Author: Kate E. Fort

Expert Witness ICWA Case Out of Alaska

Kate Fort1 Comment

Here.

 
Applying the correct meaning of the phrase “professional person having substantial education in the area of his or her specialty,” we hold that Cosolito and Kirchoff should have been qualified as experts under the third BIA guideline. As social workers, both were “professional persons.” Both had “substantial education in the area of [her] specialty”: master’s degrees in social work, internships in relevant subject areas as required for their degrees, agency training, and continuing professional education. The experience of both witnesses further demonstrated the required “expertise beyond the normal social worker qualifications.” Cosolito described her work as an OCS supervisor overseeing hundreds of cases, identifying safety threats, and having ultimate responsibility for custody decisions; as an OCS line worker assessing reports of harm; and as a school administrator and social worker in Arizona working with the diverse behavioral and education needs of students and their families. Her testimony demonstrated regular and in-depth exposure to the very types of family and behavioral issues that were central to Candace’s case, including the possibility that Candace would be assaulted again, be re-traumatized, and engage in more self-destructive behavior.

Kirchoff appeared even more amply qualified to testify about the risks of serious emotional or physical harm if Candace were returned to her home. Kirchoff had a lengthy work history as a mental health clinician, working with children with emotional and behavioral problems in a variety of institutional and agency settings, as well as a private practice of custody investigations and adoption home-studies. As Candace’s own clinician, treating her in both individual and group therapy, Kirchoff was uniquely qualified to testify with authority about Candace’s susceptibility to emotional harm.

Termination ICWA Case Out of Texas Court of Appeals

Kate Fort2 Comments

Here.

The opinion is 28 pages long and the court addresses notice (actual notice was sufficient even if not strictly ICWA compliant), active efforts (happened), state law requirements (harmonious with ICWA), standard of proof (met), jury instructions (adequate), expert witness testimony (was interesting) . . .

Having viewed the evidence in the light most favorable to the verdict, we conclude that the Department proved beyond a reasonable doubt that (1) active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful, (2) that the continued custody of K.S. by D.S. is likely to result in serious emotional or physical damage to K.S., and that (3) the finding is supported by testimony from an expert witness. See 25 U.S.C.A. §§ 1912(d), (f); Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.

Three Remanded for ICWA Notice Deficiency Cases out of California

Kate Fort1 Comment

Cases from the Second District, the Fourth District and the First District.

From the Second District:

Before the next scheduled hearing on January 31, 2013, DCFS submitted the following documents to the court: signed return receipts for the entities noticed; a letter from the Bureau of Indian Affairs acknowledging receipt of the ICWA notice but indicating it does not determine tribal eligibility; a letter from the United Keetoowah Band of Cherokee Indians in Oklahoma declining to intervene in the case because there was no evidence T.M. was a descendant of anyone on the Keetoowah Roll based on the information supplied; a letter from the Cherokee Boys Club, Inc., on behalf of the Eastern Band of Cherokee Indians, declining to intervene in the case because T.M. was neither registered nor eligible to register as a member of the tribe based on the information supplied; and a letter from the Cherokee Nation seeking further information. The Cherokee Nation letter asked DCFS to “verify correct spelling of maternal great great grandmother Lual Made [D.], also need her date of birth. Relationship of Eleonora [H.] to the above named child. [¶] We need dates of birth for everyone involved, their relationship to the child or children in question, and maiden names of all females listed. It is impossible to validate or invalidate this claim without more complete information.” (Boldface and capitalization removed.)

At the January 31, 2013 hearing, which was presided over by a different hearing officer than Commissioner Lewis, the court stated the tribes were properly noticed and it had received letters back from the tribes indicating T.M. was not an Indian child. The court found the ICWA did not apply. The court did not acknowledge the Cherokee Nation’s request for further information.

Just spit balling here, but maybe the reason Cherokee Nation puts part of its response in BOLDFACE CAPITALIZATION is to help a state court out, so it doesn’t find ICWA doesn’t apply when it might.

Job Posting for Law Clerk for St. Regis Mohawk Tribal Courts

Kate Fort

Announcement here.

Summary:

The Law Clerk for the SRMT Court is responsible for researching and analyzing uniquely intricate, complex and sensitive legal issues and questions for SRMT Judges, assist SRMT Judges in evaluating cases filed with the Court, drafting and preparing proposed orders, decisions and opinions for SRMT Judges, and discussion of pending cases with the SRMT Judges.The Law Clerk will also provide other personal and confidential assistance to the Courts’ Judges.

Qualifications:

  • Juris Doctorate degree (JD) from an accredited law school.
  • Experience with Tribal governments.
  • Work experience in federal Indian Law is preferred.

Alternative Reports A and B to the UN CERD Regarding Violation of Indigenous Children’s Right to Culture

Kate Fort

Speaking of ICWA placement preferences, Here are the reports submitted to the UN Committee on the Elimination of Racial Discrimination by the National Native American Boarding School Healing Coalition, the International Indian Treaty Council, and the National Indian Child Welfare Association:

Alternative Report A: Indigenous Children and the Legacy and Current Impacts of the Boarding School Policies in the United States and the Lack of Redress, Restitution and Restoration by the United States to Address these Impacts or to Acknowledge Responsibility for Them
Alternative Report B: The Continued Removal of Indigenous Children from Their Families and Communities and its Impact on The Right to Culture

Update — a blurb from the authors:

During last week’s two-day dialogue with the United States, the United Nations Committee on the Elimination of Racial Discrimination members asked questions of the US delegation relying on the information provided to it by the United States as well as reports submitted by non-governmental organizations and stakeholders.  The National Indian Child Welfare Association submitted such a report voicing concerns over the problematic implementation of the Indian Child Welfare Act. The report on “The Continued Removal of Indigenous Children from Their Families and Communities and its Impact on the Right to Culture (Alternative Report B)” was drafted in partnership with Suffolk Law’s Indigenous Peoples Rights Clinic, and can be viewed at hhere. During the session, Committee members asked the United States to comment on the over- representation of indigenous children in foster care and the bias in private adoptions. The Committee’s Concluding Observations report should be released next month.

ICWA Placement Preference Decision Out of California Involving Choctaw Tribe

Kate Fort3 Comments

Here.

This is a re-occurring and incredibly frustrating ICWA fact pattern–if the ICWA compliant placement is out of state, or far away from the parents, and the goal is reunification, it makes sense for the tribe and state to allow for a non-compliant ICWA placement near the parents. What happens, however, when reunification fails? As in this case, a court is often unwilling to remove the child from the home she has been in for anywhere from one to three years. Honest, actual, concurrent permanency planning could help with this, but while that is a best practice, it does not seem to be happening with any regularity at the state.

Concluding that the ICWA’s adoptive placement preferences do apply to this case, we then review the trial court’s order finding that the P.s failed to produce clear and convincing evidence of good cause to depart from those placement preferences. We determine that the court applied the correct burden of proof by requiring the P.s to prove by clear and convincing evidence that there was good cause to deviate from section 1915’s placement preferences. However, the court erroneously required the P.s to prove a certainty that Alexandria would suffer harm if moved, and failed to consider Alexandria’s best interests or her bond with the P.s in determining good cause.

***

We recognize that a final decision regarding Alexandria’s adoptive placement will be further delayed as a result of our determination of the merits of this appeal. That delay is warranted by the need to insure that the correct legal standard is utilized in deciding whether good cause has been shown that it is in the best interest of Alexandria to depart from the ICWA’s placement preferences.

As also often happens, the parties start arguing about the very constitutionality of ICWA, making this case a “not as bad as it could have been” case–the court didn’t find ICWA is unconstitutional, nor does Adoptive Couple apply (as the de facto parents argued) to this fact pattern. And yet, the trial court decision placing the child with her extended family is still overturned based on the child’s best interest standard. Getting courts to acknowledge that the best interests of a child ought to include the child’s whole life, not just the one transition in front of the court at that moment, is both vital and seemingly impossible.

For the (depressing) record, here is Evelyn Blanchard writing the same thing in 1977 in The Destruction of American Indian Families, ed. Steven Unger (Association of American Indian Affairs 1977).

(Happy to post redacted briefs if we receive any)

NICWA Webinar on Oglala Sioux v. Van Hunnik by Stephen Pevar

Kate Fort

Information here.

On August 27, 2014, members will join Stephen Pevar, senior staff attorney with the American Civil Liberties Union (ACLU), for this webinar as he gives an update on the ICWA compliance class action lawsuit, Oglala Sioux Tribe v. Van Hunnik. The lawsuit was filed by the ACLU against South Dakota state and local officials who have an alleged history of violating the ICWA, resulting in devastating ramifications for American Indian children and families in the state. Mr. Pevar will also discuss the overarching goals of the lawsuit and the implications this case has for ICWA.   http://www.nicwa.org/membership/benefits/index.asp

To register, contact Ava Hansen NICWA’s member relations manager at ava@nicwa.org

DOJ Amicus Brief in SD ICWA Class Action Case

Kate Fort3 Comments

The United States came in strongly on the side of the tribes and tribal families for both the enforcement of ICWA and meaningful due process.

Here.

Thus, from the very start of an emergency removal, Section 1922 requires state courts, agencies, and officials to actively investigate and evaluate whether the emergency situation has ended. Given the statutory requirements for oversight and “immediate” action, this ongoing obligation cannot be deferred for weeks or months until the next scheduled hearing occurs.

***

The interest that parents have in the custody of their children is not to be lightly interfered with, even following an emergency situation. While an emergency proceeding such as the 48- hour hearing may not permanently deprive parents of their custody rights, even a temporary deprivation of physical custody requires a prompt and meaningful hearing.

Memorandum in support of leave to file amicus here.

Motion for Leave to File here.

Update — The court granted the motion the next day:

123 DCT Order Granting US Motion

Previous coverage here.

Michigan Court of Appeals Affirms Mining and Groundwater Discharge Permits at Eagle Mine

Kate Fort

Mining Permit decision here.

This case reflects the attempt to balance the potentially conflicting imperatives of exploiting a great economic opportunity and protecting the environment, natural resources, and public health. At issue is appellee Kennecott Eagle’s proposal to develop an underground mine to extract nickel and copper from the sulfide ores beneath the headwaters of the Salmon Trout River in the Yellow Dog Plains in Marquette County.

Groundwater Discharge permit decision here.

The court found the balance on the side of the underground mine. The state decision makers have managed to find at least three alternative grounds for not considering Eagle Rock a place of worship.

News article here.

NNABA Press Release about the ABA Amendment to Include Tribal Court Practitioners

Kate Fort

WWW.NATIVEAMERICANBAR.ORG
For Immediate Release, August 12, 2014
Contact: Mary L. Smith (202) 236-0339

NNABA APPLAUDS THE HISTORIC VOTE OF THE AMERICAN
BAR ASSOCIATION HOUSE OF DELEGATES TO RECOGNIZE
TRIBAL COURT PRACTITIONERS AS FULL MEMBERS
PHOENIX—The National Native American Bar Association (NNABA) applauds the historic vote of the American Bar Association (ABA) House of Delegates to amend the ABA Constitution to permit tribal court practitioners to be full members of the ABA.  This August 11, 2014 vote of the House of Delegates was unanimous.

“We commend the ABA for recognizing that there are three sovereign court systems in the United States (federal, state and tribal) and for amending its constitution to  permit tribal court practitioners – who are not currently eligible to be ABA members – to become full members of the ABA,” said Mary Smith, NNABA president. “This constitutional amendment will – at long last – put tribal court bar admissions on equal footing with the bars of states, territories and possessions of the United States.”

The ABA has made significant strides towards inclusion but there was a glaring injustice that needed to be corrected – full membership for American citizens who happen to be licensed through a tribal court as opposed to a state, federal or territorial bar. Under previous policy, anyone licensed in a state, federal or territorial jurisdiction within the United States could join the ABA as a full member with all rights and responsibilities. That policy did not extend to those who are licensed through a tribal court of a federally recognized tribe. Thus, there was a class of persons who were denied the opportunity for full membership because they practiced solely in a tribal court. As a policy decision, the ABA had previously extended the opportunity for full membership to lawyers who practice in Guam, American Samoa, Puerto Rico and the Virgin Islands. The same inclusive policy now applies to individuals practicing before tribal courts within the United States.

Founded in 1973, NNABA serves as the national association for American Indian, Alaska Native, and Native Hawaiian attorneys, judges, law professors and law students. NNABA strives for justice and effective legal representation for all American indigenous peoples; fosters the development of Native American lawyers and judges; and addresses social, cultural and legal issues affecting American Indians, Alaska Natives, and Native Hawaiians.
For more information contact 480-727-0420 or visit http://www.nativeamericanbar.org.