ICWA Talk for UChicago Law Students
Author: Kate Fort
Not Invisible Act Commission Report
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
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.
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
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?
Important Article on the Rise of Foster Parent Interventions in The New Yorker/ProPublica
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.
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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.
POSTPONED: CLE on Native American Tribal Claims and Federal Jurisdiction on Oct. 9
Due to prior and ongoing Congressional nonsense, this event has been postponed till March. If you have registered, you need not register again. You will automatically receive a new link. We are sorry for the inconvenience.
Register here
October 9, 2023 | 12:00 p.m. – 2:00 p.m.
Castle Board Room
Live Stream also available
Minnesota Credits Pending Approval: 2 hours
Course Description
Native American Tribes and Nations are self-governing sovereigns that exist simultaneously within the United States, yet separate and apart from many Federal and State laws and institutions. This panel explores the unique claims of American Indians and Alaska Natives and the Tribes, Nations, Pueblos, and Rancherias to which many belong. Specifically, it will analyze the Indian Tucker Act and its implications on Native American tribal claims within the United States. Participants will gain a thorough understanding of the jurisdictional scope and the substantive legal principles underlying tribal claims against the federal government within the United States Court of Federal Claims.
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; Joel West Williams, Deputy Solicitor for Indian Affairs in the 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.
Second ULC Listening Session on Uniform State ICWA Law on Nov. 6
In a letter that went out on September 26, the Uniform Law Commission announced a second listening session on the benefits and drawbacks of a potential model state ICWA law.
The registration link is here
Connecticut Law Review Symposium on Brackeen, Oct. 6
Here.
Connecticut Law Review Symposium:
Interrogating Haaland v. Brackeen
Family Regulation, Constitutional Power, and Tribal Resilience
Friday, October 6, 2023 | 12:00 pm-2:30 pm ET
Virtual
The Connecticut Law Review invites you to their 2023 symposium:
Interrogating Haaland v. Brackeen: Family Regulation, Constitutional Power, and Tribal Resilience
The litigation that led to Haaland v. Brackeen threatened to take down not only the Indian Child Welfare Act, but vast swaths of federal Indian policy and federal law. Instead, the Supreme Court’s decision left ICWA unscathed and affirmed the constitutional relationship between tribal nations and the United States. But threats to Native families and tribal sovereignty continue.
Native children continue to be removed from their communities by a well-funded market for adoptable children. A handful of states and interest groups continue to seek ways to undermine tribal authority and federal laws that support it. And because the Supreme Court held that the Brackeen plaintiffs lacked standing to raise their equal protection challenges to ICWA, those claims can be raised another day.
Leading scholars, attorneys, and tribal leaders, including Chairwoman Andrews-Maltais, Gregory Ablavsky, Laura Briggs, Seth Davis, Kate Fort, Ian Gershengorn, and Gerald Torres, will explore these and other issues raised by the decision in this symposium.
UNLV Law CLE on Brackeen, Sept. 20
After Brackeen: Outcomes and Implications of the Supreme Court’s Decision Upholding the Indian Child Welfare Act
Approved for 2 Nevada MCLE Credit
September 20, 2023
Virtual
10:00 a.m. – 12:00 p.m (Pacific Time)
Registration is required
Click Here To Register for The Virtual Webinar
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In Person UNLV Student Viewing and Discussion (Lunch Provided)
10:00 a.m. – 12:00 p.m (Webinar Viewing) / 12:00 p.m. – 1:00 pm (Discussion)
Boyd School of Law Room 203
In Person Registration is required
Click Here To Register For the Student Only In Person Discussion
In June, the Supreme Court issued its long-awaited decision in Brackeen v. Haaland upholding the federal Indian Child Welfare Act. Enacted in 1978, the ICWA affirms tribal jurisdiction over state child welfare matters and sets uniform standards for child welfare cases involving Indian children. As the Court recognized, the law was a necessary and largely successful action by Congress to reverse decades of federal and state campaigns to remove Native children from their homes and sever ties between tribes and their children. The Court rejected several challenges to the law that, if accepted, would have had devastating consequences for children, families, and tribal sovereignty.
Brackeen was a major victory for tribes and Native children. The majority opinion by Justice Barrett, and concurring arguments by Justice Gorsuch, addressed questions about Congressional power over Indian affairs, tribal sovereignty, and equal protection. As a follow up to our November 2022 webinar, which explored the various arguments and the impact of a potential decision on tribal courts and jurisdiction, this webinar will bring together experts in the field to explain the decision, its practical and jurisprudential significance, and what it portends for future cases involving the ICWA and tribal sovereignty.
Featured Panelists:
- Brooke Pinkham, Staff Director of the Center for American Indian Law & Policy at Seattle University of Law
- Kathryn Fort, Director of Clinics, Director of the Indian Law Clinic at Michigan State University College of Law
- Gregory Ablavsky, Marion Rice Kirkwood Professor of Law at Stanford Law School
- Bethany Berger, Wallace Stevens Professor of Law at UConn School of Law
- Alyssa Connolly, Tribal Attorney, Stillaguamish Tribe of Indians
- Debra Gee, Chief Counsel, Office of Tribal Justice Administration Chickasaw Nation
Dear Tribal Leader Letter Regarding Uniform State ICWA Law
The Uniform Law Commission is seeking to consult with tribes regarding the need and/or benefit of a uniform ICWA law for those states that either need to update their current state laws or do not have one yet. Consultation will be held via zoom on September 6, with written comments accepted through September 30. Please see the letter for additional details on the project. Please distribute widely.
Turtle Talk 
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