Fort & Smith on ICWA During the Brackeen Years

Forthcoming in the Juvenile & Family Court Journal

From 2017 through 2022, while the Indian Child Welfare Act (“ICWA”) was under direct constitutional attack from Texas, state courts around the country continued hearing appeals on ICWA with virtually no regard for the decision making happening in Haaland v. Brackeen in the federal courts. For practitioners following or working on both sets of cases, this duality felt surreal, as they practiced their daily work under an existential threat. The data in this article draws from the authors’ previous publications providing annual updates on ICWA appeals, and now includes cases through 2021. It provides a description of appellate data trends across this time period, as well as for each year, while also highlighting key appellate decisions from jurisdictions across the country. Perhaps what this article demonstrates more than any single thing is the amount that ICWA is a part of child welfare practitioners’ daily lives now, in a way that will be difficult to upend, regardless of the Supreme Court’s ultimate decision.

This is particularly recommended for practitioners–we’ve taken the data from all our past articles to put them into one. One of our charts still needs a labels fix from our data expert, Alicia Summers, but otherwise the article has undergone peer review and will be published soon.

Biden Administration Repeals the 2020 Roadless Rule in the Tongass

https://www.usda.gov/media/press-releases/2023/01/25/biden-harris-administration-finalizes-protections-tongass-national

Repealing the 2020 Alaska Roadless Rule, which exempted the Tongass from roadless protections, will return the inventoried roadless areas of the forest to management under the 2001 Roadless Rule, which prohibits road construction, reconstruction, and timber harvest in inventoried roadless areas, with limited exceptions. USDA determined that the underlying goals and purposes of the 2001 Roadless Rule continue to be a critical part of conserving the many resources of the Tongass, especially when it comes to the values that roadless areas represent for local, rural communities, Alaska Native peoples, and the economy of Southeast Alaska.

WaPo coverage here: https://www.washingtonpost.com/climate-environment/2023/01/25/tongass-forest-protections-alaska-biden/

“The Tongass Roadless Rule is important to everyone,” said Joel Jackson, president of the Organized Village of Kake, which sits on the forest edge on an island south of the capital, Juneau.

“The old-growth timber is a carbon sink, one of the best in the world,” Jackson said in a statement. “It’s important to OUR WAY OF LIFE — the streams, salmon, deer, and all the forest animals and plants.”

Tribal leaders and Native organizers made a huge push to get these protections back in place. According to the press release, the Administration received more than 112,000 comments during this rulemaking (that is a *lot* of comments), a majority of which were in support of this change.

MSU Indian Law Clinic Funding Announcement and Job Opportunity

It is with great pleasure to announce the Indian Law Clinic at MSU received an initial $200,000 to fund a Tribal Appellate Clerk Project from the Luce Foundation for the next 18 months. The funding allows us to assign students to tribal appellate courts to assist with research, memo writing, bench briefs and draft opinions. The Clinic is officially now seeking for tribal clients, so please reach out to fort@msu.edu if you or your tribe might be interested in receiving these pro bono services from the Clinic.

IN ADDITION, the funding allows us to hire a Fellow/Coordinator for this project! Please apply here:

Job Posting

While this is a soft funded position with a time limit, we have an opportunity to reapply for the funding. In addition, prior ILC/ILPC fellows (including me!) have gone on to great job opportunities after working with us. The job includes working with students, coordinating with tribes and tribal courts, and (most exciting) taking students on site visits to the tribes we work with! We are looking to hire as soon as possible.

Thank you very much to the Luce Foundation and MSU’s own Foundation office for working with the Clinic to get us this funding.

Application of ICWA to Third Party Custody Petition out of Montana

2023-da-22-0405

The Court agreed that ICWA applied to a third party custody petition where the parent could not get her child back upon demand, but rejected the argument the child must be returned immediately under 1920.

These type of third party cases are particularly important to keep an eye on, as agencies often push cases in this direction to avoid filing a petition on a parent (this itself is a complicated topic). Regardless, parents and tribes shouldn’t lose certain rights under ICWA if the placement meets the definition of a foster care placement under the law.

Solicitor’s Memorandum on AK Land into Trust and the Approval of CCTHITA’s Land into Trust Acquisition

m-37076-alaska-trust-lands-m-opinion-11.16.2022

The Biden Administration has gone back and formally cleaned up the mess created by the Trump administration’s M-opinion on land into trust in Alaska. Don’t just take my word for it–the introduction of the m-opinion is quite clear about what happened.

And then the Administration started what will hopefully be many more approvals to come regarding land into trust acquisitions in Alaska by approving the Central Council of Tlingit and Haida Indian Tribes of Alaska’s acquisition. This is only the second application to go through (the first was also in Southeast for the Village of Craig on Prince of Wales Island).

An excellent announcement for a Friday afternoon!

Prof. Fort on Morning Edition and Additional Brackeen Coverage

Morning Edition

“ICWA doesn’t prevent an individualized assessment of the best placement for each child,” says Kathryn Fort, director of the Indian Law Clinic at Michigan State University. State courts do this type of assessment “every day,” she says, adding, “I personally don’t know a state court judge who would be comfortable being told that they weren’t allowed to do an individualized assessment.”

But for an Indian child, Fort says, that individualized assessment includes consideration of the child’s relationship with her relatives, her language, her religion, and her tribal tradition.

“A child isn’t separate from her tribe,” she adds. “That child is sacred to that tribe.”

Romper

WaPo (check out Fred Urbina’s picture!)

Vox

AP

The Guardian

Traverse City Record Eagle

Oral arguments in the case are tomorrow (11/9) at 10am. Live audio can be streamed here.

Colorado Pro Hac Vice Rule for ICWA Cases

Colorado is the most recent state to add a pro hac rule for ICWA cases. This rule is pretty narrow, and only applies for attorneys representing tribes where the tribe has moved to intervene in the case on behalf of their child. This would not apply to any attorneys representing individuals (like a grandma or auntie) in an ICWA case, nor to any appellate work on behalf of tribes filing amicus briefs. However, the rule only requires a verified motion to avoid both fees and local association, which is great for tribal attorneys.

Indian Child’s Tribe Determination out of Alaska Supreme Court

Here is the decision. sp7628

The facts of this case were a little unusual, where a foster family attempted to have a child in their care made a member of one tribe when he was already a citizen of another. The holdings, however, are  useful both for clarity in the regulations for the determination of an Indian child’s tribe, and for keeping state courts out of tribal citizenship decisions.

Court decisions reflect the same rule of deference to the tribe’s exercise of control over its own membership. The U.S. Supreme Court has long recognized tribes’ “inherent power to determine tribal membership.” In John v. Baker we recognized that “the Supreme Court has articulated a core set of [tribes’] sovereign powers that remain intact [unless federal law provides otherwise]; in particular, internal functions involving tribal membership and domestic affairs lie within a tribe’s retained inherent sovereign powers.” We have also “long recognized that sovereign powers exist unless divested,” and “ ‘the principle that Indian tribes are sovereign, self-governing entities’ governs ‘all cases where essential tribal relations or rights of Indians are involved.’ ”

Chignik Lagoon’s argument would require state courts to independently interpret tribal constitutions and other sources of law and substitute their own judgment on questions of tribal membership. This argument is directly contrary to the directive of 25 C.F.R. § 23.108.

The Indian Law Clinic at MSU College of Law provided research and technical assistance to the Village of Wales in this case.

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