Author: Kate Fort

POSTPONED: CLE on Native American Tribal Claims and Federal Jurisdiction on Oct. 9

Kate Fort

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

Kate Fort

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.

TribalLeaderLetter_092623

The registration link is here

 

 

Connecticut Law Review Symposium on Brackeen, Oct. 6

Kate Fort

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

Kate Fort

Here

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:

Dear Tribal Leader Letter Regarding Uniform State ICWA Law

Kate Fort

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.

ULC ICWA Committee Report to Scope Committee

Dear Tribal Leader Letter

State ICWA Law Chart

Kate Fort

Over the last week, I’ve put together a (large, clunky) Google sheets of all the state ICWA laws. It isn’t perfect and subject to change as I see problems or people tell me there are problems. Sheets can be difficult, but it is nice to use to keep it updated. Someday I’ll learn how to make a proper database, but I know there is a need for this now rather than later.

I’ve linked to it on the state law page here and the link directly to the sheet is here.

Eighth Circuit Holds Parental Kidnapping Prevention Act Does Not Apply to Tribes

Kate Fort

Decision

It is true that Indian reservations are “physically within the territory of the United States.” United States v. Wheeler, 435 U.S. 313, 322 (1978) (emphasis added). The PKPA’s definition of “State,” however, includes “a territory . . . of the United States,” 28 U.S.C. § 1738A(b)(8) (emphasis added), which is most naturally understood to mean a political entity that is not a state but is still “[a] part of the United States . . . with a separate legislature (such as Guam and the U.S. Virgin Islands).” Territory, Black’s Law Dictionary (11th ed. 2019); see, e.g., 48 U.S.C. § 1541(a) (“The Virgin Islands . . . are declared an unincorporated territory of the United States of America.”). And the Supreme Court has made clear that within our constitutional order, such “territories” are distinct from Indian tribes.

***

Our conclusion that the PKPA does not apply to Indian tribes is further supported by the fact that when Congress intends for tribes to be subject to statutory full-faith-and-credit requirements, it expressly says so.

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For the reasons explained above, we conclude that the PKPA does not apply to Indian tribes. As a result, the Cheyenne River Sioux Tribal Court is not obligated under that statute to enforce the North Dakota court orders awarding custody of C.S.N. to Nygaard. The district court properly granted summary judgment to the Tribal Court.

Free CLE on Saint Regis Mohawk Custody and Marriage Code on Aug. 30

Kate Fort

Understanding the SRMT Family Court Code CLE (2160 × 1080 px))updated

Training is August 30 at 12pm. Kate Fort and Ron Whitener are presenting. Registration is here:

Event Registration

Information at Training Link

The CLE is hosted by the Saint Regis Mohawk Tribe and sponsored by the New York State Child Welfare Court Improvement Project. This program is pending approval by the NYS Unified Court System, Office for Justice Initiatives, Division of Policy and Planning in accordance with the requirements of the NYS Continuing Legal Education Board. This training is free of charge and is appropriate for both newly admitted and experienced attorneys.

WaPo Article on Diversity in OSG Office and Letter to the Editor in Response

Kate Fort

Recently the Washington Post published a long article on the issues in the Office of Solicitor General regarding their lack of diversity in hiring. This conversation is a constant one in federal Indian law circles (as in, we really do talk about this ALL THE TIME), but the article failed to mention that OSG is all up in the Indian law cases but has no Native lawyers now or ever. Today, the Post published a letter to the editor in response stating this far more eloquently:
Justice For and By Native Americans:

The July 25 front-page article “A defense of diversity fell to an office that lacks it” brought much-needed attention to the lack of diversity at the Office of the Solicitor General (OSG). The article failed to mention, however, the OSG’s lack of Native American lawyers. Both omissions of Native Americans — from the article and from the OSG — merit correction.

Erasures such as these are a persistent problem for Native Americans; the resulting harm is particularly acute here. The United States owes treaty-based, trust obligations to Indian tribes, and federal law governs life in Indian country to a degree matched in few other areas. Federal law determines the bounds of tribal sovereignty, the scope of treaty rights and the rules that apply to individual tribal members in spheres such as child welfare, taxation and criminal law.

In just its past five terms, the Supreme Court decided more than 10 cases involving Indian tribes. The OSG — which is charged with fulfilling the United States’ trust obligations at the Supreme Court — plays an outsize role in these cases. The United States is often a party, and even when it is not, the OSG typically participates at oral argument. Indeed, the OSG presented oral argument in every Indian law case from the past five terms. Yet despite the OSG’s central role, the OSG has never hired a Native American lawyer, per University of Michigan professor Matthew L.M. Fletcher.

As The Post article noted, many maintain that the OSG “has a special responsibility to reflect the country it serves.” That moral imperative is especially pronounced in the case of Native Americans.

Lenny Powell, Washington

Updated: California Supreme Court Granted Rare Reviews in Two Sets of ICWA Inquiry Cases

Kate Fort

Buckle up–this is a long one. ETA: And it just keeps getting longer. See below for the latest addition.

For a while now, California courts of appeal have been struggling with the level of ICWA inquiry required in a child protection case. These inquiry cases often involve are about inquiry beyond that of asking the parents about their Native ancestry. The question usually is what is the duty of inquiry to extended family members after parents have repeatedly and unequivocally denied any Native ancestry, as it is in the as it is in the Dezi C. case. However, the other case granted, Kenneth D., the court failed to inquire of father at all. These appeals are also coming up very late in the proceedings–in both cases the appeal was of a termination of parental rights order.

The CA courts of appeal have been fighting about the standard for years, though I would say in the past two-three years it has become particularly acute. There are so many contradictory reported cases that I haven’t posted a vast majority of them. I’ve had a draft post running for almost a year trying to collect and explain what was going on, but it is far too unwieldy. In 2022, I started tracking only reported ICWA cases. In 2022, California had 35 REPORTED ICWA cases on inquiry alone:

Screenshot 2023-07-27 at 11.33.29 AM

In all of 2022, there were only 67 TOTAL reported ICWA cases, making these inquiry cases a full 53% of all ICWA cases that year.

First Set of Appeals: Inquiry of Relatives

The California Supreme Court granted review on Dezi C. and Kenneth D. from the 2022 bunch in the past year or so. As you can see, I had classified the Dezi C. case as a “reason to believe” which means the Court did analysis on the level of information it needed to determine if the case was an ICWA case.

Dezi C. Opinion

KennethD C096051

CA Supreme Court Grants

The Dezi C. opinion outlines the current state in the California courts of appeal regarding whether “defective initial inquiry is harmless.” There were three concurrent rules as of the time of the opinion (June 14, 2022 if you wondered how slowly the CA Sct works):

1. “Automatic Reversal Rule:” Any defective initial inquiry requires reversal on that issue.

2. “Readily Obtainable Information Rule:” Defective initial inquiry is harmless unless the record indicates there is “readily obtainable information” that will “bear meaningfully” on the question on if the child is an Indian child.

3. “Presumptive Affirmance Rule:” Defective initial inquiry is harmless unless the parent comes forward with a reason on appeal why further inquiry would change the outcome of the ICWA determination.

Dezi C. introduced a fourth rule–

4. “Reason to Believe Rule:” objectively the only one that quotes the actual law, this rule states the record on appeal must “contain information suggesting a reason to believe the child may be an ‘Indian child.'” The Court gives three examples that would require reversal–someone tells the Agency there may be Native ancestry and the Agency ignores it; no one inquires of the parents if they have Native ancestry; the parents are adopted themselves and may not have the required information.

The Court then goes on the explain in detail why their rule is best and the other rules are the worst (obvi).  

In applying the reason to believe rule to the facts of the case, the Court found there was no reason to believe the children were Indian children, as both parents denied to the Agency, on a form, and in court that they had any Native heritage. No one came forward claiming they did. The parents grew up with their biological families. And on appeal, the mother did not offer any evidence that either parent in fact has Native ancestry. Therefore, the failure of the Agency to do further inquiry to extended family members was harmless error. 

The question at the Supreme Court is as follows:

In Re Dezi C., S275578. (B317935; 79 Cal.App.5th 769; Los Angeles County Superior Court; 19CCJP08030.) Petition for review after the Court of Appeal affirmed orders in a juvenile dependency proceeding. This case presents the following issue: What constitutes reversible error when a child welfare agency fails to make the statutorily required inquiry concerning a child’s potential Indian ancestry?

The Kenneth D. court applied the Dezi C. fourth rule to fairly different facts. In Kenneth D. the trial court completely failed to inquire of the putative father’s Native ancestry. The court order termination of parental rights on Mrch 22, 2022 and father appealed. The Agency supplemented the record on April 28 with the following information received from the father on April 21: Father said he might be Cherokee, and that his mother (grandmother) would have the information. The Agency spoke with the grandmother who explained their entire family is from Mexico so the Native heritage result she received on a DNA test likely results from Mexico. The grandmother provided the Agency with additional family contact information.

Mother in the case originally said she might have some Native ancestry from her Kentucky relatives, but denied any family member was a tribal citizen or that she was eligible to be a tribal citizen.

The father appealed the termination order asking for a reversal because of the lack of inquiry and the court held under the Reason to Believe test that the error of the court in not conducting an initial inquiry TO A PARENT was harmless.   

The question at the California Supreme Court is as follows:

In re Kenneth D., S276649. (C096051; 82 Cal.App.5th 1027; Placer County Superior Court; 53005180.) Petition for review after the Court of Appeal affirmed an order in a juvenile dependency proceeding. This case presents the following issues: May an appellate court take additional evidence to remedy the failure of the child welfare agency and the trial court to comply with the inquiry, investigation, and notice requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; Welf. & Inst. Code, § 224 et seq.), and if so, what procedures must be followed?

Briefing in Dezi C. is here

Kenneth D is here 

Second Set of Appeals: Interpretation of California Welfare and Institutions Code Sec. 224.2(b)

In 2023, there have been fewer reported cases on inquiry so far (only 9, though there was one this week I haven’t entered into this spreadsheet, but talk about below):

Screenshot 2023-07-27 at 3.26.41 PM

There have been 28 (29 if you count Brackeen) reported cases total, so they are currently running less than half of the total.

However, there was a new issue that arose in In re Robert F. and In re Ja. O. out of the Fourth District, Div. II, regarding California’s statutory requirement of inquiry. Both of these cases have been granted review in the California Supreme Court yesterday. The question turns on an interpretation of the California statute governing this issue. For reasons that feel to me like a scrivener’s oversight/a citation lost in the drafting, the Court held that when a child is removed pursuant to a warrant, there is no statutory requirement to make ICWA inquiry. But when a child is removed without a warrant, the statute does require the inquiry.

In both cases, the children are removed and ICWA would apply if the children “Indian children,” under the law, and inquiry should be happening in both instances. It is in many ways a distinction without a difference for the purposes of ICWA inquiry. Perhaps unsurprisingly then, the Fourth District, Div. II, late last week held the exact opposition in In re Delila D.:

We conclude there is only one duty of initial inquiry, and that duty encompasses available extended family members no matter how the child is initially removed from home. Applying a narrower initial inquiry to the subset of dependencies that begin with a temporary removal by warrant frustrates the purpose of the initial inquiry and “den[ies] tribes the benefit of the statutory promise” of A.B. 3176. (In re S.S. (2023) 90 Cal.App.5th 694, 711, 307 Cal.Rptr.3d 308 (S.S.).) The goal of the initial inquiry is to determine whether ICWA’s protections may apply to the proceeding, and the way a child is initially removed from home has no bearing on the question of whether they may be an Indian child. 

California Supreme Court Results from 7/26 Conference

In re Robert F.

In re Ja.O.

In re Delila D.

Finally, did I get myself turned around and initially post the older granted cases as the new cases and then find the new cases and have to go back and fix everything? Perhaps. Special thanks to Lenny Powell for alerting me after the original post and helping sort this all out. Maybe I got excited because few of us remember the last time ICWA came up to the CA Supreme Court back in 2015-2016 with the Abbigail A. (obligation to enroll) and Isaiah W. (notice) cases.