Individual Petition for EnBanc Review
State Petition for EnBanc Review
The Court has asked the federal and tribal parties for response briefs, which are due October 23rd.
Author: Kate E. Fort
Improper Removal Case out of Washington Court of Appeals [ICWA]
Today I received a call that went something approximately like this:
Caller: “So with [25 U.S.C.] 1920 …”
Me: “Right, 1922, go on.”
Caller: “Um, ok, so with 1920 . . .”
Me: “I think you mean 1922?”
Caller: “I think I mean 1920?”
Reader, she absolutely meant 25 U.S.C. 1920, and also had the patience to hang in there with me and tell me about the following case:
Here is an opinion from the Washington Court of Appeals decided in January and published in April that I completely missed and is also the only and first case I’ve encountered in five years of reading (nearly) every ICWA case where the court used 25 U.S.C. 1920:
¶30 Both ICWA and WICWA have provisions for the appropriate remedy when an Indian child is improperly removed by the State from his or her home or the State improperly maintains custody. Under ICWA,
[w]here any petitioner in an Indian child custody proceeding before a State court has improperly removed the child from custody of the parent or Indian custodian or has improperly retained custody after a visit or other temporary relinquishment of custody, the court shall decline jurisdiction over such petition and shall forthwith return the child to his parent or Indian custodian unless returning the child to his parent or custodian would subject the child to a substantial and immediate danger or threat of such danger.
25 U.S.C. § 1920. Similarly, under WICWA,
[i]f a petitioner in a child custody proceeding under this chapter has improperly removed the child from the custody of the parent or Indian custodian or has improperly retained custody after a visit or other temporary relinquishment of custody, the court shall decline jurisdiction over the petition and shall immediately return the child to the child’s parent or Indian custodian unless returning the child to the parent or Indian custodian would subject the child to substantial and immediate danger or threat of such danger.RCW 13.38.160.
¶31 Here, the Department has improperly maintained A.L.C’s placement in out-of-home care because the Department has failed to provide active efforts to prevent the breakup of the Indian family. The appropriate remedy is the remedy prescribed by statute. Thus, we remand to the juvenile court to either immediately return A.L.C. or make the statutorily required finding that returning A.L.C. will subject her to substantial and immediate danger or threat of such danger.
Emphasis added.
Minnesota Launches MMIW Task Force
Advocates and public health researchers say a lack of data as well as shortfalls in law enforcement’s handling and prosecution of such cases have hindered efforts to address the issue. The Missing and Murdered Indigenous Women Task Force is meant to help fill those gaps.
Members of the panel will spend the next 15 months examining the causes behind the violence and then make recommendations to help victims and their families heal. The commission’s mandate includes a review of data collection and the current policies at institutions ranging from child welfare services to coroners’ offices.
Oral Argument in Acevedo v. Jordan [ICWA]
Here. In Division 3.
The MSU Indian Law Clinic and Center for Indigenous Research and Justice filed an amicus brief supporting the application of ICWA and the minor mom (represented by Northwest Justice Project).
Deadline Update in Brackeen v. Bernhardt [ICWA]
Plaintiffs requested an extension to their en banc petition. The Court gave them until October 1 to file.
Reason to Know Decision from Washington Court of Appeals [ICWA]
Here.
ICWA and WICWA require a court conducting a 72-hour shelter care hearing to inquire whether the child is or may be an Indian child. A court substantially complies with that requirement if prior to the hearing the Department has begun a good faith investigation into the child’s Indian status, the parties elicit the relevant evidence during the hearing, and the court considers that evidence before ruling on shelter care.
Ok, sounds good.
The reason-to-know standard turns on evidence that the child is a tribal member, or the child is eligible for tribal membership and a biological parent is a tribal member. If there is a reason to know a child is or may be an Indian child, then ICWA and WICWA require the court to treat the child as an Indian child pending a conclusive membership determination by a tribe. A parent’s mere assertion of Indian heritage absent other evidence is not enough to establish a reason to know a child is or may be an Indian child. Because the Department’s good faith investigation before the shelter care hearing did not reveal evidence that a parent or a child was a tribal member, the court did not err in concluding that there was no reason to know the children were Indian children based on the evidence available at the time of the shelter care hearing, Of course, the Department has an obligation to continue its investigation before proceeding to a dependency or termination hearing.
Oohkay. Then what did the investigation reveal?
The investigation revealed that the mother was eligible in the Central Council of Tlingit and Haida, where her mother is enrolled, the Klawock Cooperative Association, and that father was potentially eligible at Umatilla. This was not just the parent’s assertion (which frankly, given the specificity, should be enough*)–this included the testimony of the social worker who called Central Council. It turns out what this Court means by reason to know is actual evidence of membership:
Because the Department’s good faith investigation before the shelter care hearing did not reveal evidence that a parent or a child was a tribal member,
The children were removed on June 27. The first hearing (shelter care) took place on July 2-3. At that point, the state social worker had called Central Council and knew grandma was enrolled, but not mom. She then testified that “to her knowledge”, dad was not enrolled, but there is nothing in the opinion on how she would know that. The social worker then testifies it was possible the children were eligible for enrollment. But then, the court’s shelter care order states there is “not a reason to know” the children are Indian children. When Central Council intervenes in the case on July 30, the Court then decided there was reason to know (well, yes, because then we all know).
Everyone knows (ahem) that three-five days is not enough time for a full notice as required by the law (by mail, return receipt requested). Those of us who do this work ALSO know it may take a tribe longer than that to determine membership. The purpose of the Regs (to treat potential/reason to know Indian children as Indian children until determined otherwise) was to ensure those children were treated as Indian children until membership is all sorted out. The Washington Court of Appeals manages to do the opposite–equating “reason to know” with just plain old “know”. Why does this all matter? The legal standard applied at the shelter care hearing:
Specifically, the information before the court at the shelter care hearing as a
result of the Department’s good faith investigation did not establish a reason to know Z.G. and M.G. were Indian children. Because there was no reason to know,
the normal serious threat of substantial harm standard applied at the shelter care hearing.
Unless a Tribe responds the parent is absolutely a member at that first phone call from the state (not even legally required notice), or the parent happens to have legal evidence of membership on him or her, Washington will claim there is no reason to know, and apply a lower burden of proof than the emergency standard required by ICWA under 1922.
*I decided not to rant about why the parent’s testimony isn’t enough/why parents in court aren’t listened to, but imagine I did.
Register Now for the 2019 ILPC/TICA Annual Conference!
It’s coming up quickly!
Hosted by the Tribal In-House Counsel Association and the Indigenous Law and Policy Center at Michigan State University College of Law
October 10-11, 2019, with pre-conference activities on October 9, 2019
648 N. Shaw Lane, East Lansing MI 48824
Check out the tentative agenda and register today.
12.5 Minnesota CLE credits are pending, which includes 1 elimination of bias credit and 1.5 ethics credits.
Be a TICA/ILPC Sponsor! You can find the sponsorship form here.
Last year, our generous sponsors helped us successfully meet our fundraising goal for the 2018 Indigenous Law Conference! We hope to do the same this year, but we need your help once again. Visit TICA’s 2019 fundraising goal page, which will be regularly updated, for more information.
Sixth Circuit Affirms Tribal Court Decision in Spurr v. Pope
But our review involves no probing of the facts, just a pure question of law: Does a tribal court have jurisdiction under federal law to issue a civil personal protection order against a non-Indian and non-tribal member in matters arising in the Indian country of the Indian tribe? Because 18 U.S.C. § 2265(e) unambiguously grants tribal courts that power, and because tribal sovereign immunity requires us to dismiss this suit against two of the named defendants, we AFFIRM the district court’s dismissal of Spurr’s complaint.
Reply
Answer Brief
Appellant Brief
Lower court materials here.
Tribal supreme court decision here.
Update:
Freep Article on Back 40 Mine
As a side note, the Indian Law Clinic got to work on parts of this issue a few years back, and this article nicely encapsulates how complicated it is, and how dangerous the mine is.
The Michigan-based permitting process for the Back Forty mine has left the Wisconsin side of the river mostly on the sidelines, Cox said.
“When the EPA, the Army Corps, U.S. Fish and Wildlife Service all take actions that are federal, they are obligated to consult with the tribe under laws such as the National Historic Preservation Act, the National American Graves Protection and Repatriation Act,” he said.
“(Michigan) gets to contend, ‘Nope, we’re the authority now, so we’re not obligated to do anything with you Indian nations — you independent, sovereign nations. We’ll send you a letter, let you know what we’re doing. But we won’t communicate with you directly.’ “
Cox questioned Michigan’s “strange-sounding process” of leaving so many things unresolved in the approved permit.
“You would think that, rather than try to conditionalize a permit to include all that’s required, you would just say, ‘We’re not going to issue this permit until all of these big things are addressed, like groundwater modeling,'” he said. “I guess in Michigan they don’t see it that way.”
Across the river, in Michigan’s Menominee County, the board of commissioners passed a resolution opposing the Back Forty mine back in 2017.
“It’s right on the river, 150 feet from the Menominee River,” board vice chairman William Cech said. “There’s never really been a successful sulfide mine without leaving a large stain on the landscape that they are digging in
Qualified Expert Witness Case out of Utah Court of Appeals [ICWA]
Here.
In this case, the GAL petitioned to remove the child from the mother’s care. This GAL has considerable issues with the application of ICWA:
The GAL argued that since ICWA does not explicitly
define what qualifies a witness as an expert, the juvenile
court had “discretion to determine whether a witness has
adequate qualifications to provide the proffered testimony.” Although the three therapists were not qualified to testify regarding tribal cultural standards, the GAL asserted that the court was not bound by the BIA regulations and urged the court to qualify the therapists as expert witnesses anyway . . .
The Court of Appeals instead agreed with mother and Tribe, stating:
Therefore, because the BIA is a federal administrative agency and ICWA is a federal statute, we must employ the principles articulated in Chevron to determine whether the BIA’s 2016 regulation defining “qualified expert witness” is entitled to deference.
***
Determining that a “qualified expert witness” “should be qualified to testify as to the prevailing social and cultural standards of the Indian child’s Tribe” is consistent with Congressional intent and is reasonable.
Unfortunately, the appellate court ultimately held that:
Although the juvenile court correctly applied Chevron
deference to the BIA’s interpretation of ICWA, it did not
correctly apply the regulation, because it rejected the GAL’s experts solely on the ground that they were not qualified to testify regarding the Tribe’s cultural standards without considering whether those standards had any actual bearing on the proposed grounds for removal. Further, the juvenile court erred in determining that Mother could claim therapist–patient privilege with respect to testimony from her therapist and the family therapist. We therefore reverse the juvenile court’s decision and remand for further proceedings consistent with this opinion.
Turtle Talk 
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