From Stephen Pevar:
Judge Viken issued four sweeping orders in the Rapid City Indian Child Welfare Act case. One is a Permanent Injunction barring the defendants from continuing to violate seven federal rights of Indian children, their parents, and their tribes. It mandates an “immediate halt” to those violations. The Injunction is accompanied by a 27-page decision explaining the need for the remedies being imposed by the Court.
Here is the final Adoption and Foster Care Analysis and Reporting System Rule incorporating a number of new data elements states will have to report to the feds. These elements include important information on ICWA cases and placements. Many people in our field worked very hard to get these elements included, which required a supplemental notice and comment period.
This is the first time these ICWA data elements will be required by the federal government. The first anticipated annual AFCARS report that will include the information is anticipated by 2020 (thanks, Heather, for this information!).
Here are the 2016 Guidelines. For those keeping track at home:
February 2015, Updated Guidelines replacing the 1979 Guidelines (No Longer in Effect)
June 2016, Federal Regulations released (Became Binding on December 12)
December 2016, Updated Guidelines replacing the February 2015 Guidelines
What this means:
25 USC 1901 et seq (ICWA) has not changed in 1978, and provides the minimum federal standards for Indian families. State ICWA laws (and corresponding court rules) that provide higher standards still apply. The federal Regulations are now binding and are like the federal law. The December 2016 Guidelines are now in effect and are non-binding interpretation of the Regulations (given the way they are drafted).
Here.
This is a tough case of intergenerational removal. The Nebraska Supreme Court finds that both ICWA and NICWA apply to non-Indian parents of Indian children as defined by the statutes. The Court also found that NICWA’s different language in its active efforts provision, which requires active efforts not just to prevent the break up of the family, but to unite the parent with the Indian child, means the Baby Girl holding does not apply to that provision of state law. However, where NICWA’s language is the same as ICWA’s regarding “continued custody” in the termination of parental rights section, the Baby Girl holding does apply, and there is no need to find the continued custody of the child will result in serious physical or emotional damage, where the parent hasn’t had custody of the child.
While the new federal Regulations, which go into effect next week, are useful for tribes and Native families, state ICWA laws continue to hold the most promise for enforcement of the law in the courts. If your state is contemplating drafting one (either through a tribal-state workgroup, Court Improvement Program, or other mechanism), there are resources and people available to provide research and assistance.
Here.
The Office of Justice Services (OJS), within the Bureau of Indian Affairs (BIA), is searching for an individual to serve as a Deputy Associate Director with the Tribal Justice Services Directorate. Do you have experience in tribal court based initiatives which have promoted tribal court functions? Do you have experience in civil and criminal functions within a tribal court? Have you provided technical guidance and training for tribal court issues, including criminal, civil and traditionally based alternative resolutions? Do you have an interest in working with tribal communities in the initial stages of creating a tribal justice system? Do you have knowledge on Public Law 280 and the Indian Civil Rights Act? Are you interested in travel? Is so, this could be the job for you!
The major duties of the position include, but are not limited to the following:
Designs and creates tribal court training programs which aim to promote and enhance the tribal civil and criminal functions, as well as training programs designed to assist in enhancing tribal court infrastructure.
Plans, coordinates and conducts research and analysis on juvenile programs in Indian country, and coordinates pilot programs working with tribal governments on juvenile programs. Works to promote alternative dispute resolution options for juveniles as well as adults.
Supervises Tribal Justices Services (TJS) program operations and staff, which includes planning work to be accomplished, setting priorities, assigning work, evaluating staff performance, scheduling and approving leave requests, resolving issues and advocating awards and corrective action.
Plans, coordinates and conducts evaluations of tribal systems in the enhancement of the justice system.
Recommends solutions to resolve identified tribal court deficiencies.
Assists in the design of a data system that reports, the status and needs of tribal courts to various entities, and performs statistical analyses with system data for tribal courts.
Here. And the OK Supreme Court agreed to publish the decision.
This case involved a guardianship:
ICWA defines “foster care placement” as “‘any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated.'”25 U.S.C. 1903(1)(i). This guardianship case is governed by this definition of foster care placement because Mother cannot have her children returned on demand as shown by the fact that she requested that the guardianship be terminated and her request was denied.
The case also discusses the requirement of clear and convincing evidence to deny transfer. The trial court denied transfer stating it was the advanced stage of the proceedings–which it was because Cherokee Nation didn’t receive notice, and the delay was beyond the Nation’s control.
This is only the 16th time an appellate court reversed the lower court and ordered transfer. This is one of two from this year.
The unpublished opinion is here. The Court found that Public Act 281 (which added wolves to the list of game species) violated the Title-Object Clause of the Michigan Constitution.
PA 281 was passed with the provision that kept portions of certain voter referendums even if voters rejected them: “In other words, even if voters rejected PA 520 and PA 21 at the general election, those portions of the rejected laws that were incorporated into PA 281 would nevertheless survive. … At the November 4, 2014 general election, a majority of voters rejected both PA 520 and PA 21. PA 281, which reenacted portions of voter-rejected PA 520 and PA 21, including the addition of wolf to the list of game species, took effect on March 31, 2015.”
Previous coverage here.
november-20-press-release (information on registration, hotels, and rules)
Turtle Talk 
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