Last published in 2003 as bench cards, NCJFCJ has issued a new and improved ICWA bench book for judges. There are a few of you who have been asking me about these weekly–here they are!
Press release here
NCJFCJ_ICWA_Judicial_Benchbook_Final_Web
New!
Old!
Complaint here (northern district of Texas).
Additional documents will be posted here.
Plaintiffs thus bring this action for declaratory and injunctive relief and pray that this court:
(1) vacate and set aside the Final Rule;
(2) declare that Sections 1901–1923 and 1951–1952 of ICWA violate the Constitution;
(3) declare that Section 1915 of ICWA violates the Constitution;
(4) enjoin the defendants from implementing or administering Sections 1901–1923 and 1951–1952 of ICWA; and
(5) enjoin the defendants from implementing or administering Section 1915 of ICWA.
Here.
To decide if the trial court complied with ICWA, we must answer a question that has yet to be decided in Colorado: When a trial court inquires at an initial temporary custody hearing at the commencement of the dependency and neglect proceeding whether there is a reason to know that the child is an Indian child, must it make another inquiry when termination is sought? We conclude that the answer is “yes,” at least when the court has not already identified the child as an Indian child and the petitioning party has not disclosed what efforts it has made to determine if the child is an Indian child.
Here is the original article.
Here is the response/statement from Kansas DCF:
The reality is quite different from what “outraged” legislators would have you believe. Allow me to share with you who the children are, we consider missing. In 92 percent of the cases, they are young people, ages 12 and older. They have been removed from the only home they know, placed in an unfamiliar setting, and they miss their families, their schools and their communities. And they are eager to find a way to get back to them.
Maybe I shouldn’t write this on an empty stomach, but WHO removed these children? WHO put them in an unfamiliar setting? Away from their schools and communities? WHO accepted responsibility for them? And then WHO contracted out their care and protection to private agencies? Oh, that’s right.
You don’t get to blame the kids you lose when it’s your job to keep tabs on them.
Here.
This is the cert petition from the Arizona Court of Appeals decision applying ICWA to step-parent or third party adoptions, where Dad attempted to terminate Mom’s rights so Step-Mom could adopt children.
Cert petition filed by the Goldwater Institute purportedly on behalf of the children.
Amicus in Support of the Cert Petition filed by the Pacific Legal Foundation
Brief in Opposition filed by the Colorado River Indian Tribes
Here.
This case is illustrative of a lot of the things we talk about regarding practicing in an unfamiliar forum, and getting objections on the record.
The Tribe (Nenana Native Village) brought an appeal regarding the termination of parental rights, though the Tribe also has motions pending at the trial level to transfer jurisdiction and/or get the children in a preferred placement.
The state filed its petition against the Mom on June 11, 2015. The state sent notice on February 23, 2016. No reason for the eight month delay on notice is given in the opinion. In November of 2016 the state filed a petition to terminate parental rights. At that time, Mom agreed to voluntarily relinquish her parental rights. This is a regular issue under ICWA, because while Mom is voluntarily relinquishing, it is under state threat of termination. The Tribe argued that the state needed to at least follow 25 U.S.C. 1913’s requirements for voluntary relinquishment (it didn’t).
The court agreed the tribe had standing to bring the appeal (after much writing, but 25 U.S.C. 1914 ensures the tribe’s standing to appeal violations of 1911, 1912, or 1913), but disagreed that either the qualified expert witness was a problem, or that the state not following 1913 was a “manifest injustice”.
As a side note, the court also fundamentally misunderstands the difference between federal guidelines and federal regulations:
The Tribe’s argument on this point relies upon 25 C.F.R. Sec. 23.122(a), which provides guidance in interpreting Section 1912(f). Promulgated by the Bureau of Indian Affairs and published as regulations for interpreting the I.C.W.A., Section 23.122 notes that: [a] qualified expert must be qualified to testify regarding whether the child’s continued custody by the parent . . . is likely to result in serious emotional or physical damage to the child and should be qualified to testify as to the prevailing social and cultural standards of the Indian child’s Tribe. 25 C.F.R. Sec. 23.122(a).
We note that while “[t]hese guidelines are helpful[, they] are not binding upon state proceedings.” C.E.H., 837 S.W.2d at 953 (citing Matter of Adoption of T.R.M., 525 N.E.2d 298, 307 (Ind. 1988)). This is because the “primary responsibility for interpreting language used in the [I.C.W.A.] rests with the courts that decide . . . cases [involving Native American children].” Id.
Finally, case also illustrates a point Victoria Sweet and I have presented on a number of times–preserving the record for appeal. Part of the issue with the case is the lack of objection from the Tribe below about the QEW, her testimony, or the termination itself. There are a lot of reasons why this might happen, but I’m using this case to reiterate: if a tribe disagrees with something that is happening in trial court, SAY SO OUT LOUD IN COURT (on the record). It might be terrifying to do so. The judge might get angry, but ultimately the proceeding will continue. Later, though, if the tribe decides to appeal, the issue is preserved. Absent that preservation, the court of appeals will use a lower standard to review the trial court (if it reviews it at all), and as in this case, use a “plain error” standard and find there is none.
This is an opinion full of incredibly annoying legal details the court wanted the Tribe do to, while the state failed to follow any of the legal details in ICWA.
Here.
Turtle Talk 
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