Judge Petoskey, Judge Connors, Chief Justice Young, and Justice McCormack
Child Welfare
Three Recent California ICWA Cases
Reported case on notice, where the social service agency attempted to fix the notice issues while the case was on appeal. Fourth District remanded for proper notice.
An unreported case where the trial court refused to apply ICWA because of a lack of written communication from the tribe, though the agency received verbal confirmation of the children’s membership. The case was reversed, also by the Fourth District.
Finally, an unreported case using the “family lore” argument to find there was no notice necessary. Haven’t seen a family lore case in California since 2011. Those cases were all out of the Second District, while this one is out of the First.
ICWA Case out of Texas Court of Appeals Declines to Extend Baby Girl
Here is the opinion.
The Court reversed a termination of parental rights because there was no qualified expert witness testimony. The State argued that because of Adoptive Couple v. Baby Girl, the section of ICWA governing burden of proof and QEW (25 U.S.C. 1912(f)) did not apply. The Court rejected this argument.
In addition, the Court used the 2015 Guidelines to determine if a proper QEW testified:
The Bureau of Indian Affairs has created guidelines for state courts to use in Indian child custody proceedings. Bureau of Indian Affairs Guidelines for State Courts and Agencies in Indian Child Custody Proceedings, 80 Fed.Reg. 10147 (February 25, 2015). These guidelines do not have binding legislative effect, but Texas appellate courts have utilized the Guidelines when interpreting ICWA. See In re K.S., 448 S.W.3d 521, 529 (Tex.App.–Tyler 2014, pet. denied) (utilizing the earlier version of the Guidelines); In re J.J.C., 302 S.W.3d 896, 900 (Tex.App.–Waco 2009, no pet.)(same); In re R.R., 294 S.W.3d at 217 (same); see also Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152, 163-64 (Tex.App.–Houston [14th Dist.] 1995, orig. proceeding). The updated BIA Guidelines address the applicable standards of evidence.
The updated BIA Guidelines address the applicable standards of evidence. Section D.3(b) states:
The court may not order a termination of parental rights unless the court’s order is supported by evidence beyond a reasonable doubt, supported by the testimony of one or more qualified expert witnesses, that continued custody of the child by the parent or Indian custodian is likely to result in serious harm to the child. [Emphasis added].
80 Fed.Reg. 10156. Thus, the challenged finding cannot stand unless it is supported by the testimony of a qualified expert witness.
Section D.4 pertains to the qualifications an expert witness must possess.
***
After reviewing the entire record, we conclude that the challenged finding is not supported by the testimony of a qualified expert witness. The caseworker, Lizette Frias, was not shown to possess the required knowledge or expertise. There is no evidence that Frias is a member of the Oglala Sioux tribe or another tribe, or that she is recognized by any tribe as having substantial experience in the delivery of child and family services to Indians. Further, there is no evidence that she has knowledge of the prevailing social and cultural standards and childrearing practices within the Oglala Sioux tribe.
Navajo Nation Motion for Intervention and Motion to Dismiss in ICWA Goldwater Litigation
Briefing Completed in Gila River Indian Community Motion to Intervene in ICWA Goldwater Litigation
47 – Gila River Motion to Intervene
72 – OppositiontoGilaIntervention
76 – Gila River Reply in Support of Motion to Intervene
Plaintiffs in the case also filed their response to DOJ’s motion to dismiss. A hearing on the matter is scheduled for December 18.
Collected filings here.
Reported ICWA Notice Case out of California
Here, the juvenile court properly inquired about Shahida’s Indian ancestry at each hearing, and the Department conscientiously interviewed several family members to obtain additional information. During these family interviews, the maternal great uncle informed the Department he had Creek and Seminole ancestry. The maternal grandmother also informed the Department she believed, based at least in part on photographs she no longer possessed, she had Blackfeet ancestry. The court found the Blackfeet claim insufficiently supported and, according to the Department, the Creek and Seminole ancestry too remote.Neither explanation proffered by the court and the Department constitutes an adequate ground for failure to give notice of Kadence’s dependency case to the identified tribes. As to the remoteness of Kadence’s possible connection to the Seminole and Creek tribes, although the suggestion of Creek and Seminole ancestry was based on information about her great-great-great grandparents, nothing was presented to the juvenile court or included in the record on appeal concerning the membership rules for those tribes. It could well be, for example, that membership under tribal rules is passed to successive generations, as a matter of right, through bilineal or double descent without regard to intermarriage or blood quantum and that the absence of formal enrollment does not affect tribal membership. Under those circumstances Kadence could be an Indian child within the meaning of ICWA.(See Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 72, fn. 21 [98 S.Ct. 1670, 56 L.Ed.2d 106 [Indian tribe is final arbiter of its membership rights] . . .
Senator Heitkamp (D-ND) Highlighting Native Youth on Instagram
In support of S. 246, The Alyce Spotted Bear and Walter Soboleff Commission on Native Children Act, Senator Heidi Heitkamp is highlighting Native youth from North Dakota on her Instagram account starting yesterday. It will continue over the next few days. There are a lot of challenges that Native kids face, but these profiles are meant to highlight kids who have overcome them using the hashtag #AgainstTheOdds.
NAICJA Board of Directors Unanimously Support AG and ILOC Reports
Resolution No. 2015-01
Resolution No. 2015-02
The National American Indian Court Judges Association are supporting the Indian Law and Order Commission’s November 2013 report entitled “A Roadmap for Making Native America Safer,” which “advocates for tribal justice systems to have the ability to fully express their sovereignty by opting out of the current jurisdictional maze, and exercise criminal jurisdiction over all persons without any sentencing limitations, including juveniles.” However, NAICJA prefers that all individuals charged with crimes under this enhanced tribal jurisdiction be provided with civil rights protections equivalent to those guaranteed by the Indian Civil Rights Act, instead of the U.S. Constitution.
NAICJA is also supporting the November 2014 report from the Attorney General’s advisory committee on American Indian/Alaska Native Children Exposed to Violence entitled “Ending Violence So Children Can Thrive” which “calls for the restoration of the inherent sovereignty of tribes to assert full criminal jurisdiction over all persons who commit crimes against AI/AN children in Indian country.”
Briefing Completed in Nat’l Council for Adoption v. Jewell (Guidelines Litigation) on Motion to Dismiss
Hearing on the matter is set for 11/13. Government’s Reply Brief here.
Even if BAF’s claims were not precluded by the Memorandum Opinion, however, they would fail in their own right. BAF does not have standing, either for itself or to assert the interests of unspecified birth parents, nor has it alleged any basis for this Court to conclude that its claims are ripe. If adoption proceedings are underway, then the Court should abstain from hearing the present suit or dismiss the declaratory relief as contrary to the Anti-Injunction Act. BAF cannot demonstrate that “legal consequences flow” from the Guidelines so as to render them reviewable because it concedes that Defendants do not enforce the Guidelines, and makes no argument that Defendants otherwise treat them as controlling. Nor does BAF cite any binding authority for the propositions that the Guidelines are race-based, that birth parents have a fundamental right to dictate the adoptive placement of their child, that ICWA exceeds the Indian Commerce Clause, or that non-binding Guidelines may commandeer state entities. For these reasons, and because they have not alleged a basis for relief under Bivens, Plaintiffs’ claims fail for lack of subject-matter jurisdiction and as a matter of law and must be dismissed.
Previous filings here. (documents 52, 56, 64, 67)
DOJ Motion to Dismiss and Supporting Amicus Briefs in Goldwater (ICWA) Litigation
Motion to Dismiss here.
Footnote 8:
Plaintiffs do not seek the type of relief – increased funding or systemic changes in the quality of child-welfare services provided by state agencies – that the Ninth Circuit found unworthy of Younger abstention in Jamieson, 643 F.2d at 1354; instead, they demand that this Court enjoin state courts and agencies from applying long-standing state and federal laws to their ongoing child-custody proceedings, which clearly warrants equitable restraint under Younger.
(emphasis added)
Also:
Membership in a federally recognized Indian tribe, or being born the child of a member of such a sovereign entity, is not a forced association. ICWA does not require association, but rather protects associations that already exist.
In addition, Casey Family Programs plus twelve other national child welfare organizations filed this amicus brief (gold standard brief).
Finally, it is a key best practice to require courts to follow pre-established, objective rules that operate above the charged emotions of individual cases and that presume that preservation of a child’s ties to her parents is in her best interests. See National Council of Juvenile and Family Court Judges, supra, at 14. Application of the best-interests-of-the-child standard should be guided by substantive rules and presumptions because “judges too may find it difficult, in utilizing vague standards like ‘the best interests of the child,’ to avoid decisions resting on subjective values.” Smith v. Organization of Foster Families for Equal. & Reform, 431 U.S. 816, 835 n.36 (1977). Courts should not terminate a child’s relationship to a parent based on “imprecise substantive standards that leave determinations unusually open to the subjective values of the judge.” Santosky v. Kramer, 455 U.S. 745, 762-763 (1982).
Finally, the national Native organizations (NCAI, NICWA, AAIA) also filed this amicus brief (historical brief).
The Indian Child Welfare Act must be viewed in light of the historical abuses that it was intended to stop. For most of American history prior to ICWA’s enactment, federal Indian policy favored the removal of Indian children from their homes as a means of eroding Indian culture and tribes. State and private child welfare agencies later took on the implementation of these policies, carrying them out with little concern for the families or communities they affected. By the 1970’s, the widespread and wholesale removal of Indian children from their parents and communities resulted in a crisis recognized as “the most tragic and destructive aspect of American Indian life today.” H.R. REP. No. 95- 1386, at 9 (1978), reprinted in 1978 U.S.C.C.A.N. 7530, 7532.
Turtle Talk 
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