Announcement here.
All of the comments submitted on this rule were in support of it–I’m pretty sure I thanked everyone personally, but thank you again to everyone who did.
Author: Kate Fort
Alaska ICWA Case on QEW and Guardianship
Here.
Ultimately the question turned on whether a long term guardianship is a foster care placement or a termination of parental rights (which have differing standards of proof). The court found it was a foster care placement, and required the testimony of a qualified expert witness.
Updated ICWA Appellate Page
We’ve updated and cleaned up the ICWA Appellate Page. We’ve also added the eight comprehensive state ICWA laws to the page.
A link to the page is now available at the top of Turtle Talk in the menu, and the address is http://www.turtletalk.wordpress.com/icwa
U.S. Supreme Court Reverses and Remands Lewis v. Clarke
Opinion here.
JUSTICE SOTOMAYOR delivered the opinion of the Court.
Indian tribes are generally entitled to immunity from suit. This Court has considered the scope of that immunity in a number of circumstances. This case presents an ordinary negligence action brought against a tribal employee in state court under state law. We granted certiorari to resolve whether an Indian tribe’s sovereign immunity bars individual-capacity damages actions against tribal employees for torts committed within the scope of their employment and for which the employees are indemnified by the tribe.
We hold that, in a suit brought against a tribal employee in his individual capacity, the employee, not the tribe, is the real party in interest and the tribe’s sovereign immunity is not implicated. That an employee was acting within the scope of his employment at the time the tort was committed is not, on its own, sufficient to bar a suit against that employee on the basis of tribal sovereign immunity. We hold further that an indemnification provision does not extend a tribe’s sovereign immunity where it otherwise would not reach. Accordingly, we reverse and remand.
Previous posts, briefs, and other documents here.
Unpublished ICWA Case from Kansas Court of Appeals
There’s a lot of discussion about what the standards for removal are in an ICWA case at the first (emergency/24/48/72 hour/prelim/shelter care) hearing after a child is removed. This is the question of the Oglala Sioux v. Van Hunnik federal case. The federal regulations state that the standard is the one found in 25 U.S.C. 1922–whether the emergency placement is no longer necessary to prevent imminent physical damage or harm to the child. 81 Fed. Reg. at 38872.
The Kansas Court of Appeals agrees (In re D.E.J.):
The ICWA is clear that there are two ways to remove Indian children from their homes. The first method allows removal if two factors are satisfied: (1) the State proves that it engaged in active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and the efforts were unsuccessful; and (2) the court makes a determination supported by clear and convincing evidence, including the testimony of a qualified expert witness, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. 25 U.S.C. § 1912. Here, the State did not prove active efforts. And the magistrate judge did not use the expert witness’ testimony to support her determination that the children were in need of care. Thus, removal was inappropriate under 25 U.S.C. § 1912.
The second method of removal under the ICWA is emergency removal. Removal is appropriate under this method if the State proves that it is necessary to prevent imminent physical damage or harm to the child. 25 U.S.C. § 1922. While the district court made a finding that the children faced imminent harm at the initial removal, the district court did not find that the children faced imminent harm months later at the adjudication hearing. And the State did not present evidence that the children faced imminent danger at the time of the adjudication hearing. So, removal could not be legally effectuated under 25 U.S.C. § 1922.
***The ICWA is very clear in requiring a finding of imminent physical harm or danger before allowing emergency removal. The ICWA is also clear that the traditional method of removal requires the State to engage in active efforts. The magistrate judge did not find that the State engaged in active efforts or that the children faced imminent physical harm, so she did not make sufficient findings under the ICWA to support continued removal.
(Emphasis in original)
Notice of Appeal in Goldwater ICWA Litigation
Resiliency In a Trauma-Informed High School
Here.
I’ve now brought this article up twice in the past two days (including in class), so I’m posting it.
With the help of Natalie Turner, assistant director of the Washington State University Area Health Education Center in Spokane, WA, Sporleder and his staff implemented three basic changes that essentially shifted their approach to student behavior from “What’s wrong with you?” to “What happened to you?”
(emphasis added)
H/T Judge Whitener
NAICJA/NCJFJC Free Webinar on Peacemaking, April 24
Here: PM Announcement
Op-Ed in Maclean’s About Canada’s Child Welfare Crisis
Here, by Pam Palmater. Canada’s numbers of Native children in care may be currently worse than pre-ICWA numbers in the United States (Task Force Four Report).
The increasing number of First Nations children being placed into foster care in Canada is nothing short of a crisis. Although Indigenous children make up only seven per cent of the population in Canada, they represent 48 per cent of all children in foster care. It is an astounding number until one examines these rates on a province-by-province basis. In Alberta, Manitoba and Saskatchewan, Indigenous children represent a shocking 73 per cent, 85 per cent and 87 per cent of all children in care respectively, according to the most recent Statistics Canada report. However, Manitoba reports that their numbers of Indigenous children in care are increasing and currently stands at 90 per cent, which represents one of the highest rates in the world. This isn’t much of a surprise given that one newborn is taken away from his or her mother every day in Manitoba as a matter of course—the vast majority being Indigenous. They are not the only provinces implicated as Indigenous children in Ontario are 168 per cent more likely to be taken into care than white children.
2017 Designated Contacts for ICWA Service
If you don’t use these, I will find out and talk about it in one of my presentations when I’m in your state. Or when I’m in other states. I travel a lot. Print them out and use them PLEASE:
Turtle Talk 
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