ICWA

TICA Lunch in Indian Country CLE Tomorrow: ICWA Litigation Update

Matthew L.M. Fletcher

Here:

Lunch in Indian Country CLE: ICWA Litigation Update

  • When
    20 May 2020
  •  
    12:00 PM – 1:00 PM
  • Location
    Live in Tucson, AZ and available via Webcast

Join us for an update on litigation concerning the Indian Child Welfare Act (ICWA).

Presenter:        

Kathryn E. Fort, Director, Indian Law Clinic, ICWA Appellate Project, Indigenous Law and Policy Center, Michigan State University College of Law

 

Register at:  https://azbar.inreachce.com/Details/Information/a7f5f134-0d39-4f8b-b19a-a227bc3eb020

May Qualify for 1 CLE Credit

California Law Review Publishes “Politics, Indian Law, and the Constitution”

Matthew L.M. Fletcher

The article is here. PDF.

The abstract:

The question of whether Congress may create legal classifications based on Indian status under the Fifth Amendment’s Due Process Clause is reaching a critical point. Critics claim the Constitution allows no room to create race- or ancestry-based legal classifications. The critics are wrong.

When it comes to Indian affairs, the Constitution is not colorblind. I argue that, textually, the Indian Commerce Clause and Indians Not Taxed Clause serve as express authorization for Congress to create legal classifications based on Indian race and ancestry, so long as those classifications are not arbitrary, as the Supreme Court stated a century ago in United States v. Sandoval and more recently in Morton v. Mancari.

Should the Supreme Court reconsider those holdings, I suggest there are significant structural reasons as to why the judiciary should refrain from applying strict scrutiny review of congressional legal classifications. The reasons are rooted in the political question doctrine and the institutional incapacity of the judiciary. Who is an Indian is a deeply fraught question that judges have no special institutional capacity to assess.

Comments for Arizona’s Pro Hac Vice for ICWA Cases NEEDED and Due MAY 1

Kate Fort

All comments are welcome, but they are particularly helpful from attorneys who are licensed out of state who end up in Arizona on ICWA cases. I know there are a fair number of you!

Here

Proposed Pro Hac Vice Rule Change for ICWA Cases in Utah

Kate Fort

Please comment here by MAY 22.

Here is the proposed rule.

This is a big deal. Utah is a particularly difficult state to pro hac into–it is a multi-step, long and expensive process.

As always, the ICWA pro hac rules are updated here.

Kevin S. Settlement Agreement Involving New Mexico Child Welfare and Includes ICWA

Kate Fort

Here

Indian Child Welfare Act
  • A State ICWA law that mirrors and expands upon the federal version and that will be drafted with the Administrative Office of the Courts and with New Mexico Tribes and Pueblos
  • Processes and procedures to promote traditional interventions as first-line interventions and services, developed with the input of New Mexico’s Tribes and Pueblos
  • Federal funding for traditional and culturally responsive treatments, interventions, and supports, including non-medicalized interventions
  • A plan to increase recruitment and retention of Native resource families
  • A policy to provide or ensure provision of direct assistance for traditional ceremonies, including arranging for all preparation and providing payment if needed, if Native Children want to participate

Inquiry and Notice Case out of California (Published!)[ICWA]

Kate Fort

B300468

At the detention hearing, Father said he had Native American Indian heritage, but he was unable to identify the correct tribe. Father believed his heritage was through his paternal grandmother. He provided CWS and the juvenile court with the names of his father and grandmother.

***

Father argues CWS failed to comply with ICWA requirements and the juvenile court did not make findings on whether ICWA applied. He contends the court was “not authorized to proceed with foster care placement until ICWA notice has been sent and received.” He is correct.

***

Here, CWS had reason to know the children might be Indian children. Accordingly, CWS was required to comply with ICWA notification requirements at least 10 days before the disposition hearing, because the hearing was an involuntary proceeding in which CWS “was seeking to have the temporary placement continue[d].” (Jennifer A., supra, 103 Cal.App.4th at pp. 700-701; 25 U.S.C. § 1912(a).)

This is very different from the reasoning applied by the Washington Court of Appeals here.

Indian Child Case out of the Colorado Court of Appeals [ICWA]

Kate Fort

18CA2258-PD

An example of what a mess happens when an agency proceeds on termination of parental rights before establishing tribal membership. And an answer to the question what happens to all those cases remanded for notice.

California Misinformation in an ICWA Case

Kate Fort

Opinion

There are too many unpublished cases to post here, but this one including the following quote, which I think is important for understanding how few people in the child welfare system have a handle on ICWA’s protections, even today. I’m sure all the tribal attorneys are surprised to find out they might have to appoint a parent an attorney:

The social worker informed Mother that if she was “found to have affiliation with the tribes, she could be appointed an attorney from the tribes and placement of the children could change.”

Vox Profile of the Brackeen Case

Matthew L.M. Fletcher

Here is “How a white evangelical family could dismantle adoption protections for Native children.”

UC Davis Tribal Justice Symposium: Protecting Families Through Tribal Courts

Matthew L.M. Fletcher

The Tribal Justice Project Presents: Tribal Justice Symposium: Protecting Families Through Tribal Courts!

Tribal court judges, court personnel, practitioners, community members, and students are invited to attend this FREE event. Space is limited, please RSVP today!

Date: March 13, 2020

Location: UC Davis School of Law – Davis, CA

Fee: No Registration Fee

Click here to register.

For questions, please contact tjp@law.ucdavis.edu.

Flyer (PDF):

Tribal Justice Symposium Flyer and Agenda_Page_1Tribal Justice Symposium Flyer and Agenda_Page_2