Op-ed by Kitty-Ann van Doorninck, Helen Halpert and Ron J. Whitener, here, profiling the recent watershed ICWA decision by the Washington Supreme Court, authored by Justice Raquel Montoya-Lewis.
Indian Child Welfare Act Webinar – in 2 weeks
2:00-3:30 pm Pacific time
ASU Law’s Indian Legal Program is proud to host a webinar on the latest developments in the implementation of the Indian Child Welfare Act (ICWA). Please join us for an engaging session with panelists:
- Kimberly A. Cluff, former General Counsel, Morongo Band of Mission Indians
- Kathryn E. Fort, Director and Adjunct Professor, Michigan State University College of Law Indian Law Clinic
- Chrissi Ross Nimmo, Attorney General, Cherokee Nation Deputy
- April Olson (’06), Partner, Rothstein Donatelli LLP
- Lawrence Roberts (Moderator), Professor of Practice and Executive Director, ASU Law’s Indian Gaming and Tribal Self-Governance Programs
Register for free webinar at: law.asu.edu/icwa
The Oklahoma Bar Association’s Indian Law Section strategic planning committee is exploring the possibility of proposing a change to the current Oklahoma Bar Association pro hac vice rules. This potential change would allow out of state attorneys representing tribal nations to participate in ICWA state court proceedings in Oklahoma without being required to comply with the state’s pro hac vice rules.
If you could take a few minutes to complete the survey and forward this to other attorneys you know who might be interested in participating, we would greatly appreciate it. Thank you.
Debra Gee, Indian Law Section – Oklahoma Bar Association
Here is the survey
Now that the decision in out in In re Z.J.G., I feel like I can write about the reason this case was so important–beyond what I would consider the obvious (parent’s testimony), which I detailed in this post here.
The 2016 federal regulations for ICWA can be a double sided sword. There are portions of them that are absolutely vital and beneficial to the implementation and enforcement of ICWA. I think the most obvious one is the definition of active efforts in 25 C.F.R. 23.1, which finally gives a structure for one of the most important elements of the law. However, there are parts of the regulations that can be read in ways to counter ICWA’s protections. The reason to know section of the regulations has been one of those areas.
ICWA requires a bunch of stuff, including notice, when a court “knows or had reason to know” there is an Indian child in a child custody proceeding. 25 U.S.C. 1912(a) The regulation in contention in In re Z.J.G. was 23.107(c). That section states a court “has reason to know that a child involved in an emergency or child custody proceeding is an Indian child if:” and gives six elements. Those elements use the term “Indian child” in them–as in “any participant in the proceeding … informs the court that it has information indicating that the child is an Indian child.” 23.107(c)(2) (emphasis added). Some states, including Washington, took it upon themselves to read this regulation to mean that the child must be an “Indian child” as defined in ICWA–a member or eligible for membership and the biological child of a member–for a court to have reason to know. If this feels like circular reasoning, I’d argue that it is. Or, as Justice Montoya Lewis wrote:
However, this narrow interpretation commits the error addressed above: it assumes state agencies or participants will know and properly interpret tribal membership and eligibility rules. This interpretation diminishes the tribe’s exclusive role in determining membership and undermines the historical purpose of providing proper notification to tribes.
Decision at 30.
While a broad interpretation serves the statute’s purposes, a narrow interpretation would undermine the protection of Indian children and tribes. The “reason to know” finding triggers the requirement of formal notification to tribes. 25 U.S.C. § 1912(a); RCW 13.38.070(1). Without formal notification, tribes are likely unaware of the child custody proceedings. Lack of notice repeats the historical harms that predicated the passage of ICWA and WICWA: Indian children are more likely to be taken and then lost in the system, often adopted when legally free, primarily to non-Native homes; tribes are denied the opportunity to make membership determinations; and tribes are unable to intervene in the case or exercise jurisdiction. 25 U.S.C. § 1911. Further, the failure to timely apply ICWA may unnecessarily deny ICWA protection to Indian children and their families, which could lead to unnecessary delays, as the court and parties may need to redo certain processes in order to comply with ICWA standards. ICWA Proceedings, 81 Fed. Reg. at 38,802; see also 25 U.S.C. § 1914 (noting that any Indian child, parent, or tribe may petition any court to invalidate a child custody action “upon a showing that such action violated any provisions of sections 1911, 1912, and 1913 of this title”). As those who practice in the area of child welfare and dependency know, if a court determines that ICWA and WICWA should have been applied from the beginning of a case and was not, key decisions may have to be revisited because the burden of proof is higher at threshold stages of dependency cases.
Decision at 33-34.
Finally, a thing I think we forget a lot when talking about the regulations–they are the federal minimum standards. 25 C.F.R. 23.106. In Washington, for example, the state law has even more qualifying language. stating that a court has a reason to know an Indian child is involved in the case when it “knows or has reason to know a child is or may be an Indian child.” RCW 13.38.070. And while it could have done so, the Washington Supreme Court did not base its unanimous decision on just WICWA, but rather on ICWA, the regulations, and independently and alternatively on WICWA.
Anyway, yes, I did do my first oral argument in this case, thanks to a bunch of awesome lawyers, including the two women attorneys up at CCTHITA, and we worked with the Center for Indigenous Research and Justice and Hon. Whitener (ret.) to get all the briefs filed, and was lucky to work with the very excellent parent attorney, Tara Urs (co-author of my top five favorite law review articles ever).
Also, all of this is all available publicly in all the briefing here, but I wanted to break it down into a post for those who might not read ALL of that:
98003-9 – In the Matter of the Dependency of Z.J.G. and M.E.J.G., minor children.
Hearing Date – 06/25/2020
- Petitioner’s Supplemental Brief
- Respondents Supplemental Brief
- Answer to Amicus Briefs
- Respondents Answer to Amicus Brief
- Amicus – American Indian Law Professors, Center for Indian Law & Policy, et al
- Amicus – Youth and Children, Et Al
- Supplemental Amicus Children’s Tribes
- Amicus – Margaret Jacobs in Support of Petition for Review
- Amicus – American Indian Law Professors, Et Al
- Amicus – Children’s Tribes
- Answer to Petition for Review
- Petition for Review
- Respondents Answer to Amicus
- COA Appellants Brief
- COA Appellants Reply Brief
- COA Respondents Brief
The Supreme Court reversed the Court of Appeals. Justice Montoya-Lewis wrote the unanimous opinion.
The opinion is here:
It is a long opinion with a lot of history, and information. Friend of the blog Sandy White Hawk is featured extensively. There are important law review articles and social science articles cited.
Importantly for future cases, the Court held “We hold that a court has a ‘reason to know” that a child is an Indian child when any participant in the proceeding indicates that the child has tribal heritage.”
The Indian Law Clinic at MSU represented the Tribes in this case, along with the Center for Indigenous Research and Justice.
(To be clear I am Very Excited about this and it is a Big Deal.)
The rule removes fees and association requirements. It is Rule 39(a). This one took two tries to get adopted. The Arizona crew worked really hard to get this one done–congratulations!!
Opinion by Justice Beasley, putting the burden on the court to ensure inquiry and notice are done properly:
Here, the record shows that the trial court had reason to know that an Indian child might be involved. In eight separate filings, DSS indicated in its court reports that respondent-father indicated that he had Cherokee Indian heritage. Respondent-father also raised his Indian heritage during a Child and Family Team Meeting, and his comments were included in a report filed by DSS with the trial court. Although the trial court had reason to know that an Indian child might be involved in these proceedings, the trial court failed to readdress its initial finding that the Act did not apply and failed to ensure that any Cherokee tribes were actually notified.
who can also teach ICWA. I hear there’s even a casebook for that!
Sometimes I read the first paragraph of a decision and just put my head on my desk. Feel free to join me today:
An Alaska Native teenage minor affiliated with the Native Village of Kotzebue (Tribe) was taken into custody by the Office of Children’s Services (OCS) and placed at a residential treatment facility in Utah. She requested a placement review hearing after being injured by a facility staff member. At the time of the hearing, the minor’s mother wanted to regain custody. At the hearing the superior court had to make removal findings under the Indian Child Welfare Act (ICWA) as well as findings authorizing continued placement in a residential treatment facility under Alaska law. ICWA requires testimony from a qualified expert witness for the removal of an Indian child. At the hearing, the minor’s Utah therapist testified as a mental health professional. The minor, as well as her parents and the Tribe, objected to the witness being qualified as an ICWA expert, but the superior court allowed it. The minor argues that the superior court erred in determining that the witness was qualified as an expert for the purposes of ICWA. Because the superior court correctly determined that knowledge of the Indian child’s tribe was unnecessary in this situation when it relied on the expert’s testimony for its ICWA findings, we affirm.