Here is the opinion.
Alaska SCT Decides ICWA Active Efforts Case
Here is the opinion.
ICWA
ICWA and the Media
There has been a lot of ICWA talk in national and local news this week due to a case we linked to here. I spoke with a person at the CNN In America blog (nothing up there yet) just about the general provisions of ICWA, and what struck me in that conversation was how most people today still know virtually nothing about this law.
This same week we had two cases argued at the Michigan Supreme Court on notice compliance. We’re having a meeting about enacting a state ICWA law here in Michigan. We received a link to this newsletter about ICWA compliance and monitoring at the trial court level in Minnesota. Sometimes it feels like ICWA is everywhere, if a person knows where to look for it. And yet most national media coverage of the Act is usually so biased and ignorant there’s no way the coverage doesn’t gin up serious opposition to the Act (the recent exception to this was NPR’s excellent three part series on ICWA and foster care in South Dakota). And thus one, relatively minor, conundrum–talk to the media about the Act in the hopes of gaining a semblance of balance, or ignore the media in a case that is putting a child in the middle of that very media storm?
The case garnering this attention is difficult to get a handle on, fact-wise, and we’re hesitant to add more commentary or links here, as we can’t believe this level of attention is good for the child. It certainly isn’t good attention for the Act, given the adoptive parents’ full-out assault on it. There’s a reason these cases are usually, or ought to be, anonymous. Regardless, we publish the Cherokee Nation’s statement here to one media outlet, since it points out it has called on the court for both a gag order, and to release the final order (something we’d certainly feel more comfortable commenting on, rather than inconsistent media accounts):
Chrissi Ross Nimmo, the Assistant Attorney General who represented the Cherokee Nation in this case, gave FOX23 this statement:
“As a matter of law and policy, the Cherokee Nation’s attorney general’s office generally does not comment on juvenile cases due to their sensitive nature and confidential information. In an effort to quell the undue outside attention to this sensitive affair, the Cherokee Nation attorney general’s office filed a motion for a gag order in this case Wednesday afternoon, along with a motion to release the judge’s final order to the public. I ask that all parties involved in the matter respect the confidential nature of these juvenile court proceedings. The Cherokee Nation has 115 Indian Child Welfare employees and nine assistant attorneys general who work tirelessly to fight for the rights of Cherokee children and their parents, not only within our 14-county jurisdiction, but in tribal, state and federal courts across the nation. The Indian Child Welfare Act was written to help keep Native American children with their families whenever possible – a concept embraced wholeheartedly by the Cherokee Nation.”
Second ICWA-Related Argument at Michigan SCT on Wednesday
Here is the issue in In re Gordon:
Courtney Hinkle first came to the attention of Children’s Protective Services after she was suspected of neglecting her months-old infant. When the child was one year old, CPS learned that he had been treated for second-degree burns to his hands, allegedly caused by a fall into a fireplace, and that Hinkle had not obtained follow-up medical care for him as directed. CPS filed a court action, and the child was taken into protective custody and placed in foster care. After attempting to provide services for Hinkle and concluding that she did not benefit from them, the Department of Human Services filed a petition seeking termination of Hinkle’s parental rights. At the conclusion of the termination hearing, the circuit judge found that DHS had established grounds for termination, and that termination was in the child’s best interests.
Hinkle appealed to the Court of Appeals, contending that DHS and the circuit court failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq., and failed to create a complete record of their attempts at compliance. Under the ICWA, child custody proceedings involving foster care placement or termination of parental rights to an “Indian child,” 25 USC 1903(4), are subject to specific federal procedures and standards. ICWA requires that an interested Indian tribe receive notice of termination proceedings involving an Indian child, 25 USC 1912(a). Under the ICWA, an “Indian child” is any unmarried individual less than eighteen years of age who is either (1) an Indian tribe member or (2) both eligible for Indian tribe membership and an Indian tribe member’s biological child. 25 USC 1903(4). The question whether a person is a member of a tribe or eligible for membership is for the tribe itself to answer. In re NEGP, 245 Mich App 126, 133 (2001). The failure to comply with the Indian tribe notice requirements may lead to invalidation of the proceedings. 25 USC 1914.
The circuit court record disclosed that Hinkle informed the judge that her family was part of the Saginaw Chippewa Indian tribe in Mt. Pleasant. Hinkle stated that she and her child were not tribal members, and that her biological mother was not a member of the tribe, but that her mother’s siblings were, including the aunt who was caring for her son during his foster care placement. She stated that she and her mother were awaiting word as to their own eligibility for tribal membership. The circuit judge directed DHS to investigate the child’s possible tribal membership and to notify the tribe of the proceedings. At a later hearing, the caseworker stated that she mailed a certified letter to the tribe, but had not heard back as to the child’s membership. At a subsequent hearing, the caseworker informed the court that Hinkle’s mother had been told that the family was not eligible for tribal “benefits.” The foster mother stated that she was a tribal mother, and that she tried to obtain information regarding the child’s status from the tribe, but that the tribe refused to release that information to anyone but DHS or the court. The court directed the caseworker to contact the tribe again. The ICWA notice issue was not mentioned again at any hearing and the file contains no mention of any further communications with the tribe.
The Court of Appeals affirmed the trial court’s termination of Hinkle’s parental rights in an unpublished per curiam opinion. Hinkle did not demonstrate that the trial court and DHS failed to satisfy ICWA’s notice requirement, the Court of Appeals stated; there was ample evidence that the tribe had actual notice of the proceedings, the appellate court said. Moreover, “[g]iven respondent’s own statement in court that she received a response that she and her son were not eligible for tribal membership, the trial court was relieved from embarking on further ICWA tribal notification efforts,” the Court of Appeals concluded. Hinkle appeals.
And here are the briefs:
Petitioner-Appellee’s Response to Application for Leave to Appeal>>
Respondent-Appellant’s Application for Leave to Appeal
Respondent-Appellant’s Supplemental Brief>>
Michigan Indian Legal Services, Inc. and The American Indian Law Section of the State Bar of Michigans’ Amici Curiae Brief>>
Michigan Supreme Court to Hear Oral Arguments in ICWA Conditional Affirmance Case Wednesday
The case is In re Morris. The issue is:
Natasha Lynn Brumley and David Lenin Morris challenge the termination of their parental rights to their daughter, who was removed from Brumley’s custody after the child tested positive for cocaine at birth. During a preliminary hearing in family court, both parents indicated that they were of Cherokee descent. The family court ordered the parents to comply with a parent-agency agreement, and the Department of Human Services provided various services to Brumley and Morris, including substance abuse rehabilitation programs for Brumley and parenting classes for both of them. But the family court ultimately terminated their parental rights, finding in part that neither Brumley nor Morris benefitted from the services offered to them.
The parents appealed, but the Court of Appeals affirmed the circuit court’s ruling in an unpublished per curiam opinion. Because the Court of Appeals did not initially address the Department of Human Services’ confession of error regarding its failure to give notice under the Indian Child Welfare Act, 25 USC 1912(a), the Supreme Court remanded the case to the Court of Appeals to address that issue. Under the ICWA, 25 USC 1901 et seq., child custody proceedings involving foster care placement or termination of parental rights to an “Indian child,” 25 USC 1903(4), are subject to specific federal procedures and standards. ICWA requires that an interested Indian tribe receive notice of termination proceedings involving an Indian child: “In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. . . . No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary . . . .” [25 USC 1912(a).] Under the ICWA, an “Indian child” is any unmarried individual less than 18 years of age who is either (1) an Indian tribe member or (2) both eligible for Indian tribe membership and an Indian tribe member’s biological child. 25 USC 1903(4). The question whether a person is a member of a tribe or eligible for membership is for the tribe itself to answer. In re NEGP, 245 Mich App 126, 133 (2001). The failure to comply with the Indian tribe notice requirements may lead to invalidation of the proceedings. 25 USC 1914.
On remand, the Court of Appeals acknowledged the Department of Human Services’ statement that it failed to comply with the ICWA’s notice requirements. The appellate panel conditionally affirmed the circuit court’s termination ruling, but remanded the case to the circuit court so that it could comply with the notice requirements of the ICWA. Morris appeals.
Here are the briefs:
Petitioner-Appellee’s Brief on Appeal>>
Petitioner-Appellee Lawyer Guardian Ad-Litem’s Brief on Appeal>>
Respondent-Appellant’s Brief on Appeal>>
Respondent-Appellant’s Reply Brief>>
American Indian Law Section of the State Bar of Michigan’s Amicus Curiae Brief>>
Little Traverse Bay Bands of Odawa Indians’ Amicus Curiae Brief>>
South Carolina ICWA Custody Battle
This story from CNN is one of several reports on a recent custody battle involving ICWA.
Cheyanna Jaffke on the Existing Indian Family Exception in the Age of Obama
Cheyanna Jaffke has posted her paper, “Judicial Indifference: How Does the ‘Existing Indian Family’ Exception to the Indian Child Welfare Act Continue to Endure in the Age of Obama?”on SSRN. Here is the abstract:
Even though Congress created the Indian Child Welfare Act (ICWA) over thirty years ago to preserve the relationship between tribes and their members, courts created, and some continue to use, the “existing Indian family” exception to avoid application of the ICWA to children and/or parents that the courts do not believe are Indian-enough for the ICWA. The continued use of the “existing Indian family” exception shows that there is either judicial laziness, indifference, or intolerance fueling the application of the “existing Indian family” exception and blemishes those states that choose to continue to apply it.
This article first discusses the need for the ICWA after a long period between the 1800s and the 1970s wherein United States policy was to attempt to assimilate American Indian children by removing 25-35% of all American Indian children from their American Indian homes and tribes and place them with non-American Indian families.
Next, the article sets forth the pertinent provisions and application of the ICWA and argues that the ICWA is still necessary because courts are seeking to remove American Indian children from their homes and place them with non-American Indian families.
The article next sets forth the “existing Indian family” exception, phoenix-like birth, death, and subsequent resurrection into United States law.
This article discusses the need to reject the “existing Indian family” exception because it ignores the plain language of the ICWA, perpetuates stereotypes and the assimilation of American Indians, ignores tribal interests, and provides inconsistency in the application of the ICWA.
South Dakota SCT Rules against ICWA Tribal Court Jurisdiction
In what appears to be a kind of factual opposite of Holyfield, the court held that tribal member grandparents cannot establish reservation domicile of off-reservation tribal member children two years after the beginning of state court proceedings.
Here is the opinion in Merrill v. Altman.
US Officials Announce Meeting on South Dakota Indian Foster Care
Here.
Montana SCT Reverses Indian Parental Termination for Failure to Comply with ICWA
Here is the opinion in In the Matter of J.W.C.: J.W.C. Opinion
Here is the Court’s synopsis:
The Montana Supreme Court reversed and remanded the District Court’s order terminating parental rights to four Indian children. Mother, Father, and the children were all members of the Fort Peck Assiniboine and Sioux Tribes (Tribes). The Department of Public Health and Human Services petitioned the District Court for emergency protective services, adjudication as youths in need of care, and temporary legal custody for the children upon finding the parents unable to provide food or shelter. As allowed under the Indian Child Welfare Act (ICWA), the Tribes filed a Notice of Appearance and Intervention and Mother moved to transfer the case to the Fort Peck Tribal Court. The Tribes never affirmatively accepted or declined jurisdiction. Acknowledging this, the District Court maintained jurisdiction, terminated the parental rights of Mother and Father, and denied Mother’s request to continue the termination and appoint counsel for
the children.On appeal, Mother argued the District Court should have transferred the case to tribal court, as required by ICWA, and should have appointed counsel for the children, as required by Montana law. In child custody cases when Indian children reside off the reservation, a district court generally must transfer jurisdiction to the tribal court unless the tribal court affirmatively declines to accept jurisdiction, as specified by ICWA and its interpretive guidelines. The Tribal Court never declined jurisdiction and the District Court never held the requisite jurisdictional transfer hearing. On remand, the District Court was directed to properly determine jurisdiction, hold a transfer hearing, and appoint legal counsel for the children.
Here are the briefs: Continue reading
Cherokee Nation v. Ketchum Cert Petition — ICWA Membership Issue
The Cherokee Nation and Britney Jane Little Dove Nielson (child’s mother) have filed a petition for cert in the Supreme Court of the Tenth Circuit’s controversial decision to override the Cherokee Nation’s law establishing automatic temporary citizenship for all children born to Cherokee descendents when determining whether a child was an “Indian child” for the purposes of ICWA.
The Cert Petition is here. Previous materials on this case are here. Dean Leeds earlier commentary on this case is here. While the likelihood the Court grants cert is slim, this is an incredibly important case implicating not just ICWA determinations but tribal citizenship requirements, and the respect granted them in federal courts, in general.
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