ICWA

Neoshia Roemer on the Conflict between ICWA and the Interstate Compact on the Placement of Children

Matthew L.M. Fletcher

MSU ILPC’s own Neoshia R. Roemer has published Finding Harmony or Swimming in the Void: The Unavoidable Conflict Between the Interstate Compact on the Placement of Children and the Indian Child Welfare Act. [PDF]

Here is the abstract:

The Indian Child Welfare Act is a federal statute that applies to Indian children who are at the center of child welfare proceedings. While the Indian Child Welfare Act provides numerous protections to Indian children, parents, and tribes, many of these cases play out in state courts which are also required to apply their own requisite, relevant state laws. However, sometimes friction between the Indian Child Welfare Act and state-law provisions arise where state law provisions may seem in accord with the statute but  actually contradict it, such as in the case of the Interstate Compact on the Placement of Children. This Article surveys the Interstate Compact on the Placement of Children’s  provisions and discusses the friction that exists between it and the Indian Child Welfare Act. Ultimately, this Article argues that because the Interstate Compact on the Placement of Children is a state administrative procedure that may alter that status of child welfare  proceedings, the Indian Child Welfare Act should preempt the Compact where it is  applicable.

Reason to Know [ICWA] Out of the Ohio Court of Appeals

Kate Fort

2019-ohio-178

In most states, this would most certainly be reason to know, and the agency would be required to do additional inquiry and notify a tribe. When we talk about inconsistent application of the law, this is definitely one of those areas.

With respect to Mother, the following exchange took place:

[MOTHER]: My dad is an Iroquois tribe, but I don’t know if he’s registered, but, I mean, his family is all native Americans and stuff. Yes, they are.

[COUNSEL]: But what we need to know is whether you yourself are registered with a tribe.

[MOTHER]: Oh, no.

[COUNSEL]: You’re not. Okay. That’s what we needed. Thank you, your Honor.

THE COURT: Okay.

[COUNSEL]: So ICWA does not apply then. THE COURT: Okay. You’re definitely not registered?

[MOTHER]: No, sir. (Jan. 16, 2018 tr. 5-6.) {¶23}

Thus neither L.D. nor S.D. are members of a tribe, and Mother, herself, is not a member of any tribe. Although Mother alleged that her father is an Iroquois, L.D. and S.D. are not his children; they are his grandchildren. As previously stated, the ICWA defines an “Indian child” as any minor child who is either a member of an Indian tribe or “is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” 25 U.S.C. 1903(4) (Emphasis added.) A grandchild of a member of an Indian tribe falls outside the definition and therefore does not qualify as an “Indian child” under the act. Therefore, the ICWA is inapplicable, and the trial court was not required to comply with its mandates.

Published Permanency/Guardianship [ICWA] Case out of Nebraska Court of Appeals

Kate Fort

In re Mercedes L. et al

This is a very long decision, but the court’s discussion of appealability of the order is an interesting one.

Media Statements and News Articles on Fifth Circuit ICWA Case

ilpc

Quote from Intervening Tribes Statement:

We applaud the broad coalition of federal lawmakers, attorneys general from 21
states, and 30 child welfare organizations who have joined 325 Tribal governments and 57 Tribal organizations in filing numerous amicus briefs with the U.S. Court of Appeals for the Fifth Circuit to defend the Constitutionality of the Indian Child Welfare Act (ICWA).

The past 96 hours have witnessed an unprecedented and overwhelming demonstration of support for ICWA and its constitutionality as a wave of amicus briefs were filed urging the Fifth Circuit to reverse the district court’s ruling in Brackeen v. Zinke, which erroneously deemed key provisions of ICWA as being
unconstitutional.

Passed more than 40 years ago by Congress, ICWA was designed to reverse decades of cultural insensitivity and political bias that had resulted in one-third of all Indian children being forcibly removed by the government from their families, their tribes and their cultural heritage.

ICWA ensures the best interests and wellbeing of Native American children are protected. ICWA preserves the stability and cohesion of Tribal families, Tribal communities and Tribal cultures. It maintains and reinforces the political and cultural connections between an Indian child and his or her tribe.

 

Statements here

Articles here (and some are behind paywalls)

Merits and Amicus Briefs Filed in Brackeen et al v. Zinke et al. Yesterday

Matthew L.M. Fletcher

Multiple parties and amici filed strong briefs in the Brackeen v. Zinke case in the Fifth Circuit yesterday. Twenty-one state attorneys general filed an amicus brief in support of the law, as did 325 tribal nations and 57 tribal organizations. 30 child welfare organizations also signed on to the Casey Family Programs “gold standard” brief. Law professors from more than 20 law schools signed on to the three law professor amicus briefs.

Appellee states and individual plaintiffs will file theirs by February 6. Oral arguments are expected the week of March 11.

Merits

Four Intervening Party Tribes

Federal Appellant Brief

Amicus Briefs

Constitutional Law Professors Amicus Brief

Congressional Amicus Brief

Casey Family Programs and Thirty Child Welfare Organizations

21 State Attorneys General

Indian Law Scholars

325 Tribal Governments and 57 Tribal Organizations Amicus Brief

Prof. Ablavsky Amicus Brief

Women’s Brief

UKB Brief

Unpublished Nebraska Court of Appeals Case on Active Efforts (ICWA).

Kate Fort

Here.

We rarely post unpublished ICWA cases because otherwise that’s all we would do. However, in this case involving an analysis of active efforts, the court found that:

Efforts made in this case included facilitating supervised visits, providing family support hours, drug testing, offering parenting classes to Nathaniel, placing Aviyanah in a NICWA-compliant foster home, and taking steps to enroll Aviyanah in the Rosebud Sioux tribe. Additionally, Nathaniel was provided transportation to visitations and during his job search.

Emphasis added.

This is not an active effort. This is the minimum requirement of 25 U.S.C. 1915 (placement preferences).

 

 

Article Out of Colorado on Keeping Kids in Foster Care in the Same School

Kate Fort

While this article doesn’t talk about Native children populations, this is an aspect of foster care I always teach, and often law students find it surprising that children are moved out of their school district (and related sports teams, academic teams, IEPs, etc. etc.) when they are removed from their home. Federal law (not ICWA) requires kiddos who go into foster care to stay in the same school system, and yet:

When children are taken from their parents and placed in foster care, or when they change foster homes, caseworkers are required to convene a “best-interest determination” to decide whether the child should switch schools or stay put. The meeting includes teachers and school staff, parents, and in some cases, the child.

According to a state data sample of children who changed schools, that meeting happened before the school switch just 11 percent of the time in Colorado last year. More often than not, the meeting happened after the student had already transferred or didn’t happen at all.

Emphasis added. And this is in a state where the legislature ALLOCATED FUNDING for this federal requirement. To bring it into the ICWA world, while required by a separate federal law, I might still consider it active efforts to keep a kiddo in the same school district. It’s also just confounding to me the number of things required by both state and federal law that just simply do not happen in these cases (just in case you wondered what has Kate Fort cranky today. Also, this report which should be a totally different post about parents and active efforts and incarceration).

2018 ICWA by the Numbers

Kate Fort

Here’s our annual contribution to the ICWA data discussion. I’m nearing to the final set of 2018 ICWA cases. A note on the data–these are cases that are on Westlaw and/or Lexis Nexis, and ICWA (or state equivalent) was litigated. I collect the case name, the date, the court, the state, whether the case is reported (also called published) or not, the top two issues, up to three named tribes, the outcome of the case, and who appealed the case. I’m also still cleaning some of these numbers, so take this as it is–a quick and dirty survey of the cases.

These are standard state court ICWA cases, and  do not include any of the ongoing federal litigation. This is our fourth year writing this post (2015 and 2016 and 2017). Last year Addie Smith and I managed to get a survey completed and published for 2017. This year, we are dreadfully behind, but are still planning to have this into the American Indian Law Journal later this month. If you know we are missing a case based on the numbers, and it’s publicly available, *please* send it to me [fort at law.msu.edu] so we can add it. I’m also happy to answer questions at the same email.

There were 206 appealed ICWA cases this year, down 7 from last year. However, there were 50 reported cases this year, which is nearly 20 more than last year. As always, California leads the states with 125 cases, 9 were reported. Alaska is second with 11, 3 reported. Montana had 10, including 7 reported, which is up considerably from last year. Colorado had 8, 7 reported, as did Michigan with 2 reported. Arkansas had 6, with 5 reported, and Arizona, Ohio, and Texas all had four (1, 3, 1 reported, respectively). Illinois had three (finally) though reported none of them, and Indiana, Iowa, Missouri, New Jersey, Oklahoma, South Dakota and Washington all had two (only Missouri, Oklahoma, and South Dakota reported their cases).  Finally the following states had 1 appellate ICWA case: Connecticut, Idaho, Kansas, Minnesota, Nebraska, Nevada, North Carolina, Wisconsin, North Dakota.

In California, the cases further breakdown as follows. The Second District and Third District both reported 2 cases, and the Fourth District reported 5 for a total of nine. The remaining 116 cases are spread through out the state, thought the Fourth, Second, and First have the highest number of appealed cases, followed by the Third, Fifth, and Sixth with the fewest. California is the only state where we track by appellate districts at this time.

Supreme Courts reported ICWA decisions in 17 cases this year, including in Alaska (3), Montana (7), Michigan (1), Nebraska (1), Nevada (1), North Dakota (1), South Dakota (2),  (of course some of these states don’t have an intermediate court of appeals–the remaining 11 unreported Supreme Court cases all come out of Alaska and Montana, for example).

125 of the cases affirmed the lower court, while 79 were remanded or reversed.

Top litigated issues across both reported and unreported cases were as follows: Notice (86), Inquiry (43), Placement Preferences (9), Active Efforts (13), Termination of Parental Rights (18), Foster Care Proceeding (4), Transfer to Tribal Court (1), and QEW (1). Also the cases determining if there is an Indian child are up (7), and cases involving California’s Tribal Customary Adoption popped up (4). Only 2 cases involved placement preferences this year. This year 44 of the Notice cases and 23 of the Inquiry cases were remanded for proper notice. The Notice cases are down from last year, and the other issues are up.

59 different tribes were named as the first named tribe in a case. In 27 cases the tribe was unknown (parent did not know name of tribe). In 24, the tribe was unnamed (court did not record name of tribe in the opinion).

Finally, of all the cases, not a single one was appealed by a tribe (that I can find). Cases  were appealed by mom, dad, mom AND dad, the guardian ad litem, aunt, prospective adoptive couple, and the state.

Cases I have been specifically highlighting in my presentations this year are as follows:

Colorado (Notice and Appellate Instruction)

Colorado (Foster Care Proceeding)

Minnesota (QEW)

Oklahoma (reason to know)

Ohio (transfer to tribal court)

South Dakota (application of Texas v. Zinke/Brackeen v. Zinke)

Other major ICWA stories this year that are not reflected in this post include, obviously, Texas v. Zinke, the dismissal of the Oglala Sioux class action case by the Eighth Circuit, and the spread of ICWA pro hac vice rules.

VERY LAST CHANCE to Sign on To Tribal Amicus Brief in Fifth Circuit ICWA Case

ilpc

From NARF:

Dear tribal leaders and tribal counsel,

Today the Fifth Circuit Court of Appeals granted a motion that extends the filing deadline for amicus briefs in Brackeen v. Zinke by two days.  This is one last call for Tribes who are interested in signing on to the tribal amicus brief in this case.

As you know, Brackeen v. Zinke is a challenge to the Indian Child Welfare Act (ICWA) in which a federal district court judge in Texas recently found ICWA to be unconstitutional.  The case is currently on appeal to the Fifth Circuit Court of Appeals.

The Native American Rights Fund (NARF) and our co-counsel at Dentons have draft a tribal amicus brief to complement the arguments being made by the Tribal Defendants and our allies, including law professors, child welfare organizations, and several states.  All federally recognized Tribes are invited to sign on to the brief in a show of unity.  Of course, there is no cost to join this brief—any federally recognized Tribe may do so free of charge.

If your Tribe would like to sign its name to the brief, please let NARF know by tomorrow, Tuesday, January 15 at 11:00pm Alaska Time (7pm ET/8pmCT/9pmMT/10pmPT).  Already more than 280 Tribes and more than 50 Indian organizations have signed on to the brief.

If your Tribe would like to sign on, we will need an email that provides the following:

  1. A statement from an individual (chairperson, executive director, general counsel, etc.) or body (tribal council, etc.) authorized to do so, asking to be added as a signatory on the brief.  A statement via email is fine; and
  2. The full name and correct spelling of the Tribe as it should appear on the brief.

The above information should be emailed to Erin Dougherty Lynch at dougherty@narf.org and cc’d to Dan Lewerenz atlewerenz@narf.org.

Finally, if you would like a draft of the brief, please email Erin and Dan at dougherty@narf.org and lewerenz@narf.org.

Thank you again for your commitment to defending ICWA.

Erin Dougherty Lynch
Senior Staff Attorney
Native American Rights Fund

Maine Supreme Judicial Court Affirms Denial of Intervention in Child Welfare Case

Kate Fort

Here.

The State removed non-member children from their tribal member mother, and opposed the Passamaquoddy Tribe’s request for intervention. While intervention is one of right under ICWA, because these children are non-member children, the Court found that ICWA did not apply. In addition, the Court denied the Tribe’s request for permissive intervention in a cursory paragraph. The Court based much of its interpretation and decision on the Maine Indian Claims Settlement Act, making it fairly specific to tribes in Maine. Regardless, the reasoning is frustrating, especially for a permissive intervention, which is apparently allowed “when a ‘[nonparty’s] claim or defense and the main action have a question of law or fact in common’ and intervention will not ‘unduly delay or
prejudice the adjudication of the rights of the original parties.’” M.R. Civ. P. 24(b).

The dissent, pointing out that “In the matter before us, for the safety of the children, the District Court (Calais, D. Mitchell, J.) rejected the request to place the children in a kinship placement with their maternal grandmother. Instead, it authorized the Department of Health and Human Services to seek a foster placement for the children off the reservation and with caregivers who are not related to the children and are not members of the Passamaquoddy Tribe”, therefore “[w]ith the prospect of the children being removed from their Passamaquoddy relatives and the reservation community, the Passamaquoddy Tribe sought to intervene as a matter of right or, alternatively, with the court’s permission.” The dissent also acknowledges the Tribe’s assertion that”their participation in decisions related to the placement and resources available to the children are matters of importance to the court in addressing the needs of the children, whose mother is a member of the Passamaquoddy Tribe. The Tribe’s role, distinct from the role of family members, is important in informing the court of options regarding tribal resources and connections to tribal culture.”

(You had to know I’d end a series of ICWA posts on the case I found the most frustrating.)