Author: Kate Fort

Michigan and Oregon Adopt Pro Hac Vice Court Rules for ICWA Cases

Kate Fort

Edited to add that Nebraska deserves credit for codifying this back in 2015, which I knew and forgot until today when I was doing some research. The provision is at Neb. Rev. Stat. 43-1504(3), a citation which I have now memorized so I won’t forget it again. 

This spring both Michigan and Oregon have changed their court rules to allow out of state attorneys to appear in ICWA cases on behalf of a tribe (Michigan and Oregon) or parent or Indian custodian (Oregon). Both waive the pro hac fees, and do not require the attorneys to associate with local counsel.

Michigan’s rule, MCR 8.126, is here. The rule is effective September 1.

Oregon’s rule, UTCR 3. 170(9), is here. The rule is effective August 1.

In both of these cases, the rule was a result of a recommendation and work from the respective Tribal State Judicial Forums.

In the hopes this is something other states may be willing to take on (hi California! Oh hey, Washington!), we’ve started a page with resources here.

South Dakota Supreme Court Overturns Denial of Transfer to Tribal Court

Kate Fort1 Comment

Here.

We agree that the court’s denial of the request to transfer was improper. It is undisputed that the circuit court refused to hold a separate evidentiary hearing on the question of good cause. And the court’s commentary on the issue during the December 14, 2015 review hearing consists only of the following:

Well, it’s going to be the Court’s finding that the motion to transfer is not timely and it’s going to be denied in this case. I note this case is—was open last November, 2014. The [T]ribe’s apparently been aware of it for more than a year. No efforts were made to get it transferred before this time, and I—my real concern is, it just is contrary to the interests of the children to start over from square one after a year has proceeded in the matter, so that motion is going to be denied.

As noted above, in determining whether the motions to transfer were timely, the court was required to consider all the particular circumstances of this case, not simply the amount of time that had passed since the proceedings first began. See id. at 600. Although this case was over one year old, it had not yet reached final disposition. Without knowing the Tribe’s and Mother’s reasons for waiting to seek transfer, the circuit court necessarily did not consider all the circumstances of this case.

The court’s finding that transferring jurisdiction was not in the best interest of the Children is susceptible of the same criticism. As above, the absence of specific factual findings precludes meaningful review. The Tribe intervened and has been involved in this case since nearly its beginning. The Tribe has been represented at each of Mother’s review hearings. The circuit court did not identify any reason to conclude that transferring jurisdiction to the Tribe would have amounted to a “start over from square one[.]”

Response to Proposed Trump Administration Budget at ATNI Mid Year Conference

Kate Fort1 Comment

PBS story here.

Kevin Washburn’s piece in ICT here. Additional links from Washburn here.

2017 Michigan Indian Family Preservation Act and ICWA Court Resource Guide

Kate Fort

Here. From the Michigan Court Improvement Program.

New and updated for 2017! Now with MIFPA and the Regulations!

House Natural Resources Oversight Subcommittee Hearing on IRA Tomorrow Morning

Kate Fort

Here.

Entitled “Examining Impacts of Federal Natural Resources Laws Gone Astray,” the hearing memo indicates the IRA is one of the three laws the committee will be discussing.

Bears Ears Comment Period Is Open and Closes May 26

Kate Fort

As we wrote last week, the comment period for Bears Ears is fifteen days long after the notice was issued.

Here is the notice. We’ve written on submitting effective comments before here. Comment period ends on 5/26.

h/t S.K.

Bears Ears and the Administrative Process

Kate Fort2 Comments

On Friday afternoon, the Department of Interior asked for comments on various national monuments that were designated under the Antiquities Act as far back as 1996. This is in response to the recent executive order. No president has ever tried to “abolish a national monument” but it’s pretty clear by now that the “no president has ever done X before” doesn’t stop this administration.

The notice has not yet been published in the Federal Register, but the release stated that comments on Bears Ears specifically must be made within 15 days of the publication of the notice. There are 21 other monuments up for comments which must be made with in 60 days.

Also on Friday at 6pm, the Department sent out a media advisory for a series of listening sessions that would start on that Sunday. While the administration posted a picture of Secretary Zinke meeting with Ute tribal leaders, the administration’s actions make clear that they want certain limited input–the Secretary’s language is that he wants the “voice of locals” when it comes to monuments. Given the federal government has been hearing from the voice of locals for more than the past two years, this is disingenuous at best. NARF and Navajo Nation both issued press releases last month in response to the executive order.

While administrative law can be dense and complicated, a court can still find against an agency’s actions. Part of the record to make that finding is the public comments. While public comments on this matter may not make much of a difference to the administration, it CAN make a difference in the courts.

Another (unpublished) Arkansas ICWA Case Lacking Strong Parent Representation

Kate Fort

Here. Another reason for more parent attorney partnerships and training. Matthew noted this happened last September in Arkansas too. From the opinion, it’s not remotely clear the agency notified the Cherokee tribes of dad’s claim here.

In addition to the termination of Daniel’s parental rights, the trial court found ICWA did not apply. His counsel explains that this finding does not provide a meritorious basis for reversal, and we agree. Daniel attempted to establish the applicability of ICWA at the outset of the termination hearing—despite the fact the trial court had earlier determined that ICWA did not apply in the probable-cause order dated July 8, 2015. The only documentation he submitted in support of his assertion was a form application for membership in the Cherokee Nation he filed only a couple of days prior to the hearing. In order to establish the applicability of ICWA, a child who is the subject of a dependency neglect action must be an “Indian child,” which is defined as any unmarried person who is under eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. 25 U.S.C. § 1903(4). Here, there was no evidence A.B. and D.B. satisfied these requirements. It is undisputed the children are not members of an Indian tribe, and the only evidence submitted was the form application prepared by Daniel two days before the hearing—there was no evidence the application had been accepted or that the children were in any other way eligible for membership, and there was not even any evidence Daniel was their biological father, although he did not dispute that fact. This issue provides no meritorious basis for reversal.

In more than one state, this would provide a meritorious basis for remand at minimum, and maybe reversal. It’s fair that it might not yet be a basis for reversal in Arkansas, but it’s clearly time for someone to bring the argument.

 

(Why yes, I am currently on a four hour flight, and have a backlog of ICWA cases to post . . .)

Published ICWA Inquiry Case from Colorado Court of Appeals

Kate Fort

Here.

The court found that the agency has to ask about tribal citizenship each time a the agency initiates proceedings against a parent, and not rely on findings in a separate, previous proceeding.

Moreover, while not applicable here, we note that new federal regulations that codify this inquiry obligation became effective on December 12, 2016. See 25 C.F.R. §§ 23.107-.109, .111 (2016). The new regulations were quickly followed by new guidelines issued in December 2016. See Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act (Dec. 2016),https://perma.cc/3TCH-8HQM (2016 Guidelines). Consistent with the 2015 Guidelines applicable here, these new regulations and guidelines require the court to ask all participants in the case whether there is reason to know the child is an Indian child and to instruct the participants to inform the court if they later discover information that provides reason to know the child is an Indian child. See 25 C.F.R. § 23.107(a); 2016 Guidelines at 11. And, if a new child custody proceeding is initiated for the same child, the court must again inquire into whether there is a reason to know that the child is an Indian child. 25 C.F.R. § 23.107(a).

Unpublished ICWA Case from Texas

Kate Fort1 Comment

Here. Probably need to do some training down in Texas:

On September 9, 2016, the [Texas] Department’s attorney sent proper notice to the Bureau of Indian Affairs. The [Texas] Department [of Family and Protective Services] also sent a letter dated March 16, 2017, to the Secretary of the Interior, ICWA, and to the Bureau of Indian Affairs, stating that W.C. testified that his Indian tribe was “maybe Lakota Sioux.” According to the Department’s letter, that tribe is not federally recognized as eligible for services or, more particularly, is not an “Indian tribe” pursuant to the ICWA. See 25 U.S.C.A. § 1903(8) (Westlaw through Pub. L. No. 115-22).

Emphasis added.