Author: Kate E. Fort
Colorado Court of Appeals ICWA Case on Burden of Proof and Application
Opinion here.
ICWA requires two things to apply–an “Indian child” and a “child custody proceeding”. Once both of those things are met, then the court has to apply the heightened standards required by the law. This decision out of Colorado wrestles with when to apply the heightened burdens. There are four “child custody proceedings” under ICWA: a foster care proceeding, a termination of parental rights proceeding, a pre-adoptive placement, and an adoptive placement. In a standard state child custody case, there is an emergency/shelter care/preliminary/24-72 hour hearing, then an adjudicatory/jurisdictional hearing, followed by dispositional/review hearings, and finally permanency hearings. They don’t neatly map on to the ICWA defined proceedings, so the question of when to apply the heightened burden of proof can be up for debate. Because the adjudicatory hearing is the time when the court decides whether the state has met its burden to intrude on the family’s life and whether the court therefore has jurisdiction to do so, ICWA advocates often argue that the court should apply heightened standards at that very important hearing. However, it’s also often true that state has already removed a child, so it is technically not a “foster care proceeding” because the child is already in foster care. The Colorado Court of Appeals here decided the heightened burden has to apply to the dispositional hearing, where the Court determines the placement of a child (any proceeding that may result in a foster care placement, even if the child is placed back with a parent is subject to ICWA standards).
The Court also holds that a lack of notice does not deprive the state court of subject matter jurisdiction, and that ICWA applies until it is determined the child is not an Indian child.
Injunctive Relief Granted in Indigenous Environmental Network v. U.S. Dept. of State [Keystone XL Pipeline]
Previous posts/filings here.
WaPo coverage here.
Plaintiffs’ request for injunctive relief is GRANTED. The Court enjoins Federal Defendants and TransCanada from engaging in any activity in furtherance of the construction or operation of Keystone and associated facilities until the Department has completed a supplement to the 2014 SEIS that complies with the requirements of NEPA and the APA.
The Indian Child Welfare Act at 40
On this date in 1978, President Carter signed the Indian Child Welfare Act into law.
Senator Abourezk introduced the bill to the Senate on April 1, 1977, and the Senate voted on it on November 4, 1977. Interestingly, while Sen. Goldwater supported the purpose of the bill, he did not vote on the Senate’s version of ICWA. He was traveling back to Arizona the night of the vote.
The House Resolution (H.Res. 1374) to consider the bill was introduced by Rep. Shirley Chisholm, the first Black woman elected to Congress, on September 22, 1978. The House voted on the bill on October 14, 1978.
The Act was obviously the work of more people than can be named in a post, but here are the names of just some of the Native women activists identified in the book A Generation Removed: Mrs. Fournier and the mothers’ delegation of Fort Totten, Margaret Townsend (Fallon, Nevada) Evelyn Blanchard (Laguna and Yaqui), Eloise Doan (Blackfeet), Goldie Denny (Quinault), the women of the Wisconsin American Indian Child Placement and Development Program, the North American Indian Women’s Association, Janet McCloud (Tulalip and Nisqually), Maxine Robbins (Yakama), Betty Jack (Ojibwe), and Ramona Bennett, Chairwoman of the Puyallup Tribe who was denied a seat at the National Tribal Chairmen’s Association because she was a woman, and when finally allowed in, told the chairmen that while they were talking about fishing and housing and natural resources, they needed to do something about the children who were being taken away too.
As always, NARF has all of the legislative history online and searchable, which is full of important work like the letter from Eric Eberhard on behalf of the Navajo Nation, or the original statistical report from AAIA or the letter from Don Milligan at the “Indian Desk” State of Washington Department of Social and Health services detailing in 14 pages the way PL-280 was destroying tribal families.
Spending time in the legislative history of ICWA is both humbling and inspiring and a good way to spend some time on this fortieth anniversary.
Nebraska Supreme Court ICWA Decision: Active Efforts
This case discusses how private parties (grandparents) can provide active efforts in a guardianship situation. This further develops this state case law in this area, most recently addressed in In re Micah H. (Neb. 2016), In re T.A.W. (Wash. 2016) and In re S.S. (Ariz. Ct. App. 2017):
In this case, Tyler was counseled by Linda concerning his drug and alcohol problems. The record shows that Linda suggested
multiple treatment programs in which Tyler could seek rehabilitation for his addiction. However, Linda and Daniel had no control with regard to forcing Tyler to seek treatment.The record demonstrates that Linda and Daniel discussed proper parenting techniques and interactions with small children. Further, Linda and Daniel assisted with scheduling visitation
and the implementation of a parenting plan. Tyler demonstrated no need for housing, financial support, or transportation
to unite with Micah. Despite Tyler’s numerous criminal convictions involving drugs and alcohol, Tyler maintained that he
does not suffer from drug or alcohol addiction.With the exception of completing parenting classes while in prison, Tyler has not sought to actively participate in drug and alcohol treatment or support programs. In fact, Tyler has attended only one Alcoholics Anonymous meeting while in prison, at the invitation of another, and suggested to the court
below that his presence at the meeting was for the purpose of supporting others in the program.Based on the specific facts and circumstances of this case, we find that Linda and Daniel undertook active efforts to provide
remedial services and rehabilitative programs designed to unite Tyler and Micah.
Brookings Institute on the Separation of Families
My research has failed to uncover a single example of how removing control, jurisdiction, or authority from tribal governments improves outcomes for the AIAN population. While tribal governments are not perfect by any means, it cannot be shown with any credibility that removal of tribal government authority has improved outcomes for the American Indian population – not in policing, governance, education policy, environmental protection, or civil jurisdiction – and certainly not for child welfare.
Provide Comments on WI Pro Hac Vice for ICWA Attorneys Pending Rule
Well, since I did the California post yesterday on this, multiple people from Wisconsin reminded me that we all need to submit supportive comments there. Many thanks to NL for spelling it out in an email so I can just cut and paste it here (ie making it easy for me):
Over in Wisconsin, we have a pending ICWA pro hoc vice rule petition that could use some more supporting comments, especially from adjacent states! You can find the petition here (https://www.wicourts.gov/scrules/1804.htm).
The process for submitting a comment is as follows:
To submit a comment:
I. Submitting a comment to a rules petition
A comment to a pending rule petition shall be submitted in hard copy (include one original and nine copies). The paper copies shall be mailed to the Clerk of the Supreme Court, P.O. Box 1688, Madison, WI 53701.
A person submitting a comment shall e-mail an electronic copy of the comment in MS Word format MS Word to the Office of the Clerk of the Supreme Court at clerk@wicourts.gov and carrie.janto@wicourts.gov.
II. Contents of comment
The comment shall identify the rule petition to which it relates.
III. Service of comment on petitioner
A copy of the comment shall be forwarded to the petitioner in a timely manner. See the rule petition for the name and contact information of petitioner.
https://www.wicourts.gov/scrules/1804.htm
Tribal Law and Policy Institute is Hiring!
Announcement here: Program Specialist Job Announcement_Tribal Law and Policy Institute
Education and/or Experience:
Required: Bachelor’s degree; experience or demonstrated expertise in tribal justice systems and/or problem-solving courts
Preferred: Juris Doctorate, Master’s degree, or other applicable advanced degree
Strongly preferred: Four (4) years of programmatic development/implementation and/or direct services delivery; previous experience with American Indian and Alaska Native communities; basic knowledge of federal Indian Law and polices; and experience and/or demonstrated expertise in at
- Healing to Wellness Courts
- historical trauma and trauma-informed care
- cultural adaptations to evidence-based practices and programming
- strategic planning and action plan development
- tribal-state collaboration coordination
- prevention, intervention, and treatment programs
- systemic, community-wide, public health strategies and responses
California Eliminates Pro Hac Vice Barriers for ICWA Cases
In a celebrate-the-victories post, the state with the most number of ICWA cases has removed major barriers for out of state ICWA attorneys. California notoriously had some of the highest pro hac fees and tightest limitations on the number of appearances an attorney can make. When I was started poking around about the idea of court rule changes, California always rose to the top. Thanks to California Tribal Families Coalition (CTFC) and their ED, Delia Sharpe, California passed both a bill (to eliminate fees) and a court rule (to eliminate association with local counsel). Here is the CTFC press release.
If California (and Washington and Michigan and Minnesota and Nebraska and Oregon) can get this done, so can your state. There’s a whole crew of in-house ICWA attorneys backing you up–send us an email.
Turtle Talk 
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