Author: Kate E. Fort
Law Professor Comments Submitted on EPA Proposed Rule
Law Professor Comments regarding the Environmental Protection Agency’s (EPA) proposed Revision of Certain Water Quality Criteria Applicable to the State of Washington, Docket ID No. EPA-HQ-OW-2015-0174, published at 80 Fed. Reg. 55063 (Sept. 14, 2015):
Water quality standards (WQS) for Washington2 impact the rights, resources, and health and well-being of numerous tribes in the region. In fact, when the waters that support fish are allowed to be contaminated, tribes’ interests are profoundly affected and tribal people disproportionately among the most exposed. This context is significant, because it constrains rulemaking in important ways. Among other things, the adequacy of WQS for Washington must be considered in view of legal protections for tribes’ fishing rights, including treaties and other instruments.
Two Recent ICWA Related Reports
Children’s Bureau (part of the U.S. Dept of Health and Human Services, Administration for Children and Families) Report analyzing the Child and Family Service Plans (CFSP) for tribal-state consultation and collaboration on ICWA compliance.
Link.
PDF(nearly 300 pages).
(I’m going to note that while the CFSPs are required by the Feds for funding, the states self-report the information in the CFSPs. Whether tribes would agree with what the states reported, or whether what they reported would be considered “consultation,” is not addressed in this report.
It might be worth it for tribes to review this report or their state’s individual CFSP [which are usually available online] to see what they say, and perhaps let the Children’s Bureau know if the tribe disagrees. This is one of the few areas where federal funding is remotely tied to ICWA compliance. In case you’re wondering, here is what the federal Administration for Children and Families considers consultation. ACF Consultation Policy )
Casey Family Programs Oklahoma Case File Review report.
Unpublished Active Efforts Case out of California
Here.
Though unpublished, this case addresses many of the issues surrounding active efforts, standards of evidence, 2015 Guidelines, and much of the frustration in child welfare.
For example, this is not active efforts:
Before the jurisdiction and disposition hearing, the Agency’s social worker, Sara Whitney, met with Amber while in custody at Las Colinas Detention and Reentry Facility. The social worker discussed services available to Amber as a member of a Native American tribe and provided contact information for specific service providers.
Nor is this:
Shortly thereafter, Whitney spoke with the parenting coordinator at one of Southern Indian Health’s partners, who indicated she would follow up with Amber to help her obtain counseling. Whitney then followed up with Amber and provided her with contact information for the parenting coordinator, as well as additional referrals for residential drug treatment services.
This case also highlights the way each state manages to remove children using just different enough procedures:
This case highlights a gap between federal law and the manner in which California’s dependency proceedings are conducted. “[B]ecause the ‘ “critical decision[s] regarding parental rights … [and] that the minor cannot be returned home” ‘ [are] made at the earlier review hearing, the issues at the section 366.26 hearing are generally limited to the questions whether the child is adoptable and whether there is a statutory exception to adoption.” (In re Matthew Z. (2000) 80 Cal.App.4th 545, 552–553.) “[U]nlike the termination hearings in most states, the purpose of the final termination hearing in California ‘is not to accumulate further evidence of parental unfitness and danger to the child, but to begin the task of finding the child a permanent alternative family placement.’ “ (Ibid.)
to make implementing federal standards incredibly difficult, because of the state-by-state, and case-by-case, determinations in our dependency courts:
Amber concedes, however, that the new BIA Guidelines are “consistent with statutes and Rules of Court from this State” and also recognizes that the Guidelines are not binding authority. As we recently held “[e]ven in light of the new guidelines information, the general principle still applies[ ] that ‘[t]he adequacy of reunification plans and the reasonable of [the Agency’s] efforts are judged according to the circumstances of each case.’ “ (A.C., 239 Cal.App.4th at p. 657.)
News Coverage of Goldwater (ICWA Litigation) Hearing
News coverage that confirms all accounts we received that this was a very difficult and discouraging hearing.
This hearing was on DOJ’s motion to dismiss the Goldwater ICWA litigation, which is contesting the constitutionality of ICWA. Relevant documents are here.
In response to questions we’ve been getting–this hearing was only on the government’s motion to dismiss. By the looks of it, the judge is not likely to dismiss the case at this point. Next up in the litigation is a fight over class certification, which the judge was delaying full briefing on until after the decision on the motion to dismiss. There will also be rulings on Navajo Nation and Gila River’s motions to intervene. Short answer to what the hearing likely means–this is looking like a long slog. We would really love to be wrong.
First Five Recommendations of Canada’s TRC Report Involve Child Welfare
CBC story here.
Recommendations/Calls to Action here.
Child welfare
1. We call upon the federal, provincial, territorial, and Aboriginal governments to commit to reducing the number of Aboriginal children in care by:i. Monitoring and assessing neglect investigations.
ii. Providing adequate resources to enable Aboriginal communities and child-welfare organizations to keep Aboriginal families together where it is safe to do so, and to keep children in culturally appropriate environments, regardless of where they reside.
iii. Ensuring that social workers and others who conduct child-welfare investigations are properly educated and trained about the history and impacts of residential schools.
iv. Ensuring that social workers and others who conduct child-welfare investigations are properly educated and trained about the potential for Aboriginal communities and families to provide more appropriate solutions to family healing.
v. Requiring that all child-welfare decision makers consider the impact of the residential school experience on children and their caregivers.
2. We call upon the federal government, in collaboration with the provinces and territories, to prepare and publish annual reports on the number of Aboriginal children (First Nations, Inuit, and Métis) who are in care, compared with non-Aboriginal children, as well as the reasons for apprehension, the total spending on preventive and care services by child-welfare agencies, and the effectiveness of various interventions.
3. We call upon all levels of government to fully implement Jordan’s Principle.
4. We call upon the federal government to enact Aboriginal child-welfare legislation that establishes national standards for Aboriginal child apprehension and custody cases and includes principles that:
i. Affirm the right of Aboriginal governments to establish and maintain their own child-welfare agencies.
ii. Require all child-welfare agencies and courts to take the residential school legacy into account in their decision making.
iii. Establish, as an important priority, a requirement that placements of Aboriginal children into temporary and permanent care be culturally appropriate.
5. We call upon the federal, provincial, territorial, and Aboriginal governments to develop culturally appropriate parenting programs for Aboriginal families.
Stephen Pevar Speaking on Oglala Sioux v. Van Hunnik at the Michigan SCAO Training on MIFPA/ICWA
DOJ Wins Motion to Dismiss in NCFA v. Jewell (2015 Guidelines Litigation)
This is a big win–the Judge dismissed all claims, including the equal protection and substantive due process ones. In addition, there’s good language for the eventual ICWA regulations.
Here is the order.
This Court GRANTS Defendants’ Motion to Dismiss For Lack of Subject-Matter Jurisdiction and for Judgement on the Pleadings because: (1) Plaintiffs’ claims are precluded by this Court’s October 20, 2015 Memorandum Opinion in which the Court held that Plaintiffs lack standing to challenge the Guidelines, that the Guidelines are not justiciable as a “final agency action,” and that the Guidelines are non-binding interpretive rules; (2) BAF has not demonstrated any authority to support its equal protection, due process, or Indian Commerce Clause claims; (3) the 2015 Guidelines do not commandeer state entities; and (4) BAF has failed to plead a Bivens action.
(emphasis added)
And:
…even if the 2015 Guidelines were legislative rules, rather than interpretive guidelines that do not mandate state court compliance, the 2015 Guidelines still would not commandeer state entities to comply with its regulations… Just as Congress may pass laws enforceable in state courts, Congress may direct state judges to enforce those laws.
As a personal side note, there so many great people who have worked on this litigation since it was filed in May, and they all deserve thanks.
Burden of Proof ICWA Case Out of Arizona Court of Appeals
Here.
Based on these authorities, we are persuaded that the
heightened standard of “clear and convincing” evidence should apply when Arizona courts decide whether good cause exists to deviate from ICWA foster or adoptive placement preferences. Because it is unclear what standard of proof the juvenile court applied here, we remand the good cause determination for reconsideration. Although we need not reach some of the parties’ remaining arguments, we address certain issues likely to recur on remand.
The authorities cited are 2015 Guidelines and case law from across the states.
Tribal and U.S. Response Briefs in Alaska Land into Trust Case
Response briefs filed in State of Alaska v. Akiachak Native Community;
Tribal Appellees Response Brief
Previous coverage here.
Turtle Talk 
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