Kate Fort

MSU Law Webinar on Careers in Indian Law

January 21, 2016Kate Fort

Here. Geared toward current and prospective law students.

Attorneys with an understanding of Native American culture and legal issues are in high demand. Join us to learn more about the career paths of four Michigan State Law graduates who are working in Indian country. Each graduate will discuss the challenges and rewards of Indigenous Law work. Brief remarks regarding MSU Law’s Indigenous Law and Policy Center also will be offered. Following the presenters’ remarks will be a 15-minute Q and A session during which the presenters will answer questions from webinar participants.

Determination of Indian Child Case out of New Mexico Court of Appeals

January 15, 2016Kate Fort1 Comment

Here.

Based on the difficulties CYFD experienced in receiving evidence on Mother’s lineage and the Navajo Nation’s determination that Children are ineligible, we hold that Children are not eligible for enrollment with the Navajo Nation. Nevertheless, Father asserts that the status of Children does not need to be certain to implement the ICWA and the district court must only examine whether the ICWA possibly applies, relying on In re Desiree F., 99 Cal. Rptr. 2d 688 (Ct. App. 2000). We conclude that Desiree F. does not assist Father.

Utah Court of Appeals ICWA Active Efforts Case

January 12, 2016Kate Fort

Here.

Contrary to Father’s assertions, the testimony of the
ICWA expert witness from the Navajo tribe does not undermine
the juvenile court’s determination that further services directed
to Father would be futile. The ICWA expert witness testified that
she tried to contact Father toward the beginning of the case, but
that his number was out of service. She also testified that Father
was in need of services to address parenting, substance abuse,
and domestic violence issues, and that he was not ready to take
custody without those services. With regard to the active efforts
requirement, the expert testified that she ‚would like to see a
little more effort by‛ DCFS, but that Father ‚needed to stay in
contact with‛ DCFS.

Lead Litigation Attorney for Goldwater Institute Appointed to Arizona Supreme Court

January 6, 2016Kate Fort

Here.

Bolick currently represents some non-Indian parents who are suing to overturn the federal Indian Child Welfare Act which requires require state courts when placing Indian children for adoption to give preference to a member of the child’s extended family. That is followed by priority by other members of the child’s tribe and, ultimately, other Indian families. Bolick also named DCS as a defendant because it follows that policy.

Lawsuit documents here, as always.

2015 ICWA Appellate Cases by the Numbers

January 6, 2016January 6, 2016Kate Fort4 Comments

While a few cases might yet come in, we have our final list of 2015 appealed ICWA cases sorted. A note on the data–these are cases that are on Westlaw, and mentioned ICWA. If you know we are missing a case based on the numbers, *please* let me know so we can add it. We collect the case name, the date, the court, the state, whether the case is reported or not, the top two issues, up to three named tribes, the outcome of the case, and who appealed the case. These are standard state court ICWA cases, and do not include any of the ongoing federal litigation.

There were 201 ICWA cases in 2015. 35 of them were reported. As usual, California has the most number of cases, with 156 (146 unreported).The next highest state was Michigan, with 7 cases (3 unreported), Alaska with 6 (3 unreported), Arizona with 5 (4 unreported). The rest, with 2 reported are Idaho, Nebraska, New Mexico, and Washington.

With 1 reported are Alabama, Arkansas, Montana, New Jersey, New York, North Dakota, Ohio, Texas, and Wyoming.

California further breaks down with the highest number of cases (57) in the 2nd Appellate District (which includes L.A. County), followed by 33 in the 4th, 29 in the 1st, 16 in the 3rd, 15 in the 5th, and 6 in the 6th. Only the 2nd and 4th reported out any cases.

Supreme Courts in Alaska, Idaho, Montana, Nebraska, North Dakota, and Wyoming all heard ICWA cases. 98 of the 201 total cases were affirmed, 82 remanded (nearly all California notice cases), 5 dismissed, and 16 reversed.

The top issues in reported cases break down as follows: Notice (13), Determination of Indian Child (5), Active Efforts (4), Qualified Expert Witness (4), and Placement Preferences (3), Inquiry (1), Transfer to Tribal Court (1).

70 different tribes were represented in the cases, which include any time a parent claims tribal affiliation of any sort (so Cherokee has 58 of the 203 total cases as first tribe claimed, 21 as second tribe claimed and 5 as third, for a total of 84). In 31 cases, the tribe was unknown, in 4 the tribe was unnamed by the court. For those 31, 25 of the cases dealt with a lack of inquiry and/or notice.

Finally, of the 35 reported cases, mother appealed 15, father 10, both parents 4, tribe 4, and GAL 1.

Active Efforts and Burden of Proof ICWA Case out of NM Court of Appeals

January 5, 2016May 23, 2016Kate Fort2 Comments

Here.

The court held that the burden for active efforts is clear and convincing evidence. In addition, that active efforts consists of more than reasonable efforts, citing to the 2015 Guidelines and other state court decisions. In this case, the court held there was not clear and convincing evidence that the state provided active efforts:

The testimony at the TPR demonstrates that the Department took the affirmative steps of meeting with Father to create a treatment plan, and referring Father to a parenting class. It appears the Department pointed Father in the direction of service providers, but did little else to assist Father in implementing the treatment plan. Father was not offered services aside from the one parenting class. The Department took a passive role by shouldering Father with the burden of not only independently locating and obtaining services, but also ensuring the service providers were communicating with the Department about his progress.

California ICWA Task Force Information and Survey

January 5, 2016Kate Fort

Recently the California Department of Justice, Bureau of Children’s Justice, established an ICWA compliance task force with a goal of examining ICWA non-compliance in California. In support of this effort tribal leaders have come together to provide information to assist the California DOJ in looking at ICWA compliance issues, including cases involving non-California tribes. This project is an opportunity for all tribes to provide feedback on these important issues.

Letter to tribal leaders from task force co-chairs.

Letter to tribal leaders from California AG.

There is both a call (details in first letter) and a survey is for any tribe with children in the California system, not just California tribes. Survey is here and is due by January 15.

Questions can be directed to Delia Parr at CILS, CALINDIAN@calindian.org