Author: Kate Fort

ProPublica Follow Up Article on Bonding “Expert”

Kate Fort

In a follow up to the foster parent intervention article that was published in ProPublica and The New Yorker in October, this week ProPublica published an article on the woman who regularly wrote expert reports supporting foster care placement over parents and relatives.

Here.

Who hired and was paying her in the case that she was being deposed about? The foster parents, she answered. They wanted to adopt, she said, and had heard about her from other foster parents.

Had she considered or was she even aware of the cultural background of the birth family and child whom she was recommending permanently separating? (The case involved a baby girl of multiracial heritage.) Baird answered that babies have “never possessed” a cultural identity, and therefore are “not losing anything,” at their age, by being adopted. Although when such children grow up, she acknowledged, they might say to their now-adoptive parents, “Oh, I didn’t know we were related to the, you know, Pima tribe in northern California, or whatever the circumstances are.”

The Pima tribe is located in the Phoenix metropolitan area.

HHS Releases Proposed Rule to Collect ICWA Data through AFCARS, Comments Needed

Kate Fort

If you are reading that title and thinking, “Kate, I am pretty sure you have posted this before. Like, a lot.” you are not wrong:
https://turtletalk.blog/?s=AFCARS

In fact, titles from prior posts include “Adoption and Foster Care Analysis and Reporting System (AFCARS) Notice of Proposed Rule Making. Again.” and “Déjà vu All Over Again: AFCARS Comments Needed“

The short version of this 10 year saga is that at the end of the Obama administration, HHS promulgated a rule that would require Title IV-E agencies to collect information on ICWA. Before that could go into effect, the Trump administration withdrew it, and issued a different rule. After that happened, tribes and groups representing LGBTQ+ interests sued the feds to get the original rule back. Disclaimer, the MSU Indian Law Clinic represents the plaintiffs in that litigation along with Lambda Legal and Democracy Forward. Finally, the Biden administration has proposed a new rule that would go back to collecting ICWA data (this rule does not include sexual orientation or gender identity data elements). This means, yes, if you have worked in this area for the past 10 years, you may have submitted upwards of 5 sets of comments on this issue (I just checked, and we put our first one in 9 years ago, which was written by a 2L who is now a tribal leader).

The proposed regulation is here, as is the link to submit comments:

https://www.federalregister.gov/documents/2024/02/23/2024-03373/adoption-and-foster-care-analysis-and-reporting-system

What does this mean? Well, dust off your prior comments regarding the history of ICWA, the importance of ICWA, the importance of data related to ICWA, the importance of ICWA data to the children, families, and tribes involved in the system, and review the latest proposal. The actual data reporting requirements begins on 13665. Then submit an updated version of your comments in support of collecting ICWA data before April 23, 2024.

At a very first glance, this proposed rule appears to include a lot of important data questions that would inform practice and help with compliance, and limit the data collection to “state” Title IV-E agencies. The proposed rule appears marginally more limited than the original 2016 rule, but more expansive than the 2020 rule, though I will need to compare them more closely.

Save the Date for the Washington State Bar 37th Annual Indian Law Conference

Kate Fort

Registration will open up the second week of March

WSBA ILS Save the Date

MSU Law Clinic CLE on Tribal Claims and Federal Jurisdiction, March 4

Kate Fort

Please join us in person or remotely for a free CLE on the Tucker Act and tribal claims:

Register here

Attendees will delve into the complexities of tribal claims and fiduciary duties, while examining the historical context and legal frameworks that underpin these disputes.

Kathryn Fort, Clinic Director, will provide introduction and welcome. This panel of participants will include Judge David A. Tapp of the United States Court of Federal Claims; Dondrae Maiden, Director of the Indian Trust Litigation Office, Department of Interior; Frank Singer, senior litigation counsel with the Environment and Natural Resources Division of the U.S. Department of Justice, representing the Defendant’s perspective; and Thomas Peckham of Nordhaus Law Firm, LLC representing the Tribal Plaintiffs’ perspective.

Chief Justice Position for Blackfeet Tribe Appellate Court

Kate Fort

 Position Announcment Chief Justice

This is an active appellate court with many interesting and sometimes complex cases. 

The Blackfeet Tribe is actively seeking applications for a Chief Justice for the Court of Appeals. The Chief Justice is responsible for overseeing the judicial component of the Blackfeet Court of Appeals in accordance with the Blackfeet Constitution and By-Laws, 1934, Blackfeet laws, judicial oath of office, terms of appointment and the Blackfeet Rules of Court. The Chief Justice is also responsible for ensuring that Court of Appeals grants and contacts are adhered to. Will preside over all cases within the Blackfeet Court of Appeals. Must have a Juris Doctorate from an ABA accredited law school and be at least thirty (35) years of age at time of appointment.

For application materials, including job description and qualification requirements, please contact the Blackfeet Tribe Personnel Department at (406) 338-7307 or email mbird@blackfeetnation.com or laugare@blackfeetnation.com.

ICWA Talk for UChicago Law Students

Image Kate Fort

Professor Kate Fort_UChicago

Not Invisible Act Commission Report

Kate Fort

Here, finalized on Nov. 1:

34-niac-final-report_version-11.1.23_final

It’s over 200 pages, so I’ve only been able to skim it so far, but it appears incredibly comprehensive:

The Commission was charged with developing recommendations to the Secretary of the Interior and the Attorney General to improve intergovernmental coordination and establish best practices for state, Tribal, and federal LE to combat the epidemic of missing persons, murder, and trafficking of AI/AN persons. Specifically, the Commission was directed to develop recommendations on six key topic areas. The Commission organized itself into six Subcommittees to align with these six topic areas as follows: 

  • Subcommittee 1: Law Enforcement & Investigative Resources — Identifying/Responding to Missing, Murdered, and Trafficked Persons 
  • Subcommittee 2: Policies & Programs – Reporting and Collecting Data on Missing, Murdered, and Trafficked Persons 
  • Subcommittee 3: Recruitment & Retention of Tribal & Bureau of Indian Affairs Law Enforcement 
  • Subcommittee 4: Coordinating Resources – Criminal Jurisdiction, Prosecution, Information Sharing on Tribal-State-Federal Missing, Murdered, and Trafficked Persons Investigations 
  • Subcommittee 5: Victim and Family Resources and Services 
  • Subcommittee 6: Other Necessary Legislative & Administrative Changes 

First Tribal Title IV-B 477 Integration

Kate Fort

I am very excited about this. It’s the first step in loosening up the restrictions on HHS money that needs to be flowing to tribes for social service and justice systems.

https://www.acf.hhs.gov/media/press/2023/first-tribal-integration-title-iv-b-child-welfare-programs-477-plan

The new integration comes under Public Law 102-477 (P.L. 102-477). Specifically, ACF recommended, and BIA approved for Citizen Potawatomi Nation, to integrate its child welfare services grants with several other federal grants for employment, training and related services into a single program and budget to address Tribal priorities. 

“Public Law 102-477 has long been critical legislation for ACF to promote Tribal sovereignty, and expansion to include new ACF programs helps meet our nation-to-nation responsibilities,” said ACF Acting Assistant Secretary Jeff Hild. “The feedback we hear from our Tribal advisory committee and Tribal leaders is Tribes know best how to serve their citizens, and 477 is one way to do this.” 

Under P.L. 102-477, Tribes can integrate their federal employment, training and related services from across the federal government to improve the effectiveness of those services. Tribes wishing to integrate a program into a 477 plan must first submit a proposed plan to DOI that identifies the programs to be integrated and consolidated. Once a program is included in such a plan, Tribes have very broad flexibility in use of those funds. 

Comment Deadline to Feds on ICWA Needs Extended to January 12

Kate Fort

This extension is regarding the letter in this post.

The Administration (DOI, HHS, and DOJ) are asking for input on the following:

What additional supports would Tribal leaders find helpful to build their Tribe’s capacity to exercise their rights and responsibilities under ICWA?  

Are there specific supports you believe the federal government could provide to help state courts and child welfare agencies meet their obligations under ICW A? 

In your experience, are there specific aspects or requirements of ICWA where state courts and agencies need to build greater understanding or capacity? 

Are there existing State-Tribe collaborative partnerships or processes that you believe have helped support effective implementation ofICWA? 

icwa_dear_tribal_leader_letter_to_extend_comment_deadline_enrd_comment_hhs.doj_.doi_final_10.06.23Download

Important Article on the Rise of Foster Parent Interventions in The New Yorker/ProPublica

Kate Fort

I’ve been posting and talking about this issue for a while now, and am very happy to see it highlighted in this article. The Colorado Office of Respondent Parents’ Counsel has been collecting incredibly important data (headed up by a proud MSU alum!) on what happens when foster parents intervene. I strongly encourage anyone in the position to do so to begin collecting this same data.

https://www.propublica.org/article/foster-care-intervention-adoption-colorado

Intervenors can file motions, enter evidence and call and cross-examine witnesses to argue that a child would be better off staying with them permanently, even if the birth parents — or other family members, such as grandparents — have fulfilled all their legal obligations to provide the child with a safe home. When Carter’s foster parents intervened in the hope of keeping him, they turned to the firm of Tim Eirich, a Denver adoption attorney who charges as much as $400 an hour and has almost single-handedly systematized intervention in Colorado.

***

The Trump and Biden administrations have both pressed states to keep a larger percentage of kids with birth parents or kin. Intervention, a state-level counter-trend, is supported by foster parents’ rights groups and advocates at national conservative organizations.

***

Since 2018, South Carolina’s courts and lawmakers have affirmed the right of any state resident to file to adopt any foster child, as well as the right of foster parents to intervene. In 2020, Kentucky amended its law to let foster parents intervene as legal parties in involuntary terminations of birth parents’ rights. And this year Florida passed a law saying that if birth parents move to have their child adopted, including by a biological family member, long-term foster parents can intervene to contest that outcome. Kathryn Fort, the director of the Indian Law Clinic at Michigan State University, told me that her practice has faced three sets of intervenors this year, all of them non-Native couples seeking to adopt a Native child.