Difficult Case out of California [ICWA]

Here

The question of whether Mom could have her child back with his siblings came down to his best interest–which kept him in the guardianship, despite the mom’s sobriety, job, handling a child with cancer, and raising a number of children. The Tribe, fearful of losing contact with the child entirely if they picked a side in the case, supported the mom but also ended up not weighing in on the final decision, instead asking the court to order whoever had the child keep him in contact with the Tribe. But this conclusion from the court is simply heartbreaking. It is not clear the child is related to the guardians, and as such the court equates a biological parent to non-relative foster care in a troublesome way:

We recognize this case was a difficult one for the juvenile court, not least because it was forced to choose between two families, both of whom love minor very much and both of whom may have been able to provide a stable, loving home where he remains connected to his siblings, other relatives, and his tribe. We can only express our hope, as did the juvenile court, that these families can find a way to remain connected in the interest of allowing minor to be loved and cared for by as many people as possible. It is also a difficult case because mother demonstrated her commitment to regaining custody by complying with her case plan, maintaining her sobriety and full employment, and garnering the support of the Department and the Tribe to have minor returned to her care. *** On this record, we perceive no abuse of discretion in the juvenile court’s determination that mother failed to meet her burden to demonstrate return to mother’s custody would be in minor’s best interest.

And no, I don’t entirely understand why the court isn’t using much higher ICWA standards here.

Briefing Complete in Brackeen v. Bernhardt En Banc Petition

Documents here.

The Tribes and U.S. did not seek any amicus support in opposing the petition for en banc review.

Unpublished Opinion from Washington Court of Appeals [ICWA]

Here.

Another court finds that a temporary guardianship where the parent cannot have the child returned upon demand meets the definition of a foster care placement under ICWA. Unfortunately the court decided not to publish the decision.

The ICWA Appellate Project filed an amicus brief in this case with the Center of Indigenous Research and Justice on behalf of minor mom.

Paul Petersen Involved in at Least One ICWA Case

Here.

Indian Child Welfare Act experts agreed that the Bright Star contract potentially misled the adoptive parents by saying the law “does not apply” in their situation.

“That is just wrong,” said Professor Fort, who also serves as director of the Indian Law Clinic at Michigan State University and authored a case law book titled American Indian Children and the Law.

She pointed to a section in the Indian Child Welfare Act that states the law does apply in adoptions of Native children. And she invoked a federal regulation published in 2016, which states that the Indian Child Welfare Act applies in any “voluntary proceeding that could prohibit the parent or Indian custodian from regaining custody of the child upon demand.”

In other words, the Indian Child Welfare Act applies in voluntary adoption cases when a Native birth mother gives up her parental rights. It’s unclear from the September Bright Star contract whether the birth mother agreed to give up her parental rights after the birth of her child.

This is the gentleman who is also now indicted for trafficking Marshallese women and selling their babies. 

Jurisdiction Case out of the Arizona Court of Appeals [ICWA, UCCJEA]

Here.

This case has gone up a couple of times.

State and Individual Parties File for En Banc Review in Brackeen v. Bernhard [ICWA]

Individual Petition for EnBanc Review

State Petition for EnBanc Review

The Court has asked the federal and tribal parties for response briefs, which are due October 23rd.

Minnesota Launches MMIW Task Force

Here

Advocates and public health researchers say a lack of data as well as shortfalls in law enforcement’s handling and prosecution of such cases have hindered efforts to address the issue. The Missing and Murdered Indigenous Women Task Force is meant to help fill those gaps.

Members of the panel will spend the next 15 months examining the causes behind the violence and then make recommendations to help victims and their families heal. The commission’s mandate includes a review of data collection and the current policies at institutions ranging from child welfare services to coroners’ offices.

Deadline Update in Brackeen v. Bernhardt [ICWA]

Here

Plaintiffs requested an extension to their en banc petition. The Court gave them until October 1 to file.

Register Now for the 2019 ILPC/TICA Annual Conference!

It’s coming up quickly!

Hosted by the Tribal In-House Counsel Association and the Indigenous Law and Policy Center at Michigan State University College of Law

October 10-11, 2019, with pre-conference activities on October 9, 2019

648 N. Shaw Lane, East Lansing MI 48824

Check out the tentative agenda and register today.

12.5 Minnesota CLE credits are pending, which includes 1 elimination of bias credit and 1.5 ethics credits.

Be a TICA/ILPC Sponsor! You can find the sponsorship form here.

Last year, our generous sponsors helped us successfully meet our fundraising goal for the 2018 Indigenous Law Conference! We hope to do the same this year, but we need your help once again. Visit TICA’s 2019 fundraising goal page, which will be regularly updated, for more information.

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Sixth Circuit Affirms Tribal Court Decision in Spurr v. Pope

Decision

But our review involves no probing of the facts, just a pure question of law: Does a tribal court have jurisdiction under federal law to issue a civil personal protection order against a non-Indian and non-tribal member in matters arising in the Indian country of the Indian tribe? Because 18 U.S.C. § 2265(e) unambiguously grants tribal courts that power, and because tribal sovereign immunity requires us to dismiss this suit against two of the named defendants, we AFFIRM the district court’s dismissal of Spurr’s complaint.

Reply
Answer Brief
Appellant Brief

Lower court materials here.

Tribal supreme court decision here.

Update:

Cert Petition

Brief in Opposition