And here is another one!
Maine ICWA Signed into Law on June 30
And here is another one!
Child Welfare
State ICWA Law Signed into Law in Nevada
Not sure how this one slipped by–the Governor of Nevada signed this into law just before Brackeen came down.
Media coverage here.
Assemblywoman Backus (the sponsor of the bill) graduated from ASU with an Indian Law Certificate. She is also a commissioner on the Uniform Law Commission’s study committee for a uniform state ICWA law.
Singel to Discuss Brackeen in 2022-2023 ACS National Supreme Court Review
Please join the American Constitution Society tomorrow, July 11, 2023, from 2:30 – 4:00 pm EDT for the National Supreme Court Review, which examines the most consequential cases of the 2022-2023 Term. Prof. Wenona Singel will offer commentary on Haaland v. Brackeen and discuss the decisions of this Term and their long-term effects on law and policy.
Welcome Remarks
Russ Feingold, President, American Constitution Society
Featuring
Chris Geidner, Publisher and Author, Law Dork, moderator
Debo Adegbile, Partner and Chair of the Anti-Discrimination Practice, WilmerHale
Ruben Garcia, Professor of Law and Co-Director of the Workplace Law Program, University of Nevada, Las Vega William S. Boyd School of Law
Kelly Moser, Senior Attorney and Leader of the Clean Water Program, Southern Environmental Law Center
Wenona Singel, Associate Professor of Law, Michigan State University College of Law and Director, Indigenous Law & Policy Center
Stephen I. Vladeck, Charles Alan Wright Chair in Federal Courts, The University of Texas at Austin School of Law
The American Constitution Society is a State Bar of California approved provider. This event has been approved for 1.5 hour of California MCLE credit.
As the nation’s leading progressive legal organization, ACS is committed to ensuring that all aspects of our events are accessible and enjoyable for all. If you require any accommodations, please contact us at info@acslaw.org.
The registration link is available here.
Fort on Defending ICWA, 2013-2023
This Article lays out the history of the fight over ICWA from Baby Girl to Haaland, from my perspective as a clinical professor who has been involved with every major ICWA case since 2013, as well as my observations about why ICWA was so vulnerable to an organized litigation attack despite continued bipartisan and widespread support of the law.
The rest of the issue is here, with an essay by Chemerinsky and an article on Dobbs by Delgado and Stefancic.
A Quick Brackeen Opinion Post
The decision was written by Justice Barrett with all but Justice Thomas and Alito joining her opinion. Justices Gorsuch and Kavanaugh wrote (very different) concurrences. Justices Thomas and Alito dissented.
Essentially the Court held that ICWA is not beyond the power of Congress to effectuate, and does not violate commandeering concerns by making states follow federal law. Neither the foster parents or the state of Texas had standing to bring the equal protection arguments related to the third placement preferences. They did not rule on any merits regarding equal protection and ICWA. Gorsuch’s concurrence laying out the history of federal Indian Law and ICWA is veritable who’s who of Indian law professors. Kavanaugh’s concurrence wants us to make sure we understand there was no ruling on equal protection, only on standing to bring the claim. Justices Thomas and Alito did their usual thing.
This is, without question, a massive win. It’s a stunning victory upholding both the foundations of federal Indian law and the Indian Child Welfare Act. The original district court decision finding ICWA unconstitutional, as well as the parts of the Fifth Circuit decision finding the same, are no longer good law. There is, at this time, no major change in ICWA practice. We can talk details in the coming weeks. So for now I’ll leave you with the last sentence of the Gorsuch concurrence while we all breath a sigh of relief:
In adopting the Indian Child Welfare Act, Congress exercised that lawful authority to secure the right of Indian parents to raise their families as they please; the right of Indian children to
grow in their culture; and the right of Indian communities to resist fading into the twilight of history. All of that is in keeping with the Constitution’s original design.
West Virginia Supreme Court Repudiates Existing Indian Family; Orders Transfer to Tribal Court
Ex re Delaware Tribe v. Hon. Nowicki-Eldridge
This is, as you might imagine, a description of a mess where the West Virginia agency never contacted the Tribe, and then didn’t respond to attempts by the Tribe to get in contact with the agency. Then foster parents were granted intervenor status as well. The decision doesn’t state who made the EIF argument, but the Indian Law Clinic has been hearing the argument more and more from foster parents seeking to deny transfer to tribal court. While the Clinic was not involved in this case, it is reminiscent current appeals the Clinic is working on. My sense from the opinion is that the tribal briefing was likely excellent. The West Virginia Supreme Court didn’t buy it:
This unequivocal statement plainly dispels any notion that the EIF exception is compatible with the ICWA. Accordingly, we join the “swelling chorus of [jurisdictions] affirmatively reject[ing] the EIF exception[,]” ICWA Proc., 81 Fed. Reg. 38778, 38802 (June 14, 2016), and hold that West Virginia does not recognize the Existing Indian Family exception to the Indian Child Welfare Act, 25 U.S.C. §§ 1901 to -1963 (2021). Accordingly, the circuit court erred in adopting the EIF exception and subsequently relying on that exception to determine that the ICWA was inapplicable to this case.
Another fun thing that has been happening a lot is parties arguing the 1979 Guidelines rather than the 7 year old 2016 Regulations and Guidelines:
Before this Court several of the parties cited this guidance as a basis for arguing that the Tribe is not entitled to transfer because it knew of these proceedings in December 2021 but did not move to transfer until eight months later in August 2022. What the circuit court and the parties fail to recognize is that the 1979 Guidelines were explicitly abrogated and replaced by the BIA when it promulgated the 2016 Guidelines. See Guidelines for Implementing the Indian Child Welfare Act, 81 Fed. Reg. 96476 (Dec. 30, 2016) (“The [2016] guidelines replace the 1979 and 2015 versions[.]”). Therefore, we do not find the 1979 Guidelines persuasive, nor do we rely upon any guidance contained therein.
***
The proceeding regarding termination of the parental rights of Respondent Father was not at all advanced at the time the Tribe filed its motion to transfer the proceeding. Respondent Father had not been adjudicated; indeed, neither a preliminary nor adjudicatory hearing had even been scheduled. While five months passed between March 2022 and the Tribe’s motion to transfer in August 2022, the record reveals that those months were devoted to ascertaining whether the ICWA applied to this case, and not to any consideration of the merits of the amended petition. In short, there was nothing “advanced” about this proceeding when the Tribe moved to transfer.
Finally, this Court did not just send the case back for reconsideration, but rather ordered the lower court to transfer jurisdiction to the Delaware Tribe.
Here is the press coverage on the case: https://www.courthousenews.com/delaware-tribe-of-indians-applauds-west-virginia-supreme-court-decision-affirming-its-jurisdiction-in-child-welfare-case/
No Brackeen Decision Today
Next opinion day is June 15.
Remember, no matter what someone tells you, the Court does not suddenly or randomly release opinions. If the Court’s website doesn’t say they are releasing opinions, they are not releasing opinions that day. The website also says what time (10am) they are convening to release opinions. We absolutely do not know which opinions they will release, or how many, just that they will release some.
This alert is definitely not based on phone calls I got last Sunday.
No Brackeen Today/Observations on Foster Parent Intervention
Next opinion day is June 8.
While we wait for Brackeen, I wanted to highlight this story from Colorado, where the Office of Respondent Parents’ Counsel has been doing great work on ICWA cases. In this case, they have collected incredibly useful data on what happens to a child protection case when foster parents intervene. This article is not ICWA specific, but the last two cases the MSU Indian Law Clinic has had on appeal are a direct result of the attempt at foster parents to intervene. In both cases, the court and agency agreed with the tribes and followed ICWA. In both cases, the foster parents sought to intervene and appealed the case. As we look past Brackeen, addressing this issue of foster parent intervention generally is vital.
According to data provided by the ORPC foster parent intervention has increased in Colorado in the past decade. In 2020, 10% of Dependency and Neglect cases had Intervenors. When foster parents intervene, the chance of reunification decreases from 62% to 22% for the birth parents.
emphasis added
According to the ORPC, the average Dependency and Neglect Case costs $3,500 to litigate, but when foster parents intervene the average court cost goes up to $7,500.
Montana Legislature Sends State ICWA Bill to Governor’s Desk
Here is the bill: HB0317
There has been a lot of wrangling on this one, but in the end this bill has the protections of ICWA as well as incorporating language from the federal regulations.
And just for the record, the Montana Legislature is currently run by a Republican super majority, as is Wyoming and North Dakota, all of which have now passed state ICWA bills. ICWA is a bipartisan law.
North Dakota Passes State ICWA Law, Needs Governor’s Signature
Here is a link to the legislative page. The downloaded bill is on the Turtle Talk State ICWA Law Page.
Press coverage here:
Lawmakers voted nearly unanimously this week to pass House Bill 1536, which would weld the crux of the federal Indian Child Welfare Act (ICWA) onto North Dakota’s law books. The bipartisan legislation now goes to Gov. Doug Burgum, whose spokesman did not immediately respond to a request for comment.
Turtle Talk 
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