This information is from a presentation I gave today at the Minnesota CLE.
In 2011 there were 199 ICWA cases (249 in the allstate-cs Westlaw database using “Indian Child Welfare Act” search. 50 were not ICWA cases.). Of those 122 (61%) were California notice or inquiry cases. This is less than the last time we checked in 2007 (308 cases). The state continues to remand nearly 50% of all the notice cases (58 remanded, 48%). The only state even close to California on notice cases is Michigan, with 8 last year, and 5 remanded.
Of the family lore cases, there was only one additional case in 2011 from the same lower court as the others and none in 2012.
Once we take out the California notice cases, active efforts cases are the next most litigated cases (24). A large number of those are out of Alaska, and even ones that aren’t out of Alaska are using Alaska cases to define active efforts.
Otherwise, there were 8, transfer cases, 7 QEW cases, 7 notice and inquiry cases (non-CA and MI), 6 burden of proof cases, 5 placement preferences, 5 jurisdiction cases, 1 due process, 1 standing case. There were a number of cases that were ICWA cases, but didn’t really use or discuss ICWA in the final decision, which was strange. In this paragraph, some cases were counted twice, because active efforts and burden of proof, for example, are usually discussed in the same case. We’re still deciding how best to classify those.
So far in 2012, there have been 71 cases. 33 (46%) of those were California notice and inquiry cases, and 48% (16) were remanded. There were 5 Michigan notice cases. Nationwide, there were only 2.
Our current assumption is that as notice cases fall in numbers, other cases will rise–this is based on the hopeful idea that a decrease in notice cases means courts might actually be doing notice properly. Once notice is done properly and ICWA applies and/or the tribe is involved, it seems logical that other areas (specifically transfer, active efforts, and placement preferences) of ICWA will be litigated more often.
In 2012 there were 8 active efforts, 7 placement preferences, 6 transfer, 2 other notice and inquiry, and 1 QEW case.
Finally, we’ve also been keeping track of all transfer cases since the passage of the law. So far our spreadsheet has 123 cases total. 37 (30%) of those have either transferred cases to tribal court or reversed a denial of transfer and ordered a hearing on the issue (7). 60 cases have affirmed an initial denial of transfer. 21 cases have reversed an initial transfer. Only 19 cases have reversed a denial of transfer. 3 did not consider the issue of transfer.
When a GAL is involved in a transfer case (60 of all transfer cases), 40 times the GAL opposed transfer, 3 times the GAL supported transfer and in 17 cases it was impossible to determine the GAL’s position. When the GAL opposes transfer, the court agrees 80% of the time (32 cases). There are only 8 cases where the GAL’s position against transfer is known when the court disagrees and transfers.
Other areas we’re still looking at in the transfer cases is the different results from state appellate courts versus state supreme courts. This might change the way we ultimately count an outcome, but in this post each decision is counted individually, even if it the case was appealed up.