Author: Kate E. Fort

Update on Goldwater (ICWA Challenge) Filings

Kate Fort

DOJ filed their reply to Plaintiffs response on Defendants’ motions to dismiss. Arizona also filed a strong reply. Filing is completed in this matter, and a hearing on the motion to dismiss will be held on December 18th.

Plaintiffs filed a response to the amicus briefs from Casey Family Programs et al and NCAI et al. In addition, Citizens Equal Rights Alliance also filed an amicus brief in support of the Plaintiffs’ motion to certify the class.

The ICWA Legal Defense Memo has been updated and is available here.

Op-Ed On ICWA from Reps. Cole & McCollum

Kate Fort

From The Hill Congress Blog:

Prior to the passage of the Indian Child Welfare Act (ICWA) in 1978, it had become apparent that Native American children were systematically being taken from their homes and either put up for adoption or placed in foster care. The rate at which Native American children were taken was especially alarming to tribal nations that depend on their youth to preserve a truly unique heritage. Further, the disproportionate rate of these separations raised suspicions that they were based less in decisions about the well-being of children and perhaps more about separating youth from their tribal culture. In a repeat of the forced boarding school era, tribal nations were once again being told that to save their children, they had to be removed from their communities and cultures.

 

 

Three Recent California ICWA Cases

Kate Fort

Reported case on notice, where the social service agency attempted to fix the notice issues while the case was on appeal. Fourth District remanded for proper notice.

An unreported case where the trial court refused to apply ICWA because of a lack of written communication from the tribe, though the agency received verbal confirmation of the children’s membership. The case was reversed, also by the Fourth District.

Finally, an unreported case using the “family lore” argument to find there was no notice necessary. Haven’t seen a family lore case in California since 2011. Those cases were all out of the Second District, while this one is out of the First.

NNALSA 2016 Moot Court Problem Released

Kate Fort

Press Release here.

Problem here.

U.S. HHS Seeks Members for AI/AN Health Advisory Council

Kate Fort

Here.

The HHS Office of Minority Health is currently recruiting to fill several vacancies on the HHS American Indian and Alaska Native Health Research Advisory Council (HRAC) which addresses health disparities in Indian County. The HRAC supports collaborative research efforts between HHS and tribal partners by providing input and guidance on policies, strategies, and programmatic issues affecting Indian tribes. The HRAC consists of 16 delegates: one delegate from each of the 12 Indian Health Service Areas; and four national-at-large delegates.

ICWA Case out of Texas Court of Appeals Declines to Extend Baby Girl

Kate Fort1 Comment

Here is the opinion.

The Court reversed a termination of parental rights because there was no qualified expert witness testimony. The State argued that because of Adoptive Couple v. Baby Girl, the section of ICWA governing burden of proof and QEW (25 U.S.C. 1912(f)) did not apply. The Court rejected this argument.

In addition, the Court used the 2015 Guidelines to determine if a proper QEW testified:

The Bureau of Indian Affairs has created guidelines for state courts to use in Indian child custody proceedings. Bureau of Indian Affairs Guidelines for State Courts and Agencies in Indian Child Custody Proceedings, 80 Fed.Reg. 10147 (February 25, 2015). These guidelines do not have binding legislative effect, but Texas appellate courts have utilized the Guidelines when interpreting ICWA. See In re K.S., 448 S.W.3d 521, 529 (Tex.App.–Tyler 2014, pet. denied) (utilizing the earlier version of the Guidelines); In re J.J.C., 302 S.W.3d 896, 900 (Tex.App.–Waco 2009, no pet.)(same); In re R.R., 294 S.W.3d at 217 (same); see also Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152, 163-64 (Tex.App.–Houston [14th Dist.] 1995, orig. proceeding). The updated BIA Guidelines address the applicable standards of evidence.

The updated BIA Guidelines address the applicable standards of evidence. Section D.3(b) states:

The court may not order a termination of parental rights unless the court’s order is supported by evidence beyond a reasonable doubt, supported by the testimony of one or more qualified expert witnesses, that continued custody of the child by the parent or Indian custodian is likely to result in serious harm to the child. [Emphasis added].

80 Fed.Reg. 10156. Thus, the challenged finding cannot stand unless it is supported by the testimony of a qualified expert witness.

Section D.4 pertains to the qualifications an expert witness must possess.

***

After reviewing the entire record, we conclude that the challenged finding is not supported by the testimony of a qualified expert witness. The caseworker, Lizette Frias, was not shown to possess the required knowledge or expertise. There is no evidence that Frias is a member of the Oglala Sioux tribe or another tribe, or that she is recognized by any tribe as having substantial experience in the delivery of child and family services to Indians. Further, there is no evidence that she has knowledge of the prevailing social and cultural standards and childrearing practices within the Oglala Sioux tribe.

Appellant Brief
State Brief

Navajo Nation Motion for Intervention and Motion to Dismiss in ICWA Goldwater Litigation

Kate Fort

Intervention motion here.

Motion to dismiss here.

Additional documents in A.D. v. Washburn here.

Briefing Completed in Gila River Indian Community Motion to Intervene in ICWA Goldwater Litigation

Kate Fort

47 – Gila River Motion to Intervene

72 – OppositiontoGilaIntervention

76 – Gila River Reply in Support of Motion to Intervene

Plaintiffs in the case also filed their response to DOJ’s motion to dismiss. A hearing on the matter is scheduled for December 18.

Collected filings here.

Reported ICWA Notice Case out of California

Kate Fort

Here

Here, the juvenile court properly inquired about Shahida’s Indian ancestry at each hearing, and the Department conscientiously interviewed several family members to obtain additional information. During these family interviews, the maternal great uncle informed the Department he had Creek and Seminole ancestry. The maternal grandmother also informed the Department she believed, based at least in part on photographs she no longer possessed, she had Blackfeet ancestry. The court found the Blackfeet claim insufficiently supported and, according to the Department, the Creek and Seminole ancestry too remote.
Neither explanation proffered by the court and the Department constitutes an adequate ground for failure to give notice of Kadence’s dependency case to the identified tribes. As to the remoteness of Kadence’s possible connection to the Seminole and Creek tribes, although the suggestion of Creek and Seminole ancestry was based on information about her great-great-great grandparents, nothing was presented to the juvenile court or included in the record on appeal concerning the membership rules for those tribes. It could well be, for example, that membership under tribal rules is passed to successive generations, as a matter of right, through bilineal or double descent without regard to intermarriage or blood quantum and that the absence of formal enrollment does not affect tribal membership. Under those circumstances Kadence could be an Indian child within the meaning of ICWA.(See Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 72, fn. 21 [98 S.Ct. 1670, 56 L.Ed.2d 106 [Indian tribe is final arbiter of its membership rights] . . .

Navajo Nation Department of Justice Hiring 2016 Summer Interns

Kate Fort

Here

The Navajo Nation Department of Justice Litigation and Employment Unit is looking to hire summer interns for Summer 2016. The Navajo Nation Department of Justice provides legal services to the different governmental entities of the Navajo Nation Government. The Litigation and Employment Unit represents the Nation’s interests in employment and labor cases as well as in other matters in which the interests of the Navajo Nation government are implicated.