Here is the opinion in United States v. Red Cloud.
Eighth Circuit Affirms Sentence in Murder Case
Here is the opinion in United States v. Red Cloud.
Child Welfare
MILS Survey for Michigan Tribal Members
The letter:
Dear Tribal Community Member,
Michigan Indian Services (MILS) is asking for your feedback on an important survey.
MILS provides legal services statewide to income-eligible individuals and tribes, advocates for the rights of individuals that advance systems of justice, and works to preserve Indian families through state and tribal courts.
The purpose of this survey is to identify the highest priorities related to legal services for low-income Native Americans.
MILS will use the results to prioritize services for the next seven years, so your participation is extremely important to us.
MILS is offering an incentive drawing for a total of seven $100 gift cards for those who complete the survey over the next several months. Drawing dates are August 1, October 1, December 1, February 1, April 1, June 1, and September 30.
You can access the survey link here. It takes about 15 minutes to complete:
Crosscut Article on Greer Case
ICWA was thereafter applied to the case, but the damage was done — the children were placed in foster care without the normal protections the law would have offered them. Now, the Central Council of Tlingit and Haida Indian Tribes of Alaska are challenging the decision in the Washington State Supreme Court. If the court’s decision is upheld, advocates say the case could significantly weaken the use of ICWA in Washington by raising the bar for what qualifies as a “reason to know” that a child is “Indian” in the eyes of the law.
Kathryn Fort, director of Michigan State’s Indian Law Clinic, who is arguing on behalf of the tribes in the case involving Greer and Graham, says that it shouldn’t be so difficult. The burden of checking in with a tribe is low, she says, but the outcome has immense implications for the family, children and tribe.
Briefing and oral arguments here.
Children’s Bureau Letter on Termination of Parental Rights During COVID
Childrens-Bureau-Letter-Termination-of-Parental-Rights-and-Adoption-Assistance
A decision to file a TPR petition should be made in light of the impediments that a parent might face as a result of the pandemic. An agency should evaluate carefully whether parents have had a meaningful opportunity to demonstrate that they have made the necessary efforts to reunify with their children before taking that step.
As such, I urge agencies to continue to consider the totality of each family’s circumstances prior to filing a TPR petition. During the pandemic and its aftermath, agencies also may want to consider instituting protocols that provide an extra layer of review prior to filing a TPR petition.
Oregon ICWA Passed by Unanimous Votes in the Oregon Legislature
HB 4214 (OICW)
In special session, both houses of the Oregon legislature passed HB 4214 (Oregon Indian Child Welfare) unanimously, the Senate just 10 minutes ago!!
Briefing and Oral Arguments in In re Z.J.G. [Washington Supreme Court]
This is the appeal of the court of appeals opinion posted here.
Oral arguments here
Briefs:
- Answer to Petition for Review
- Petition for Review
- Amicus – Margaret Jacobs in Support of Petition for Review
- Amicus – American Indian Law Professors, Et Al in Support of Petition for Review
- Amicus – Children’s Tribes in Support of Petition for Review
- Respondents Answer to Amicus
- Petitioner’s Supplemental Brief
- Respondents Supplemental Brief
- Amicus – Youth and Children, Et Al
- Supplemental Amicus Children’s Tribes
- Amicus – American Indian Law Professors, Center for Indian Law & Policy, et al
- Respondents Answer to Amicus Brief
The MSU ICWA Appellate Project co-represented the Tribes in this case, along with the Center for Indigenous Research and Justice.
Vice: How Parents are Pressured to Give up their Children for Adoption
I did not talk to this reporter, but it feels like a word for word account of my classroom lecture on this issue:
The explicit coercion of that era gave way to domestic adoption industry we have today—which is regulated by an inconsistent patchwork of state laws, unlike the federal regulations applied to international and foster care adoptions. And gradually, demand grew: By the mid-70s, increased access to birth control and legalized abortion and lessening stigma of single parenthood plummeted the supply of healthy white babies. In 2014, approximately 18,000 infants were placed for domestic adoption. In 2017, the CEO of the National Council for Adoption estimated that around one million families are trying to adopt at any given time in the U.S.
I have yet to find a replacement for the type of research the Donaldson Institute did–sadly it wound down operations a couple of years ago.
“Black Families Matter” -Marty Guggenheim in the Chronicle for Social Change on Ending ASFA
Here.
These statements, however, have thus far only been focused on the need to change the means by which we exercise the police power in this country. It is, perhaps, too easy for child welfare organizations to attack a problem they have not played a significant role in creating. But these same groups have not yet turned their eyes inward to ask whether and how the system they helped build is also deeply shaped by racism.
This is a moment that also must focus on how we exercise the parens patriae power in this country (the power of the state to protect the vulnerable). This starts with a major overhaul of the Adoption and Safe Families Act, often referred to by its initials ASFA, which was signed into law in 1997.
With certain exceptions that states too often ignore, ASFA requires that child welfare agencies seek to terminate the parental rights of children whenever they have been in foster for 15 of the most recent 22 months. Courts are instructed to terminate parental rights unless the parent can show that the conditions that led to the removal initially no longer exist. The law has been responsible for the massive destruction of black and brown families. More than 2 million children’s parents’ rights have been terminated by American courts since ASFA was enacted.
This is not about the intentions of those who developed the system we have. It is about listening to the people it harms. It is an unpleasant truth that many of the organizations whose collective voice is condemning racist police practices now have for decades celebrated the approach enshrined in law by ASFA, some by explicitly celebrating adoption and others using the euphemism “permanency.”
ProPublica: “A Hospital’s Secret Coronavirus Policy Separated Native American Mothers From Their Newborns”
Here.
Notice Case out of California [ICWA]
Since April, the California courts of appeal have been wrestling with California’s new law defining “reason to know” from ICWA’s section 1912 and “reason to believe” (state law standard). In addition, the department has been regularly petitioning to make cases reported rather than unreported. Since April with the In re Austin J. case, California courts have been reshaping their very low bar for notice to tribes into a much higher one, with the caveat that the California standard of “reason to believe” does require contact with tribes though not necessarily formal notice. Given California’s outsized role in notice and inquiry ICWA cases, this is a trend that bears watching, with the understanding this is based on California state law, and not the federal ICWA.
Here is In re M.W., decided on May 11. The Department petitioned for publication on May 15 and it was published on June 5. Under the reason to believe standard, the social worker,
The report documented the social worker’s contact with the 12 tribes by telephone, fax, e-mail, and/or mail, the name of the designated agent for each tribe, the dates of attempted contact with each designated agent (all between May 15 and June 4, 2019), and that each tribe was provided with the minor’s “ICWA Family Tree.” As of the date of the report, four of the tribes had confirmed the minor was not an Indian child. As of the July 10, 2019 hearing, six additional tribes had confirmed the minor was not an Indian child, and the two remaining tribes (the Navajo Nation and the White Mountain Apache Tribe) had acknowledged contact but had not yet provided a definitive response.
I am curious to know how out of state tribes are feeling this system is working, given that while California may change its ways, tribes are generally set up to receive the paperwork to confirm a family’s tribal membership, and we already know that informal phone calls to confirm or deny a child’s eligibility can be problematic. Early outreach is great, if it works to give tribes MORE information and not less.
Turtle Talk 
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