Author: Kate Fort

ICWA/PL-280 Case out of Idaho Supreme Court

Kate Fort

Here.

Difficult case involving extreme domestic violence, a step-parent adoption, tribal court orders, state court orders, and interpretation of exclusive tribal jurisdiction under ICWA and PL-280. The challenge to state jurisdiction was brought by bio-father whose parental rights were terminated, which ultimately lead to the Court’s holding:

We find this reasoning to be persuasive and determine that Public Law 280 and Idaho Code section 67-5101 constitute an exception to ICWA’s exclusive jurisdiction mandate. Thus, we reject Doe’s argument that the magistrate court erred in exercising jurisdiction in this case.

Michigan Indian Legal Services 40th Anniversary Event

Kate Fort

Information here.

Registration here.

October 13, 2015
(the evening prior to the Annual Meeting of the United Tribes of Michigan)

Soaring Eagle Casino & Resort
6800 E Soaring Eagle Blvd
Mt Pleasant, Michigan

5:30 p.m. Strolling Dinner and Entertainment

Unpublished Michigan Court of Appeals ICWA/MIFPA Notice Case

Kate Fort

Here.

While it looks like the State gave notice to Cherokee Nation and Blackfeet Tribe with all the information on the record, and it’s also good the State noticed local Michigan tribes (State is required to contact a tribe in the county where the child is located under 712B.9(3)), the original notice to *all* of the tribes should be in the record. And noticing UKB when a parent claims Cherokee is not something above and beyond, but what the State is supposed to do (along with CNO and Eastern Band):

In addition to the above notifications, the lower court record contains evidence of additional efforts made by DHS to ascertain whether RI and KI had Indian heritage. Specifically, the record contains a response from the United Keetowah Band of Cherokee Indians in Oklahoma indicating that neither RI nor KI were members, although the lower court record does not contain the original notification sent to that tribe. Additionally, the record contains responses from the Saginaw Chippewa Indian Tribe of Michigan indicating that neither RI nor KI were members or eligible for membership, although the lower court record again does not contain the original notifications sent to that tribe. Finally, the record contains copies of both the notifications to, and a response from, the Nottawaseppi Huron Band of Potawatomi Indians; membership in that tribe was also denied. In addition to the above record evidence, DHS reports indicate that notifications were sent to a plethora of other tribes, and that membership in those tribes was denied.

Complaint in National Council for Adoption v. Jewell–Litigation Challenging the 2015 ICWA Guidelines

Kate Fort2 Comments

Here.

Plaintiffs argue the 2015 Guidelines violate the APA, due process of birth parents and children, equal protection of birth parents and children, the 10th amendment, and manage a quick sideswipe at ICWA itself on page 38 (exceeds Congress’s authority under the Indian Commerce Clause).

Organizations and Law Professors Comment on Proposed ICWA Regulations

Kate Fort3 Comments

Here is a selection of a few of the major groups in support of the proposed ICWA regulations (as available from Regulations.gov or sent directly to us at fort [at] law [dot] msu [dot] edu):

American Bar Association
Association on American Indian Affairs
ACLU
California Indian Legal Services
Casey Family Programs, with additional signatories including NNABA and TLPI
Children’s Defense Fund
The Donaldson Adoption Institute
ICWA Law Center
Michigan Tribal-State Judicial Forum
Michigan Indian Legal Services
NABA-Arizona
National Indian Child Welfare Association
National American Indian Court Judges Association
National Council of Juvenile and Family Court Judges
NCAI
NARF AK
Letter from:
Advocates for Children and Youth
Children’s Defense Fund
Children and Family Futures
Child Welfare League of America
Foster Family-Based Treatment Association
Generations United
National Children’s Alliance
National Crittenton Foundation
National Foster Parent Association
Nebraska Appleseed
Nebraska Families Collaborative
New Mexico Child Advocacy Networks
North American Council on Adoptable Children

Law Professors Comment. Signed by 21 clinicians, professors, and deans representing more than 15 law schools.

Times have certainly changed since the original Guidelines were issued. Administrative law and the power of the federal government have shifted considerably in the past forty years. In addition, there was no way the federal government could foresee the dramatically different applications of ICWA across the fifty states. These new regulations are necessary because without them the application of the law is arbitrary, with Indian children treated differently depending on which state’s courtroom they are in. Having disparate interpretations of ICWA was certainly not the intent of Congress in passing a federal law, and conflicts with the rationale of the Supreme Court’s decision in Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 45-46 (1989) (describing the need for uniformity in defining ‘‘domicile’’ under ICWA). These regulations will provide a stronger measure of consistency in the implementation of ICWA and prevent the application of different minimum standards across the United States, contrary to Congress’ intent.

One of our second year law students at MSU Law, Whitney Gravelle, was a huge help in researching issues related to administrative authority and getting a first draft going.

 

State Comments to Proposed ICWA Regulations

Kate Fort

Alaska
Judicial Council of California
Minnesota
Washington

Unpublished ICWA Indian Custodian Case out of California

Kate Fort

Here.

The evidence that mother transferred custody of the minors to the paternal grandmother as an Indian custodian was equivocal and compromised. Although maternal grandmother took N.J. to the emergency room, she gave conflicting information regarding whether she had custody of the children. For example, while she told police that she provided care for the minors, mother had custody of them. Likewise, she told doctors that mother had custody of N.J. and that N.J. lived with mother. Indeed, maternal grandmother’s inconsistent and equivocal answers regarding who had custody of the minors was one reason that they were placed in protective custody.
Additional facts undercut any claim that maternal grandmother was an Indian custodian. L.J. was found with father at maternal grandmother’s house the day N.J. was admitted to the hospital. While the Citizen Potawatomi Nation had a specific procedure for establishing an Indian custodian, maternal grandmother did not avail herself of this procedure to establish herself as the minors’ Indian custodian. While the tribe was represented at the hearing on maternal grandmother’s request to be recognized as an Indian custodian, the tribe did not claim she was the minors’ custodian and did not object to the trial court’s ruling denying the request and reinstating the orders terminating parental rights. Finally, we find it telling that an alleged Indian custodian of the minors did not visit or request contact with the minors since October 1, 2012, five days after they were placed in protective custody.

Unpublished Active Efforts Case Out of California

Kate Fort

Here. Whether the state has the obligation to assist in enrolling dad and child at in the Chickasaw Nation as an active efforts requirement. The California Rules of Court include that in their definition of active efforts:

We note that the California Supreme Court is currently reviewing the validity of California Rules of Court, rules 5.482(c) and 5.484(c) in In re Abbigail A. (2014) 226 Cal.App.4th 1450, review granted September 10, 2014, S220187. However, briefing and decision of the issue in this court and further potential review in the Supreme Court would significantly delay this matter, while stipulated reversal with directions will benefit R.P.’s interests more expeditiously. (In re Rashad H., supra, 78 Cal.App.4th at p. 380.)
Reversal is therefore appropriate given DPSS’s and the juvenile court’s failure to make active efforts to secure tribal membership for R.P. Although only mother appealed, the parental rights termination order must be reversed as to both mother and father. (In re Mary G. (2007) 151 Cal.App.4th 184, 208.)

Tribal Nation Comments on the Proposed ICWA Regulations

Kate Fort1 Comment

An updated list–I know there are still some missing that were submitted, so please send them on if you’d like to be added (Fort@law.msu.edu)

Prairie Band Potawatomi Nation
Grand Traverse Band of Ottawa and Chippewa Indians
Swinomish Indian Tribal Community
Habematolel Pomo of Upper Lake
Mashantucket Pequot Tribal Nation
Pueblo of Pojoaque Tribal Court
Southern Ute Indian Tribe
Stillaguamish Tribe of Indians
Omaha Tribe of Nebraska
Tulalip Tribes
Central Council Tlingit and Haida Indian Tribes of Alaska
Cedarville Rancheria of Northern Paiute Indians
Colorado River Indian Tribes
Lac du Flambeau Band of Lake Superior Chippewa Indians
Confederated Salish and Kootenai Tribes of the Flathead Nation
Wyandotte Nation
Fond du Lac Band of Lake Superior Chipppewa
Yakutat Tlingit Tribe
Sac and Fox Nation
Big Sandy Rancheria
Gila River Indian Community
Elem Indian Colony
Port Gamble S’klallam Tribe
Native Village of Port Heiden
Beaver Village Council
Lower Elwha Klallam Tribe
Confederated Tribes of the Umatilla Indian Reservation
Pokagon Band of Potawatomi
Samish Indian Nation
Confederated Trbies of Siletz Indians
White Earth Nation
Sault Ste. Marie Tribe of Chippewa Indians
Ho-Chunk Nation
Ho-Chunk Nation, Tribal Attorney
Temecula Band of Luiseno Mission Indians
Nottawaseppi Huron Band of the Potawatomi
Standing Rock Sioux Tribe
The Shoshone-Bannock TribesNative Council of Port Heiden
Puyallup Tribe of Indians

Cherokee Nation of Oklahoma
Cherokee Nation Principal Chief Proclamation
Cherokee Nation Tribal Council Resolution
Letter from AAG, Chrissi Ross Nimmo
Letter from ICW ED, Nikki Baker Limore

Comanche Nation Social Services
Nez Perce Tribe Social Services Department
Quinault Indian Nation, Office of the Attorney General
Lac Vieux Desert Band of Lake Superior Chippewa Indians, Office of the Prosecutor
Oklahoma Indian Child Welfare Association
Alaska Native Health Board
United South and Eastern Tribes

Magistrate Decision in Griffith v. Caney Valley Public Schools

Kate Fort2 Comments

In which the student is denied the right to wear an eagle feather on her graduation cap. Her graduation from Caney Valley Public Schools, which is just north of Tulsa, is tomorrow.

Recommendation

The School demonstrated that the graduation ceremony is a formal ceremony and that the unity of the graduating class as a whole is fostered by the uniformity of the caps which are the most prominently visible part of the graduation regalia viewed by the audience to the graduation. Prohibiting decoration of any graduation cap by any student for any purpose serves these legitimate interests. Based on the application of these established principles the undersigned finds that Plaintiff has not demonstrated a substantial likelihood of success on her First Amendment Free Exercise of Religion claim.

Plaintiff’s Motion and Brief

Defendant’s Motion and Brief

20. Objection to Report and Rec (5-20-15)

21. Defs Resp to Obj to RR (5-20-15)