All I can say is to remember when they split evenly, it affirms the district court decision, not the earlier 5th Circuit decision. Beyond that, I’m still trying to figure it out.
Judge Costa’s concurrence/dissent does a lot to explain the implications of the holding. You may want to start on page 306 (!).
So happy to see April Olson’s article on the issue of legal representation for tribes in out of state cases. This is easily the top question I get–both from lawyers nervous about intervening out of state and also from lawyers trying to find pro hac partners. Get your state to pass a pro hac vice exception. It makes a huge difference–in 2020 alone the Indian Law Clinic saved over $500 in appellate pro hac fees due to these rules, but it makes an even bigger difference at the trial level so tribes can avoid appeals in the first place.
Read April’s article, then figure out how to get your state on board if they aren’t already. Today I’m specifically looking at Oklahoma ($350 in pro hac fees plus a complicated process via the state bar, so another $100 in expedited good standing certificate requests and overnight mailing).
All the ICWA pro hac rules are collected here.
OCS correctly points out that “inadequate efforts in one period of state involvement do not render the entirety of [its] efforts inadequate, even when that period lasts for a matter of months.”28 And the superior court correctly found that OCS had made active efforts to reunify Clark and his children during the first two years of the case. But OCS’s failure to make adequate efforts in this case encompassed the subsequent two years, fully half of the time that the case was open. And its failure during that two year time period was extreme: OCS did not even attempt to contact Clark for a year and a half, and may have gone even longer without doing so if Clark had not initiated contact himself. OCS’s failure to make active efforts in the second two years of the case was so egregious that the efforts during the earlier period cannot make up for it. Because OCS’s efforts to reunite Clark with his family following his consent to guardianship were minimal at best, we reverse the superior court’s finding that OCS met the active efforts requirement.
Clark J. v. Dep’t of Health & Soc. Servs., Off. of Children’s Servs., No. S-17797, 2021 WL 1232066, at *7 (Alaska Apr. 2, 2021)
Colorado Gazette article on the case here.
Write up by MSU on the case here
When the Logan County, Colorado Department of Human Services removed two infant twin girls from the custody of their mother, the mother told the department that their father might have Chickasaw heritage. The department sent notice to the Chickasaw Nation, which responded that the children were eligible for citizenship and sent the necessary tribal citizenship forms to the department.
The Chickasaw Nation never got those forms back.To all appearances, the agency simply ignored the notice from the Chickasaw Nation, and the Nation received no communication from the State. The State filed to terminate the mother’s parental rights and only at that point did Logan County disclose to the juvenile court that the children were eligible for enrollment in the Chickasaw Nation.
And in the last of your published ICWA case updates this morning, here is a case from Utah:
A county with at least one awful case has a much better inquiry decision here. Turns out this is not enough, judges:
[Judge]: The question was posted as to whether or not the
requirements of ICWA had been met and hopefully, someone
has that answer for us.
[FCCS Attorney]: We did locate a log in which intake has asked
[appellant] if she participated with any Cherokee tribal
affiliation or membership. The answer was in the negative. And
then on June 15, 2018, subsequent to the complaint being filed
where [appellant] alleged some kind of Cher — Cherokee – * * *
heritage, [appellant] was put under oath on the record as noted
under [the juvenile court magistrate’s] order and she did state
that she did — was not eligible for membership and therefore,
no ICWA notifications would be required under the law. And at
that point the prosecutor had proceeded on the
adjudication/disposition as those notifications weren’t
required. But we did locate that; that is all in the record.
[Appellant] was put under oath again on June 15, 2018 and all
of that testimony is on the Court’s record. Thank you.[Judge]: Thank you. Not being familiar with the whole ICWA
process, I trust that satisfies everyone’s concerns in regard to
ICWA?[Appellant’s counsel]: Yes, Your Honor.
[Judge]: Very good then.
Pretty rare to be ok with admitting you just don’t know how to apply/aren’t familiar with a 40 year old law.
As such proper inquiry was not made here, we expressly make no
determination as to whether the juvenile court knows or has reason to know pursuant to 25
C.F.R. 23.107(c). We also expressly make no determination as to whether the children are
Indian children as defined in 25 U.S.C. 1903. Nevertheless, given the potential for
invalidation of a custody determination, we sustain the third assignment of error
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
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