Well all, I have absolutely fallen down on the ICWA TurtleTalk beat since the Washington Supreme Court decision in Z.J.G. Since I am getting older, I’m going to blame the new WordPress interface (please ignore that Fletcher is older than me and obviously figured it out just fine). So now, a series of posts with links to the reported cases since September 2020–don’t worry, this was an exceptionally small year for reported ICWA cases.
N.S. is a guardianship case (reading this, it’s possible I just wanted to end the year after Z.J.G. on a positive note). Here is the description of the lower court’s holding, which the appellate court affirmed. There is some preemption discussion on p 27-28 in the 54 page opinion, but not much.
Regarding substantial interference with N.S.’s connection to the Tribe, the court found that “once [Grandmother] is properly informed, once the expectations are concretely articulated, . . . she will encourage [N.S.] to learn about his heritage.” The court further found that given N.S.’s development, maturity, and curiosity, he would not “permit anybody [to] dissuad[e] him from making up his own mind as to not just his Indian heritage, but how it fits into his life.” Thus, the court concluded that there was not a compelling reason not to terminate parental rights based on a substantial interference with N.S.’s connection to the Tribe. 25
Regarding the Tribe’s identification of guardianship as the best permanent plan for N.S., the court believed that N.S.’s “guardianship was a very vital tool and opportunity for him to get to this point.” However, the court asserted that, “merely identifying guardianship to maintain the status quo would not recognize the increasing, the deep, the published connection [that N.S.] has with his grandmother.” The court found that in light of N.S.’s “current developmental progression and attachment to the grandmother,” guardianship was not in his best interests; therefore, the Tribe’s identification of guardianship as N.S.’s permanent plan had not “been established as a compelling reason not to terminate parental rights.”