Today Texas, the individual plaintiffs, the Solicitor General, and the intervening tribal nations filed petitions for certiorari with the U.S. Supreme Court asking the Court to review the Fifth Circuit decision regarding the constitutionality of the Indian Child Welfare Act. There will be some additional briefing over the next 30 days, and then/eventually the Court will decide whether to hear the case or not.
The Indian Law Clinic at MSU Law represents the intervening tribes in this case.
This season is all about the Indian Child Welfare Act and the federal attacks on it.
ALM – as referred to in court documents – is a Navajo and Cherokee toddler. When he was a baby, a white couple from the suburbs of Dallas wanted to adopt him, but a federal law said they couldn’t. So they sued. Today, the lawsuit doesn’t just impact the future of one child, or even the future of one law. It threatens the entire legal structure defending Native American rights.
In season 2 of This Land, host Rebecca Nagle investigates how the far right is using Native children to quietly dismantle American Indian tribes.
Tune in beginning August 23rd.
There is a lot going on in this case, including issues involving a GAL (best interests attorney) advocating for best interests rather than the child’s state interests and opposing transfer to tribal court, transfer to tribal court issues, and termination of parental rights issues. The Tribe made a solid run at trying to get the GAL removed for a stated interests attorney. South Dakota law is pretty clear that the appointed attorney for a child should be a BI attorney, and the Court stated:
We adopt this approach as it relates to a child’s attorney appointed in abuse and neglect proceedings pursuant to SDCL 26-8A-18. The child’s attorney appointed pursuant to the statute is required to advocate for the child’s best interest. However, when the attorney’s determination of what constitutes the child’s best interest conflicts with the child’s expressed wishes, the ethical obligations of the attorney require consultation with the child to insure that the child’s objectives are presented to the court, along with the basis for the attorney’s determination of the child’s best interest. This approach “gives priority to the paramount goal of discerning the child’s best interest while enabling the lawyer to advocate an opposing viewpoint without fear of ethical violation.” J.P.B., 419 N.W.2d at 392.
Ultimately the child did testify (which, ooof, if you read the opinion), and the Court affirmed the termination and the denial of transfer.
South Dakota is sending us into the weekend with a positive attitude with this decision. In a shocking development [not shocking] it turns out that if an agency “ceased providing any efforts toward reunification after the December 2019 hearing. This means that from December 2019 to September 2020 no efforts were made by DSS to provide Mother remedial services or rehabilitative programs and no efforts were made to reunite C.H. with Mother” then, “[t]he circuit court’s finding of fact to the contrary—that DSS ‘has been providing active efforts to this family since October 2, 2018; including in-home services to prevent placement, and ongoing services to allow safe return of the child to no avail’—is not supported by the record. To the extent this finding suggests that DSS’s efforts were ongoing up to the point of the dispositional hearing, it is clearly erroneous.”
Unusually, I didn’t add any of the italics. That’s all the South Dakota Supreme Court.
Also, anyone else get excited when a Court starts a paragraph like this: “Because this error [termination of parental rights] requires a remand, we take this opportunity to address additional errors that occurred below to prevent their reoccurrence.”? _insert eating popcorn emoji_
So, in addition to not appointing the child an attorney despite state law requiring it, the Court also says “Second, although not raised as an issue on appeal, there are glaring defects involving ICWA mandates in the underlying proceeding that we cannot ignore.” The QEW testimony did not satisfy the evidentiary burden, and the court found that termination was not the least restrictive alternative given the child’s best interests.
Mom did a ton of work on her own in this case despite and in spite of the state’s inaction. The Court’s recognition of this is a welcome change from most child welfare decisions.
In a classic “ICWA means what it says” case (that means there is a lot of writing about dictionary definitions of terms in this opinion), the Oklahoma Supreme Court held a court can’t deny an indigent parent appointment of counsel for two years prior to a termination of parental rights filing.
The trial court’s discharge of Mother’s court-appointed counsel left her without legal representation: 1) during her twin daughters’ removal from one relative foster home to another; 2) at all of the court-ordered ISP review/permanency hearings, which the record establishes she regularly attended; 3) during the Post-Adjudication Review Board (PARB) meeting held January 2017, when the Board advised Mother “to obtain legal aid to obtain custody of her children” and “DHS to help her complete this application”;19 and 4) at the August 23, 2017 hearing, during which the trial court approved DHS’ termination of trial reunification. Based on our interpretation of § 1912(b), Mother was required to have court-appointed counsel during the entire foster care placement proceeding.
Justice Montoya-Lewis does it again, soundly rejecting the futility doctrine when it comes to providing active efforts to parents, and providing a treatise on what active efforts are and why ICWA requires them. Trying to pull out one quote is nearly impossible–just go read from page 16 to the end. And her last paragraph may become on one of the most quoted in ICWA caselaw:
The history of the United States and its relationship with Native tribes, communities, and families tell a story of promises made and broken. We rely on the commitment made by Congress and the Washington State Legislature to decline to remove Native children from their families and communities unless absolutely necessary and to actively work toward reunification in those limited instances when the high standard for removal has been met. Today, we hold our state child welfare system and our courts to those promises. We reverse the dependency court’s finding that the Department provided active efforts and remand to the trial court with instructions to order the Department to provide active efforts in accordance with this ruling. We also order the dependency court to not proceed to hear the termination petitions until the Department has provided active efforts.
In addition, the Washington team assembled a number of amicus briefs (including the MSU Indian Law Clinic) on this case. A special shout out to Tara Urs for being so on top of these cases every time.
I was just alerted to this rule change, which is a couple years old (let’s all just blame being stuck in our homes for me not finding out before this).
Final_Motion for Summary Judgment
Plaintiffs have standing to bring this case. Plaintiffs here include the largest federally recognized tribes in California and in the United States, a coalition of dozens of tribes located in California, a foster youth and foster care alumni organization in Alaska, and three organizations from around the country that work with LGBTQ+ foster youth and/or youth who have experienced sex or labor trafficking. Each of these Plaintiffs works to improve the living conditions of youth in child welfare systems and to reduce the chance they will end up homeless, incarcerated, or otherwise severely harmed while in care. The data that Defendants have abandoned are irreplaceable for the efficacy of these efforts. The 2020 Final Rule substantially impedes Plaintiffs’ ability to pursue their missions. It makes it harder for tribes to vindicate their and their children’s rights and to protect their children’s well-being. Likewise, the rule makes it more difficult for groups serving youth in care, including LGBTQ+ youth, to address the overrepresentation of those youth in the foster care population and to prevent their disproportionately negative experiences. The 2020 Final Rule thus injures Plaintiffs—along with the vulnerable children they serve.
Exhibits:
American Academy of Pediatrics_Amicus_Brief
Members Of Congress_Amicus_Brief
The MSU Indian Law Clinic represents the plaintiffs in this case along with our excellent partners, Democracy Forward and Lambda Legal.
The Indian Law Clinic represented the Chickasaw Nation in this case.
In their petitions, the parties asked us to address whether (1) ICWA requires
a district court to hold an enrollment hearing in circumstances like those present
here as a prerequisite to the termination of parental rights; (2) a district court can
order the Department to enroll children over a parent’s objection; and (3) the
division below erred in reversing the district court’s judgment rather than
ordering a limited remand.All of the parties before us, and the Nation itself, agree that the division
erred in requiring an enrollment hearing. Because we perceive no statutory basis
for such a hearing, and because such a hearing conflicts with the Nation’s exclusive
right to determine who is an enrolled citizen, we agree that the division erred in
requiring such a hearing.
With respect to the second issue presented, we note that neither parent
objected to the children’s enrollment. Accordingly, the issue as presented in the
petition for certiorari is not properly before us. In their briefs, however, the parties
appear to construe the question presented more broadly, namely, as asking us todecide whether the Department has an obligation to assist children who are
eligible for enrollment in becoming enrolled citizens of a tribal nation. Although
the issue is an important one and may call for legislative action, we conclude that
under current law, the Department has no such obligation. In certain
circumstances, however, it might well be the better practice for the Department to
advise on and perhaps assist with the enrollment process.
NCJFCJ has a cool new publication on ICWA courts, specifically the Duluth ICWA court which is (in my humble opinion) the national model for this work. Here is an older WaPo article on the court (one of the best mainstream press ICWA articles out there), and the publication is below.
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