Author: Kate Fort

State ICWA Law Updates (MN, WY)

Kate Fort

This week both Minnesota and Wyoming adopted new state ICWA laws.

After nearly a year of dedicated work by stakeholders, including tremendous tribal leadership, Minnesota updated the Minnesota Indian Family Preservation Act.

Minnesota-2023-SF667-Engrossed

In addition, due to tremendous tribal leadership, the state of Wyoming adopted the entire federal ICWA into state law, creating the Wyoming Indian Child Welfare Act. This act was signed into law by the governor yesterday.

Enrolled Wyoming ICWA Bill

I’m getting a lot of calls and emails about state ICWA laws in light of the pending Brackeen case. A good state ICWA law that is specific to the state practices (see Oregon ICWA law or MIFPA as an example) can take months to complete, especially to ensure participation by all stakeholders, including tribal, parental, and state interests. Until Brackeen is released, it is very difficult to preemptively legislate, or legislate in a way that protects ICWA from the Court’s ruling. However, for states that have no state ICWA laws, if there is the political will to follow the Wyoming lead of incorporating the entire federal law into state law, this would be beneficial if the Court rules that ICWA violates commandeering concerns (ie. states can’t be forced to follow ICWA because it is federal law commandeering their agencies). 

But it is important to remember that the Court can rule in a myriad of ways, there is no way to predict the outcome, and it is entirely possible that states will have to revisit their state laws in light of the decision–even those that replicate ICWA. I particularly like the Wyoming model of also passing a law creating *and funding* a taskforce to develop a state specific ICWA as well. 

We keep state ICWA laws here: https://turtletalk.blog/icwa/comprehensive-state-icwa-laws/.

Cherokee Nation Hosting Families Are Sacred Conference

Kate Fort

Here: https://cherokee.org/families-are-sacred-summit/

April 18-20

The “Families Are Sacred Summit” will bring together tribal nations along with federal, state, and local law enforcement, prosecutors and service providers to share best practices on delivering safe and effective services for survivors of domestic violence and their families. We hope the ideas shared will increase successful prosecutions, and reduce crime across all tribal reservations.
Tribal governments, as well as federal, state, and local entities have all been impacted by changes to our legal and law enforcement systems following the McGirt decision by the United States Supreme Court. Now more than ever, it is critically important that we all work together for increased safety across Native lands.

U.S. Senator Instrumental to ICWA Has Passed Away

Kate Fort

https://www.washingtonpost.com/obituaries/2023/02/24/james-abourezk-senator-dakota-dies/

Senator James Abourezk passed away on Friday. He was 92 years old. He was the first chair of the Senate Committee on Indian Affairs. In that role, he was the lead Senator pushing for ICWA, and held hearings for over three years, taking testimony on what was happening to Native families across the country.  He sponsored S.1214,  the Senate bill that led to the House bill which became ICWA. He held the 1974 Hearings, as well as the 1977 and 1978 Hearings.  NARF has collected his letters, where he expressed unreserved support for Native children, families, and tribes. Here is the opening paragraph of one of his letters on the eve of voting:

Throughout the course of this legislation the authors of this bill have been charged with having placed the interests of Indian tribes and the parents of Indian children above the interests of the child itself. I have always rejected this charge. The central concern of this legislation is the welfare of Indian children. Both the Senate and the House version are based on the assumption and indeed the finding that the interests of Indian children are best served by preserving their relationship with their natural family whenever possible, and when that is not possible, placing them with a family or in a setting which shares their own cultural values and heritage.

ICWA was a result of the hard work of so many people, but Senator Abourezk was instrumental in not only its passage, but in preserving the testimony of Native parents, leaders, and elders about the time before ICWA. His kindness to those who were testifying about horrible treatment they received is evident in the record, as was his indignation at that treatment. He did all of this in a single term in the Senate, and was also instrumental in ISDEAA and AIRFA. From the Washington Post:

Mr. Abourezk represented South Dakota for single terms in the U.S. House and U.S. Senate during the 1970s, where he exemplified a brand of Democratic politician known as Prairie Populist. He fought passionately — and with humor — for those he felt were the downtrodden: farmers, consumers and Native American people.

Mr. Abourezk was the first chair of the Senate Committee on Indian Affairs and successfully pressed for the American Indian Policy Review Commission. It produced a comprehensive review of federal policy with American Indian tribes and sparked the Indian Self-Determination and Education Assistance Act, the American Indian Religious Freedom Act and the Indian Child Welfare Act — a landmark piece of legislation meant to cut down on the alarming rate at which Native American children were taken from their homes and placed with White families.

I never got to meet the Senator, but it is still very difficult for me to put into words the impact of his single Senate term. I can’t help but think that his leadership in the Senate, with his unreserved support for Native families and tribes, is especially needed now.

News on Proposed State ICWA Laws

Kate Fort

Over the past few weeks, a number of states have been considering state ICWA laws. I’m keeping the bills updated here, along with their current status when I’m notified of it. https://turtletalk.blog/icwa/comprehensive-state-icwa-laws/

Today the AP had news coverage of the bills here

Finally, here is a link to the testimony that took place yesterday in the Minnesota Senate.

This bill is supported by the ICWA Law Center, one of the only organizations that provides direct, trial level legal services to Native families, and they do it very well. They are currently holding a fundraiser with Heart Berry:

Protect ICWA Pre Sale Hoodie

And listen, I’m not responsible if you follow that link and then get sucked into buying a whole bunch of stuff from Heart Berry because it’s basically impossible not to. I don’t make the rules.

Emergency Hearing Standards Case from Montana [ICWA]

Kate Fort

A.J.B. and O.F., Petitioners, v. MONTANA EIGHTEENTH JUDICIAL DISTRICT COURT GALLATIN COUNTY (2023) FindLaw

I won’t lie, guys, I had to read this one multiple times to figure out what was going on. Essentially the Montana legislature passed a law without understanding the difference between hearings that fall under 1912(a) and 1922. 1912 governs foster care proceedings and requires notice, active efforts, qualified expert witness testimony, etc. 1922 governs emergency proceedings (1922 has language that all states essentially read out of the statute to achieve this jurisdiction, which only makes sense to ICWA practitioners and no one else). Emergency proceedings do not require notice and the other 1912 protections, but it has a higher standard for removal (imminent physical damage or harm). The Montana statute denied parents of Indian children a faster emergency hearing because of the belief that 1912 standards (specifically notice) had to be hit before there could be a reason. The Court overturned this language.

Also interesting is the issue of trying to appeal proceedings that are emergency/shelter care/24 hour/48 hour/preliminary hearings in child protection proceedings. There’s often not a final order coming out of those hearings, and no way for a parent or tribe to appeal an emergency decision (this was an issue in the In re Z.J.G. case in Washington as well). Here, the District Court argued there was no way for the appellate court to hear the case because of the nature of the hearings.

Finally, the District Court argues this matter does not meet the threshold criteria for a writ of supervisory control because no urgent or emergency factors make appeal an inadequate remedy. The court alleges that in this case, it was later determined that O.F. is not an Indian child, and A.J.B. and O.F. have been “conditionally reunited.” However, as A.J.B. asserts in her petition, she does not appear to have any remedy on appeal for the denial of her right to an EPS [emergency] hearing, and the potentially erroneous loss of the right to parent, even for a short time, is a matter of great urgency.

Here the appellate Court heard the case anyway and overturned the statute.

Of course, you may also remember the federal case in South Dakota attempting to remedy emergency hearing practices there in ICWA cases that was dismissed on appeal because the federal court stated there were Younger abstention issues.

Fort & Smith on ICWA During the Brackeen Years

Kate Fort

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

Kate Fort

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

Kate Fort

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.

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