SB 6146 would authorize Washington state law enforcement officers to enforce warrants issued by Washington’s 29 federally recognized tribes and empower them to transport people to tribal lands for prosecution.
“This law will help keep communities in Washington and on tribal lands safe, while respecting the constitutional rights of defendants,” said Sen. Manka Dhingra (D-Redmond), sponsor of the bill. “Our laws need to reflect the realities of our world today. We have been operating under laws written when travel between jurisdictions wasn’t easy and the technology to confirm identity didn’t exist, so this legislation modernizes our laws to address the problems that arise today, when it is easy to flee from one jurisdiction into another.”
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Chairman Steve Edwards of the Swinomish Indian Tribal Community thanked Dhingra and Lekanoff for “convening a process that brought together all 29 tribes with Washington state law enforcement and prosecutors to work collaboratively on solutions through which the state can recognize tribal warrants. This legislation will help to keep all Washingtonians safe around the state and on tribal lands.”
News article here.
Senate Bill 6146 will authorize Washington state law enforcement officers to enforce warrants issued by the 29 federally recognized tribes in Washington. The bill further allows officers to transport individuals to tribal lands for prosecution, simplifying the process of addressing criminal activities in cooperation with tribal authorities.
Reminder: AFCARS Comments on ICWA Due April 23
I posted about this here, and comments are due April 23. The Indian Law Clinic should have a model comment available for tribes to use and edit by the end of next week.
This rule proposes to require states that receive federal funding for their foster care systems to gather accurate data on children in state courts who are subject to ICWA’s protections. This is done through the Adoption and Foster Care Analysis and Reporting System (AFCARS) If you are a state worker, please encourage your state agency to comment in favor of this rule.
The proposed rule is here and is nearly identical to the one promulgated in 2016 (and then withdrawn by the Trump administration).
MSU Law Alum Sharon Avery Appointed to NIGC
Sharon Avery is an enrolled member of the Saginaw Chippewa Tribe of Michigan. She currently serves as an Associate General Counsel for the National Indian Gaming Commission’s Office of General Counsel. In this role she has gained familiarity with the agency’s structure and the important role the agency plays within the Tribal gaming industry. Prior to joining the National Indian Gaming Commission, Ms. Avery worked in the Legal Department of the Saginaw Chippewa Indian Tribe of Michigan for 10 years. She graduated from Michigan State University College of Law with a Juris Doctor degree and a certificate from the Indigenous Law and Policy Center.
Congratulations Sharon!!!
ProPublica Follow Up Article on Bonding “Expert”
In a follow up to the foster parent intervention article that was published in ProPublica and The New Yorker in October, this week ProPublica published an article on the woman who regularly wrote expert reports supporting foster care placement over parents and relatives.
Here.
Who hired and was paying her in the case that she was being deposed about? The foster parents, she answered. They wanted to adopt, she said, and had heard about her from other foster parents.
Had she considered or was she even aware of the cultural background of the birth family and child whom she was recommending permanently separating? (The case involved a baby girl of multiracial heritage.) Baird answered that babies have “never possessed” a cultural identity, and therefore are “not losing anything,” at their age, by being adopted. Although when such children grow up, she acknowledged, they might say to their now-adoptive parents, “Oh, I didn’t know we were related to the, you know, Pima tribe in northern California, or whatever the circumstances are.”
The Pima tribe is located in the Phoenix metropolitan area.
HHS Releases Proposed Rule to Collect ICWA Data through AFCARS, Comments Needed
If you are reading that title and thinking, “Kate, I am pretty sure you have posted this before. Like, a lot.” you are not wrong:
https://turtletalk.blog/?s=AFCARS
In fact, titles from prior posts include “Adoption and Foster Care Analysis and Reporting System (AFCARS) Notice of Proposed Rule Making. Again.” and “Déjà vu All Over Again: AFCARS Comments Needed“
The short version of this 10 year saga is that at the end of the Obama administration, HHS promulgated a rule that would require Title IV-E agencies to collect information on ICWA. Before that could go into effect, the Trump administration withdrew it, and issued a different rule. After that happened, tribes and groups representing LGBTQ+ interests sued the feds to get the original rule back. Disclaimer, the MSU Indian Law Clinic represents the plaintiffs in that litigation along with Lambda Legal and Democracy Forward. Finally, the Biden administration has proposed a new rule that would go back to collecting ICWA data (this rule does not include sexual orientation or gender identity data elements). This means, yes, if you have worked in this area for the past 10 years, you may have submitted upwards of 5 sets of comments on this issue (I just checked, and we put our first one in 9 years ago, which was written by a 2L who is now a tribal leader).
The proposed regulation is here, as is the link to submit comments:
What does this mean? Well, dust off your prior comments regarding the history of ICWA, the importance of ICWA, the importance of data related to ICWA, the importance of ICWA data to the children, families, and tribes involved in the system, and review the latest proposal. The actual data reporting requirements begins on 13665. Then submit an updated version of your comments in support of collecting ICWA data before April 23, 2024.
At a very first glance, this proposed rule appears to include a lot of important data questions that would inform practice and help with compliance, and limit the data collection to “state” Title IV-E agencies. The proposed rule appears marginally more limited than the original 2016 rule, but more expansive than the 2020 rule, though I will need to compare them more closely.
Save the Date for the Washington State Bar 37th Annual Indian Law Conference
Registration will open up the second week of March
MSU Law Clinic CLE on Tribal Claims and Federal Jurisdiction, March 4
Please join us in person or remotely for a free CLE on the Tucker Act and tribal claims:
Attendees will delve into the complexities of tribal claims and fiduciary duties, while examining the historical context and legal frameworks that underpin these disputes.
Kathryn Fort, Clinic Director, will provide introduction and welcome. This panel of participants will include Judge David A. Tapp of the United States Court of Federal Claims; Dondrae Maiden, Director of the Indian Trust Litigation Office, Department of Interior; Frank Singer, senior litigation counsel with the Environment and Natural Resources Division of the U.S. Department of Justice, representing the Defendant’s perspective; and Thomas Peckham of Nordhaus Law Firm, LLC representing the Tribal Plaintiffs’ perspective.
Chief Justice Position for Blackfeet Tribe Appellate Court
Position Announcment Chief Justice
This is an active appellate court with many interesting and sometimes complex cases.
The Blackfeet Tribe is actively seeking applications for a Chief Justice for the Court of Appeals. The Chief Justice is responsible for overseeing the judicial component of the Blackfeet Court of Appeals in accordance with the Blackfeet Constitution and By-Laws, 1934, Blackfeet laws, judicial oath of office, terms of appointment and the Blackfeet Rules of Court. The Chief Justice is also responsible for ensuring that Court of Appeals grants and contacts are adhered to. Will preside over all cases within the Blackfeet Court of Appeals. Must have a Juris Doctorate from an ABA accredited law school and be at least thirty (35) years of age at time of appointment.
For application materials, including job description and qualification requirements, please contact the Blackfeet Tribe Personnel Department at (406) 338-7307 or email mbird@blackfeetnation.com or laugare@blackfeetnation.com.
Turtle Talk 
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