Here.
Comments accepted until October 3rd.
Many states are taking on the work of updating their court rules in light of the new Regulation. In states where there is an existing state ICWA law, it’s important to consider any rule changes in light of that law.
Here. Additional information here along with dates and locations of the listening sessions.
Recent events have highlighted the need for a broader review and consultation as to how, prospectively, Federal decisionmaking on infrastructure projects can better allow for timely and meaningful tribal input. On behalf of the Department of the Interior, Department of Justice, Department of the Army, and other Federal agencies, we invite you to consultations on how the Federal Government can better account for, and integrate tribal views, on future infrastructure decisions throughout the country. Consistent with our nation-to-nation relationship, our consultations are with tribal leaders and your designated staff. In particular, we have identified the following questions we seek your input on:
(1) How can Federal agencies better ensure meaningful tribal input into infrastructure-related reviews and decisions, to protect tribal lands, resources, and treaty rights within the existing statutory framework?
(2) Should the Federal agencies propose new legislation altering the statutory framework to promote these goals?
We will provide a framing paper with additional detail on these questions, including a description of the statutory framework currently in place. While these questions are of particular interest to the Federal agencies, we welcome any input relevant to the broader topic.
Registration and information here.
Whether you are a practitioner currently working in Indian Country, or looking to learn more about the exciting and broad field of Indian Law, do not miss the Fifth Annual Indian Law CLE. Please join the Indian Law Section at the Ho-Chunk Convention Center in Baraboo, WI as we discuss current topics in Indian Law. This program will be submitted to the Wisconsin Board of Bar Examiners for up to 8.0 CLE credits. We will also be submitting this program for ethics and professional responsibility (EPR) credits.
This is a pretty standard unpublished ICWA notice case (there have been 62 so far this year, 53 out of California, 3 from Michigan, 2 from Texas, and 1 each from Indiana, Iowa, Kansas, and New Jersey). We’re posting it for two (three) reasons. From the opinion:
We also reject the father’s challenges to the notices’ failures to include a copy of the petition in LC No. 13–514918–NA. The father cites only 80 CFR 37, 10146, 1153–1154 (2015). This regulation contains the requirements for Native–American tribal notifications under 25 USC 1912(a). In relevant part, the regulation demands that a notice of a pending child custody proceeding contain “clear and understandable language and include” identifying information concerning the child, the tribes “in which the child … may be eligible for membership,” and “[a] copy of the petition, complaint or other document by which the proceeding was initiated.” 80 CFR 37(B)(6)(a)(1)-(3). But the father fails to identify any authority in support of the proposition that the failure to strictly adhere to the requirement that a tribal notice contain a petition copy demands conditional reversal.
(emphasis added).
1. There is still mass confusion over Guidelines v. Regulations, including which is currently effective, their binding nature, and how to cite them. It appears father’s attorney meant to cite 80 Fed. Reg. 10153-4 (Feb. 25, 2015), which are the 2015 Guidelines, not regulations, and not a CFR. The following quote is from the same source, though I admit I was stumped on where that 37 came from–BUT that’s the number of the applicable Federal Register: Volume 80, No. 37. Page 10153, Section B.6(a). But the Court of Appeals didn’t catch this mis-cite either.
2. Yes, the Guidelines are not binding, but the Court of Appeals apparently considered them regulations for the purposes of the opinion. And yes, the 2016 Regulations are not binding until December. However, that’s also not the court’s reasoning. The Michigan Court of Appeals here says there is no remedy for not following the Regulations. That there must be additional authority beyond that of the language of federal Regulations to justify sending it back to the lower court to do the work required–father (mis)cites only binding federal Regulations. This is a small issue in this case–it appears that notice on the whole was proper. But it also demonstrates the problem with the continued lack of an enforcement mechanism in these cases.
3. For the record, either the attorney or the court could have cited to the current Regulations, 23 CFR sec. 23.11(d)(4)(2005)(“a copy of the petition, complaint, or other document by which the proceeding was initiated”), which are currently binding. The attorney or court could also point to the Regulations which will be binding in December and moved that same requirement to sec. 23.111(d)(5)(“a copy of the petition, complaint, or other document by which the child custody proceeding was initiated . . .”), 81 Fed. Reg. 38864, 38871 (June 14, 2016).
Here.
ORDERED that Dakota Access LLC be enjoined pending further order of the court from construction of the Dakota Access Pipeline for 20 miles on both sides of the Missouri River at Lake Oahe. The purpose of this administrative injunction is to give the court sufficient opportunity to consider the emergency motion for injunction pending appeal and should not be construed in any way as a ruling on the merits of that motion. See D.C. Circuit Handbook of Practice and Internal Procedures 33 (2016).
Pleadings here.
Map here.
Menominee Indian Tribe of Wisconsin’s press release on the Michigan Department of Environmental Quality’s decision to grant a mine permit for the Back 40 Mine, an open-pit gold, zinc, and copper mine next to the Menominee River, which threatens cultural properties and sacred sites. Tribal resolution in opposition to the mine.
Information on the Water Walk on September 21st in Stephenson, Michigan is here. Facebook page for the Remembering Our Ancestors event on September 22 is here. Letter from Red Cliff Band of Lake Superior Chippewa in support is also at that page.
Public hearing on the permit is October 6 at Stephenson High School. Written comments can be submitted to MDEQ until November 3.
Article on the NHPA issues with the mine from the ABA Native American Resources Committee Newsletter is here.
Op-ed in the Milwaukee Journal Sentinel here.
Here. This is a long post, but there’s some data at the end! The Oklahoma Supreme Court wins favorite sentence in an ICWA case of 2016:
“Appellants’ [State of Oklahoma and foster mother] unlearned understanding of what is binding case law and attempts to broaden holdings of this Court, the United States Supreme Court [Adoptive Couple v. Baby Girl], and the Tenth Circuit Court of Appeals [Neilson v. Ketchum], and ICWA’s provisions dealing with termination of parental rights will not support a reversal of the district court’s order. Because the district court did not err in granting the motion to transfer to tribal court, we affirm the order granting the motion to transfer.”
Facts (everything in bold is emphasis added):
M.H.C. (the child) was born in September of 2013. The Oklahoma Department of Human Services (DHS) placed the child in protective custody on November 5, 2013. In the initial petition filed on November 18, 2013, the State of Oklahoma1 (the State) declared ICWA’s provisions applicable. On November 21, 2013, the Cherokee Nation appeared at the initial appearance, and the natural mother informed the court that she had a Certificate of Degree of Indian Blood but was not currently a tribal member.
¶3 Thereafter, the Cherokee Nation received official notice from the State that it planned to adjudicate the child as deprived. The Cherokee Nation sent DHS a response notifying DHS that the child was eligible for enrollment in the tribe and enclosing a tribal-enrollment application for DHS to complete. The Cherokee Nation testified it could not complete the application without access to the child’s case file and birth certificate. After the Cherokee Nation’s initial attempt to have DHS complete the enrollment application, the Cherokee Nation sent DHS three additional enrollment applications. DHS employee Ms. Choate testified to seeing at least one application and acknowledged that a DHS employee can fill out a child’s enrollment application without natural mother’s assistance. Ms. Choate testified she had previously filled out a child’s application to help the child gain tribal membership.
¶4 On December 3, 2013, the district court ruled ICWA inapplicable. At the first family team meeting, the Cherokee Nation, the natural mother, and DHS were present. The natural mother was informed if she gained membership in the Cherokee Nation, ICWA would apply. The natural mother was also told if ICWA applied, the child would likely have to leave foster mother’s care because foster mother was a non-ICWA compliant placement. No party informed the natural mother of ICWA’s benefits and protections.2 The natural mother declined to enroll at the time. The district court subsequently found the State broke confidentiality by allowing the Cherokee Nation to attend a family team meeting in a non-ICWA case.
¶5 In September 2014, the State filed a motion to terminate the natural mother’s rights due to her absence in the pending court proceedings.The State served the natural mother by publication. On December 18, 2014, the court entered a Default Order of Termination of Parental Rights against the natural mother for failure to appear and defend her rights to her child. On February 5, 2015, the natural mother became an enrolled citizen of the Cherokee Nation. On February 19, 2015, the Cherokee Nation filed a motion to intervene and, on March 24, 2015, filed a motion to transfer to tribal court. In the spring of 2015, the district court vacated the order terminating the natural mother’s rights due to statutorily defective service. On June 9, 2015, the district court found natural mother’s rights were still intact and the permanency plan should be reunification.
The Appellants made the following arguments as to why OICWA and ICWA should not apply:
1. “Appellant’s position is that congressional intent to limit ICWA’s reach is found in its rejection of a proposed definition of ‘Indian’ to include all persons eligible for membership in an Indian tribe within ICWA’s purview whether or not a parent was a tribal member.”
2. “OICWA, 10 O.S.2011 §§ 40-40.9, limits ICWA’s application to children who are Indian children prior to the proceedings’ initiation.”
3. “ICWA’s plain language prohibits applying ICWA to a case where the child is not in a parent’s custody at the time the child comes within ICWA’s definition of Indian child.”
4. “Their initial premise is that the child was not removed from an Indian family because the mother was not enrolled at the time the State removed the child. Appellants assert that pursuant to Section 1902’s policy statement, ICWA applies only to ‘intact Indian families,’ and no Indian family existed at the time of the child’s removal.” An argument the Oklahoma Supreme Court called “at best, confusing.”
The Oklahoma Supreme Court found that “[t]he provisions of ICWA become effective in a state child custody proceeding on the date that the record supports a finding that ICWA applies. Section 1911(b) became applicable, with prospective application, when the child met the definition of an Indian child under ICWA. Appellants have failed to provide any authority which would require a different finding.”
The Supreme Court also agreed that transfer was appropriate, stating among other things:
Appellants claim the best interests of the child support denial of the transfer to tribal court. The record does not support their argument. The goal of the district court’s permanency plan was reunification with the natural mother. Appellants failed to present any evidence which would show that transfer to tribal court would not promote this goal. Although Appellants introduced evidence of a bond with a half-sibling in the foster mother’s care, they introduced no evidence of a bond with the foster mother and failed to present any evidence of physical or emotional harm to the child if the proceedings were transferred to tribal court. Appellants’ evidence was that the child would suffer from a change in foster-care placement-an issue not before the district court or this Court. ICWA’s placement preference are applicable to district court proceeding. And lastly, the best interests of the child can just as easily be determined by the tribal court.One argument Appellants strongly imply is that a tribal court could not make this determination. Appellants have not supported this implication, and we refuse to make such a finding.
Since the last time a state appellate court has affirmed a lower court’s transfer to tribal court, (In re Jayda L., Neb. Ct. App. 2012), there have been at least 13 other transfer cases. Only 2 others ended up with a transfer to tribal court (Kansas, Nebraska). This is the 20th case ever where the appellate court affirmed the lower court’s transfer decision. In comparison, there have been 22 times where the appellate court reversed the lower court’s decision to send the case to tribal court.
Here (pdf).
As this article notes, the TRO was partially granted this afternoon.
Here’s the docket entry:
MINUTE ORDER: As explained at today’s hearing, the Court ORDERS that Plaintiffs’ [30, 31] Motions for Temporary Restraining Order are GRANTED IN PART and DENIED IN PART. As agreed by Defendants, the Court ORDERS that no construction activity on the DAPL may take place between Highway 1806 and 20 miles to the east of Lake Oahe. Construction activity to the west of Highway 1806 may proceed. Signed by Judge James E. Boasberg on 9/6/2016. (lcjeb1) (Entered: 09/06/2016)
Documents here.
Turtle Talk 
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