Briefing Completed in Advance of This Week’s Oral Arguments in Brackeen [ICWA]

All documents here. Oral arguments are on Wednesday. The Court releases a recording of the arguments which we will publish when available.

Principle Supplemental Briefs:

Appellant Tribes En Banc Brief

Appellant Feds En Banc Brief

2019-12-13 Intervenor Navajo En Banc Brief

Individual Plaintiffs_Supplemental Brief

State_Supplemental Brief

Amicus Briefs pro-ICWA:

States

Indian Law Profs

Tribes and Tribal Orgs

Con Law Profs

Members of Congress Brief

Amicus_Casey_EnBanc

Ablavsky-Originalism Brief

Native Women and ACLU

Amicus Briefs anti-ICWA

CAICW_Amicus

NCLA_Amicus

Ohio_amicus

Project on Fair Representation_amicus

Goldwater Institute, et al_amicus

ICWA Local Counsel Information Collection Survey

Here.

The number one request we get at the ICWA Appellate Project is for local counsel for either the tribe or an individual (Grandma, 98% of the time). These cases happen all over the country, and finding attorneys in, say, Massachusetts or Tennessee or West Virginia, can be difficult. In 2014-2015, Addie Smith at NICWA and I did one of these surveys that really needs updating and expansion (we collected fewer than 100 names), so here it is. I will compile the lists together and delete any duplicates.

So if you are someone who can help, fill this out. If you are someone who has come up to me at a conference asking HOW to help, fill it out. If you are a tribe that has regularly identified local counsel, see if they will fill this out to help other tribes. If you’re at a big firm, see if some of your non-Indian law colleagues in the states without federally recognized tribes would be willing to fill it out. If you read this and think, “oh, Kate knows I would help,” fill it out anyway, because I have limited brainspace! If you have old friends from law school who now practice in random places like, say, northern Ohio, ask THEM to fill it out. If you work at a family law clinic and have never taken ICWA cases, here is your chance to teach your students something new–fill it out! And related, If you took my ICWA class at MSU Law, FILL IT OUT.

The information we are collecting isn’t confidential, but we will only distribute it as needed for those who ask.

Here.

Caveat: yes, tribal representatives are supposed to be able to participate in ICWA cases regardless of jurisdiction. However, that can be highly dependent on local judges, and if they are denied, we often need an attorney to explain why that’s wrong. In addition, whenever possible, tribes should be represented by attorneys in state courts, and especially when the case is not going well. And if there is an appeal–well, then we really need attorneys.

Thank you all very much.

Op-Ed in Seattle Times on Roadless Rule

Here.

Likewise, we demand that our politicians and decision-makers respect the voices of indigenous people. Tribes have been asked to engage with the Alaska Roadless Rulemaking process as cooperating agencies, but their input, knowledge and needs have carried little weight in the decision-making process to date. This is unacceptable. The Organized Village of Kake, the Ketchikan Indian Community, the Organized Village of Saxman, the Craig Tribal Association and the Organized Village of Kasaan have all passed resolutions expressing a desire to keep the Roadless Rule in effect on the Tongass.

APSAC Advisor Issue on ICWA

The American Professional Society on the Abuse of Children published an issue on ICWA.

Here.

Articles include:

Vandervort, The Indian Child Welfare Act: A Brief Overview to Contextualize Current Controversies

Fletcher & Fort: The Indian Child Welfare Act as the “Gold Standard”

Piper: The Indian Child Welfare Act: In the Best Interest of Children?

Piper: Response to Fletcher and Fort

Fletcher & Fort: Response to Piper

Active Efforts Case out of Montana [ICWA]

In re K.L.

Just yesterday, a colleague mentioned an article I wrote a few years ago in the Federal Lawyer about ICWA and military families, and I said, yes, we really need to update that. And today, I read this case:

Father was present at the March 23, 2017 adjudication hearing and stipulated to
adjudication of Child as a YINC and stipulated to the proposed treatment plan.1 At this time, Father was participating in the Veterans’ Treatment Court (VTC). As the Department did not want to duplicate services, the Department agreed that tasks Father successfully completed in VTC would satisfy tasks delineated in his treatment plan.

***

Father continued to participate in VTC. Throughout his participation and beyond
his successful graduation from VTC on August 7, 2018, CPS repeatedly reported Father was doing well and did not indicate dissatisfaction with Father’s compliance with his treatment plan or level of engagement with the Department.

***

In the permanency plan filed with the court on February 2, 2018, the Department
wrote “the permanency plan for the child is reunification with the birth father once he has completed Veterans Court.” Approximately one month later, the Department abruptly changed course. On March 22, 2018, CPS and his supervisor met with Father to discuss reunification and gave him a letter, advising Father that he needed to step-up his parenting by April 19 or the Department would file for termination. . . . This letter basically advised Father it was time to sink or swim as a parent. Here, over a year into the case, was the first time the Department expressed that Father was not meeting the Department’s expectations in terms of compliance with his treatment plan and engagement with the Department.

***
Less than two months later, on September 7, 2018, the Department filed to terminate Father’s parental rights for failure to complete his court-ordered treatment plan.

In the accompanying affidavit, CPS listed the following efforts he considered to be active efforts taken by the Department:

(a) Investigation into the current report;
(b) Review of prior reports/investigation;
(c) Interviews with collateral contacts;
(d) Communication with Benefis Labor and Delivery / NICU;
(e) Ongoing Collaboration with placement, [M.D.];
(f) Conducted diligent search to locate extended family;
(g) Ongoing communication with Allen Lanning, counsel for birth father;
(h) Communication with Probation and Parole.

Prior to filing the termination petition, there is nothing in the record evidencing the Department had even referred Father to any ancillary services required by the treatment plan—parenting classes, mental health assessment or anger management classes—or assisted father in addressing the transportation, daycare, or housing deficiencies asserted by the Department in its March letter.

In “good” news, the Court held the Department did not accomplish active efforts and reversed the termination order, as it should, because none of those things listed above are active efforts, and frankly are not even reasonable efforts.

Difficult Case out of California [ICWA]

Here

The question of whether Mom could have her child back with his siblings came down to his best interest–which kept him in the guardianship, despite the mom’s sobriety, job, handling a child with cancer, and raising a number of children. The Tribe, fearful of losing contact with the child entirely if they picked a side in the case, supported the mom but also ended up not weighing in on the final decision, instead asking the court to order whoever had the child keep him in contact with the Tribe. But this conclusion from the court is simply heartbreaking. It is not clear the child is related to the guardians, and as such the court equates a biological parent to non-relative foster care in a troublesome way:

We recognize this case was a difficult one for the juvenile court, not least because it was forced to choose between two families, both of whom love minor very much and both of whom may have been able to provide a stable, loving home where he remains connected to his siblings, other relatives, and his tribe. We can only express our hope, as did the juvenile court, that these families can find a way to remain connected in the interest of allowing minor to be loved and cared for by as many people as possible. It is also a difficult case because mother demonstrated her commitment to regaining custody by complying with her case plan, maintaining her sobriety and full employment, and garnering the support of the Department and the Tribe to have minor returned to her care. *** On this record, we perceive no abuse of discretion in the juvenile court’s determination that mother failed to meet her burden to demonstrate return to mother’s custody would be in minor’s best interest.

And no, I don’t entirely understand why the court isn’t using much higher ICWA standards here.