Author: Kate E. Fort

VAWA Tribal Trial Advocacy Skills Training at Eastern Band Cherokee

Kate Fort1 Comment

EBC_VAWA_SaveTheDate

August 24-26, 2016
Harrah’s Cherokee Casino Eastern Band of the Cherokee Nation Cherokee, North Carolina

The BIA Office of Justice Services and the Eastern Band of the Cherokee Nation present a free training for tribal judges, prosecutors, public defenders and tribal leaders in trial advocacy skills and the Violence Against Women Act Reauthorization Special Domestic Violence Jurisdiction over Non-Indians.

Presenters Include:

Jill Rose, United States Attorney, Western District of North Carolina
Hon. Steve Aycock, National Council of Juvenile and Family Court Judges
John Pritchard, Assistant United States Attorney and Tribal Liaison, Western District of North Carolina
Leslie Hagan, National Indian Country Training Coordinator for the Justice

The Training is free of charge, but travel and lodging are at the participant’s expense. Rooms have been reserved at the Harrah’s Cherokee Casino Resort at a conference rate of $129 a night. Call 1-866-503-3904 to reserve rooms and use the conference code S08VAWA.

Please email and return the attached registration form to Tessa Turnbow at tessat@whitenergroup.biz

ICWA Published Notice Case out of Michigan

Kate Fort1 Comment

Here.

Given the multiple references in the record to possible Cherokee heritage, the DHHS had adequate information to make an “initial determination” that C.J. “may be a member” of the Cherokee tribe, implicating a duty to “exercise due diligence to contact” the Cherokee tribe “in writing so that the tribe may verify membership or eligibility for membership.” MCL 712B.9(3) (emphasis added). This was not done. Furthermore, assuming that the DHHS was “unable to make [such] an initial determination” relative to the Cherokee tribe, there is no indication in the record, nor does the DHHS argue on appeal, that the tribe or tribes located in Kalamazoo County were given written notification, which is a minimal requirement under the final sentence in MCL 712B.9(3).FN9 Indeed, the DHHS does not even present an appellant argument under MCL 712B.9(3), despite respondent’s partial reliance on the provision. Accordingly, MCL 712B.9(3), along with 25 USC 1912(a) and MCL 712B.9(1), serves as a basis to order conditional reversal in regard to C.J. On remand, notice must be sent to the Cherokee tribe and, if one exists, to any tribe or tribes in Kalamazoo County.

As for FN9, where the Michigan Court of Appeals admits it does not know if there is a tribe in Kalamazoo County–if only there was a way to find out that information.

Thanks to everyone who sent this one in.

Dollar General Affirmed by an Equally Divided Court

Kate Fort1 Comment

Here.

This means the Fifth Circuit decision upholding tribal jurisdiction stands.

Now Published Case out of California on Application of ICWA to Eligible Children

Kate Fort

Here. (original unpublished opinion we posted last week). Appellants requested this opinion be published, so the published opinion is here.

We’d like to point out that the fact that mother was a minor and a dependent of the court meant that the state should have been treating MOTHER’S own case as an ICWA case, which does not seem to have happened (and if you’re keeping track, yes, I’ve now used italics, allcaps, AND red ink on this one).

In this case, BOTH the Red Cliff Band of Lake Superior Chippewa AND the Bad River Band of Lake Superior Chippewa Tribe responded to the Department’s notice. Both Bands stated the children were eligible for enrollment, and Red Cliff asked for more information. Mother was a minor and a runaway from her placement. But instead of sending the information, or following up to assist in getting the children enrolled, or provide active efforts, the Department requested the juvenile court find that ICWA did not apply. Which the juvenile court did. Specifically:

Our record discloses no further action after November 2013, until an interim review report, dated April 22, 2014, stated, “[i]t is respectfully requested that the Court make a finding as to the children’s Indian Child Welfare Act Status.” The report further stated that ICWA “does or may apply” as each child might be an Indian child in the Chippewa tribe and was ICWA “eligible” (capitalization & boldface omitted). SSA proposed the court find “ICWA does not apply,” and the juvenile court’s minute order, dated April 22, 2014, contains the finding, “ICWA does not apply.” In a minute order dated June 19, 2014, the juvenile court again stated: “Court finds ICWA does not apply.”

The Court of Appeals held:

Given the above cited authorities, the juvenile court erred by finding ICWA did not apply. Not only did insufficient evidence support that finding, but also two tribes responded to SSA’s ICWA notice, by stating that the children were eligible to enroll in them. The court was thereafter required to proceed as if the children were Indian children.

Under these circumstances, we must reverse the order terminating parental rights and remand with directions for the juvenile court to order SSA to make active efforts necessary to secure tribal membership for the children. (In re K.M. (2015) 242 Cal.App.4th 450, 458–459.)

Preliminary Report on from California’s ICWA Compliance Task Force

Kate Fort2 Comments

Prelim Final – CA ICWA TF Report 6.10.2016

Press Release

SACRAMENTO – Insufficient services, severe underfunding, barriers preventing tribal participation and inadequate reunification efforts have undermined the effectiveness and promise of the Indian Child Welfare Act (ICWA) in California, according to a preliminary report from a Task Force of tribal leaders from across the state, working independently to apprise the California’s Attorney General’s Bureau of Children’s Justice of these inadequacies.

The ICWA Compliance Task Force’s report recognizes that efforts have been undertaken to overcome cultural, procedural and funding challenges, but these ongoing obstacles continue to severely limit the implementation of ICWA in California, resulting in devastating impacts to Indian children, their families and their tribes.

Samantha Bee on Dollar General and Tribal Courts

Kate Fort2 Comments

Link to Official Federal Register for ICWA Final Rule

Kate Fort3 Comments

Here. The actual rule starts at 81 Fed. Reg. 38864.

Also, now word searchable and only 100 pages (well, with three columns on each page and a font size that makes me happy I finally got reading glasses).

 

Chronicle of Social Change Article on Native Foster Home(s) in L.A.

Kate Fort

Here.

In 1978, Congress passed the Indian Child Welfare Act (ICWA), which was meant to keep Native American families together, after foster care and adoption practices had seen thousands of Native children taken from their families, ancestral lands and culture to be placed in non-native homes. That law created a system of “preferred placements” for Native children who enter care. The first choice is to place children with family members, followed by members of the same tribe and finally Native foster parents from other tribes. The last resort is placement in non-native homes.

But the federal government has never compelled states to share how well they satisfy that “preference,” leaving little or no data to indicate who is doing a good job placing Native children in Native homes.

The reporting that does exist is spotty at best.

In 2005, the United States Government Accountability Office (GAO) surveyed all 50 states and Washington D.C. about their ability to identify Native children in the system who were subject to ICWA in 2003.

“Only five states—Oklahoma, Oregon, Rhode Island, South Dakota, and Washington—were able to provide these data,” according the GAO report.

It doesn’t appear that reporting on ICWA compliance improved much in the subsequent years.

In 2015, Casey Family Programs, one of the largest charitable foundations in all of child welfare, tried to ascertain ICWA compliance in a brief entitled “Measuring Compliance with the Indian Child Welfare Act.”

“Although cross-jurisdictional and collaborative efforts are emerging, compliance measurement remains characterized by relatively small, idiosyncratic efforts,” the thin report reads. “Empirical study results are scattered, inconsistent, and highly specific to the state and jurisdiction being examined.”

Commentary on the Native American Children’s Safety Act

ilpc

Last week, the Department of the Interior published final regulations implementing the Indian Child Welfare Act, along with a legal opinion from the Solicitor of the Department of the Interior regarding the authority to issue such regulations. The Department’s regulations, and the accompanying legal opinion, garnered a lot of attention across Indian country and Indian child welfare advocates, and may prove to be the capstone on the Administration’s work for Native children.

However, last week the President also signed of the “Native American Children’s Safety Act” (S.184 or “NACSA”). NACSA amended 25 U.S.C. § 3207 – requiring character investigations for certain individuals who have regular contact with Indian children.

As its title suggests, NACSA is intended to protect Indian children in tribal foster care by doing several things:

  1. Prohibiting child placement in foster care, or licensing foster homes, unless the tribe has completed a criminal background check on each individual residing in the foster home and certified that each of those individuals meets the requirements of the statute;
  2. Requiring tribes to adopt placement standards in accordance with the statute;
  3. Requiring tribes to recertify existing foster homes to ensure that they meet the new standards required under the statute; and,
  4. Requiring the Department of the Interior to issue guidance on appropriate placement standards (and subjecting tribal standards to the Department’s guidance).

Given its subject matter and intent, NACSA moved through Congress with little opposition and broad support. But, the details of the statute’s mandates seem to have caught a number of tribal courts and social services agencies off-guard. Some tribal judges (including one of the authors of this post), tribal social services agencies, and Indian child welfare advocates are concerned about unintended consequences that could flow from the mandates in this new law. Those mandates include the following:

  1. Tribal courts and agencies are required to conduct fingerprint-based checks of national crime databases, as well as checks of state abuse and neglect databases in every state where any adult in the foster home resided for the past five years.
  1. If those checks reveal that any adult in the home has been convicted of a felony in any federal, state, or tribal court for crimes listed in 42 U.S.C. § 671(a)(20)(A)(i) or (ii), tribal courts and agencies are prohibited from placing children in the foster home. Those crimes are a host of felonies, but also include “drug-related offenses.” Because the statute makes a cross-reference rather than specifically enumerating the crimes, it’s not clear whether the five-year limit in the referenced statute carries over as a limit on this provision.
  1. The Department of the Interior is required to issue “guidance” sometime in the next two years that is binding on Indian tribes regarding placement standards. That guidance must address “self reporting requirements” for the head of the household if he/she knows that another adult in the house is listed on any tribal or state abuse registry, or has been convicted of any of the crimes listed above.

While well intended, these provisions will leave tribal foster care agencies and tribal courts without any discretion to certify foster homes and make placements within their communities. It is likely to further limit the availability of eligible foster homes in tribal communities.

As people across Indian country know, many households on the reservation include temporary residents – including extended family members, adult children, family friends, or other community members in need. A member of the household may have gone through the tribe’s healing to wellness court. NACSA does not leave tribal agencies much flexibility to account for these homes or living arrangements. Where tribal courts and agencies previously had discretion to make those judgment calls, NACSA removes that discretion. Any adult living in the home with a prior drug-related offense may automatically disqualify that home from being approved as a foster care placement.

In addition, NACSA requires the Department of the Interior to issue binding guidance on implementation of the statute, including procedures for “self-reporting” by the head of the household if he/she has knowledge that any other adult in the home was convicted of a crime listed above. Tribes will be required to enforce this mandate, but it is unclear how.

NACSA’s mandate that tribes conduct background checks on state databases presumes that state agencies will cooperate with tribal agencies in their efforts to conduct such searches. The statute does not provide Indian tribes with any legal tools, other than the authority to enter into “voluntary agreements with State entities,” to require such cooperation. It is not difficult to imagine a scenario in which state agencies are uncooperative in conducting those searches, thus slowing down foster care placement in Indian country. It is one thing for a tribe to have solid relationships with a local county or even the state—it is quite another to have to reach out to every state where an individual lived in the past five years (let’s say, Ohio, for example) for cooperation.

Perhaps most importantly, NACSA does not provide tribal courts and social services agencies with any additional resources to carry out these new mandates. The courts and agencies with the least amount of resources will now have to spend more money to remain in compliance with federal law. Failure to remain in compliance with these new mandates will likely jeopardize the already meager federal funds that flow into tribal courts and child welfare agencies.

None of this is to say tribal judges or social services agencies don’t have an interest in making sure that foster children are placed in safe homes, or that the proponents of NACSA had bad intentions. As a tribal court judge and ICWA advocate, we applaud the fact that Congress and policy makers care about the importance of safe foster homes in Indian country.

But NACSA may turn out to be a law with drastic unintended consequences (we hope not). This statute could benefit from some amendments to allow tribal courts and agencies to have more discretion to solve problems at the local level, as well as authorization of funding to help tribes meet these new requirements. Absent those amendments, the Department of the Interior must work closely with tribal judges and social services workers to ensure that the law is implemented in a way that prevents unintended consequences.