It’s been a couple of months, so here is the updated ICWA Defense Memo on the cases we are monitoring.
Author: Kate Fort
Unpublished Notice Case in California Regarding Alaska Native Villages
Here. The Fourth Appellate District does more research than DPSS (the agency tasked with notice), and put it into the decision:
Respondent argues that there is no federally recognized “Innuit Eskimo” tribe, so notice was not required. It is not quite so simple. The term “Innuit” is a collective term (the plural of Inuk), for a group of culturally similar indigenous peoples inhabiting the Arctic regions of Alaska, Greenland, Canada, and Siberia. (http://www.newworldencyclopedia.org/entry/Inuit.) The Alaskan Innuit comprises the Alutiiq, Yup’ik (or Yupiat) and Inupiat tribes. (http://www.encyclopedia.com/history/united-states-and-canada-north-american-indigenous-peoples/.) The term “Eskimo,” as it pertains to Alaskan indigenous peoples, has been replaced by “Inuit.” (Ibid.) There are 229 federally recognized Alaskan villages. (http://www.alaskannature.com/inuit.htm; see also, 81 Fed. Reg. 5023-5025, (No. 19, January 29, 2016).) For this reason, one will not find “Eskimo” or “Innuit” in the Federal Register’s list of federally recognized Native Entities.
The Federal Register lists the 229 Alaskan villages. The names, addresses and telephone numbers of approximately 15 Tribal Leaders and BIA Servicing Centers may be found in the BIA Tribal Leaders Directory. (See, http://www.bia.gov/cs/groups/public/documents/text/idc002652.pdf.) At the very minimum, the social worker should have provided notice to the Native Alaskan Entities through the BIA, if not to the individual tribal entities.[5]
And, in case you were wondering what that footnote five is all about, it’s worth posting as well:
[5] By way of a letter, DPSS requests that we identify the specific Native American entity to which notice should be provided. We have identified four entities listed in the Federal Register in our opinion, whose names comprise a form of the words “Innuit” or “Inuk.” We also recommended contact with the BIA. However, the duty to identity and locate the appropriate Native American entity is more appropriately borne by the DPSS working with the court.
Radio Documentary on Indian Adoption Project
A friend posted she heard this on Minnesota Public Radio recently.
Here is the story with a link to the documentary. I was able to listen to more than half of it and it’s really well-done.
Order in Canada’s Sixties Scoop Class Action Case
Here.
From the Ontario Supreme Court of Justice:
The background facts, as set out in the six previous decisions, are by now well-known, not only to the parties but to many Canadians, and will not be repeated here. In any event, the factual background is not in dispute.
[4] The Sixties Scoop happened and great harm was done.
[5] There is no dispute about the fact that thousands of aboriginal children living on reserves in Ontario were apprehended and removed from their families by provincial child welfare authorities over the course of the class period – from 1965 to 1984 – and were placed in non-aboriginal foster homes or adopted by non-aboriginal parents.
[6] There is also no dispute about the fact that great harm was done. The “scooped”3 children lost contact with their families. They lost their aboriginal language, culture and identity. Neither the children nor their foster or adoptive parents were given information about the children’s aboriginal heritage or about the various educational and other benefits that they were entitled to receive. The removed children vanished “with scarcely a trace.” As a former Chief of the Chippewas Nawash put it: “[i]t was a tragedy. They just disappeared.”***
The issue is not what was known in the 1960’s about the harm of trans-racial adoption or the risk of abuse in the foster home. The issue is what was known in the 1960’s about the existential importance to the First Nations peoples of protecting and preserving their distinctive cultures and traditions, including their concept of the extended family. There can be no doubt that this was well understood by Canada at the time. For example, focusing on adoption alone, Canada knew or should have known that the adoption of aboriginal children by non-aboriginal parents constituted “a serious intrusion into the Indian family relationship” that could “obliterate the [Indian] family and…destroy [Indian] status.”
***
In my view, the common issue must be answered as follows.
[85] For the reasons set out above, when Canada entered into the 1965 Agreement and over the years of the class period, Canada had a common law duty of care to take reasonable steps to prevent on-reserve Indian children in Ontario, who had been placed in the care of non-aboriginal foster or adoptive parents, from losing their aboriginal identity. Canada breached this common law duty of care.
Disposition
[86] The common issue is answered in favour of the plaintiff. Canada is liable in law for breaching a common law duty of care to the class members. This is not an issue that requires a trial.
[87] The class action now moves forward to the damages assessment stage. Counsel should schedule a case conference to discuss next steps.
[88] The plaintiff is entitled to the costs of this summary judgment motion. These costs are likely to be substantial. If the parties cannot agree on the costs I would be pleased to receive brief written submissions from the plaintiff within fourteen days and from the defendant within fourteen days thereafter.
Final Rule on Tribal Veteran Service Officers
Here. With apologies for the lateness of this post, this rule was promulgated at the end of the Obama Administration:
The Department of Veterans Affairs (VA) is amending its regulations concerning recognition of certain national, State, and regional or local organizations for purposes of VA claims representation. Specifically, this rulemaking allows the Secretary to recognize tribal organizations in a similar manner as the Secretary recognizes State organizations. The final rule allows a tribal organization that is established and funded by one or more tribal governments to be recognized for the purpose of providing assistance on VA benefit claims. In addition, the final rule allows an employee of a tribal government to become accredited through a recognized State organization in a similar manner as a County Veterans’ Service Officer (CVSO) may become accredited through a recognized State organization. The effect of this action is to address the needs of Native American populations who are geographically isolated from existing recognized Veterans Service Organizations (VSOs) or who may not be utilizing other recognized VSOs due to cultural barriers or lack of familiarity with those organizations.
Effective Date: This rule is effective February 21, 2017.
CRST’s Request for a Temporary Restraining Order against DAPL is Denied
There are a lot of moving parts on the legal side of the NoDAPL fight. This latest is in Standing Rock Sioux Tribe v. Army Corps of Engineers, No. 16-cv-01534, which was started in July. Those initial materials are here. Most recently in that case, the intervenor-plaintiff tribe, Cheyenne River Sioux, filed a motion for a temporary restraining order. Yesterday there was a hearing on the motion and the judge ruled from the bench:
MINUTE ORDER: As discussed at today’s status hearing, the Court ORDERS that: 1) CRST’s 99 TRO Application is DENIED; 2) Dakota Access shall provide an update on February 21, 2017, and every Monday thereafter as to the likely date that oil will begin to flow beneath Lake Oahe; 3) The Court will hold a hearing on CRST’s Motion for Preliminary Injunction on February 27, 2017, at 2:00 p.m.; 3) Oppositions to such Motion shall be due by February 21, 2017, with any Reply due by February 24, 2017; 4) SRST’s Motion for Partial Summary Judgment shall be filed by February 14, 2017, with Oppositions due by March 7, 2017, and any Reply due by March 21, 2017; 5) The Government may have a two-week extension to oppose Dakota Access’s Motion for Protective Order; and 6) Defendants may have a 30-day extension to respond to the Tribes’ Motions to Amend Complaint. Signed by Judge James E. Boasberg on 2/13/2017. (lcjeb3) (Entered: 02/13/2017)
The motion for a preliminary injunction the judge references is here.
As we posted yesterday, Oglala Sioux has also filed a lawsuit against the Army Corps (Oglala Sioux Tribe v. Army Corps of Engineers, No. 17-cv-00267), which has been assigned to the same judge.
Article on Mental Health Outcome Disparities for AI/AN Populations
Hannah E. Payne · Michalyn Steele · Jennie L. Bingham · Chantel D. Sloan
National Council for Adoption Case Vacated and Remanded
This case was the challenge to the 2015 BIA ICWA Guidelines. The case was dismissed at the district court level, and NCFA appealed the case to the Fourth Circuit. Earlier this week, the appellants motioned to vacate, and today the court granted it. Given the BIA withdrew the 2015 Guidelines and they are no longer in effect, this makes sense.
This does mean the lower court decision is no longer precedent, to the extent we used it as such.
Active Efforts Case out of the Nebraska Court of Appeals
Here.
NICWA, however, adds two additional elements the State must prove before terminating parental rights in cases involving Indian children. In re Interest of Walter W., supra. First, the State must prove by clear and convincing evidence that active efforts have been made to prevent the breakup of the Indian family and that these efforts have proved unsuccessful. See § 43-1505(4); see also In re Interest of Walter W., supra. Second, the State must prove by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, 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. See § 43-1505(6).
***
Although the record indicates that for the first two years this case was pending in the juvenile court, there is some question about whether the Department was doing as much as it “possibly could have been” under an active efforts standard, it is clear that for the last two years this case was pending, the Department was providing Louisa with active efforts toward achieving reunification with her children. Despite the two years of active efforts, Louisa failed to make significant or sustainable progress towards reunification. Moreover, while we recognize that during the beginning stages of the juvenile court case the Department may have failed to provide active efforts, this does not mean that the Department failed to provide any efforts. The record is clear that Louisa has been receiving services from the Department since prior to the petition being filed in this case in November 2011. Despite all of those efforts, coupled with the Department’s recent active efforts, Louisa has not made progress towards reunification with her children. Louisa’s assertion that she has not been given enough time to turn her life around is simply without merit.
The Atlantic on the Presidential Memorandum on DAPL and KXL
Here.
“It’s the flip-side of the question everyone was asking last year, ‘Why doesn’t Obama just put the kibosh on Dakota Access?’” said Sarah Krakoff, a professor of tribal and resources law at the University of Colorado Boulder. “Well, it’s not really his role. It’s the Army Corps’s role, and that’s still true today.”
“Trump can’t, with the stroke of a pen, just make the Dakota Access pipeline happen. He just can’t. He doesn’t have that authority. It’s his agency’s authority, and he can’t revoke the laws that the agency just found that it has to comply with,” she added.
She added too that the executive orders seemed to be written in a typical way. Instead of commanding agencies to ignore congressionally passed law, the orders request that they expedite or reconsider previous judgments. “Executive orders are legal orders—they’re law—but they can’t contravene legislative enactments. So an executive order can’t say, ‘Ignore the [National Environmental Policy Act] and give me a pipeline,’” she told me.
“If the federal law gives decision-making authority to a particular official, that official has to make the decision,” said John Leshy, a professor of real property law and a former general counsel to the U.S. Department of the Interior. “But there’s some murkiness about what the president can do. The decision maker can say no, and then the president can fire them and replace them with someone who would. But that takes time.”
Krakoff added that it would attract judicial suspicion if the Army Corps of Engineers suddenly decided that it didn’t have to make an environmental-impact statement for the Dakota Access pipeline after saying that it did just weeks ago.
“It would be hard for them to turn around on a dime and say, ‘We got this piece of paper from the president and now we don’t think that’s necessary,’” she said. “If the agency were to take a different route, legally, now, I would strongly suspect that that would be subject to litigation.”
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