Author: Kate Fort

DOJ Motion to Dismiss and Supporting Amicus Briefs in Goldwater (ICWA) Litigation

Kate Fort1 Comment

Motion to Dismiss here.

Footnote 8:

Plaintiffs do not seek the type of relief – increased funding or systemic changes in the quality of child-welfare services provided by state agencies – that the Ninth Circuit found unworthy of Younger abstention in Jamieson, 643 F.2d at 1354; instead, they demand that this Court enjoin state courts and agencies from applying long-standing state and federal laws to their ongoing child-custody proceedings, which clearly warrants equitable restraint under Younger.

(emphasis added)

Also:

Membership in a federally recognized Indian tribe, or being born the child of a member of such a sovereign entity, is not a forced association. ICWA does not require association, but rather protects associations that already exist.

In addition, Casey Family Programs plus twelve other national child welfare organizations filed this amicus brief (gold standard brief).

Finally, it is a key best practice to require courts to follow pre-established, objective rules that operate above the charged emotions of individual cases and that presume that preservation of a child’s ties to her parents is in her best interests. See National Council of Juvenile and Family Court Judges, supra, at 14. Application of the best-interests-of-the-child standard should be guided by substantive rules and presumptions because “judges too may find it difficult, in utilizing vague standards like ‘the best interests of the child,’ to avoid decisions resting on subjective values.” Smith v. Organization of Foster Families for Equal. & Reform, 431 U.S. 816, 835 n.36 (1977). Courts should not terminate a child’s relationship to a parent based on “imprecise substantive standards that leave determinations unusually open to the subjective values of the judge.” Santosky v. Kramer, 455 U.S. 745, 762-763 (1982).

Finally, the national Native organizations (NCAI, NICWA, AAIA) also filed this amicus brief (historical brief).

The Indian Child Welfare Act must be viewed in light of the historical abuses that it was intended to stop. For most of American history prior to ICWA’s enactment, federal Indian policy favored the removal of Indian children from their homes as a means of eroding Indian culture and tribes. State and private child welfare agencies later took on the implementation of these policies, carrying them out with little concern for the families or communities they affected. By the 1970’s, the widespread and wholesale removal of Indian children from their parents and communities resulted in a crisis recognized as “the most tragic and destructive aspect of American Indian life today.” H.R. REP. No. 95- 1386, at 9 (1978), reprinted in 1978 U.S.C.C.A.N. 7530, 7532.

Grand Traverse Band Defeats Preliminary Injunction in Fifth Federal ICWA-Related Case Challenging Michigan’s ICWA Law

Kate Fort

After initially granting a TRO based on an ex parte motion, the Western District of Michigan denied the requested preliminary injunction. The underlying complaint arguing the transfer provisions of the Michigan Indian Family Preservation Act (Michigan’s ICWA law) are unconstitutional. We are collecting documents in this case here.

DOJ Prevails in Partial Motion for Summary Judgment in NCFA v. Jewell (Guidelines Litigation)

Kate Fort

Order was issued on September 29th, but the Memorandum Opinion was issued today.

This Court DENIES Plaintiffs’ for Partial Summary Judgment because (1) Plaintiffs lack standing to challenge the 2015 Guidelines, (2) the 2015 Guidelines are not “final agency action” within the meaning of the APA because they do not create legal rights and obligations, and (3) the 2015 Guidelines are non-binding interpretive rules not subject to APA notice-and-comment procedures.

Previous filings are here.

Federal ICWA Cases Update Memo

Kate Fort

We originally posted this when the first three lawsuits were filed. There have been two additional ones since then. Here is the memo with the most recent updates.

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 to it introduced this year. This memo will summarize the pending litigation and describe some of the legal and communications strategies these partner organizations have developed to inform, advance, and unify a coordinated effort across Indian Country to respond to these attacks.

Here is a link to the page where we are keeping all of the PACER documents.

Wall Street Journal Article on ICWA Lawsuits

Kate Fort

Here.

PDF copy here.

From the end of the article:

An Interior spokeswoman said Congress has determined it “is in the best interests of an Indian child to keep that child…with the child’s parents,” extended family and tribal community.

Kathryn Fort, a lawyer with the Indigenous Law and Policy Center at Michigan State University, defends the law and the guidelines. Ms. Fort said that before the law was passed, social workers would argue that it was in the “best interests” of an Indian child to be permanently removed from a house that was merely messy or lacked the most modern conveniences. “It’s really a way of allowing—and perpetuating—discrimination against Indians,” she said.

Supporters of the law say the adoption delays often required are part of its point. The law “demands excellence in how we treat Indian children,” said Matthew Newman, a staff attorney for the Native American Rights Fund. “That often requires a bit of time.”

New Short Film on Maine Truth and Reconciliation Commission

Kate Fort

Here.

Lots of good information here.

Press coverage here.

The longer movie is due out in 2017, but it’s very nice to have this short film and supporting website available now as an antidote to all of the Goldwater blitz.

Government Affairs Attorney Position at NICWA

Kate Fort

Here.

The government affairs staff attorney of the National Indian Child Welfare Association (NICWA) is responsible for assisting American Indian and Alaska Native (AI/AN) communities, children, and families in their efforts to improve public policy at all levels to support effective services for and the general well-being of AI/AN children and families

And yes, this is the great Addie Smith’s position. She was appointed by the Governor of Oregon to administer the Child Dependency Task Force created by SB 222. Press release here.

Notice of Proposed Rule Making on Native Hawaiian Self Governance

Kate Fort

NPRM here.

Press release here.

WASHINGTON – The U.S. Department of the Interior announced today a proposal to create an administrative procedure and criteria that the Secretary of the Interior would apply if the Native Hawaiian community forms a unified government that then seeks a formal government-to-government relationship with the United States. Under the new proposal, the Native Hawaiian community — not the Federal government — would decide whether to reorganize a Native Hawaiian government, what form that government would take, and whether it would seek a government-to-government relationship with the United States.

Michigan Public Radio on Anishinaabemowin and the Boarding Schools

Kate Fort

Here.

Deleta Gasco Smith works for the Little Traverse Bay Band. She attended Holy Childhood for three years of elementary school.

“When we were in the school we were actually completely forbidden to speak the language, and if we were caught, the punishment was swift and it was severe,” Gasco Smith says.

Gasco Smith’s father was fluent in Anishinaabemowin, but he was careful not to teach his daughter the language. Gasco Smith says her Dad went to the same boarding school and knew she would be beaten for speaking Anishinaabemowin.