This case was the challenge to the 2015 BIA ICWA Guidelines. The case was dismissed at the district court level, and NCFA appealed the case to the Fourth Circuit. Earlier this week, the appellants motioned to vacate, and today the court granted it. Given the BIA withdrew the 2015 Guidelines and they are no longer in effect, this makes sense.
This does mean the lower court decision is no longer precedent, to the extent we used it as such.
Here.
NICWA, however, adds two additional elements the State must prove before terminating parental rights in cases involving Indian children. In re Interest of Walter W., supra. First, the State must prove by clear and convincing evidence that active efforts have been made to prevent the breakup of the Indian family and that these efforts have proved unsuccessful. See § 43-1505(4); see also In re Interest of Walter W., supra. Second, the State must prove by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. See § 43-1505(6).
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Although the record indicates that for the first two years this case was pending in the juvenile court, there is some question about whether the Department was doing as much as it “possibly could have been” under an active efforts standard, it is clear that for the last two years this case was pending, the Department was providing Louisa with active efforts toward achieving reunification with her children. Despite the two years of active efforts, Louisa failed to make significant or sustainable progress towards reunification. Moreover, while we recognize that during the beginning stages of the juvenile court case the Department may have failed to provide active efforts, this does not mean that the Department failed to provide any efforts. The record is clear that Louisa has been receiving services from the Department since prior to the petition being filed in this case in November 2011. Despite all of those efforts, coupled with the Department’s recent active efforts, Louisa has not made progress towards reunification with her children. Louisa’s assertion that she has not been given enough time to turn her life around is simply without merit.
Here is the proposed rule:
{(9) An applicant is not required to associate with local counsel pursuant to subsection (1)(c) of this section or pay the fee established by subsection (6) of this section if the applicant establishes to the satisfaction of the Bar that:
(a) The applicant seeks to appear in an Oregon court for the limited purpose of participating in a child custody proceeding as defined by 25 U.S.C. §1903, pursuant to the Indian Child Welfare Act of 1978, 25 U.S.C. §1901 et seq.;
(b) The applicant represents an Indian tribe, parent, or Indian custodian, as defined by 25 U.S.C. §1903; and
(c) The Indian child’s tribe has executed an affidavit asserting the tribe’s intent to intervene and participate in the state court proceeding and affirming the child’s membership or eligibility of membership under tribal law.}
The proposed change is to rule 3.170, and comments in support of the rule change must be made by February 24th. Now both Michigan and Oregon have these proposed rule changes in the works. These are really important state rule changes for tribes and Native families–the cost of pro hac in Oregon alone is $500, and in other states tribal attorneys are still being denied the right of intervention without following long and onerous pro hac requirements–sometimes making it impossible to participate in child welfare hearings involving Native kids.
Order List here.
16-500 R. P., ET UX. V. LA CTY. DEPT. CHILDREN, ET AL. The motion of respondent The Minor, Alexandria P. for leave to proceed in forma pauperis is granted. The motion of respondent Father J.E. for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is denied.
This means the Supreme Court will not be hearing the case.
There are still a few issues in the California courts being litigated, so we will keep an eye on it, but this should (hopefully) be the end of this case.
Here’s our annual contribution to the ICWA data discussion. While a few cases might yet come in, we have our final list of 2016 appealed ICWA cases sorted. A note on the data–these are cases that are on Westlaw and/or Lexis Nexis, and ICWA (or state equivalent) was litigated. We collect the case name, the date, the court, the state, whether the case is reported (also called published) or not, the top two issues, up to three named tribes, the outcome of the case, and who appealed the case. These are standard state court ICWA cases, and do not include any of the ongoing federal litigation. We did this last year as well. Sadly no, I haven’t yet published this anywhere but Turtle Talk, and yes, it is next on the to-do list. If you know we are missing a case based on the numbers, and it’s publicly available, *please* send it to me [fort at law.msu.edu] so we can add it. I’m also happy to answer questions at the same email.
There were 175 appealed ICWA cases this year, down 74 from last year. There were 30 reported ICWA cases this year. As always, California leads the states with 114 cases, 10 reported. Michigan is second with 13, 2 reported. Texas, which didn’t have any cases we could find last year, had 7 cases this year, 1 reported. Then Iowa with 6, 1 reported, Oklahoma with 4 reported, Nebraska with 3, 2 reported, and Alaska and Arizona with 3, 1 reported each. States with 2 appealed ICWA cases include Arkansas (none reported), Indiana (none reported), Ohio (none reported), Oregon (2 reported), Washington (1 reported), Illinois (1 reported). Finally the following states had 1 ICWA case: Idaho, New Jersey, New Mexico, South Dakota, Utah, Kansas, North Carolina, Vermont, Kentucky, and Massachusetts.
In California, the cases further breakdown to 37 in the 4th Appellate District, 33 in the 2nd, 24 in the 1st, 9 in the 5th, 6 in the 3rd, and 3 in the 6th. California is the only state where we track by appellate districts at this time.
Supreme Courts in Oklahoma (2), Alaska (2), Idaho, Nebraska (2), South Dakota, California (2), Vermont and Washington all decided ICWA cases this year.
Of the 175 total appeals, 90 were affirmed, 67 were remanded, 14 were reversed, and the four remaining were affirmed in part and reversed in part (1), denied as moot (1), dismissed (1), vacated and remanded (1).
Top litigated issues were as follows: Notice (106), Inquiry (21), Placement Preferences (10), Active Efforts (8), Determination of Indian Child (8), Burden of Proof (5), Transfer to Tribal Court (5), Intervention, Termination of Parental Rights, Existing Indian Family, (2 cases for each one). The other cases with 1 each: Qualified Expert Witness, Indian Custodian, Tribal Customary Adoption, Application to Divorce, Ineffective Assistance of Counsel, Foster Care Placement
52 different tribes are represented in the first named tribe in a case. There were 56 cases involving claims of Cherokee citizenship. Of those appeals, 48 involved issues of notice and inquiry. In 21 cases the tribe was unknown (parent did not know name of tribe). In 14, the tribe was unnamed (court did not record name of tribe in the opinion).
4 cases were appealed by tribes (Cherokee Nation, Gila River, Shoshone Bannock). 92 were appealed by mom, 49 by dad, and 24 by both. Other parties who appealed include agency (1), child’s attorney (1), foster parents (1), great aunt and uncle (1), Indian custodian (1), and state and foster mother (1).
Job Announcement
Staff Attorney – Child Welfare Program
Organization Profile
Nebraska Appleseed is a nonprofit organization that fights for justice and opportunity for all. Appleseed takes a systemic approach to complex issues – such as children’s welfare, immigration policy, affordable health care, and poverty – and takes its work wherever it can do the most good, whether that’s at the courthouse, at the statehouse, or in the community. For more information visit neappleseed.org.
Nebraska Appleseed is an equal opportunity employer; people of color, members of the LGBTQ community, individuals with disabilities, individuals with personal experience in the child welfare system, and those from diverse backgrounds are strongly encouraged to apply. Nebraska Appleseed does not discriminate on the basis of race, color, national origin, ethnic background, religion, gender, sexual orientation, age, or disability.
Position Summary
The Staff Attorney will be responsible for working with the Child Welfare Program Director to identify and develop legal and policy solutions to issues impacting Nebraska’s child welfare system. The focus of the work will be on reforming the state’s child welfare system to make sure it supports children and families who need its intervention, and that intervention does not contribute to problems. The Staff Attorney will engage in policy research and analysis, legal research and litigation, and resource development. This position will report to the Child Welfare Program Director, and will work closely with staff attorneys in other programs and the Child Welfare Program Associate. This is a full-time position based in our office in Lincoln, Nebraska.
Responsibilities:
The Staff Attorney will work with the Child Welfare Program Director to carry out the objectives of the program. Specific responsibilities include:
Qualifications:
Salary and Benefits
Competitive nonprofit salary based on experience and benefits including health, vision, dental, 401(k), and vacation.
To Apply
Position is open until filled. Target start date is March 2017. Please send a cover letter, resume, writing sample, and list of three references to Elizabeth Hutchison at ehutchison@neappleseed.org or mail to: Nebraska Appleseed Child Welfare Staff Attorney search, Nebraska Appleseed, 941 “O” Street, Suite 920, Lincoln, NE 68508 by Friday, Jan. 20. If you have any questions or need additional time to submit materials, please contact Elizabeth Hutchison at 402-438-8853, ext. 122.
Here.
It is easy to presume that maximizing child support is in a child’s best interest, but as the above cases demonstrate, there are exceptions. When the benefits of modification outweigh the negatives, modification should be permitted. This is true for all child support cases, but especially those pertaining to American Indian families. When considering modification requests made by Indian obligors, family courts must be particularly sensitive to the effects of income imputation on individual Native families as well as the effects of imputation on their tribes more broadly. If the benefit of modification relates to the child’s or the parent’s unique status as a member of a federally recognized tribe, this fact should be given substantial, perhaps even decisive, weight in the court’s modification decision. As discussed in Part I, courts applying the strict rule test have permitted modification when it benefits the child or the greater community. Supporting native subsistence lifestyles does both.
Sharpe v. Sharpe is here.
The first video is here, and features Quinault President Fawn Sharp and her family. Deepest thanks to her for being a leader unafraid to share her story to help Native families.
From Stephen Pevar:
Judge Viken issued four sweeping orders in the Rapid City Indian Child Welfare Act case. One is a Permanent Injunction barring the defendants from continuing to violate seven federal rights of Indian children, their parents, and their tribes. It mandates an “immediate halt” to those violations. The Injunction is accompanied by a 27-page decision explaining the need for the remedies being imposed by the Court.
Turtle Talk 
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