Author: Kate E. Fort

No Brackeen Today/Observations on Foster Parent Intervention

Kate Fort

Next opinion day is June 8.

While we wait for Brackeen, I wanted to highlight this story from Colorado, where the Office of Respondent Parents’ Counsel has been doing great work on ICWA cases. In this case, they have collected incredibly useful data on what happens to a child protection case when foster parents intervene. This article is not ICWA specific, but the last two cases the MSU Indian Law Clinic has had on appeal are a direct result of the attempt at foster parents to intervene. In both cases, the court and agency agreed with the tribes and followed ICWA. In both cases, the foster parents sought to intervene and appealed the case. As we look past Brackeen, addressing this issue of foster parent intervention generally is vital.

Article

According to data provided by the ORPC foster parent intervention has increased in Colorado in the past decade. In 2020, 10% of Dependency and Neglect cases had Intervenors. When foster parents intervene, the chance of reunification decreases from 62% to 22% for the birth parents.

emphasis added

According to the ORPC, the average Dependency and Neglect Case costs $3,500 to litigate, but when foster parents intervene the average court cost goes up to $7,500.

Cherokee Nation Hosting Families Are Sacred Conference

Kate Fort

Here: https://cherokee.org/families-are-sacred-summit/

April 18-20

The “Families Are Sacred Summit” will bring together tribal nations along with federal, state, and local law enforcement, prosecutors and service providers to share best practices on delivering safe and effective services for survivors of domestic violence and their families. We hope the ideas shared will increase successful prosecutions, and reduce crime across all tribal reservations.
Tribal governments, as well as federal, state, and local entities have all been impacted by changes to our legal and law enforcement systems following the McGirt decision by the United States Supreme Court. Now more than ever, it is critically important that we all work together for increased safety across Native lands.

MSU Indian Law Clinic Funding Announcement and Job Opportunity

Kate Fort

It is with great pleasure to announce the Indian Law Clinic at MSU received an initial $200,000 to fund a Tribal Appellate Clerk Project from the Luce Foundation for the next 18 months. The funding allows us to assign students to tribal appellate courts to assist with research, memo writing, bench briefs and draft opinions. The Clinic is officially now seeking for tribal clients, so please reach out to fort@msu.edu if you or your tribe might be interested in receiving these pro bono services from the Clinic.

IN ADDITION, the funding allows us to hire a Fellow/Coordinator for this project! Please apply here:

Job Posting

While this is a soft funded position with a time limit, we have an opportunity to reapply for the funding. In addition, prior ILC/ILPC fellows (including me!) have gone on to great job opportunities after working with us. The job includes working with students, coordinating with tribes and tribal courts, and (most exciting) taking students on site visits to the tribes we work with! We are looking to hire as soon as possible.

Thank you very much to the Luce Foundation and MSU’s own Foundation office for working with the Clinic to get us this funding.

Arizona Court of Appeals on Notice [ICWA]

Kate Fort

1 CA-SA 22-0076 Tohono v. Hon Fridlund SQ – Opinion

Under Arizona law, tribes shall receive notice in voluntary proceedings:

Arizona Revised Statutes § 8-535(A) provides that after a petition for termination of the parent-child relationship has been filed, “notice of the initial hearing and a copy of the petition shall be given to . . . the tribe of any Indian child as defined by [ICWA].” The statute does not limit the notice requirement to involuntary proceedings.

***

Because neither A.R.S. § 8-535 nor the Arizona Rules of Juvenile Procedure limit an Indian tribe’s right to notice or intervention solely to involuntary parental terminations, those tribal rights extend to voluntary termination proceedings. Since the Nation was not provided notice of the initial termination proceeding, nor was it allowed to intervene, we vacate the parental termination order, grant the Nation’s motion to intervene, and remand to the superior court for further proceedings consistent with this opinion

 

Thank you to everyone who sent this to me within approximately 20 minutes of it being released.

Coverage of Rep. Elect Peltola’s Win

Kate Fort

Alaska elected its first Alaska Native to represent it in Congress. Rep. Elect Peltola is Yup’ik and grew up in Bethel, Alaska. A few things to note–this was a special election to replace Rep. Young, so there will be another election in November for the regular election. This was also Alaska’s first use of ranked voting and an open primary, something that many democratic reformers believe is a fairer process for elections.

https://www.npr.org/2022/08/31/1120327126/palin-peltola-begich-alaska-special-house-election-results

https://www.nbcnews.com/politics/2022-election/democrat-mary-peltola-defeats-sarah-palin-special-election-become-firs-rcna45756

https://www.bbc.com/news/world-us-canada-62747378

https://www.washingtonpost.com/politics/special-election-results-expected-for-lone-alaska-house-seat/2022/08/31/8c1389b4-2969-11ed-a90a-fce4015dfc8f_story.html

Active Efforts Case out of the Colorado Supreme Court

Kate Fort

I did not realize how far behind I was on these. Here is a case from the end of June on active efforts from the Colorado Supreme Court.

2022-21sc245

To be honest, this case holding is one that most, if not all, states have come to agreement on either in case law, state law, or state policy.

The court concludes that ICWA’s “active efforts” is a heightened standard requiring a greater degree of engagement by agencies like DHS with Native American families compared to the traditional “reasonable efforts” standard.

Washington Supreme Court Opinion on Active Efforts

Kate Fort

Catching up on posting the summer’s reported ICWA cases, so I’m starting with this Washington Supreme Court opinion on active efforts for the initial or shelter care hear.

JMWOpinion 

We took discretionary interlocutory review of this case primarily to decide whether WICWA required the State to take active efforts to prevent the breakup of J.M.W.’s family before taking him into emergency foster care. Consistent with the plain text and purpose of WICWA, we conclude that it did. We also conclude that the trial court was required to make a finding on the record at the interim shelter care hearing that J.M.W.’s out of home placement was necessary to prevent imminent physical damage or harm. We remand to the trial court for further proceedings consistent with this opinion.

This opinion is trying to find some clarity in what ICWA standards apply when. Here are the two questions the Court sought to answer:

First, whether the department is required to make active efforts to keep an Indian child with their family under such circumstances as presented here. Second, whether the trial court was required to make a formal finding at the interim shelter care hearing that continued placement out of the home was necessary to prevent imminent physical damage or harm to the child.

The section question is essentially asking if the emergency standard of 1922 should apply whenever a child is placed out of the home and there is no 1912 (active efforts, QEW) findings. Interim shelter care hearings often happen before a jurisdictional/adjudication hearing, and can sometimes (often) extend the time before  adjudication hearing happens. In many states the 1912 findings happen either at adjudication or even after that, at the disposition hearing.

Amicus Briefs in Haaland v. Brackeen

Kate Fort

We have a total of 21 pro-ICWA Amicus Briefs. Here they are in some rough categories and some VERY rough summaries. In writing this post, I became overwhelmed at this stunning array of briefs and support for ICWA.

Government Briefs

NARF’s Tribal Government and Organizations Brief : this brief has the sign on of nearly 500 tribes and over 60 tribal organizations. It discusses ICWA as an exercise of the trust responsibility, and the political relationship of tribes.

Congressional Brief : 87 Members of Congress signed this brief defending ICWA in the four principle arguments in the case

State AG Brief : 23 states and the District of Columbia signed on to this brief, which highlights how ICWA allows and encourages tribal-state relations in the area of child welfare.

LA County Brief : from the county counsel at the largest child welfare system in the country, it discusses the importance of ICWA to LA County practice with a focus on relocation in particular

Semi-Party Brief

Bradshaw Brief : This brief is unique in that it primarily tells the story of Robyn Bradshaw, the grandmother who adopted her granddaughter who was the subject of the claims of the Cliffords, one of the three foster family plaintiffs in the case. Because the procedural posture of the case below, the Cliffords’ narrative of facts was allowed to go unchecked throughout the life of the case until now.

How Child Welfare Works Briefs

Family Defenders : a brief from parent attorneys/family defenders in more than 8 states, this brief discusses the constitutional rights afforded to parents and families, how those intersect with the child welfare system, and the importance of ICWA in that structure. It directly addresses the arguments made by the other side regarding the child welfare system.

American Bar Association : This brief directly takes on the contention that child welfare is the sole province of the states as well as discussing the legal complexity of the child welfare system.

Casey Family Programs and 26 Other Child Welfare and Adoption Organizations : A continuation of the original, wildly successful, “gold standard” brief from Baby Girl, this brief focuses on child welfare best practices and how ICWA creates, promotes, and supports them.

National Association of Counsel for Children and 30 Other Children’s Rights Organizations : In addition to discussion the Constitutional rights of families, this brief directly addresses how ICWA supports the best interests of children in state proceedings.

Former Foster Children : One of the briefs with a particular place in my heart, this brief allowed Native youth to tell their lived experience to the Court.

How Adoption Works Brief

Non-Native Adoptive Parents : while the plaintiffs in this case were not adoptive parents, this brief directly addresses how ICWA actually works in voluntary adoptions.

Law Professor Briefs

Ablavsky Brief : The originalism brief

Administrative and Constitutional Law Professors : this brief addresses three main issues–federal power, anti-commandeering, and delegation

Indian Law Professors : this brief focuses on the exclusive power of Congress to legislate on behalf of Indians as a political class

American Historical Association : this brief provides historical context, especially around the early efforts (or lack thereof) of state child welfare systems and Native children

Medical Organizations

American Academy of Pediatrics and the American Medical Association : ICWA works directly to address the attendant physical and emotional trauma of federal and state policies designed to destroy tribal families and extended tribal networks

American Psychological Association (specifically including the associations of Texas, Louisiana, and Indianan) and the Society of Indian Psychologists : The benefits for children of being parented by Indian adults

Interest Groups

ACLU : ICWA is not a race based law

Constitutional Accountability Center : Originalism and anti-commandeering

National Indigenous Women’s Resource Center : The ramifications, specifically to VAWA, if “Indian” is a racial classification

Sen. Abourezk/Lakota People’s Law Project : Passage of ICWA and issues in South Dakota

National Native Children’s Trauma Center Essays

Kate Fort

The NNCTC is publishing a series of essays on Native child welfare, ICWA, and boarding schools. They are all available here.

In the most recent, Patrice Kunesh reflects on her own family history during this time of boarding school listening sessions and investigation by the federal government.

In January 1888, the year before North Dakota would become a state, their middle daughter Josephine, my great-aunt, was born on Battle Creek in Dakota Territory. When she was nine years old, Josephine was sent to Carlisle Indian Industrial School in Pennsylvania, where she was trained in domestic skills. Upon her graduation in 1909 at the age of twenty-one, her mother Nellie presented her with a beaded valise, a small suitcase, depicting the 1863 Battle of Whitestone Hill on one side and the Lakota’s last buffalo hunt in 1882, two momentous losses of life and livelihood for the Lakota people that Nellie had witnessed.