Court documents, press statements, and news articles all organized here.
Author: ilpc
Rare Published Notice Opinion out of California Court of Appeals
In re EH (Fourth District, 1st Div). For reference, so far this year California has had 48 unpublished notice decisions and 19 unpublished inquiry decisions. This is the first published notice case this year.
We agree with Mother that, considering Sally Y.H.’s statement to the Agency that her paternal family had Tohono O’odham Nation heritage, the Agency had a duty to attempt to obtain Sally Y.H.’s father’s identifying information and to provide notice of any such information obtained to the Tohono O’odham Nation. We further conclude that the Agency has not demonstrated that it fulfilled that duty by providing the Tohono O’odham Nation with information pertaining to an individual named Bruno Y. since it is not clear from the record that Bruno Y. is Sally Y.H.’s father. Moreover, if Bruno Y. is Sally Y.H.’s father, and E.H.’s great-great-grandfather, the Agency failed to properly describe his ancestral relationship to E.H. on the notice provided to the Tohono O’odham Nation. Finally, given that Sally Y.H. told the Agency that her paternal family had heritage from the Tohono O’odham Nation, we cannot conclude that the Agency’s errors were harmless. Accordingly, we reverse the judgment for the limited purpose of having the Agency provide the Tohono O’odham Nation with proper notice of the proceedings in this case, including accurate information pertaining to all known direct lineal ancestors of E.H., in accordance with all applicable law.3
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FN 3. Mother also contends that the notice that the Agency provided to the Tohono O’odham Nation was deficient for several additional reasons, including that the Agency erred in listing her current address as being “no information available,” and in failing to update the notice when information about her residence became available. In light of our reversal, we need not consider these contentions, but we direct the juvenile court to ensure that the Agency provides Mother’s correct current address at the time of noticing upon remand, if known.
In addition, Mother contends that the Agency provided the tribe an incorrect address for Sally Y.H. The Agency concedes that the address that it provided for Sally Y.H. contained typographical errors, including listing the city of her residence as ” ‘Alpaso’ ” rather than ” ‘El Paso,’ ” but argues that any errors were harmless. In support of its harmlessness argument, the Agency asks this court to take judicial notice of the fact that “El Paso is a city in the state of Texas and Alpaso is not.” The juvenile court is directed to ensure that the Agency provides Sally Y.H.’s correct current address at the time of noticing upon remand, if known. We deny the Agency’s request for judicial notice as moot.
Finally, Mother states that the Agency was required to list Mother’s and Sally Y.H.’s telephone numbers on the notice that it provided to the Tohono O’odham Nation. On remand, the juvenile court shall direct the Agency to provide Mother’s and Sally Y.H.’s telephone numbers, if known. (See Welf. & Inst. Code, § 224.2 [specifying that notice sent to a tribe shall include “[a]ll names known of the Indian child’s biological parents . . . and great-grandparents . . . as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known”], italics added; unless otherwise specified, all subsequent statutory references are to the Welfare and Institutions Code.)
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This argument is unpersuasive since the letter from the Tohono O’odham Nation does not indicate the basis upon which the tribe made its determination as to E.H.’s Indian child status. Nor can we agree with the Agency’s suggestion that the fact that the Tohono O’odham Nation did not ask for further information demonstrates that the Agency’s error was harmless. The tribe was not required to ask the Agency to provide information that the record indicates the Agency should have reasonably attempted to obtain and provide to the tribe. Thus, we decline to find the Agency’s error harmless simply because the tribe did not indicate that further information might have altered its determination, particularly given the other noticing errors acknowledged by the Agency.
Montana Supreme Court ICWA Notice Case
¶28 In this case, CPS Lebrun’s testimony that an unidentified person orally confirmed that “they are not eligible, just they can only be descendent members” does not satisfy the Department’s ICWA burden. As a direct result of the Department’s failure to satisfy this burden—and likely assuming the Department had, prior to filing its Notice of No ICWA Involvement, followed up with formal inquiry with the Blackfeet Tribe as CPS Lebrun testified he would—the District Court proceeded to termination without conclusive determination from the Tribe. No documentation or testimony of an authorized tribal representative either dispelled or confirmed the District Court’s and Department’s belief that the children were not Indian children as defined by ICWA. Under the circumstances of this case, we hold the District Court erred by proceeding to terminate Mother’s rights to D.E. and A.E. without a conclusive tribal determination of their tribal membership status and eligibility.¶29 Accordingly, we hold the District Court abused its discretion in terminating Mother’s parental rights without a conclusive tribal determination of tribal membership status and enrollment eligibility. We reverse and remand for an appropriate threshold determination of whether D.E. and A.E. are Indian children based on a conclusive tribal determination of tribal membership and eligibility in the Blackfeet Tribe. Further, if D.E. and A.E. are conclusively identified as Indian children subject to the requirements of ICWA, the District Court shall hold further proceedings as may be necessary to meet the evidentiary burdens of ICWA.
North Carolina “Reason to Know” ICWA Notice Case
Here.
*Whether the evidence presented at the adjudication hearing should have caused the trial court to have reason to know an “Indian child” may be involved and trigger the notice requirement is the issue before us. The federal regulations implementing ICWA and promulgated in 2016, clearly the states court has reason to know an “Indian child” is involved if: “Any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child.” 25 C.F.R. § 23.107(c)(2) (2018).
The ICWA proscribes that once the court has reason to know the child could be an “Indian child,” but does not have conclusive evidence, the court should confirm and “work with all of the Tribes … to verify whether the child is in fact a member.” 25 C.F.R. § 23.107(b)(1). Federal law provides: “No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary[.]” 25 U.S.C. § 1912(a). Further, a court must “[t]reat the child as an Indian child, unless and until it is determined on the record that the child does not meet the definition of an ‘Indian child.’ ” 25 C.F.R. § 23.107(b)(2).
Other jurisdictions have recognized that “Indian child” status of the juvenile can only be decided by the tribe itself; therefore, only a suggestion that the child may be of Indian heritage is enough to invoke the notice requirements of the ICWA. In re Antoinette S., 104 Cal. App. 4th 1401, 1408, 129 Cal.Rptr.2d 15, 21 (2002). Additionally, ICWA provides that even after the completion of custody proceedings, if the provisions of ICWA were violated, “any parent or Indian custodian from whose custody such child was removed, and the Indian child’s tribe may petition any court of competent jurisdiction to invalidate such action.” 25 U.S.C. § 1914 (2012).
In In re A.R., the Respondent-father claimed that he had “a family connection to a registered Native American group” which consequently qualified his children for the protections under ICWA. In re A.R., 227 N.C. App. 518, 523, 742 S.E.2d 629, 633 (2013). . . . Further, this Court held that “[t]hough from the record before us we believe it unlikely that [the juveniles] are subject to the ICWA, we prefer to err on the side of caution by remanding for the trial court to … ensure that the ICWA notification requirements, if any, are addressed … since failure to comply could later invalidate the court’s actions.” Id.
In the case of In re C.P., the respondent-mother made the bare assertion that she and her children could possibly be eligible for membership with a band of Potawatomi Indians. In re C.P., 181 N.C. App. at 702, 641 S.E.2d at 16. The trial court required the ICWA notice to be sent. Id. When the time required under ICWA had passed without response from the tribe, the trial court allowed two continuances before determining ICWA did not apply and resumed the proceedings. Id. at 703, 641 S.E.2d at 16-17.
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Our Court has required social service agencies to send notice to the claimed tribes rather than risk the trial court’s orders being voided in the future, when claims of Indian heritage arise, even where it may be unlikely the juvenile is an Indian child. See In re A.R., 227 N.C. App. at 524, 742 S.E.2d at 634; In re C.P., 181 N.C. App. at 702, 641 S.E.2d at 16.
Tribal Consultation on the Proposed AFCARS Changes
Here is the letter sent today: Tribal Consultation Notification 4-16-2018
This is on the proposed changes to the Adoption and Foster Care Analysis and Reporting System (AFCARS), the way the feds collect from the states on adoption and foster care. This is specifically about removing ICWA data elements added in last year’s final rule because of the burden of collecting information about ICWA compliance and Native kids in care.
Both consultations will be done by phone, and if there are not enough participants “may end early”. Maybe tribal leaders or their designees would like to consult about how to weigh that “burden” of gathering information so tribes and states know what is happening with Native kids in foster care for the full 90 minutes:
Tribal Consultation seeking input on the ANPRM and potential changes to AFCARS will be held through two teleconference calls on the following dates and times.
Tuesday, May 15, 2018 @ 2:00 pm – 3:30 pm (EDT).
Please register here: https://acf.adobeconnect.com/efdd2gqe733x/event/registration.html
Wednesday, May 16, 2018 @ 2:00 pm – 3:30 pm (EDT)
Please register here: https://acf.adobeconnect.com/enhysqrbcyal/event/registration.html
For both consultations, the call-in number and passcode are: 877-917-3403, Passcode: 2498350. (Please note, if there are a small number of participants on the call, the call may end sooner than 3:30 p.m.)
Both Tribal consultation teleconference calls are open to all tribal leaders or their designees and may address any aspect of the ANPRM’s request for comments on AFCARS data collection, including data elements relating to ICWA that would reported by states and all other AFCARS elements that would be reported by both states and tribes operating title IV-E programs. Overall, we are interested to hear both recommendations on data elements to retain with a justification for using the data at the national level and recommendations on any data elements to remove because they may be either overly burdensome for title IV-E agencies to report or may not be reliable or necessary at the national level.
In addition to participating in the tribal consultation conference calls, the Children’s Bureau encourages tribal leaders to submit comments in writing in response to the ANPRM, as only written comments may be included in the regulatory record. The deadline for the receipt of written comments in response to the ANPRM is June 13, 2018.
There is also a briefing webinar:
The briefing webinar to learn more about AFCARS will be held on Wednesday, April 25, 2018 from 2:00 pm – 3:30 pm (EDT). If you are interested in participating in this webinar, please register at:
Because:
We recognize that while states have many years of experience in reporting AFCARS data, tribes may not be as familiar with AFCARS. To prepare for consultation, the Children’s Bureau is offering a briefing webinar for tribal leaders and/or members of your staff. The briefing webinar will be an opportunity for tribal leaders and members of your staff to learn more about AFCARS, including current data reported by states since the 1990’s and the changes to AFCARS that were promulgated in December 2016, but have not yet been implemented.
If only well over 60 tribes and tribal organizations had submitted comments in support of the additional data elements explaining in great detail why they are needed in the last comment collection on this issue in 2016 . . .
A non-tribal specific information session/briefing webinar earlier this month was problematic on ICWA (at best). There are a number of groups working on written comments, including model versions for tribes. When they are available, we will make sure to post that information. If you’d like to post comments now, here is the comments page.
Previous posts on AFCARS here.
Donald Trump, and Indian Country’s Termination Fears
Donald Trump’s election as President was met with skepticism and fear across much of Indian country. As a candidate, Trump did not publish any substantive proposals for Indian policy. The absence of campaign proposals, coupled with his previous hostility toward Indians and the records of people advising his campaign, invited Indian country to assume the worst.
Those assumptions were on display during the Presidential Transition, when comments made by Transition Team adviser U.S. Rep. Markwayne Mullin were interpreted as advocating for another era of tribal termination:
“We should take tribal land away from public treatment,” said Markwayne Mullin, a Republican U.S. Representative from Oklahoma and a Cherokee tribe member who is co-chairing Trump’s Native American Affairs Coalition. “As long as we can do it without unintended consequences, I think we will have broad support around Indian country.”
Rep. Mullin’s comments were misinterpreted and overblown at the time, but the fear that gave rise to that misinterpretation was justified. Donald Trump has been the President for nearly four months, and his administration has done little (if anything) to assuage Indian country’s concerns.
Within days of taking office, he issued executive orders approving the Keystone XL and Dakota Access Pipelines over the objections of Indian tribes, and without consulting those tribes. More recently, he announced a review of President Obama’s designation of the sacred Bears Ears as a National Monument without tribal consultation. Tribal leaders in the Four Corners area have had a difficult time even getting a meeting with officials in the Trump Administration to discuss their concerns with reviewing the Bears Ears Monument designation. The Department of the Interior has also announced a new policy (again, without tribal consultation) to have senior officials in the BIA’s Washington, D.C. office review and approve land-to-trust requests for off-reservation land. This will have the effect of slowing those types of acquisitions almost to the point of a moratorium, making it harder for small land-base tribes to establish a reservation.
Indian country’s biggest fear with a Trump Administration has been that the Federal Government would usher in yet another era of tribal termination. I wrote a post in 2016 explaining that then-candidate Trump’s views on Indian tribes appeared to be rooted in a philosophy that Indian tribes were nothing more than race-based associations, rather than sovereign legal entities.
As President, Donald Trump, his administration, and his congressional allies have done little to put these fears to rest. Consider:
- Rob Bishop, the Chairman of the House Natural Resources Committee, appeared at an event sponsored by the American Enterprise Institute shortly after Trump’s inauguration to discuss Naomi Schaeffer Riley’s book “The New Trail of Tears: How Washington is Destroying American Indians.” Prof. Fletcher has extensively reviewed this book on this blog, so I won’t add more here. Suffice it to say that Schaeffer Riley’s book is a repackaging of the rhetoric that was used to push through tribal termination legislation in the 1950’s – especially the emphasis on converting tribal lands to private property for the supposed good of Indian people. You can watch the event online, with Rep. Bishop’s remarks beginning just after the 19:30 mark.
- Last week, Secretary of the Interior Ryan Zinke gave remarks at the National Tribal Energy Conference, during which he stated: “We need a discussion on that. As I look at the 1934 Indian Reorganization Act, I think it’s time for a dialogue. ‘What are we going to be 100 years from now? Is there an off-ramp? If tribes would have a choice of leaving Indian trust lands and becoming a corporation, tribes would take it and quite frankly at BIA (the Bureau of Indian Affairs), I’m not sure in many ways we’re value- added.” Secretary Zinke’s comments mirror the language used to support tribal termination in the 1950’s, and to avoid recognition of Alaska Native tribes as “Indian tribes” in the Alaska Native Claims Settlement Act. In both instances, private property, corporate status, and avoidance of federal trusteeship was viewed as good for Indian people. Those who lived through that experience would beg to differ.
- And, on Friday, President Trump issued a Presidential Signing Statement accompanying his approval of the FY2017 Appropriations Bill suggesting that Native American Housing Block Grant Programs are somehow constrained by the 5th Amendment’s prohibition against racial discrimination. This signals a belief that Indian and tribal programs are unlawful racial privileges, rather than part of a trust relationship rooted in treaties and law. If that is the case, then all of the legal rights that Indian tribes possess would be unconstitutional racial benefits and the legal status of tribes would be terminated.
The day after Secretary Zinke’s comments, Acting Deputy Secretary of the Interior James Cason issued a letter to the National Congress of American Indians stating that he was “deeply disturbed” by the mischaracterization of Zinke’s remarks: Cason to NCAI. He added a qualifier that there were no plans “at this time” to change the relationship between the Department of the Interior and tribes, but added that there were “options” for “Tribes interested in exercising a greater degree of self-governance and sovereignty.”
James Cason is a veteran of Indian policy issues at the Department of the Interior, having spent eight years at the Department in the George W. Bush Administration. He understands that talk of an “off-ramp” from the Indian Reorganization Act’s tribal government model toward corporate status would evoke worries about tribal termination (hence the rapid follow-up letter to NCAI).
There are many professionals working in Indian law and policy who dismiss concerns about tribal termination as fear mongering or crying wolf.
But, the potential for tribal termination policy isn’t conjured up out of a rampant imagination. It has happened before, and recently. You can’t ask people who experienced tribal termination firsthand to ignore their own experiences. Moreover, there are influential people in conservative circles who espouse the view that Indian people would be better off without Indian tribes, or the view that tribal status is some sort of unfair, tax-free advantage conferred on a few lucky people. Many of those people have ties to the Trump Administration or congressional leaders.
Taken in isolation, any of the statements or actions listed above could be dismissed. But, a pattern is emerging in the early days of the Trump Administration that lends support to Indian country’s worst fears.
Admittedly, I did not support Donald Trump’s candidacy. But, he is the President. I accept that the White House and the Secretary of the Interior’s Office will be occupied by both Democrats and Republicans throughout my lifetime. I want Indian tribes to successfully work with Republican and Democratic administrations to improve federal policies for all of Indian country. Success in this regard requires mutual trust.
The Trump Administration could earn a lot of trust by issuing a clear, unequivocal, and unqualified statement that it will oppose any legislation or lawsuit that would diminish the legal status of Indian tribes or remove legal protections for existing Indian lands. And, it must cement that trust through its actions.
Ninth Circuit Briefs in Karuk Tribe v. Stelle — Klamath National Forest Timber Cut Challenge
Here:
ASU ICWA CLE
Latest filings in Oglala Sioux v. Fleming (SD Federal ICWA Case)
Commentary on the Native American Children’s Safety Act
Last week, the Department of the Interior published final regulations implementing the Indian Child Welfare Act, along with a legal opinion from the Solicitor of the Department of the Interior regarding the authority to issue such regulations. The Department’s regulations, and the accompanying legal opinion, garnered a lot of attention across Indian country and Indian child welfare advocates, and may prove to be the capstone on the Administration’s work for Native children.
However, last week the President also signed of the “Native American Children’s Safety Act” (S.184 or “NACSA”). NACSA amended 25 U.S.C. § 3207 – requiring character investigations for certain individuals who have regular contact with Indian children.
As its title suggests, NACSA is intended to protect Indian children in tribal foster care by doing several things:
- Prohibiting child placement in foster care, or licensing foster homes, unless the tribe has completed a criminal background check on each individual residing in the foster home and certified that each of those individuals meets the requirements of the statute;
- Requiring tribes to adopt placement standards in accordance with the statute;
- Requiring tribes to recertify existing foster homes to ensure that they meet the new standards required under the statute; and,
- Requiring the Department of the Interior to issue guidance on appropriate placement standards (and subjecting tribal standards to the Department’s guidance).
Given its subject matter and intent, NACSA moved through Congress with little opposition and broad support. But, the details of the statute’s mandates seem to have caught a number of tribal courts and social services agencies off-guard. Some tribal judges (including one of the authors of this post), tribal social services agencies, and Indian child welfare advocates are concerned about unintended consequences that could flow from the mandates in this new law. Those mandates include the following:
- Tribal courts and agencies are required to conduct fingerprint-based checks of national crime databases, as well as checks of state abuse and neglect databases in every state where any adult in the foster home resided for the past five years.
- If those checks reveal that any adult in the home has been convicted of a felony in any federal, state, or tribal court for crimes listed in 42 U.S.C. § 671(a)(20)(A)(i) or (ii), tribal courts and agencies are prohibited from placing children in the foster home. Those crimes are a host of felonies, but also include “drug-related offenses.” Because the statute makes a cross-reference rather than specifically enumerating the crimes, it’s not clear whether the five-year limit in the referenced statute carries over as a limit on this provision.
- The Department of the Interior is required to issue “guidance” sometime in the next two years that is binding on Indian tribes regarding placement standards. That guidance must address “self reporting requirements” for the head of the household if he/she knows that another adult in the house is listed on any tribal or state abuse registry, or has been convicted of any of the crimes listed above.
While well intended, these provisions will leave tribal foster care agencies and tribal courts without any discretion to certify foster homes and make placements within their communities. It is likely to further limit the availability of eligible foster homes in tribal communities.
As people across Indian country know, many households on the reservation include temporary residents – including extended family members, adult children, family friends, or other community members in need. A member of the household may have gone through the tribe’s healing to wellness court. NACSA does not leave tribal agencies much flexibility to account for these homes or living arrangements. Where tribal courts and agencies previously had discretion to make those judgment calls, NACSA removes that discretion. Any adult living in the home with a prior drug-related offense may automatically disqualify that home from being approved as a foster care placement.
In addition, NACSA requires the Department of the Interior to issue binding guidance on implementation of the statute, including procedures for “self-reporting” by the head of the household if he/she has knowledge that any other adult in the home was convicted of a crime listed above. Tribes will be required to enforce this mandate, but it is unclear how.
NACSA’s mandate that tribes conduct background checks on state databases presumes that state agencies will cooperate with tribal agencies in their efforts to conduct such searches. The statute does not provide Indian tribes with any legal tools, other than the authority to enter into “voluntary agreements with State entities,” to require such cooperation. It is not difficult to imagine a scenario in which state agencies are uncooperative in conducting those searches, thus slowing down foster care placement in Indian country. It is one thing for a tribe to have solid relationships with a local county or even the state—it is quite another to have to reach out to every state where an individual lived in the past five years (let’s say, Ohio, for example) for cooperation.
Perhaps most importantly, NACSA does not provide tribal courts and social services agencies with any additional resources to carry out these new mandates. The courts and agencies with the least amount of resources will now have to spend more money to remain in compliance with federal law. Failure to remain in compliance with these new mandates will likely jeopardize the already meager federal funds that flow into tribal courts and child welfare agencies.
None of this is to say tribal judges or social services agencies don’t have an interest in making sure that foster children are placed in safe homes, or that the proponents of NACSA had bad intentions. As a tribal court judge and ICWA advocate, we applaud the fact that Congress and policy makers care about the importance of safe foster homes in Indian country.
But NACSA may turn out to be a law with drastic unintended consequences (we hope not). This statute could benefit from some amendments to allow tribal courts and agencies to have more discretion to solve problems at the local level, as well as authorization of funding to help tribes meet these new requirements. Absent those amendments, the Department of the Interior must work closely with tribal judges and social services workers to ensure that the law is implemented in a way that prevents unintended consequences.
Turtle Talk 
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