The Assistant Secretary Releases the Boarding School Report

Here:

Boarding_School_Initiative_Volume_1_Investigative_Report_May_2022

Assistant Secretary Newland makes eight recommendations to the Secretary of the Interior to fulfill the Federal Indian Boarding School Initiative, including producing a list of marked and unmarked burial sites at Federal Indian boarding schools and an approximation of the total amount of Federal funding used to support the Federal Indian boarding school system, including any monies that may have come from Tribal and individual Indian trust accounts held in trust by the United States. Assistant Secretary Newland ultimately concludes that further investigation is required to determine the legacy impacts of the Federal Indian boarding school system on American Indians, Alaska Natives, and Native Hawaiians today.

Colorado’s Recent Struggles with Notice Standard [ICWA]

21ca0381-pd

21CA0659-PD

21CA0764-PD

Colorado has long had a very low bar to trigger the reason to know provision of ICWA. The B.H. case from 2006 has long been a model for other states that involve the question of what information does a court need to trigger the “reason to know” requirement of 25 U.S.C. 1912(a). And here, in a recent CO Court of Appeals case, is what the current debate over how the regulations have changed the standards boils down to:

But an assertion of possible Indian heritage alone does not fall within a “reason to know” factor that would permit a participant or the court to assume the child is an “Indian child” under section 19-1-126(1)(a)(II). Thus, this type of an assertion does not require formal notice to a tribe or tribes to determine whether the child is an “Indian child.”

In re A-J.A.B., 2022 COA 31, P58

The state law referenced is the Colorado adoption of 25 C.F.R. 23.107(c), the regulations that are supposed to guide courts regarding the “reason to know” standard. However, this is a fundamentally different standard than that articulated by B.H.:

Because membership is peculiarly within the province of each Indian tribe, sufficiently reliable information of virtually any criteria upon which membership might be based must be considered adequate to trigger the notice provisions of the Act.

138 P.3d 299, 304

The court of appeals states that state law has changed enough that B.H.’s reasoning was done under a different standard than the one in effect today (ICWA, of course, has not changed).

Much like the discussion in the In re Z.J.G. case, we are again debating the points of the six factors the regulations articulate as giving a court reason to know, and how they (according to the CO Courts of Appeals) narrow the reason to know standard, rather than guide it.

We agree with the E.M. division that information about the child’s heritage does not constitute “reason to know” that the child is an Indian child under section 19-1-126(1)(a)(II)(A). Information about a possible affiliation with two tribal ancestral groups does not satisfy one of the six reason to know factors

2022 COA 31 at P71

It is honestly stunning to me (though it should not be), that the passage of federal regulations means we are all now re-litigating notice issues that had long been settled. Last week, the Colorado Court of Appeals held

We conclude that a parent’s assertion of Indian heritage, standing alone, is insufficient to trigger ICWA’s notice requirements but, rather, it invokes the petitioning party’s obligation to exercise
due diligence under section 19-1-126(3). We further conclude that the exercise of due diligence under this provision is flexible and depends on the circumstances of, and the information presented to the court in, each case. Nonetheless, the record needs to show that the petitioning party earnestly endeavored to gather additional information that would assist the court in determining whether there is reason to know that the child is an Indian child.

People in re J.L., 2022 COA 43, P3

And now, “due diligence” is an “earnest endeavor” on the part of the state when a parent tells the Court they have tribal relations. However, in both cases the court of appeals sent the case back due to the lack of “due diligence” to follow up on these statements by the parents. The Court in A-J.A.B. gives a very detailed remand instruction regarding due diligence, and what the Court will need by date certain.

To lower my blood pressure and end this post, I will remember what the Washington Supreme Court held, when faced with very similar facts and laws:

We hold that a court has a “reason to know” that a child is an Indian child when any participant in the proceeding indicates that the child has tribal heritage. We adopt this interpretation of the “reason to know” standard because it respects a tribe’s exclusive role in determining membership, comports with the canon of construction for interpreting statutes that deal with issues affecting Native people and tribes, is supported by the statutory language and implementing regulations, and serves the underlying purposes of ICWA and WICWA. Further, tribal membership eligibility varies widely from tribe to tribe, and tribes can, and do, change those requirements frequently. State courts cannot and should not attempt to determine tribal membership or eligibility. This is the province of each tribe, and we respect it.

In re Z.J.G., 471 P.3d 853, 865.

Reported Inquiry Case from California [ICWA]

E077791

So for the first time since 2015, I’m giving myself permission to only read the reported ICWA cases rather than all of the unreported ones. So what does California do? Start reporting way more cases! Five in this first quarter (as opposed to 1 in 2021).

This case itself notes that this is not a particularly unique, but that by reporting it, just the reporting might lead to compliance.

We publish our opinion not because the errors that occurred are novel but because they are too common. Child protective agencies and juvenile courts have important obligations under ICWA. Failing to satisfy them serves only to add unnecessary uncertainty and delay into proceedings that are already difficult for the children, family members, and caretakers involved. Delayed investigation may also disadvantage tribes in cases where it turns out ICWA does apply, as their opportunity to assume jurisdiction or intervene will come at a late stage in the proceeding.

Unfortunately, I don’t think just reporting a case will lead to compliance, especially when this is the final result:

We conditionally reverse the section 366.26 orders. On remand, the juvenile court shall (1) direct CFS to comply with the inquiry and notice provisions of ICWA and sections 224.2 and 224.3 and update the court on their inquiry and the tribes responses and (2) determine whether ICWA applies. If the court determines ICWA does not apply, the orders terminating parental rights shall be reinstated and further proceedings conducted, as appropriate.

(emphasis added)

I haven’t crunched the numbers, but I am not convinced conditional reversal helps with compliance. Vivek Sankaran made this argument in the In re Morris case here in Michigan, and the sheer numbers in California indicate conditional reversal doesn’t seem to do much to change practice. I’m not sure reporting the case will change that. I still believe we should be reporting far more of the ICWA cases than we currently do, given that only about 20% of total ICWA appellate cases are reported.

Jurisdiction Case out of Alaska Supreme Court [ICWA]

sp-ord-116

These kind of cases feel like they are coming in a rapid speed right now–this is the third one I am aware of that have been/will be decided this spring. The issue is the attempted interference by foster parents in a transfer to tribal court proceeding, usually by trying to achieve party status.

Having considered the parties’ briefing — and assuming without deciding both that J.P. and S.P. were granted intervenor-party status in the superior court and that such a grant of intervenor-party status would have been appropriate4 — we dismiss this appeal as moot. “If the party bringing the action would not be entitled to any relief even if it prevails, there is no ‘case or controversy’ for us to decide,” and the action is therefore moot.5 As explained in our order of July 9, 2021, even if we were to rule that the superior court erred in transferring jurisdiction, we lack the authority to order the court of the Sun’aq Tribe, a separate sovereign, to transfer jurisdiction of the child’s proceeding back to state court.6 And we lack authority to directly review the tribal court’s placement order.7

The Court cites my all time favorite transfer case–In re M.M. from 2007. Not only is that decision a complete endorsement of tribal jurisdiction, it also explains concurrent jurisdiction (especially useful when you are operating in a PL280 state), which is not the power to have simultaneous jurisdiction, but the power to chose between two jurisdictions.

When we speak of “concurrent jurisdiction,” we refer to a situation in which two (or perhaps more) different courts are authorized to exercise jurisdiction over the same subject matter, such that a litigant may choose to proceed in either forum.FN13 As the Minnesota Supreme Court explained in a case involving an Indian tribe, “[c]oncurrent jurisdiction describes a situation where two or more tribunals are authorized to hear and dispose of a matter *915 and the choice of which tribunal is up to the person bringing the matter to court.” (Gavle, supra, 555 N.W.2d at p. 290.) Contrary to Minor’s apparent belief, that two courts have concurrent jurisdiction does not mean that both courts may simultaneously entertain actions involving the very same subject matter and parties.

Supreme Court Grants Texas v. Haaland

Here is the order

The Court granted the petition with no limitations, so the issues are not limited the way the government and four tribes requested. Arguments will be held next term (terms start in October, so after October, 2022).

Native Families and COVID-19

Here.

Native youth have suffered the highest rate of caregiver loss from the pandemic—4.5 times higher than that of White children. This means that 1 of every 168 Native children have lost their primary caregivers to COVID, as compared with 1 of every 310 Black children, 1 of every 412 Hispanic children, and 1 in every 753 White children.

Thanks to Fred Fisher to sending this on to us.

In Largest Settlement in its History, Canada Comes to Agreement in Principle in Child Welfare Lawsuit

NY Times Coverage here

The Canadian government announced Tuesday that it had reached what it called the largest settlement in Canada’s history, paying $31.5 billion to fix the nation’s discriminatory child welfare system and compensate the Indigenous people harmed by it.

Agreement in principle/press release here

For those who were following this case, it involves the First Nations Child and Family Caring Society, which is led by Cindy Blackstock. The settlement attempts to reform Child and Family Services and address Jordan’s Principle. This is a major settlement and significant milestone for Native children and families in Canada. 

Paternity and ICWA Decision out of Colorado Court of Appeals

This is part of a small collection of state court decisions (In re B.B., Utah, Bruce L., AK) interpreting ICWA’s paternity definition, and also applying ICWA to paternity proceedings. It also addresses the issue of biological father (required by ICWA) and presumed father (defined by the Uniform Parentage Act).