¶28 In this case, CPS Lebrun’s testimony that an unidentified person orally confirmed that “they are not eligible, just they can only be descendent members” does not satisfy the Department’s ICWA burden. As a direct result of the Department’s failure to satisfy this burden—and likely assuming the Department had, prior to filing its Notice of No ICWA Involvement, followed up with formal inquiry with the Blackfeet Tribe as CPS Lebrun testified he would—the District Court proceeded to termination without conclusive determination from the Tribe. No documentation or testimony of an authorized tribal representative either dispelled or confirmed the District Court’s and Department’s belief that the children were not Indian children as defined by ICWA. Under the circumstances of this case, we hold the District Court erred by proceeding to terminate Mother’s rights to D.E. and A.E. without a conclusive tribal determination of their tribal membership status and eligibility.¶29 Accordingly, we hold the District Court abused its discretion in terminating Mother’s parental rights without a conclusive tribal determination of tribal membership status and enrollment eligibility. We reverse and remand for an appropriate threshold determination of whether D.E. and A.E. are Indian children based on a conclusive tribal determination of tribal membership and eligibility in the Blackfeet Tribe. Further, if D.E. and A.E. are conclusively identified as Indian children subject to the requirements of ICWA, the District Court shall hold further proceedings as may be necessary to meet the evidentiary burdens of ICWA.
Author: Kate E. Fort
North Carolina “Reason to Know” ICWA Notice Case
Here.
*Whether the evidence presented at the adjudication hearing should have caused the trial court to have reason to know an “Indian child” may be involved and trigger the notice requirement is the issue before us. The federal regulations implementing ICWA and promulgated in 2016, clearly the states court has reason to know an “Indian child” is involved if: “Any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child.” 25 C.F.R. § 23.107(c)(2) (2018).
The ICWA proscribes that once the court has reason to know the child could be an “Indian child,” but does not have conclusive evidence, the court should confirm and “work with all of the Tribes … to verify whether the child is in fact a member.” 25 C.F.R. § 23.107(b)(1). Federal law provides: “No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary[.]” 25 U.S.C. § 1912(a). Further, a court must “[t]reat the child as an Indian child, unless and until it is determined on the record that the child does not meet the definition of an ‘Indian child.’ ” 25 C.F.R. § 23.107(b)(2).
Other jurisdictions have recognized that “Indian child” status of the juvenile can only be decided by the tribe itself; therefore, only a suggestion that the child may be of Indian heritage is enough to invoke the notice requirements of the ICWA. In re Antoinette S., 104 Cal. App. 4th 1401, 1408, 129 Cal.Rptr.2d 15, 21 (2002). Additionally, ICWA provides that even after the completion of custody proceedings, if the provisions of ICWA were violated, “any parent or Indian custodian from whose custody such child was removed, and the Indian child’s tribe may petition any court of competent jurisdiction to invalidate such action.” 25 U.S.C. § 1914 (2012).
In In re A.R., the Respondent-father claimed that he had “a family connection to a registered Native American group” which consequently qualified his children for the protections under ICWA. In re A.R., 227 N.C. App. 518, 523, 742 S.E.2d 629, 633 (2013). . . . Further, this Court held that “[t]hough from the record before us we believe it unlikely that [the juveniles] are subject to the ICWA, we prefer to err on the side of caution by remanding for the trial court to … ensure that the ICWA notification requirements, if any, are addressed … since failure to comply could later invalidate the court’s actions.” Id.
In the case of In re C.P., the respondent-mother made the bare assertion that she and her children could possibly be eligible for membership with a band of Potawatomi Indians. In re C.P., 181 N.C. App. at 702, 641 S.E.2d at 16. The trial court required the ICWA notice to be sent. Id. When the time required under ICWA had passed without response from the tribe, the trial court allowed two continuances before determining ICWA did not apply and resumed the proceedings. Id. at 703, 641 S.E.2d at 16-17.
***
Our Court has required social service agencies to send notice to the claimed tribes rather than risk the trial court’s orders being voided in the future, when claims of Indian heritage arise, even where it may be unlikely the juvenile is an Indian child. See In re A.R., 227 N.C. App. at 524, 742 S.E.2d at 634; In re C.P., 181 N.C. App. at 702, 641 S.E.2d at 16.
Dear Tribal Leader Letter Regarding Alaska Land into Trust Consultations
Here. The letter is dated July 2–sorry for the delay in posting.
Public Meeting
Wednesday, August 1, 2018
1 :00 p.m. -3:00 p.m.
Juneau, AK
Tribal Consultation
Friday, August 3, 2018
1 :00 p.m. -3 :00 p.m.
Ketchikan, AK
ANC Consultation
Wednesday, October 17, 2018
1:00 p.m. -3:00 p.m.
Anchorage, AK
Tribal Consultation
Sunday, October 21, 2018
1 :00 p.m. -3 :00 p.m.
Anchorage, AK
Tribal Consultation
Wednesday, December 5, 2018
1:00 p.m. -3:00 p.m.
Bethel, AK
Tribal Consultation
Friday, December 7, 2018
1:00 a.m. -3:00 p.m.
Kotzebue, AK
Tribal Consultation
Wednesday, December 12, 2018
1:00 p.m. -3:00 p.m.
Tel: 877-716-4291
Passcode: 6919058
If you would like to provide written input, please email your comments to consultation@bia.gov by midnight Eastern Standard Time on December 20, 2018.
Saginaw Chippewa Healing to Wellness Court on Michigan Public Radio
Here.
Withdrawal of Solicitor’s Opinion Regarding Land into Trust for Alaska Tribes
A day after Tara Sweeney, an Executive Vice President of Arctic Slope Corporation, was appointed as the Assistant Secretary of Indian Affairs, the Department of Interior Solicitor’s Office withdrew a previous opinion regarding the authority of the government to take land into trust for Alaska Natives pending a (you guessed it) notice and comment period:
The Department allowed only 60 days for comment when it proposed removing the Alaska exclusion from its trust land acquisition regulations in 2014. That is in stark contrast to the three years the Department proposed in 2001 to consider the legal and policy implications of removing the Alaska exclusion. Based on the geographical distribution and cultural diversity of Alaska Native communities, a minimum of six months would seem appropriate to provide adequate notice and a meaningful opportunity to comment on the Secretary’s exercise of his authority to take off-reservation land into trust in Alaska and the issues left unresolved by Sol. Op. M-37043, followed by a further six months to allow the Department to conduct a considered review of any and all comments received.
Twitter coverage of this from Indianz on Friday is here.
New Mexico’s Children’s Law Institute Conference Call for Presentations
2019 Call for Workshop Proposals
I was just asked to speak at this event, and they also forwarded the call for presentations. So submit something, and we can hang out while we educate!
We are looking for 1.5 hour long workshops that relate to child welfare, juvenile justice, service providers, advocates, educators, and legal professionals in those systems. Workshops can be geared toward one or more professions. We are seeking intermediate and advanced presentations for experienced professionals and volunteers. Academic paper proposals are not likely to be accepted.
The New Mexico Children’s Law Institute (CLI) is seeking proposals for inspirational, skill building, and solution focused workshops for the 26th annual conference in Albuquerque, New Mexico, January 9-11, 2019.
Deadline for proposal submission is August 17, 2018
More Comments Needed! Now on Title IV-E/Families First Developments
Here. DUE JULY 22.
This one is arguably a little more complicated than usual, but also not inherently nefarious. Here’s a very quick overview (with thanks to Jack Trope for his recent presentation up at Grand Traverse Band for all the info).
In somewhat of a surprise development, Congress passed an overhaul to Title IV-E a few months ago. Title IV-E is the reimbursement program for foster care funding. Until this change, called Families First, the funding was triggered both by the removal of the child, and by the family’s income qualification.
Families First does two things–it releases funding for children who are “candidates” for foster care and removes the income qualification for services for those children and families. Allowable pre-removal services include “evidence-based”:
1. Mental health prevention and treatment services
2. Substance abuse prevention and treatment
3. In-home parenting-skill based programs
“Evidence based” Services and programs must be “trauma-informed” and “promising”, “supported”, or “well-supported” practices. HHS is to release practice criteria and pre-approved programs. There are long definitions in the quotes above, but basically:
Promising: one study with a control group
Supported: one study with random control or quasi-experimental
Well-supported: is at least two studies that used a random control or quasi-experimental trial
Finally, HHS must allow programs and services adapted to culture and context of a tribal community. No one really knows how this provision will interact with the evidence based provision above. This call for comments “solicits comments by July 22, 2018 on initial criteria and potential candidate programs and services for review in a Clearinghouse of evidence-based practices in accordance with the Family First Prevention Services Act of 2018.”
The HHS approved list of programs (“Clearinghouse”) will be automatically eligible for the funding. So! If you are provider who knows about such evidence-based practices for tribal youth and families, TELL HHS! Alternatively, if you work for a tribe, you might ask about how tribal consultation will fit into this process.
This may also be a partial game changer for tribes on the fence about doing direct IV-E funding with the federal government. The planning grant for that process should pop up again in the spring.
Judge Byrne’s Essay on Family Separation in Time
Here.
Judge Byrne has been a leader at NCJFCJ, an ally to tribal judges through NAICJA, and a strong proponent and supporter of ICWA. She’s also a state court judge in Texas.
Statement from the Expert Mechanism on the Rights of Indigenous Peoples on Child Separation at the Border
The United Nations Expert Mechanism on the Rights of Indigenous Peoples joins the concern expressed by the United Nations High Commissioner for Human Rights and others regarding the situation of families, children, and individuals being detained in the United States of America at its southern border with Mexico. We call on the United States immediately to reunite children, parents, and caregivers that have been separated to date, and to ensure their basic human rights to family, safety, and security.
In addition, the Expert Mechanism calls attention to the particular impact of the United States’ practices regarding international border detentions and prosecutions on indigenous peoples. Many of the individuals now being stopped at the border are of indigenous origin, including Kekchi, Tzutujil, Kacqchikel, and Mam-speakers and other Maya from Guatemala, as well as indigenous peoples from Honduras, El Salvador, Mexico, and other countries. In many instances, they are fleeing situations of economic, social, and political unrest in their homelands where they have been denied rights to self-determination and territory, and have faced discrimination and violence.
The Expert Mechanism expresses particular concern regarding the vulnerability of indigenous children. Many countries, including the United States, have a long history of forced removal of indigenous children from their families, a practice that is now universally condemned by the human rights communities and by federal law in the U.S. because of the trauma it causes to children, their families, and their communities.
More broadly, indigenous peoples, whether migrants or not, have rights under international
instruments including the UN Declaration on the Rights of Indigenous Peoples, supported by 148 nations across the world, including the United States. These include the right to maintain indigenous cultural identity, to be free from forced family separation, to speak their languages (and have translation services), to be free from discrimination and violence, and indeed to migrate. In some instances current international borders cross indigenous peoples’ homelands, including in the case of the Yaqui and Tohono O’odham people who have territory and family members on both side of the Mexico border. We call on the United States to recognize the particular situation of indigenous peoples in its border practices and policies and to uphold the rights and responsibilities set forth in the Declaration on the Rights of Indigenous Peoples.
Also, here is Mark Trahant’s piece, our previous post with NAICJA’s statement, and NCJFCJ’s statement (which went out on our Twitter feed but not here).
2018 ICWA Agents for Notice Includes Incorrect Contact Information
ETA: This is NOT limited to California
I have received word that some information in the 2018 Fed Reg ICWA Agents for Notice publication is completely (and wildly) incorrect, even though the information in 2017 was correct (and hadn’t changed): “It was absolutely correct last year. The person listed is not and has never been affiliated with [TRIBE]. The address is completely wrong, including the city.”
Tribes! PLEASE check this document to make sure your ICWA agent for notice information is correct. If you can, let me know if it isn’t. We are trying to get a sense of whether this is limited to California tribes or not. This is the document we all train on and send people to (I was honestly in the middle of teaching a class on notice when I received this information). Thank you.
Turtle Talk 
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