Author: Kate Fort

ICWA Published Notice Case out of Michigan

Kate Fort1 Comment

Here.

Given the multiple references in the record to possible Cherokee heritage, the DHHS had adequate information to make an “initial determination” that C.J. “may be a member” of the Cherokee tribe, implicating a duty to “exercise due diligence to contact” the Cherokee tribe “in writing so that the tribe may verify membership or eligibility for membership.” MCL 712B.9(3) (emphasis added). This was not done. Furthermore, assuming that the DHHS was “unable to make [such] an initial determination” relative to the Cherokee tribe, there is no indication in the record, nor does the DHHS argue on appeal, that the tribe or tribes located in Kalamazoo County were given written notification, which is a minimal requirement under the final sentence in MCL 712B.9(3).FN9 Indeed, the DHHS does not even present an appellant argument under MCL 712B.9(3), despite respondent’s partial reliance on the provision. Accordingly, MCL 712B.9(3), along with 25 USC 1912(a) and MCL 712B.9(1), serves as a basis to order conditional reversal in regard to C.J. On remand, notice must be sent to the Cherokee tribe and, if one exists, to any tribe or tribes in Kalamazoo County.

As for FN9, where the Michigan Court of Appeals admits it does not know if there is a tribe in Kalamazoo County–if only there was a way to find out that information.

Thanks to everyone who sent this one in.

Updated ICWA Defense Project Memo

Kate Fort2 Comments

The ICWA Defense Project (NCAI, NARF, NICWA, and ICWA Appellate Project) has updated the memo detailing the various federal court challenges to ICWA.

Here.

On February 25, 2015, the Bureau of Indian Affairs (BIA) published revisions to the Guidelines for State Courts and Agencies in Indian Child Custody Proceedings. These revised Guidelines address areas of Indian Child Welfare Act (ICWA) non-compliance occurring over the past 36 years.

One month later, the BIA proposed to advance its reforms by proposing draft federal Regulations to govern the implementation of ICWA in state courts and agencies. On June 17, 2016, the BIA issued final Regulations for Indian Child Welfare Act Proceedings, as well as Frequently Asked Questions regarding the final rule. In addition, the U.S. Department of the Interior Solicitor issued a Memorandum describing BIA’s authority to issue the Regulations.

In response to the 2015 reforms, a network of ICWA opponents filed multiple lawsuits challenging the Guidelines and ICWA’s constitutionality. The National Indian Child Welfare Association (NICWA), the Native American Rights Fund (NARF), the National Congress of American Indians (NCAI), and the ICWA Appellate Project at Michigan State University College of Law—collectively known as the ICWA Defense Project—are working collaboratively to defend ICWA and the long overdue reforms.

This memorandum summarizes the pending litigation and describes some of the legal and communications strategies developed by these partner organizations to inform, advance, and unify a coordinated effort across Indian Country in response to these attacks.

Dollar General Affirmed by an Equally Divided Court

Kate Fort1 Comment

Here.

This means the Fifth Circuit decision upholding tribal jurisdiction stands.

Now Published Case out of California on Application of ICWA to Eligible Children

Kate Fort

Here. (original unpublished opinion we posted last week). Appellants requested this opinion be published, so the published opinion is here.

We’d like to point out that the fact that mother was a minor and a dependent of the court meant that the state should have been treating MOTHER’S own case as an ICWA case, which does not seem to have happened (and if you’re keeping track, yes, I’ve now used italics, allcaps, AND red ink on this one).

In this case, BOTH the Red Cliff Band of Lake Superior Chippewa AND the Bad River Band of Lake Superior Chippewa Tribe responded to the Department’s notice. Both Bands stated the children were eligible for enrollment, and Red Cliff asked for more information. Mother was a minor and a runaway from her placement. But instead of sending the information, or following up to assist in getting the children enrolled, or provide active efforts, the Department requested the juvenile court find that ICWA did not apply. Which the juvenile court did. Specifically:

Our record discloses no further action after November 2013, until an interim review report, dated April 22, 2014, stated, “[i]t is respectfully requested that the Court make a finding as to the children’s Indian Child Welfare Act Status.” The report further stated that ICWA “does or may apply” as each child might be an Indian child in the Chippewa tribe and was ICWA “eligible” (capitalization & boldface omitted). SSA proposed the court find “ICWA does not apply,” and the juvenile court’s minute order, dated April 22, 2014, contains the finding, “ICWA does not apply.” In a minute order dated June 19, 2014, the juvenile court again stated: “Court finds ICWA does not apply.”

The Court of Appeals held:

Given the above cited authorities, the juvenile court erred by finding ICWA did not apply. Not only did insufficient evidence support that finding, but also two tribes responded to SSA’s ICWA notice, by stating that the children were eligible to enroll in them. The court was thereafter required to proceed as if the children were Indian children.

Under these circumstances, we must reverse the order terminating parental rights and remand with directions for the juvenile court to order SSA to make active efforts necessary to secure tribal membership for the children. (In re K.M. (2015) 242 Cal.App.4th 450, 458–459.)

Preliminary Report on from California’s ICWA Compliance Task Force

Kate Fort2 Comments

Prelim Final – CA ICWA TF Report 6.10.2016

Press Release

SACRAMENTO – Insufficient services, severe underfunding, barriers preventing tribal participation and inadequate reunification efforts have undermined the effectiveness and promise of the Indian Child Welfare Act (ICWA) in California, according to a preliminary report from a Task Force of tribal leaders from across the state, working independently to apprise the California’s Attorney General’s Bureau of Children’s Justice of these inadequacies.

The ICWA Compliance Task Force’s report recognizes that efforts have been undertaken to overcome cultural, procedural and funding challenges, but these ongoing obstacles continue to severely limit the implementation of ICWA in California, resulting in devastating impacts to Indian children, their families and their tribes.

Samantha Bee on Dollar General and Tribal Courts

Kate Fort2 Comments

Link to Official Federal Register for ICWA Final Rule

Kate Fort3 Comments

Here. The actual rule starts at 81 Fed. Reg. 38864.

Also, now word searchable and only 100 pages (well, with three columns on each page and a font size that makes me happy I finally got reading glasses).

 

Chronicle of Social Change Article on Native Foster Home(s) in L.A.

Kate Fort

Here.

In 1978, Congress passed the Indian Child Welfare Act (ICWA), which was meant to keep Native American families together, after foster care and adoption practices had seen thousands of Native children taken from their families, ancestral lands and culture to be placed in non-native homes. That law created a system of “preferred placements” for Native children who enter care. The first choice is to place children with family members, followed by members of the same tribe and finally Native foster parents from other tribes. The last resort is placement in non-native homes.

But the federal government has never compelled states to share how well they satisfy that “preference,” leaving little or no data to indicate who is doing a good job placing Native children in Native homes.

The reporting that does exist is spotty at best.

In 2005, the United States Government Accountability Office (GAO) surveyed all 50 states and Washington D.C. about their ability to identify Native children in the system who were subject to ICWA in 2003.

“Only five states—Oklahoma, Oregon, Rhode Island, South Dakota, and Washington—were able to provide these data,” according the GAO report.

It doesn’t appear that reporting on ICWA compliance improved much in the subsequent years.

In 2015, Casey Family Programs, one of the largest charitable foundations in all of child welfare, tried to ascertain ICWA compliance in a brief entitled “Measuring Compliance with the Indian Child Welfare Act.”

“Although cross-jurisdictional and collaborative efforts are emerging, compliance measurement remains characterized by relatively small, idiosyncratic efforts,” the thin report reads. “Empirical study results are scattered, inconsistent, and highly specific to the state and jurisdiction being examined.”

Child Welfare League of America Statement of Support of ICWA Rule

Kate Fort

Here.

The regulations put forward a standard of practice for Indian children and families that is consistent with other federal law and nationally-recognized practice standards (including CWLA’s) for all children. As part of a coalition of 18 nationally-recognized child advocacy organizations, we recognize ICWA as the “gold standard” in child welfare practice.

With these regulations, CWLA will redouble its work to ensure that service providers fully implement ICWA and the CWLA standards of excellence in child welfare.

Previous posts here and here.