Author: Kate Fort

Alternative Reports A and B to the UN CERD Regarding Violation of Indigenous Children’s Right to Culture

Kate Fort

Speaking of ICWA placement preferences, Here are the reports submitted to the UN Committee on the Elimination of Racial Discrimination by the National Native American Boarding School Healing Coalition, the International Indian Treaty Council, and the National Indian Child Welfare Association:

Alternative Report A: Indigenous Children and the Legacy and Current Impacts of the Boarding School Policies in the United States and the Lack of Redress, Restitution and Restoration by the United States to Address these Impacts or to Acknowledge Responsibility for Them
Alternative Report B: The Continued Removal of Indigenous Children from Their Families and Communities and its Impact on The Right to Culture

Update — a blurb from the authors:

During last week’s two-day dialogue with the United States, the United Nations Committee on the Elimination of Racial Discrimination members asked questions of the US delegation relying on the information provided to it by the United States as well as reports submitted by non-governmental organizations and stakeholders.  The National Indian Child Welfare Association submitted such a report voicing concerns over the problematic implementation of the Indian Child Welfare Act. The report on “The Continued Removal of Indigenous Children from Their Families and Communities and its Impact on the Right to Culture (Alternative Report B)” was drafted in partnership with Suffolk Law’s Indigenous Peoples Rights Clinic, and can be viewed at hhere. During the session, Committee members asked the United States to comment on the over- representation of indigenous children in foster care and the bias in private adoptions. The Committee’s Concluding Observations report should be released next month.

ICWA Placement Preference Decision Out of California Involving Choctaw Tribe

Kate Fort3 Comments

Here.

This is a re-occurring and incredibly frustrating ICWA fact pattern–if the ICWA compliant placement is out of state, or far away from the parents, and the goal is reunification, it makes sense for the tribe and state to allow for a non-compliant ICWA placement near the parents. What happens, however, when reunification fails? As in this case, a court is often unwilling to remove the child from the home she has been in for anywhere from one to three years. Honest, actual, concurrent permanency planning could help with this, but while that is a best practice, it does not seem to be happening with any regularity at the state.

Concluding that the ICWA’s adoptive placement preferences do apply to this case, we then review the trial court’s order finding that the P.s failed to produce clear and convincing evidence of good cause to depart from those placement preferences. We determine that the court applied the correct burden of proof by requiring the P.s to prove by clear and convincing evidence that there was good cause to deviate from section 1915’s placement preferences. However, the court erroneously required the P.s to prove a certainty that Alexandria would suffer harm if moved, and failed to consider Alexandria’s best interests or her bond with the P.s in determining good cause.

***

We recognize that a final decision regarding Alexandria’s adoptive placement will be further delayed as a result of our determination of the merits of this appeal. That delay is warranted by the need to insure that the correct legal standard is utilized in deciding whether good cause has been shown that it is in the best interest of Alexandria to depart from the ICWA’s placement preferences.

As also often happens, the parties start arguing about the very constitutionality of ICWA, making this case a “not as bad as it could have been” case–the court didn’t find ICWA is unconstitutional, nor does Adoptive Couple apply (as the de facto parents argued) to this fact pattern. And yet, the trial court decision placing the child with her extended family is still overturned based on the child’s best interest standard. Getting courts to acknowledge that the best interests of a child ought to include the child’s whole life, not just the one transition in front of the court at that moment, is both vital and seemingly impossible.

For the (depressing) record, here is Evelyn Blanchard writing the same thing in 1977 in The Destruction of American Indian Families, ed. Steven Unger (Association of American Indian Affairs 1977).

(Happy to post redacted briefs if we receive any)

NICWA Webinar on Oglala Sioux v. Van Hunnik by Stephen Pevar

Kate Fort

Information here.

On August 27, 2014, members will join Stephen Pevar, senior staff attorney with the American Civil Liberties Union (ACLU), for this webinar as he gives an update on the ICWA compliance class action lawsuit, Oglala Sioux Tribe v. Van Hunnik. The lawsuit was filed by the ACLU against South Dakota state and local officials who have an alleged history of violating the ICWA, resulting in devastating ramifications for American Indian children and families in the state. Mr. Pevar will also discuss the overarching goals of the lawsuit and the implications this case has for ICWA.   http://www.nicwa.org/membership/benefits/index.asp

To register, contact Ava Hansen NICWA’s member relations manager at ava@nicwa.org

DOJ Amicus Brief in SD ICWA Class Action Case

Kate Fort3 Comments

The United States came in strongly on the side of the tribes and tribal families for both the enforcement of ICWA and meaningful due process.

Here.

Thus, from the very start of an emergency removal, Section 1922 requires state courts, agencies, and officials to actively investigate and evaluate whether the emergency situation has ended. Given the statutory requirements for oversight and “immediate” action, this ongoing obligation cannot be deferred for weeks or months until the next scheduled hearing occurs.

***

The interest that parents have in the custody of their children is not to be lightly interfered with, even following an emergency situation. While an emergency proceeding such as the 48- hour hearing may not permanently deprive parents of their custody rights, even a temporary deprivation of physical custody requires a prompt and meaningful hearing.

Memorandum in support of leave to file amicus here.

Motion for Leave to File here.

Update — The court granted the motion the next day:

123 DCT Order Granting US Motion

Previous coverage here.

Michigan Court of Appeals Affirms Mining and Groundwater Discharge Permits at Eagle Mine

Kate Fort

Mining Permit decision here.

This case reflects the attempt to balance the potentially conflicting imperatives of exploiting a great economic opportunity and protecting the environment, natural resources, and public health. At issue is appellee Kennecott Eagle’s proposal to develop an underground mine to extract nickel and copper from the sulfide ores beneath the headwaters of the Salmon Trout River in the Yellow Dog Plains in Marquette County.

Groundwater Discharge permit decision here.

The court found the balance on the side of the underground mine. The state decision makers have managed to find at least three alternative grounds for not considering Eagle Rock a place of worship.

News article here.

NNABA Press Release about the ABA Amendment to Include Tribal Court Practitioners

Kate Fort

WWW.NATIVEAMERICANBAR.ORG
For Immediate Release, August 12, 2014
Contact: Mary L. Smith (202) 236-0339

NNABA APPLAUDS THE HISTORIC VOTE OF THE AMERICAN
BAR ASSOCIATION HOUSE OF DELEGATES TO RECOGNIZE
TRIBAL COURT PRACTITIONERS AS FULL MEMBERS
PHOENIX—The National Native American Bar Association (NNABA) applauds the historic vote of the American Bar Association (ABA) House of Delegates to amend the ABA Constitution to permit tribal court practitioners to be full members of the ABA.  This August 11, 2014 vote of the House of Delegates was unanimous.

“We commend the ABA for recognizing that there are three sovereign court systems in the United States (federal, state and tribal) and for amending its constitution to  permit tribal court practitioners – who are not currently eligible to be ABA members – to become full members of the ABA,” said Mary Smith, NNABA president. “This constitutional amendment will – at long last – put tribal court bar admissions on equal footing with the bars of states, territories and possessions of the United States.”

The ABA has made significant strides towards inclusion but there was a glaring injustice that needed to be corrected – full membership for American citizens who happen to be licensed through a tribal court as opposed to a state, federal or territorial bar. Under previous policy, anyone licensed in a state, federal or territorial jurisdiction within the United States could join the ABA as a full member with all rights and responsibilities. That policy did not extend to those who are licensed through a tribal court of a federally recognized tribe. Thus, there was a class of persons who were denied the opportunity for full membership because they practiced solely in a tribal court. As a policy decision, the ABA had previously extended the opportunity for full membership to lawyers who practice in Guam, American Samoa, Puerto Rico and the Virgin Islands. The same inclusive policy now applies to individuals practicing before tribal courts within the United States.

Founded in 1973, NNABA serves as the national association for American Indian, Alaska Native, and Native Hawaiian attorneys, judges, law professors and law students. NNABA strives for justice and effective legal representation for all American indigenous peoples; fosters the development of Native American lawyers and judges; and addresses social, cultural and legal issues affecting American Indians, Alaska Natives, and Native Hawaiians.
For more information contact 480-727-0420 or visit http://www.nativeamericanbar.org.

Opinion in Westmoreland v. Dept of Revenue: Taxes Paid to Crow Tribe on Coal Mine Not a State Tax Deduction

Kate Fort2 Comments

Opinion here.

Applying § 15-35-102(11), MCA, to disallow a state tax deduction does not undermine the Tribe’s sovereign authority to tax or govern itself. The Legislature has simply chosen to limit the class of governments to which payment of taxes constitutes a deductible expense for coal producers. By so doing, the Legislature did not implicate tribal sovereignty.
Moreover, as the Department notes, WRI lacks standing to raise a claim implicating the Tribe’s sovereignty. See Northern Border Pipeline Co. v. State, 237 Mont. 117, 128-29, 772 P.2d 829, 835-36 (1989) (Taxpayer corporation had standing to challenge a state property tax, but did “not have standing to assert the Tribes’ sovereign right of self-government in doing so.”). The District Court did not err in so concluding.

Appellant’s Brief

Appellee’s Brief

Reply Brief

Indiana Alternative Medicaid Expansion Plan Rejected for Failure to Consult with Tribe

Kate Fort

Here.

 

A federal agency has asked the Pence administration to resubmit its proposal for an alternative Medicaid expansion because Indiana’s initial application didn’t include input from a band of Potawatomi Indians.

 

The Centers for Medicare and Medicaid Services returned the state’s proposal last month, two weeks after the state submitted the plan. Federal officials wrote that they could not begin their formal review until Indiana consulted the tribe.

“Specifically, at time of submission, the state did not meet the requirements for tribal consultation with the Pokagon Band of Potawatomi Indians,” wrote Angela Garner, the acting director of the federal agency’s division of state demonstrations and waivers.

Two Additional Links of Interest Regarding the Nebraska ICWA Truancy Case

Kate Fort2 Comments

Here is the audio of the oral arguments for the case we posted on here.

And here is a UCLA Law Review Discourse (online) article on the problematic framing of truancy in general.

Nebraska Court of Appeals Overturns Lower Court Removing Child for Truancy Under ICWA

Kate Fort2 Comments

Opinion here (from June 24).

On February 26, 2013, the juvenile court ordered Mischa to be placed into foster care and the case plan was modified to allow for liberal visitation of Mischa with her family. In reaching this decision, the court noted the parents’ argument that Neb. Rev. Stat. § 43-1505(5) (Reissue 2008) provides that foster care placement may not be ordered in the absence of a determination by clear and convincing evidence includ- ing testimony of qualified expert witnesses that continued custody by the parent or Indian custodian is likely to result in serious emotional and physical damage to the child. The court found that serious emotional damage would result to Mischa as a result of insufficient education. The court found, however, that even in the absence of such proof, the statute is unconstitutional as applied in this case, stating that “Indian children are entitled to no less educational opportunity than other children and accordingly, as applied in this particular case, such statute is unconstitutional to the extent that it would deny Mischa educational opportunity even in the absence of serious emotional and physical damage . . . .” The order was silent on whether active efforts had been provided to prevent the breakup of this family. Deanna and Chris subsequently perfected their appeal to this court.