I get this question a lot and have had many discussions about it recently, so I know there are some specific attorneys out there who will be interested in this case:
“As a matter of first impression in Colorado, a division of the court of appeals holds that a child’s membership in a tribe, even absent eligibility for enrollment, is sufficient for a child to be an Indian child under the Indian Child Welfare Act.”
Not sure what’s going on, but here are the (unpublished) cases so far this year:
| In re King/Koon | 7-Jan | 2020 | Court of Appeals | Grand Traverse | Michigan | Un | Notice |
| In re K. Nesbitt | 11-Feb | 2021 | Court of Appeals | Hillsdale | Michigan | Un | Notice |
| In re Stambaugh/Pantoja | 11-Feb | 2021 | Court of Appeals | St. Joseph | Michigan | Un | Notice |
| In re Banks | 18-Feb | 2021 | Court of Appeals | Wayne | Michigan | Un | Notice |
| In re Dunlop-Bates | 18-Feb | 2021 | Court of Appeals | Livingston | Michigan | Un | Active Efforts |
| In re Cottelit/Payment | 18-Mar | 2021 | Court of Appeals | Chippewa | Michigan | Un | Qualified Expert Witness |
For comparison, Michigan had 6 cases total in 2020, 7 in 2019, 8 in 2018. These counts include both published and unpublished cases–while I kind of understand why the Court of Appeals designates so many as unpublished, it obscures how many MIFPA cases we have if we only count published cases.
3/10/21, Wednesday, 3:00 ET; 2:00 CT; 1:00 MT; 12:00 PT, 11:00am AK
Register for and join the session by CLICKING HERE
If you have questions or require special accommodations,
please contact Peter.Vicaire@va.gov, 612-558-7744
We’ve been looking forward to this article for a while. Highly recommended.
Here.
This Note argues that ICWA does not commandeer the States. Part I grounds the discussion in the history of genocide and colonization of Indian peoples. This historical context is crucial to understanding the passage of ICWA and the current reactionary effort to dismantle it. Part II provides a brief overview of the anti-commandeering doctrine and lays out the commandeering claims that opponents have leveled against ICWA. Additionally, this Part argues that ICWA fully aligns with modern anti-commandeering doctrine for four reasons. First, it is settled doctrine that state courts must enforce federal law. As such, anti-commandeering doctrine does not apply to state courts in the same way as it applies to the state political branches. Second, Congress may impose federal procedures on state courts to vindicate federal rights, federal causes of action, and–we argue–vital federal interests, including the protection of the federal trust obligation to Indian tribes. The procedural requirements imposed by ICWA on state courts fall within all three of these categories. Third, it is established doctrine that Congress may impose record-keeping requirements on the States, including the record-keeping required by ICWA. Fourth, contrary to the claims of its opponents, ICWA even-handedly regulates states and private entities, consistent with the Constitution’s anti-commandeering requirements. Part III explains the dangerous implications of the anti-commandeering argument for tribal sovereignty, demonstrating the high stakes of ICWA litigation for federal Indian law more broadly. The Note concludes with an exploration of how attacks on ICWA based on anti-commandeering doctrine threaten the very structure of federalism in the United States.
Congress passed the Indian Child Welfare Act (ICWA) in 1978 to address the widespread practice of state entities removing American Indian and Alaskan Native children from their homes and families. Congress found “an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by non-tribal public and private agencies and that a high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.”
This publication is a companion to others developed by the National Council of Juvenile and Family Court Judges (NCJFCJ) regarding ICWA for judges, court staff, attorneys, child welfare professionals, and other stakeholders involved in child welfare cases. It focuses on the use of active efforts as an essential tool in the implementation of ICWA and as a best practice in child welfare. It is intended to provide the history behind ICWA and, in doing so, outline both the why and the how of active efforts in ICWA implementation.
Here is the announcement.
Not to be too promotional, but they got three pretty solid presenters (no manel here!) for this CLE:
Ok, remember when I said this morning the California inquiry and notice process is in a . . . growth process? Here is another example. This case disagrees with the really not great In re Austin J. case and is from the same appellate district.
In re T.G. returns to the low bar for notice and inquiry California appellate courts have traditionally adhered to.
We agree the Department failed to adequately investigate Tamara’s claim of Indian ancestry and the juvenile court failed to ensure an appropriate inquiry had been conducted before concluding, if it ever actually did, ICWA did not apply to these proceedings. In reaching this result, we disagree with the holding in In re Austin J. (2020) 47 Cal.App.5th 870, 888-889 (Austin J.) that amendments enacted by Assembly Bill No. 3176 (2017-2018 Reg. Sess.) (Assembly Bill 3176) were intended to limit the Department’s robust duty of inquiry. Accordingly, we conditionally reverse the orders for legal guardianship and remand the matters to allow the Department and the juvenile court to rectify their errors and to take all other necessary corrective actions.
So again, if you are practicing in California, this is a vital area to be following. If you are not practicing in California, I think it’s worth seeing how the new changes to the state laws shake out on appeals this year (2021). If you are a tribal attorney, know that California is supposed to be contacting a tribe very early in the proceedings, even if it is not with a formal notice packet.
This is an interesting and frustration case on the law. There are a few states, and I believe both Arkansas and Missouri are two, where a parent has to preserve any ICWA issue for appeal. That is not the case in a number of other states. But in this case, the agency and state attorney agree there was error in not noticing the Tribe (Klamath) on the TPR, and that this failure could upend any permanency findings under 25 U.S.C. 1914. They ask the court to remand for notice. However, the Court held:
Accordingly, we cannot rely on Dominguez to remand in this instance. Unlike the situation in Dominguez, the final order herein terminated both parents’ rights, leaving no parental right unaddressed. Here, the application of the ICWA cannot be addressed on remand without reversing the circuit court’s TPR order. We hold that the ICWA issue is not preserved for appellate review.
Adjudication orders are immediately appealable. Ark. Sup. Ct. R. 6-9(a)(1)(A) (2019). A parent’s failure to appeal rulings made in an adjudication order precludes appellate review of those findings in an appeal from a subsequent order. Ashcroft v. Ark. Dep’t of Human Servs., 2010 Ark. App. 244, at 8, 374 S.W.3d 743, 747. No party appealed the circuit court’s findings that the ICWA did not apply or that neither Amanda nor A.W. were members of an Indian tribe. Further, we have held that compliance with the notice requirements of the ICWA must be raised below in order to be preserved for appellate review. Lauman v. Ark. Dep’t of Human Servs., 2010 Ark. App. 564, at 2.
I’m also just going to leave the facts here about the ruling, re. application of ICWA:
The court noted that Amanda had provided a roll number for the Klamath Modoc tribe at the probable-cause hearing, that the Klamath Modoc tribe had been notified on February 12, and that the tribe had not responded nor contacted DHS; therefore, the court found that “at this time,” the ICWA “does not apply.” In a separate finding, the circuit court stated, “[Amanda] does not have membership in or descent from an Indian tribe; the legal father does not have membership in or descent from an Indian tribe; the juvenile does not have membership in or descent from an Indian tribe.”
Turtle Talk 
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