It’s been a couple of months, so here is the updated ICWA Defense Memo on the cases we are monitoring.
Child Welfare
Unpublished Notice Case in California Regarding Alaska Native Villages
Here. The Fourth Appellate District does more research than DPSS (the agency tasked with notice), and put it into the decision:
Respondent argues that there is no federally recognized “Innuit Eskimo” tribe, so notice was not required. It is not quite so simple. The term “Innuit” is a collective term (the plural of Inuk), for a group of culturally similar indigenous peoples inhabiting the Arctic regions of Alaska, Greenland, Canada, and Siberia. (http://www.newworldencyclopedia.org/entry/Inuit.) The Alaskan Innuit comprises the Alutiiq, Yup’ik (or Yupiat) and Inupiat tribes. (http://www.encyclopedia.com/history/united-states-and-canada-north-american-indigenous-peoples/.) The term “Eskimo,” as it pertains to Alaskan indigenous peoples, has been replaced by “Inuit.” (Ibid.) There are 229 federally recognized Alaskan villages. (http://www.alaskannature.com/inuit.htm; see also, 81 Fed. Reg. 5023-5025, (No. 19, January 29, 2016).) For this reason, one will not find “Eskimo” or “Innuit” in the Federal Register’s list of federally recognized Native Entities.
The Federal Register lists the 229 Alaskan villages. The names, addresses and telephone numbers of approximately 15 Tribal Leaders and BIA Servicing Centers may be found in the BIA Tribal Leaders Directory. (See, http://www.bia.gov/cs/groups/public/documents/text/idc002652.pdf.) At the very minimum, the social worker should have provided notice to the Native Alaskan Entities through the BIA, if not to the individual tribal entities.[5]
And, in case you were wondering what that footnote five is all about, it’s worth posting as well:
[5] By way of a letter, DPSS requests that we identify the specific Native American entity to which notice should be provided. We have identified four entities listed in the Federal Register in our opinion, whose names comprise a form of the words “Innuit” or “Inuk.” We also recommended contact with the BIA. However, the duty to identity and locate the appropriate Native American entity is more appropriately borne by the DPSS working with the court.
Radio Documentary on Indian Adoption Project
A friend posted she heard this on Minnesota Public Radio recently.
Here is the story with a link to the documentary. I was able to listen to more than half of it and it’s really well-done.
Order in Canada’s Sixties Scoop Class Action Case
Here.
From the Ontario Supreme Court of Justice:
The background facts, as set out in the six previous decisions, are by now well-known, not only to the parties but to many Canadians, and will not be repeated here. In any event, the factual background is not in dispute.
[4] The Sixties Scoop happened and great harm was done.
[5] There is no dispute about the fact that thousands of aboriginal children living on reserves in Ontario were apprehended and removed from their families by provincial child welfare authorities over the course of the class period – from 1965 to 1984 – and were placed in non-aboriginal foster homes or adopted by non-aboriginal parents.
[6] There is also no dispute about the fact that great harm was done. The “scooped”3 children lost contact with their families. They lost their aboriginal language, culture and identity. Neither the children nor their foster or adoptive parents were given information about the children’s aboriginal heritage or about the various educational and other benefits that they were entitled to receive. The removed children vanished “with scarcely a trace.” As a former Chief of the Chippewas Nawash put it: “[i]t was a tragedy. They just disappeared.”***
The issue is not what was known in the 1960’s about the harm of trans-racial adoption or the risk of abuse in the foster home. The issue is what was known in the 1960’s about the existential importance to the First Nations peoples of protecting and preserving their distinctive cultures and traditions, including their concept of the extended family. There can be no doubt that this was well understood by Canada at the time. For example, focusing on adoption alone, Canada knew or should have known that the adoption of aboriginal children by non-aboriginal parents constituted “a serious intrusion into the Indian family relationship” that could “obliterate the [Indian] family and…destroy [Indian] status.”
***
In my view, the common issue must be answered as follows.
[85] For the reasons set out above, when Canada entered into the 1965 Agreement and over the years of the class period, Canada had a common law duty of care to take reasonable steps to prevent on-reserve Indian children in Ontario, who had been placed in the care of non-aboriginal foster or adoptive parents, from losing their aboriginal identity. Canada breached this common law duty of care.
Disposition
[86] The common issue is answered in favour of the plaintiff. Canada is liable in law for breaching a common law duty of care to the class members. This is not an issue that requires a trial.
[87] The class action now moves forward to the damages assessment stage. Counsel should schedule a case conference to discuss next steps.
[88] The plaintiff is entitled to the costs of this summary judgment motion. These costs are likely to be substantial. If the parties cannot agree on the costs I would be pleased to receive brief written submissions from the plaintiff within fourteen days and from the defendant within fourteen days thereafter.
Order Denying Stay Pending Appeal in Oglala Sioux v. Fleming (Van Hunnik)
Download(PDF): Doc. 332 – Order (2/9/2017)
Link: Previous posts
New: ICWA Guide for Tribal Governments and Leaders
New from the Capacity Building Center for Tribes: ICWA Guide for Tribal Governments and Leaders. Available here, pdf here.
Our Children, Our Sovereignty, Our Culture, Our Choice
A word from the authors: Our tribes are threatened by the removal of our youngest and most vulnerable members, our children. As leaders we want to make informed decisions to protect the future of our tribe, our culture, our children and families. Historically, we have seen state and federal programs compromise our dignity and culture by breaking up our families and tribes. Even today we hear of unwarranted removal of our Indian children and the attempts to keep them separated from their culture and tribal identity. The Indian Child Welfare Act (ICWA), when complied with, can help prevent these unwarranted removals and ensure Indian children are kept safe while remaining with their families. The purpose of this Guide is to recommend actions that tribal leadership can take towards ensuring compliance with ICWA.
The recommendations that appear in this guide were made by Tribal Court judges, Tribal attorneys, Tribal educators who train on ICWA, Tribal legislators, a former Tribal Governor/Social Services Director, Counsel for the County (who was also a Tribal member), and Directors of Social Services for Tribal child welfare programs. It is important to note that these are recommendations, not mandates, made by individuals who work in various arenas in child welfare.
National Council for Adoption Case Vacated and Remanded
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.
Active Efforts Case out of the Nebraska Court of Appeals
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).
***
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.
Oregon Proposed Pro Hac Vice Waiver for Tribal ICWA Attorneys
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.
Supreme Court Denies Cert in R.P. v. LA County (Alexandria P. Case)
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.
Turtle Talk 
You must be logged in to post a comment.