Here: Staff Attorney 6-12-2015[1]
Author: Kate Fort
From Doctrine to Discovery Event, June 25-26 in D.C.
Information here.
The workshop ‘From Doctrine to Declaration’, hosted by the University of St Andrews, Scotland and the College of William and Mary seeks to bring both the Christian Doctrine of Discovery and the UNDRIP into the public forum of the Carnegie Endowment for International Peace, to discuss how the rights of Indigenous Peoples can move forward in the United States. In particular, the workshop highlights those issues currently facing Indian Country that result from the continued existence of the Christian Doctrine of Discovery – including child welfare, environment, treaty rights, federal recognition, and education – and that in reality have the potential to be addressed by adherence to the UNDRIP. This workshop brings leading, mostly Native, advocates, academics and practitioners together with an invited audience of policymakers, think tanks, grant-making foundations and non-governmental organizations for this much-needed discussion.
Two Unpublished Notice Cases out of California
Two unpublished cases, both out of the second district.
Here.
Where the court spends considerable time interpreting the California statute regarding generations and ICWA notice. CWS has to notice the federally recognized tribes mentioned (Cherokee, Apache, Oglala).
Here.
Posted for the response CWS gives the Cherokee Nation:
The Cherokee Nation tribe responded, stating it could not verify whether the child had Indian heritage from its tribe. It needed additional information, including, among other things, dates of birth for some ancestors. In bold highlighted letters, it said it needed the middle name of the child’s great-great-great-grand
father [B.W.] and “also his wife’s name.” (We use initials instead of the family members’ full names for confidentiality purposes.)CWS responded to the tribe’s letter. It said, “Our Department only sends ICWA-030 notices after all avenues of research have been completed, therefore we have already supplied your tribe with as much information as possible. Our notice provided all information known to the family.”
Of course, if you’ve been reading along with the California notice cases, you too know this is often not the case. Regardless, the court found notice sufficient in this case (no way to know if “B.W. even had a middle name.”).
Rehearing Denied in Tununak II (ICWA Placement Preferences)
NACC Blog Post by Prof. Sankaran on State Child Welfare Court Systems
Here.
While judges are legally required to play the role of the rights-protector, in practice, they are sent a different message. They are encouraged to collaborate with child welfare agencies, even while litigation is pending before them involving that same agency. They are implicitly – or explicitly – told not to make negative findings against the agency for fear that such a finding could jeopardize the agency’s funding. In fact, judges are invited to participate in inter-agency task forces on how to make “better” findings to appease federal auditors. And they celebrate when their state agency secures federal funding based on the drafting of their orders.
Supreme Court Grants Cert in Dollar General
Despite the SG’s brief recommending otherwise–order list here.
Previous coverage here.
From the original cert petition by Dollar General:
In this case, a divided panel of the Fifth Circuit held that tribal courts do have that jurisdiction. Five judges dissented from the denial of rehearing en banc. The case accordingly presents the issue the Court left open in Hicks and the Question the Court granted certiorari to decide in Plains Commerce:
Whether Indian tribal courts have jurisdiction to adjudicate civil tort claims against nonmembers, including as a means of regulating the conduct of nonmembers who enter into consensual relationships with a tribe or its members?
Family Reunification Day at Washtenaw County Trial Court
GAL Attempts to Appeal Determination ICWA Applies to Nebraska Supreme Court
Here. Child’s GAL argued Adoptive Couple v. Baby Girl meant that ICWA/NICWA should not apply to the case (because mother had tried to create a guardianship with a cousin who lived on the reservation and thus “the case would not result in the dissolution of the Indian family”).
The GAL appealed from an order merely finding that ICWA and NICWA applied to the adjudication proceeding. But the juvenile court took no action implementing or contravening the heightened protections afforded by the acts. Although we are sensitive to the need to expedite juvenile matters, without some dispositive action, we see no impact upon the juvenile’s substantial rights. Consequently, the juvenile court’s order does not constitute a final order within the meaning of § 25-1902. In the absence of a final order, we must dismiss the appeal for lack of jurisdiction. Because these proceedings have already been delayed for an inordinate time, we have expedited the disposition of this appeal
Qualified Expert Witness ICWA Case out of Michigan Court of Appeals
Here.
In this case, the trial court explicitly recognized that Hillert, the only expert witness at the termination hearing, did not support termination and specifically testified that returning AP andDP to Stenman’s care would not likely result in serious emotional or physical damage to either child. Nonetheless, considering the other evidence presented, the trial court determined that returning AP and DP to Stenman’s care would result in such damage beyond a reasonable doubt. In so doing, the trial court essentially disregarded Hillert’s testimony, contrary to the plain language of 25 USC 1912(f), MCL 712B.15(4), and MCR 3.977(G)(2). Accordingly, we conclude that the trial court failed to adhere to the requirements of ICWA and its Michigan counterparts, and remand for further proceedings with respect to AP and DP.
The testimony of a qualified expert witness under ICWA is part of the necessary proof to demonstrate beyond a reasonable doubt that return of the child to her mother will cause serious emotional or physical damage. Without that testimony, the state has not met its burden to terminate parental rights. If the state cannot provide a QEW that agrees with termination, the court cannot terminate parental rights. In situations like this, where the QEW not only testifies that he does not agree with the termination in this case, nor in termination generally as a tribe, this ought to force the state to look to other long term permanency solutions that don’t require the termination of parental rights, like Michigan’s long term juvenile guardianships, or at ways other states have addressed this issue (like California).
Report Released by the Maine Wabanaki-State Truth and Reconciliation Commission
Here. (78 pages, pdf).
We further assert that these conditions and the fact of disproportionate entry into care can be held within the context of continued cultural genocide, as defined by the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations General Assembly in 1948. In particular, the convention notes that genocide means “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” We posit that Article 2, Sections b and e –“Causing serious bodily or mental harm to members of the group” and “Forcibly transferring children of the group to another group” – apply to what Wabanaki communities face here in Maine.
***
This, too, we found to be true: providing and sustaining preventive support to Native families might be of the greatest use of all. One Wabanaki service provider commented, as did many, that tribal people view child rearing as the responsibility of an extended network of kin and connections. This person noted that the best way to help children is to “strengthen families as a whole and communities as a whole to be able to step up and care for kids when things aren’t optimal in their home lives so they don’t ever even need to enter the system.” (11/4/14)Many of those who work in the state child-welfare system share this exact desire. When reflecting on the process of being involved with the Commission, a DHHS supervisor wrote, “This has been an amazing journey to bring truths to light. To bravely state fact, to move through and past pain toward healing. My vision for the future is a strong family system without the need for foster care.” (4/9/15)
The report ends with 14 recommendations, and comes out amid tensions between tribes and the state over fishing, water quality standards, and jurisdictional concerns.
Turtle Talk 
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