ICWA

Greg Ablavsky Responds to Rob Natelson’s “Cite Check” of Ablavsky’s “Beyond the Indian Commerce Clause”

Matthew L.M. Fletcher

Gregory Ablavsky’s “Beyond the Indian Commerce Clause: Robert Natelson’s Problematic ‘Cite-Check’” is at the Stanford Law School blog, Legal Aggregate.

An excerpt:

Here’s that context: In 2007, Mr. Natelson wrote a law review article on the original understanding of the Indian Commerce Clause. Justice Thomas later cited Mr. Natelson’s article in a 2013 concurrence questioning Congress’s authority to enact the Indian Child Welfare Act (ICWA). In 2015, while a graduate student finishing my J.D./Ph.D. in American Legal History at Penn, I published Beyond the Indian Commerce Clause in the YLJ, which revisited original understandings of the sources of federal power over Indian affairs. In the article, I argued that the Founders thought that the federal government’s authority rested not just on the Indian Commerce Clause but on the interplay between multipleconstitutional provisions, including the Treaty Clause, the Territory Clause, the war powers, the law of nations, and the Constitution’s limits on state authority. The article also challenged Justice Thomas’s and Mr. Natelson’s conclusions in what Mr. Natelson later conceded was a “generally respectful” tone. Since the article, a number of subsequent articles by other scholars, some right-of-center and others disagreeing with my conclusions, have similarly challenged Mr. Natelson’s views.

Recommended reading. Professor Ablavsky is the leading legal historian of federal Indian law right now and filed a compelling amicus brief in Brackeen (here).

UM NALSA Talk on Brackeen with Leah Litman and Fletcher Today @ Noon

Matthew L.M. Fletcher

Comic here.

Penn Law/Field Center Session on the Origins and History of the Indian Child Welfare Act

Matthew L.M. Fletcher

Here:

Next session is December 1:

Briefing Completed in Haaland v. Brackeen [ICWA]

Kate Fort

With the reply briefs filed yesterday, all of the briefing is completed in the Supreme Court case Haaland v. Brackeen. Oral argument will be at the Court on November 9th. There will be a decision before the end of June, 2023, though there’s no good way to determine when that will arrive other than that.

Colorado Supreme Court On Inquiry and Notice

Kate Fort

Unfortunately the Colorado Court did not continue its strong position on notice they had in the 2006 ex rel B.H. case.

Thus, as the divisions in A-J.A.B. and Jay.J.L. aptly noted, B.H. “required notice to tribes under a different criterion than the one in effect today.” A-J.A.B., ¶ 76, 511 P.3d at 763; Jay.J.L., ¶ 32, 514 P.3d at 319. As such, B.H. is inapposite.

¶56 In short, while assertions of a child’s Indian heritage gave a juvenile court “reason to believe” that the child was an Indian child under Colorado law in 2006, see B.H., 138 P.3d at 303–04 (emphasis added), the question we confront in this case is whether such assertions give a juvenile court “reason to know” that the child is an Indian child under Colorado law in 2022, § 19-1-126(1)(b) (emphasis added). We agree with the divisions in A-J.A.B. and Jay.J.L. that mere assertions of a child’s Indian heritage (including those that specify a tribe or multiple tribes by name), without more, are not enough to give a juvenile court reason to know that the child is an Indian child. And, correspondingly, to the extent that other divisions of the court of appeals have expressly or impliedly reached a contrary conclusion, we overrule those decisions.

Opinion Here 22SC29

The Indian Law Clinic at MSU represented the tribal amici in this case, the Ute Mountain Ute and Southern Ute Indian Tribes.

Washington Court of Appeals on Standard of Proof at Initial Removal

Kate Fort

827995 orderandopinion

We also conclude that when the Department has reason to believe that a child is an Indian child under ICWA and WICWA, the heightened removal standard in those statutes applies to ex parte pick-up order requests. Because the Department had reason to know A.W. is an Indian child–information not shared with the trial court–and the trial court appliced an incorrect legal standard in assessing the Department’s evidence at that stage of the proceeding, the trial court erred in not vacating the pick up order.

Active Efforts Case out of the Colorado Supreme Court

Kate Fort

I did not realize how far behind I was on these. Here is a case from the end of June on active efforts from the Colorado Supreme Court.

2022-21sc245

To be honest, this case holding is one that most, if not all, states have come to agreement on either in case law, state law, or state policy.

The court concludes that ICWA’s “active efforts” is a heightened standard requiring a greater degree of engagement by agencies like DHS with Native American families compared to the traditional “reasonable efforts” standard.

Qualified Expert Witness Opinion from the Alaska Supreme Court

Kate Fort

sp-7604

The question of qualified expert witness (QEW) has confounded the Alaska Court for years, and unfortunately the regulations and guidelines didn’t provide quite as much clarification as they needed. That said, this decision seems to chart a new course for the Alaska Supreme Court:

As explained further below, the superior court’s interpretation of Oliver N. was mistaken. An expert on tribal cultural practices need not testify about the causal connection between the parent’s conduct and serious damage to the child so long as there is testimony by an additional expert qualified to testify about the causal connection.

* * *

In both cases there is reason to believe cultural assumptions informed the evidence presented to some degree. Had the cultural experts had a chance to review the record — particularly the other expert testimony — they may have been able to respond to and contextualize it. For instance, Dr. Cranor emphasized attachment theory and the economic situation of the families in both cases — areas that may implicate cultural mores or biases. If the cultural experts were aware of this testimony, they could haven addressed attachment theory, economic interdependence, and housing practices in the context of prevailing tribal standards.

Washington Supreme Court Opinion on Active Efforts

Kate Fort

Catching up on posting the summer’s reported ICWA cases, so I’m starting with this Washington Supreme Court opinion on active efforts for the initial or shelter care hear.

JMWOpinion 

We took discretionary interlocutory review of this case primarily to decide whether WICWA required the State to take active efforts to prevent the breakup of J.M.W.’s family before taking him into emergency foster care. Consistent with the plain text and purpose of WICWA, we conclude that it did. We also conclude that the trial court was required to make a finding on the record at the interim shelter care hearing that J.M.W.’s out of home placement was necessary to prevent imminent physical damage or harm. We remand to the trial court for further proceedings consistent with this opinion.

This opinion is trying to find some clarity in what ICWA standards apply when. Here are the two questions the Court sought to answer:

First, whether the department is required to make active efforts to keep an Indian child with their family under such circumstances as presented here. Second, whether the trial court was required to make a formal finding at the interim shelter care hearing that continued placement out of the home was necessary to prevent imminent physical damage or harm to the child.

The section question is essentially asking if the emergency standard of 1922 should apply whenever a child is placed out of the home and there is no 1912 (active efforts, QEW) findings. Interim shelter care hearings often happen before a jurisdictional/adjudication hearing, and can sometimes (often) extend the time before  adjudication hearing happens. In many states the 1912 findings happen either at adjudication or even after that, at the disposition hearing.

Neoshia Roemer on ICWA as Reproductive Justice

Matthew L.M. Fletcher

Neoshia Roemer has posted “The Indian Child Welfare Act as Reproductive Justice,” forthcoming in the Boston University Law Review, on SSRN.

Here is the abstract:

After decades of abuse through family regulation, Congress enacted the Indian Child Welfare Act of 1978 (“ICWA”) to prevent the breakup of Indian families and promote tribal sovereignty. While ICWA seems like an outlier that addresses one category of children, it is not an outlier. Rather, I argue that ICWA is a tool of reproductive justice. By formulating a legal rights framework for reproductive justice in American jurisprudence, I discuss how the reproductive justice movement is grounded in U.S. law beyond the right to terminate a pregnancy that the Supreme Court abrogated in Dobbs v. Jackson Women’s Health Organization. By looking at the history of reproductive rights in American Indian communities, I discuss how family regulation challenges reproductive rights and tribal sovereignty considering Dobbs and Oklahoma v. Castro-Huerta. Indian child removals exist in the same history, context, and policy that disrupted the reproductive rights of American Indian families and tribal sovereignty in other areas. Before concluding that ICWA is still good law and good policy to disrupt family regulation and protect the reproductive rights of American Indian peoples, I consider where challenges to ICWA in Haaland v. Brackeen fit into this paradigm and the ongoing need for the protection of tribal sovereignty and reproductive rights for American Indian peoples. For nearly 400 years, the disruption of reproductive rights, including family regulation, has been at the heart of federal Indian policy. The current frame of family regulation as “saving” children means that it is often divorced from the notion of reproductive rights. As the history behind and contemporary challenges to ICWA demonstrate, it should not, and cannot, be separated from the other reproductive justice issues facing American Indian communities. To strengthen legal protections for American Indian people that disrupt these government interventions, like ICWA, is to realize reproductive rights more fully in the United States.

Highly recommended!!!