ICWA

Michigan Court of Appeals Ruling in ICWA Case

bnewland2 Comments

We are told that the following report contains numerous inaccuracies, so please take the description of the case with a grain of salt. The majority opinion is here. The concurring/dissenting opinion is here.

From MIRS:

Federal Law Keeps Indian Mother, Baby Together

A Native American mother with a history of dating abusive men will be allowed to keep her newborn daughter, despite the cries of state social workers that a reunification could put the baby in physical and emotional danger.

The Court of Appeals ruled today that [Mother] should be given custody of 11-month-old [Daughter] based on a strict federal law the stresses the preservation of Indian households.

A ruling signed by appellate judges William WHITBECK and Jane MARKEY reverses a lower court ruling by saying that social workers didn’t do everything it could have under the Indian Child Welfare Act (ICWA) to keep the family together. Continue reading →

Justin L. v. Superior Court of Los Angeles County

Kate Fort

The Second Appellate Court in California issued a partially published opinion (Justin L. v. Superior Court) (or here). Part of the published part includes the following:

We are growing weary of appeals in which the only error is the
Department’s failure to comply with ICWA. (See In re I.G. (2005) 133
Cal.App.4th 1246, 1254-1255 [14 published opinions in 2002 through 2005, and
72 unpublished cases statewide in 2005 alone reversing in whole or in part for
noncompliance with ICWA].) Remand for the limited purpose of the ICWA
compliance is all too common. (Ibid.) ICWA’s requirements are not new. Yet
the prevalence of inadequate notice remains disturbingly high. This case presents a particularly egregious example of the practice of flouting ICWA. The
Department concedes it sent no notices, notwithstanding the juvenile court’s
specific order that it do so. And, we have been given no indication that the
Department has attempted to mitigate the damage it caused in failing to attend to
ICWA’s dictates by sending notices while this proceeding was pending.

I am not sure if the court is referring to cases only heard by the Second Appellate Circuit, or why the court only listed information from 2005. In the three years since then, departmental compliance hasn’t gotten much better. In a survey of state court ICWA cases for 2007 (1/07-2/26/08), California only published 19 ICWA cases but had 308 ICWA cases total. While nationwide, 161 ICWA cases were remanded for ICWA violations, a vast majority–85%–of those were California notice cases. In addition, of all the non-California ICWA cases nationwide, only 9 out of 58 cases were notice cases, and only 2 of those were remanded or overturned.

North Dakota Supreme Court Refuses to Apply ICWA

Kate Fort

In this disturbing opinion, the court found that the child was not an Indian child under ICWA, even though both the Oglala Sioux Tribe and the child’s mother demonstrated the child is eligible for membership in the Oglala Sioux Tribe

In re Adoption of C.D.