(Word is I’m speaking at this one.)
25th Annual ICWA Conference (California), June 4-6
(Word is I’m speaking at this one.)
Author: Kate E. Fort
Update in Texas v. Zinke (federal ICWA case)
Here are the updated filings in the federal ICWA case in Texas:
The federal government filed a motion to dismiss, here.
But THEN, Plaintiffs filed (another) amended complaint–here.
It’s about 8 pages longer than the previous complaint, and adds the Department of Health and Human Services, the Secretary of the Department, and the United States as defendants. While the complaint still requests the court find all of ICWA unconstitutional and unenforceable, it also broadens the discussion beyond 1915 placement preferences to the collateral challenge provisions in 1913 and 1914. The complaint also still contends that certain provisions of IV-B and IV-E (parts of the Social Security Act) are not enforceable–those that purportedly link state compliance with ICWA to federal funding.
The feds will file another (slightly longer) motion to dismiss, and it will be here as soon as it is available.
However, the court has ALSO granted the tribal motion for intervention, available here.
NAICJA Save the Date (Oct. 16-19) and Call for Papers (Due April 20)
One of my favorite conferences of the year–and I always offer to do an ICWA/transfer to tribal court case law update!
RFP for Presentations- 2018 NAICJA Conference – DUE APRIL 20th!
Dismissal of the Watso v. Piper Case
There have been a long series of federal cases in Minnesota involving tribal court child welfare jurisdiction over non-member children residing on the reservation (Watso, Nguyen). Most recently, Watso v. Piper was dismissed. The magistrate’s decision (that was upheld), is particularly well written.
Watso v. Jacobson here
Americans for Tribal Court Equality here
Montana Supreme Court: State has Duty to Actively Determine if Child is Indian Child
Here.
In this case, as early as 2014, the State, through the Department, had reason to believe and, as asserted in its various petition averments and request for the District Court to proceed under ICWA, did believe that L.D. was an Indian child by affiliation with the Chippewa Cree Tribe. Though it gave due notice to the Tribe of the pendency of the initial foster care and subsequent parental rights termination proceedings, there is no evidence that the Department ever formally sought or received a conclusive tribal determination that L.D. was or was not eligible for tribal enrollment. Instead, the Department passively relied on the inaction of the Tribe and the assertions or beliefs of the parents that L.D. was not eligible for tribal membership. However otherwise reasonable, this passive reliance was insufficient to satisfy the Department’s ICWA burden to actively investigate further and ultimately make formal inquiry with the Tribe for a conclusive determination of L.D.’s membership eligibility.
Also, with briefing (a rarity in ICWA cases)!
In re B.B./R.K.B. v. E.T. Cert Denied
Unpublished QEW Opinion out of Texas Court of Appeals
Here.
This is the second time recently a well-reasoned QEW case has been unreported, which means it can’t be used as precedent. The first was in Washington. In re K.S., 199 Wash.App. 1034 (2017). This one is out of the Texas Court of Appeals.
First, because I’ve been getting a lot of emails lately about foster parent issues, here are the witnesses who testified:
Only three witnesses testified at the termination hearing: S.P., R.C.P.’s foster parent, and Glendalys Mojica Gonzalez, the caseworker assigned to the case. The Department did not designate or proffer any of the witnesses as an expert, and the trial court did not make any rulings or findings regarding expert witnesses.
The Court then analyses the 2015 Guidelines (which it appears would have been governing this case since it was started in October 2016, i.e. initiated prior to December, 2016. 25 CFR 23.143) and concludes none of those people are QEWs.
The failure of the Department to produce the kind of competent evidence expressly required under the Act to support termination constitutes a failure of proof. See City of Keller,
168 S.W.3d at 812 (“[W]hen expert testimony is required, lay evidence . . . is legally insufficient.”); see also Martin v. State, 222 S.W.3d 532, 537 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (reversing involuntary-commitment order as unsupported by legally sufficient evidence where State
failed to introduce expert testimony as required by involuntary-commitment statute). Therefore, even viewing all of the evidence in the light most favorable to the verdict, because the record does not contain the statutorily required qualified-expert testimony, we conclude that the evidence is legally insufficient to meet the standard of proof under section 1912(f). See Jackson, 443 U.S. at 319; see also In re V.L.R., 507 S.W.3d at 796–97 (reversing judgment terminating parental rights because not supported by testimony of qualified expert witness as required under ICWA); Doty-Jabbaar, 19 S.W.3d at 877 (same).
Summer Indian Law Program at Montana
Here.
Law students, grad students, attorneys, tribal leaders:
JOIN US for the Summer American Indian and Indigenous Law Program here at the Alexander Blewett III School of Law at the University of Montana in beautiful Missoula. We are once again offering a unique slate of courses (for which we have also requested CLE credit) taught by some of the preeminent scholars and practitioners in our field. Topics include:
June 4-8: Indian Law Research, Prof. Stacey Gordon (ABIII School of Law, Univ. of Montana, Missoula, MT)
June 11-15: Mastering American Indian Law, Prof. Maylinn Smith (ABIII School of Law, Univ. of Montana, Missoula, MT)
June 18-22: American Indian Children and the Law, Professor Kate Fort (Michigan State University College of Law, East Lansing, MI)
June 25-29: Designing Effective Governmental Regulations, David Hindin (Director, Office of Compliance, Office of Enforcement and Compliance, USEPA, Washington D.C.)
July 2-6: Alaska Native Law and Policy, Matt Newman (Staff Attorney, Native American Rights Fund, Anchorage, AK)
July 9-13: Native Hawaiian Law, (Professor Melody Kapilialoha MacKenzie, William S. Richardson School of Law, Honolulu, HI)
July 16-20: Water Law in Indian Country, John Carter (Tribal Attorney, Confederated Salish & Kootenai Tribes, Pablo, MT)
July 23-27: Indigenous Peoples in International Law (Professor Kristen Carpenter, University of Colorado School of Law, Boulder, CO)
The program is a great opportunity for students, attorneys, and tribal leaders to gain or feed a passion for Indian law by engaging with other outstanding students and professors in a beautiful and scenic location. Please have them check out our website: www.umt.edu/indianlaw. Also, please feel free to pass the website along to others who may be interested in this opportunity to spend a few weeks this summer learning with us here in Missoula.
Transfer to Tribal Court Case out of the Ohio Court of Appeals
This is a procedurally complicated case, with a hostile GAL. The conclusion of the appellate court is disappointing:
It is not for this court to decide where and with whom C.J., Jr. should live. However, we have been asked to decide the legal question of who should make the custody determination concerning this child. Based on the foregoing, that decision should be made by the Ohio court after a full evidentiary hearing taking into account the best interests of C.J., Jr., any competing interests of the other parties to this litigation, and the full participation of GRIC. Whether the trauma that might result from removing C.J., Jr. from the only home he has known since he was two years old should outweigh the interest of GRIC in having him transported across the country and raised as part of the GRIC must be determined with all the wisdom, compassion, and experience of the juvenile court.
This article has quotes from the tribal attorney in the case.
Déjà vu All Over Again: AFCARS Comments Needed
Here is the advanced notice of proposed rulemaking where HHS is reopening the FINAL RULE adopting new data elements on kids in foster care, including ones on ICWA. Comments on how yes, really, we really do want ICWA data, just like we said the last two times are now due June 13.
Oh also, there’s another notice where HHS is proposing to delay implementation of the Final Rule for two more years. Those comments on that are due April 16.
Honestly, just reading the notices is infuriating–the Administration admits the final rule was the culmination of not one, but two separate notice and comment periods, plus a supplemental notice and comment period. This Administration, though, has identified this rule as one where the benefits might outweigh the costs. They have a few identified questions for comment, though it is pretty clear the Administration is seeking comments to support their contention the additional data elements would be too much work for agencies to collect.
I’m sure there will be additional posts on this in the near future.
Turtle Talk 
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