Author: Kate Fort

Unpublished California ICWA Case on Determining Child’s Tribe

Kate Fort

Here.

Grandmother argued child is Native Hawaiian and registered with OHA. Mother argued child is affiliated with Mooretown Rancheria. Mooretown Rancheria argued same. Lower and appellate courts held under a significant contacts discussion child is affiliated with Mooretown, and registration with OHA doesn’t disturb the Mooretown affiliation for the application of ICWA.

Side note–Looks like California law doesn’t list the preference of the parent in the significant contacts determination. Cal. Welf. & Inst. Code 224.1(2). The updated Guidelines and proposed Regs both list preference of the parent first as allowable considerations. (B.4 (C)(1) & 23.109(c)(1)(i). Regardless, the outcome in this case is consistent with both.

Article on Yesterday’s Public Hearing on Proposed ICWA Regulations

Kate Fort2 Comments

Here, via NICWA.

“That’s been the plan from the beginning,” Bradley Goodsky told a mostly sympathetic audience at Mystic Lake Casino on Wednesday. “It’s like [child protection] has a crystal ball and we’re doomed to fail.”

Goodsky was one of the speakers to address federal administrators who are considering making it more difficult for social workers to put Indian children in foster care. The Bureau of Indian Affairs is proposing new rules that it says will strengthen the Indian Child Welfare Act, the 1978 law passed by Congress to stop the “often unwarranted” breakup of Indian families.

The act provides guidelines to child protection agencies and juvenile courts that set a high standard for placing Indian children into foster care, and it gives tribes a say in those cases. The proposed changes would raise that bar even higher, by requiring that child protection and the courts first determine if a child is Indian, and then only remove that child from a home where there is “present or impending risk of serious bodily injury or death.”Kevin Washburn, the U.S. Interior Department assistant secretary who leads the BIA, is touring the country with other agency officials to hear from tribes and the public about the proposals.

“Guidelines are great,” Washburn told the group at the casino in Prior Lake. “We need things that are legally enforceable.”

Do you have your written comments in yet? They are due May 19.

Michigan Radio on the Proposed Lake Huron Nuclear Waste Site

Kate Fort

Here.

Includes a brief quote from Vernon Roote, Saugeen First Nation Chief.

ICWA Placement Preferences Case out of Oklahoma

Kate Fort

A disturbing case that is also a prime example of why ICWA Regulations are needed in addition to the new Guidelines (submit comments by MAY 19!)

Opinion here.

The court reads a best interest determination into the good cause to deviate from placement preferences, and skates alarmingly close to the existing Indian family exception reasoning.

ICWA Qualified Expert Witness (primarily) Case Out of Alaska

Kate Fort

Here.

Footnote 7 discusses the old and new Guidelines with regards to QEWs, though the court relied primarily on the old Guidelines (the professional person who is an expert professional). The specific qualifications of the QEW in this case is discussed at pages 17-20.

Court held no due process violations and that termination was affirmed.

ICWA Notice Case out of Alabama

Kate Fort

Here.

Moreover, the record indicates that the tribe [Stockbridge-Munsee] received the inquiry form from DHR on November 7, 2014, less than a week before the juvenile court conducted the November 13, 2014, termination hearing. Section 1912(a) dictates that no termination of parental rights proceeding pertaining to an Indian child may be conducted until at least 10 days after an Indian tribe has received the noticed required in that section.
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Therefore, we reverse the juvenile court’s judgment insofar as it terminated the mother’s parental rights to the child, and we remand the cause for the juvenile court to comply with the provisions of the ICWA . . .

NICWA Opening Session & Keynote Speaker

Kate Fort

Maria Yellow Horse Brave Heart (UNM Department of Psychiatry and Behavioral Sciences), morning keynote speaker.

IMG_5647

 

Decision in Tulalip Tribes v. Washington

Kate Fort2 Comments

Opinion here.

Previous coverage here.

Our conclusion is consonant with our instruction in Shoshone-Bannock Tribes that courts should hold compacting parties to the ordinary meaning of terms in their agreements. Id. at 1098–100. The plain language of the Spokane Compact shows that the Inter-Tribal Fund mechanism available to the Spokane Tribe carries with it interdependent conditions and consequences. Tulalip’s amendment would not match those terms. We take no view on whether the terms of Appendix Spokane are in fact more favorable than those included in the Tulalip Compact. We hold simply that Tulalip is not entitled as a matter of law to the more selective set of terms in its proposed amendment.2 The most-favored tribe clause does not allow a “pick and choose” arrangement. The district court correctly entered judgment for the State. Simply put, Tulalip’s proposal does not mirror the restrictions of Appendix Spokane, and those are the terms to which the State agreed.