Author: Kate E. Fort

Unpublished ICWA Notice Case out of California (First District)

Kate Fort1 Comment

Here.

The First District of California seems to be trying a new way to deal with notice violations in ICWA cases by detailing the mistakes in the notice in the opinion. The first time we saw it was in September (here). In this case, a different division in the same District did a similar analysis.

As to the Chippewa Cree tribe, the notice for G.B.-C. was sent to Chippewa Cree Indians, Brenda Gardiner, ICWA Rep, RR1, P.O. Box 544, Box Elder, Montana 59521. According to the Department’s proof of service, the notice for M.B.-C. was sent to the same address. The address specified for the tribe in the Federal Register was Chippewa Cree Tribe of the Rocky Boy’s Reservation of Montana, Christina Trottier, ICWA Director, 31 Agency Square, Box Elder, MT 59521. (79 Fed.Reg. 3225 (January 17, 2014).) Although the city, state and zip code were the same, the addresses were completely different.
The Department asserts the notice was nevertheless adequate because the P.O. Box address it used to provide notice to the Chippewa Cree tribe was the one that was listed on the State Department of Social Services’s (CDSS) website.4The Department relies on In re N.M., supra, 161 Cal.App.4th at page 268, in which the court held the child welfare agency did not err in using the names and addresses provided by CDSS in notifying the relevant tribes, stating: “The Department should not be hamstrung by limitation to only the names and addresses provided for the tribes in the Federal Register if a more current or accurate listing is available and is reasonably calculated to provide prompt and actual notice to the tribes.
While requiring the Department to adhere to an address listed in the federal register when other, more accurate information is available elsewhere “would exalt form over substance,” (In re N.M., supra, 161 Cal.App.4th at p. 268), we must still respect the Department of Interior’s primary authority in administering ICWA (In re S.B. (2005) 130 Cal.App.4th 1148, 1157 [the federal regulations implementing ICWA “are binding in all federal and state courts by virtue of the supremacy clause”] ). ICWA notice may depart from the addresses listed in the federal register, but only when the alternative address is “more current or accurate.” (In re N.M., supra, 161 Cal.App.4th at p. 268.)
Here, there is nothing in the record indicating the CDSS address the Department used was more current or accurate than the address listed in the Federal Register. Thus, while the return receipt received for the notice sent for G.B.-C. shows that someone at the CDSS address received the notice, there is no basis to conclude the notice was received by someone at the Chippewa Cree tribe who was “trained and authorized to make the necessary ICWA determinations, including whether the minors are members or eligible for membership and whether the tribe will elect to participate in the proceedings.” (In re J.T., supra, 154 Cal.App.4th at p. 994.)”

Proposed Court Rule in Michigan to Waive Pro Hac Fees and Other Limits for Out of State Tribal ICWA Attorneys

Kate Fort1 Comment

Here.

In ICWA cases, the tribe has a right of intervention in whatever state court is hearing the case of the tribal child. While it is true that the “tribal representative” does not have to be attorneys, when they are attorneys, there may be concerns about practicing without finding local counsel or using the local “pro hac” rule. Michigan has proposed a court rule that would waive those requirements for tribal attorneys representing the tribe in a state court where the attorney is not barred. This proposed rule is in direct response a number of requests from tribal ICWA attorneys nationwide. We are hopeful other states will consider a similar rule (though in Nebraska this is right is guaranteed by statute, which is another great fix). This rule was proposed by the Michigan Tribal-State Judicial Forum.

Also, if you are an out of state attorney who would benefit from this proposed Rule (or in state) please send in comments by March 1.

Washington Supreme Court Explicitly Rejects Existing Indian Family Exception

Kate Fort2 Comments

Here

In only the third Washington Supreme Court case to directly interpret ICWA and the first to interpret WICWA, the Court holds In re Crews (the case that established EIF in Washington) is overturned.

Under our above interpretation of ICWA and WICWA, if a case (1) meets the definition of a “child custody proceeding” and (2) involves an Indian child, both acts shall apply. ICWA and WICWA recognize only two exceptions to coverage–delinquency
proceedings and custody disputes following divorce where one parent retains custody of the Indian child. Our interpretation therefore overrules Crews to the extent that it embraced the existing Indian family exception because it recognizes no additional exceptions to coverage outside of the two expressly stated in ICWA and WICWA.

ICWA and WICWA also apply based on the child’s membership, not the parent’s:

For these reasons, we hold that whether the parent whose rights are being terminated is non-Indian is immaterial to a finding that ICWA and WICWA apply. If the child at issue is an Indian child and that child is involved in a child custody proceeding, ICWA and WICWA shall apply.

Craig Dorsay represented the tribal amicus brief (including oral arguments), and NARF and Indian Law Clinic at MSU Law provided strategy and research support in this case. Previous coverage here.

ILPC & TICA Conference Art

Kate Fort1 Comment

We have a habit of getting art for our conference posters (each attendee gets a 18x print of the posters), which we give to each attendee. This year we were lucky enough to get a paining from Dawn Dark Mountain (Oneida Nation of Wisconsin). Here is her description of the work:

 Two Row Wampum/The Kaswentha

(We Will Follow Our Own Path)

Original sculptural watercolor                                        2014

According to Haudenosaunee (Iroquois) tradition, the Two Row Wampum belt was created in 1613 to record and honor an agreement between the Haudenosaunee and the Dutch, the first non-Natives to encounter our people. This treaty held three elements, first acknowledging our friendship, second that we will live in peace, and lastly that this treaty will last forever. Each peoples’ ways were symbolized by the purple rows that run the length of the belt. In one row is a ship with our white brothers ways, in the other is a canoe with the Haudenosaunee ways. They are surrounded by white, symbolizing peace. We would each follow our own path or river, side by side, in peace and respecting each other as long as the grass is green, the water runs downhill, as long as the sun rises in the east and sets in the west and as long as our Mother Earth will last.

16-ip-40-conference-poster

Latest NCJFCJ Disproportionality Report on Rates for Children of Color in Foster Care

Kate Fort

Here.

A reminder this is lagging data, so this report covers numbers from 2014, and to read all of the disclaimers in the report regarding how the data is collected and analyzed.

D.C. Circuit Court Dissolves Emergency Injunction Pending Appeal on Dakota Access Pipeline

Kate Fort

As has been reported elsewhere, the D.C. Circuit denied Standing Rock’s injunction of building the pipeline pending appeal. Order here. Previous coverage here.

The court wrote:

Although the Tribe has not met the narrow and stringent standard governing this extraordinary form of relief, we recognize Section 106 of the National Historic Preservation Act was intended to mediate precisely the disparate perspectives involved in a case such as this one. Its consultative process—designed to be inclusive and facilitate consensus—ensures competing interests are appropriately considered and adequately addressed. But ours is not the final word. A necessary easement still awaits government approval—a decision Corps’ counsel predicts is likely weeks away; meanwhile, Intervenor DAPL has rights of access to the limited portion of pipeline corridor not yet cleared—where the Tribe alleges additional historic sites are at risk. We can only hope the spirit of Section 106 may yet prevail.

Joint Statement from DOJ, DOI, and Army Corps:

FOR IMMEDIATE RELEASE OPA
MONDAY, OCTOBER 10, 2016 (202) 514-2007
WWW.JUSTICE.GOV TTY (866) 544-5309

JOINT STATEMENT FROM DEPARTMENT OF JUSTICE, DEPARTMENT OF THE ARMY AND DEPARTMENT OF THE INTERIOR REGARDING D.C. CIRCUIT COURT OF APPEALS DECISION IN STANDING ROCK SIOUX TRIBE V. U.S. ARMY CORPS OF ENGINEERS

WASHINGTON – The Department of Justice, the Department of the Army and the Department of the Interior today issued the following statement regarding the D.C. Circuit Court of Appeals’ decision in Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers:

“We appreciate the D.C. Circuit’s opinion.

“We continue to respect the right to peaceful protest and expect people to obey the law.

“The Army continues to review issues raised by the Standing Rock Sioux Tribe and other Tribal nations and their members and hopes to conclude its ongoing review soon. In the interim, the Army will not authorize constructing the Dakota Access Pipeline on Corps land bordering or under Lake Oahe. We repeat our request that the pipeline company voluntarily pause all construction activity within 20 miles east or west of Lake Oahe.

“We also look forward to a serious discussion during a series of consultations, starting with a listening session in Phoenix on Tuesday, on whether there should be nationwide reform on the Tribal consultation process for these types of infrastructure projects.”

# # #

16-1184

PLEASE DO NOT REPLY TO THIS MESSAGE. IF YOU HAVE QUESTIONS, PLEASE USE THE CONTACTS IN THE MESSAGE OR CALL THE OFFICE OF PUBLIC AFFAIRS AT 202-514-2007.

The dear Tribal Leader letter and the consultation dates are here.

Judge Grants Tribal Motions to Intervene in Goldwater (ICWA) Litigation

Kate Fort1 Comment

Here.

Previous filings here.

U.S. Supreme Court Grants Cert in Lee v. Tam

Kate Fort

Here.

This case addresses the same issue brought up by Pro-Football v. Blackhorse (section 2(a) of the Lanham Act), which is currently in the 4th Circuit. Pro-Football, Inc. petitioned the Court to skip the 4th Circuit and be joined to the Tam v. Lee case if it was granted here. There is no decision on that at this time.

Pro-Football v. Blackhorse coverage here.

Tam v. Lee coverage here.

Story from Law360 here.

Thanks to SD for the heads up.

U.S. Supreme Court Grants Cert in Lewis v. Clarke

Kate Fort

Order list here.

Question Presented: Whether the sovereign immunity of an Indian tribe bars individual-capacity damages actions against tribal employees for torts committed within the scope of their employment.

Previous coverage here.

Unpublished ICWA Notice Case out of California Detailing Mistakes in Notices

Kate Fort3 Comments

Here.

If you see me present in the next year, be warned that at the first question about notice and how long it takes for a tribe to respond, I may just read this opinion out loud. As a reminder, there is a list names and addresses in the Federal Register of Designated Tribal Agents for Service of ICWA Notice for agencies to send notice to when a parent says they are or may be a member of a tribe. The First Circuit does a very nice job of detailing the type of mistakes that are just incredibly common. A note–the Court uses the Federal Register list that was in effect when the notices supposedly went out in 2015. However, a few times the Agency managed to use agents listed in the most recent (March, 2016) register.

According to the Federal Register, the designated agent and address for the Jicarilla Apache Nation was “Olivia Nelson-Lucero, Acting Program Manager, Jicarilla Behavioral Health, P.O. Box 546, Dulce, NM 87528.” (79 Fed. Reg. 72027.)

According to the certified mailing receipt, the Agency sent the notice to the designated address, but directed it to “Director, Mental Health/Social Services” rather than to “Olivia Nelson-Lucero, Acting Program Manager, Jicarilla Behavioral Health.”

Current designated agent: Jicarilla Apache Nation, Sharnen Velarde, ICWA Social Worker, P.O. Box 546, Dulce, NM 87528

The designated agent and address for the Tonto Apache Tribe was “Brian Echols, Social Services Director, T.A.R. #30, Payson, AZ 85541.” (79 Fed. Reg. 72029.) The Agency sent the notice to the designated address, but directed it to “Lyndsie Butler, Social Services Director” rather than to “Brian Echols, Social Services Director.”

Agency used current agent, 81 Fed. Reg. 10909

The designated agent and address for the White Mountain Apache Tribe was “Cora Hinton, ICWA Representative/CPS Supervisor, P.O. Box 1870, Whiteriver, AZ 85941.” (79 Fed. Reg. 72029.) The Agency sent notice to the designated address, but to “Mariella Dosela, ICWA Representative” rather than to “Cora Hinton, ICWA Representative/CPS Supervisor.”

Agency used current agent, 81 Fed. Reg. 10909

The designated agent and address for the Yavapai Apache Nation was “Linda Fry, Director, Department of Social Services, 2400 West Datsi Street, Camp Verde, AZ 11 86322.” (79 Fed. Reg. 72029.) The Agency sent notice to the designated address, but omitted Linda Fry’s name and title. In other words, it simply sent the notice to the tribe, rather to any particular person at the tribe.

Current designated agent: Ray DiQuarto, Social Services Director, 2400 West Datsi Street, Camp Verde, AZ 86322

The designated agent and address for the Crow Tribe of the Crow Reservation of Montana was “Melveen Paula Fisher, ICWA Coordinator, P.O. Box 340, Crow Agency, MT 59022.” (79 Fed. Reg. 72026.) The Agency sent notice to the “ICWA Representative” rather than to Fisher as “ICWA Coordinator.” Moreover, the notice was not sent to the address designated in the Federal Register; it was sent to P.O. Box 159 rather than to P.O. Box 340.

Agent is the same in both Registers.

The designated agent and address for the Lower Sioux was “Reanna Jacobs, ICWA Advocate, Darin Prescott, Director, 39568 Reservation Highway 1, Morton, MN 56270.” (79 Fed. Reg. 72021.) The Agency sent notice to “ICWA Representative” rather than to “Reanna Jacobs, ICWA Advocate, Darin Prescott, Director.” Moreover, the notice was not sent to the address designated in the Federal Register

Agent is the same in both Registers.

The designated agent and address for the Oglala Sioux Tribe was “Juanita Sherick, Director ONTRAC, P.O. Box 2080, Pine Ridge, SD 57752.” (79 Fed. Reg. 72020.) Although the Agency sent notice to the designated address, it directed it to the “ICWA Administrator” rather than to “Juanita Sherick, Director ONTRAC.” While sending notice to an ICWA Administrator may well be sufficient in some instances, the record in this case does not explain why it would be sufficient when the designated agent is someone who is instead the Director of “ONTRAC.”

Current designated agent is Emily Iron Cloud-Koenen, ICWA Administrator, Oglala Sioux Tribe—ONTRAC, P.O. Box 2080, Pine Ridge, SD 57770

The designated agent and address for the Santee Sioux Nation was “Clarissa LaPlante, ICWA Specialist, Dakota Tiwahe Service Unit, Route 2, Box 5191, Niobrara, NE 68760.” (79 Fed. Reg. 72020.) The Agency sent notice to the designated address, but directed it to the “ICWA Specialist” rather than to “Clarissa LaPlante, ICWA Specialist.”

Current designated agent is Carla Cheney, ICWA Specialist, Santee Sioux Tribe of Nebraska, Dakota Tiwahe Social Services Program, Route 2, Box 5191, Niobrara, NE

The designated agent and address for the Standing Rock Sioux Tribe was “Terrance Yellow Fat, Director, Indian Child Welfare Program, P.O. Box 770, Fort Yates, ND 58538.” (79 Fed. Reg. 72020.) According to the certified mail receipt and return receipt, the Agency sent notice to the designated address, but directed it to “Raquel Franklin” rather than to “Terrance Yellow Fat, Director.”

Agency used current agent, 81 Fed. Reg. 10900.

The designated agent and address for the Hannahville Indian Community of Michigan was “Jessica Brock, ICWA Worker, N15019 Hannahville B1 Road, Wilson, MI 49896.” (79 Fed. Reg. 72021.) The Agency sent notice to the designated address, but directed it to “ICWA Worker” rather than to “Jessica Brock, ICWA Worker.”

Agent is the same in both Registers.

The designated agent and address of the Prairie Island Indian Community was “Nancy Anderson, Family Service Manager, 5636 Sturgeon Lake Road, Welch, MN 55089.” (79 Fed. Reg. 72021.) The Agency sent notice to the designated address, but directed it to “ICWA Representative” rather than to “Nancy Anderson, Family Service Manager.” The record does not disclose why the notice would ensure that it would be delivered to the appropriate person

Current designated Agent is Renae Wallace, Family Service Manager, 5636 Sturgeon Lake Road, Welch, MN 55089;

The designated agent and address for the Sisseton-Wahpeton Oyate tribe was “Evelyn Pilcher, ICWA Specialist, P.O. Box 509 Agency Village, SD 57262.” (79 Fed. Reg. 72020.) The Agency sent notice to the designated address, but directed it to “ICWA Director” rather than Pilcher as “ICWA Specialist,” and added “Lake/Traver” to the name of the tribe.

Agent is the same in both Registers.

At least the Agency didn’t send notice to a tribal newspaper (100% true story).