Author: Kate Fort

Job Opening for Deputy Associate Director with the Tribal Justice Services Directorate

Kate Fort1 Comment

Here.

The Office of Justice Services (OJS), within the Bureau of Indian Affairs (BIA), is searching for an individual to serve as a Deputy Associate Director with the Tribal Justice Services Directorate.  Do you have experience in tribal court based initiatives which have promoted tribal court functions?  Do you have experience in civil and criminal functions within a tribal court?  Have you provided technical guidance and training for tribal court issues, including criminal, civil and traditionally based alternative resolutions?  Do you have an interest in working with tribal communities in the initial stages of creating a tribal justice system?  Do you have knowledge on Public Law 280 and the Indian Civil Rights Act?  Are you interested in travel?  Is so, this could be the job for you!

The major duties of the position include, but are not limited to the following:

Designs and creates tribal court training programs which aim to promote and enhance the tribal civil and criminal functions, as well as training programs designed to assist in enhancing tribal court infrastructure.
Plans, coordinates and conducts research and analysis on juvenile programs in Indian country, and coordinates pilot programs working with tribal governments on juvenile programs. Works to promote alternative dispute resolution options for juveniles as well as adults.
Supervises Tribal Justices Services (TJS) program operations and staff, which includes planning work to be accomplished, setting priorities, assigning work, evaluating staff performance, scheduling and approving leave requests, resolving issues and advocating awards and corrective action.
Plans, coordinates and conducts evaluations of tribal systems in the enhancement of the justice system.
Recommends solutions to resolve identified tribal court deficiencies.
Assists in the design of a data system that reports, the status and needs of tribal courts to various entities, and performs statistical analyses with system data for tribal courts.

Army Corps Letter and Press Release, Standing Rock Press Release, Letter to the President from Former Appointees

Kate Fort

Here are links to the various documents regarding the Oceti Sakowin camp and the Dakota Access Pipeline:
Letter from Army Corps

Statement from Army Corps

Press Release from Standing Rock Tribal Chairman

Letter to the President from Former Political Appointees

Oklahoma Court of Appeals Case Granting Transfer to Tribal Court

Kate Fort1 Comment

Here. And the OK Supreme Court agreed to publish the decision. 

This case involved a guardianship:

ICWA defines “foster care placement” as “‘any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated.'”25 U.S.C. 1903(1)(i). This guardianship case is governed by this definition of foster care placement because Mother cannot have her children returned on demand as shown by the fact that she requested that the guardianship be terminated and her request was denied.

The case also discusses the requirement of clear and convincing evidence to deny transfer. The trial court denied transfer stating it was the advanced stage of the proceedings–which it was because Cherokee Nation didn’t receive notice, and the delay was beyond the Nation’s control.

This is only the 16th time an appellate court reversed the lower court and ordered transfer. This is one of two from this year.

Michigan Court of Appeals Finds Law Adding Wolves to List of Game Species Unconstitutional

Kate Fort

The unpublished opinion is here. The Court found that Public Act 281 (which added wolves to the list of game species) violated the Title-Object Clause of the Michigan Constitution.

PA 281 was passed with the provision that kept portions of certain voter referendums even if voters rejected them: “In other words, even if voters rejected PA 520 and PA 21 at the general election, those portions of the rejected laws that were incorporated into PA 281 would nevertheless survive. … At the November 4, 2014 general election, a majority of voters rejected both PA 520 and PA 21. PA 281, which reenacted portions of voter-rejected PA 520 and PA 21, including the addition of wolf to the list of game species, took effect on March 31, 2015.”

Previous coverage here.

 

NNALSA 2017 Moot Court Problem, Rules, and Press Release

Kate Fort

2017-nnalsa-moot-problem

november-20-press-release (information on registration, hotels, and rules)

2017-nnalsa-moot-court-rules-official

BIA Publishes Updated Model Tribal Juvenile Code

Kate Fort1 Comment

Press Release here.

Model code here.

One of the things that is particularly useful in this model code is how it is annotated with information on why the drafters made certain choices, and links to other resources with additional information.

Unpublished ICWA Notice Case out of California (First District)

Kate Fort1 Comment

Here.

The First District of California seems to be trying a new way to deal with notice violations in ICWA cases by detailing the mistakes in the notice in the opinion. The first time we saw it was in September (here). In this case, a different division in the same District did a similar analysis.

As to the Chippewa Cree tribe, the notice for G.B.-C. was sent to Chippewa Cree Indians, Brenda Gardiner, ICWA Rep, RR1, P.O. Box 544, Box Elder, Montana 59521. According to the Department’s proof of service, the notice for M.B.-C. was sent to the same address. The address specified for the tribe in the Federal Register was Chippewa Cree Tribe of the Rocky Boy’s Reservation of Montana, Christina Trottier, ICWA Director, 31 Agency Square, Box Elder, MT 59521. (79 Fed.Reg. 3225 (January 17, 2014).) Although the city, state and zip code were the same, the addresses were completely different.
The Department asserts the notice was nevertheless adequate because the P.O. Box address it used to provide notice to the Chippewa Cree tribe was the one that was listed on the State Department of Social Services’s (CDSS) website.4The Department relies on In re N.M., supra, 161 Cal.App.4th at page 268, in which the court held the child welfare agency did not err in using the names and addresses provided by CDSS in notifying the relevant tribes, stating: “The Department should not be hamstrung by limitation to only the names and addresses provided for the tribes in the Federal Register if a more current or accurate listing is available and is reasonably calculated to provide prompt and actual notice to the tribes.
While requiring the Department to adhere to an address listed in the federal register when other, more accurate information is available elsewhere “would exalt form over substance,” (In re N.M., supra, 161 Cal.App.4th at p. 268), we must still respect the Department of Interior’s primary authority in administering ICWA (In re S.B. (2005) 130 Cal.App.4th 1148, 1157 [the federal regulations implementing ICWA “are binding in all federal and state courts by virtue of the supremacy clause”] ). ICWA notice may depart from the addresses listed in the federal register, but only when the alternative address is “more current or accurate.” (In re N.M., supra, 161 Cal.App.4th at p. 268.)
Here, there is nothing in the record indicating the CDSS address the Department used was more current or accurate than the address listed in the Federal Register. Thus, while the return receipt received for the notice sent for G.B.-C. shows that someone at the CDSS address received the notice, there is no basis to conclude the notice was received by someone at the Chippewa Cree tribe who was “trained and authorized to make the necessary ICWA determinations, including whether the minors are members or eligible for membership and whether the tribe will elect to participate in the proceedings.” (In re J.T., supra, 154 Cal.App.4th at p. 994.)”

Preliminary 2015 AFCARS Data Released by DHHS

Kate Fort

Just a reminder that this is the Adoption and Foster Care Analysis and Reporting System data, which is information sent from the state to the federal government about kids in foster care. There is still a pending rule change that would add ICWA-specific data elements to these reports, but it has not yet been promulgated. How Native children are identified by state actors for this report varies dramatically by state (and county), but it is the best data we have at this time.

Here.

Proposed Court Rule in Michigan to Waive Pro Hac Fees and Other Limits for Out of State Tribal ICWA Attorneys

Kate Fort1 Comment

Here.

In ICWA cases, the tribe has a right of intervention in whatever state court is hearing the case of the tribal child. While it is true that the “tribal representative” does not have to be attorneys, when they are attorneys, there may be concerns about practicing without finding local counsel or using the local “pro hac” rule. Michigan has proposed a court rule that would waive those requirements for tribal attorneys representing the tribe in a state court where the attorney is not barred. This proposed rule is in direct response a number of requests from tribal ICWA attorneys nationwide. We are hopeful other states will consider a similar rule (though in Nebraska this is right is guaranteed by statute, which is another great fix). This rule was proposed by the Michigan Tribal-State Judicial Forum.

Also, if you are an out of state attorney who would benefit from this proposed Rule (or in state) please send in comments by March 1.

Washington Supreme Court Explicitly Rejects Existing Indian Family Exception

Kate Fort2 Comments

Here

In only the third Washington Supreme Court case to directly interpret ICWA and the first to interpret WICWA, the Court holds In re Crews (the case that established EIF in Washington) is overturned.

Under our above interpretation of ICWA and WICWA, if a case (1) meets the definition of a “child custody proceeding” and (2) involves an Indian child, both acts shall apply. ICWA and WICWA recognize only two exceptions to coverage–delinquency
proceedings and custody disputes following divorce where one parent retains custody of the Indian child. Our interpretation therefore overrules Crews to the extent that it embraced the existing Indian family exception because it recognizes no additional exceptions to coverage outside of the two expressly stated in ICWA and WICWA.

ICWA and WICWA also apply based on the child’s membership, not the parent’s:

For these reasons, we hold that whether the parent whose rights are being terminated is non-Indian is immaterial to a finding that ICWA and WICWA apply. If the child at issue is an Indian child and that child is involved in a child custody proceeding, ICWA and WICWA shall apply.

Craig Dorsay represented the tribal amicus brief (including oral arguments), and NARF and Indian Law Clinic at MSU Law provided strategy and research support in this case. Previous coverage here.