ICWA

Transfer to Tribal Court Decision from Maine Supreme Judicial Court

Kate Fort

Here

[¶1] Shirley T. and David W. appeal from an order of the District Court (Portland, Powers, J.) denying their and the Oglala Sioux Tribe’s motions to transfer jurisdiction of this child protection matter to the Oglala Sioux Tribal Court pursuant to the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C.S. §§ 1901-1963 (LEXIS through Pub. L. No. 115-277). Shirley T. and David W. challenge the court’s determination that there is good cause within the meaning of ICWA not to transfer the matter to the Tribal Court. We affirm the court’s denial of the motion to transfer jurisdiction.

The Court essentially used an inconvenient forum analysis, based on the Regulations, Guidelines and numerous other state court opinions.

Tribal Standing Issue in California Court of Appeals ICWA Decision

Kate Fort

Here

Mother next contends the juvenile court’s order granting the Tribe’s petitions for modification, and giving full faith and credit to an amended tribal customary adoption order, must be reversed because the Tribe did not have standing to file section 388 petitions for modification. We reject her contention.

Determination of Indian Child ICWA Case out of Montana Supreme Court

Kate Fort

Here.

In affidavits supporting the TIA and TLC petitions, Child Protection Specialists (CPS) noted they had no reason to believe that any of the children were subject to the Indian Child Welfare Act (ICWA). However, at a May 2016 show cause hearing, the District Court was notified that ICWA possibly applied to K.J. considering K.J.’s father received benefits from the Arapahoe Tribe. The benefits signaled potential for K.J. to meet the “Indian child” designation of ICWA. Yet, further correspondence with the Arapahoe Tribe conclusively determined that ICWA was inapplicable to K.J. The District Court granted the Department authority to investigate and work with the parents and children.

In October 2016, the Department again filed petitions for adjudication as YINC and TLC for all three children. CPS Mariesa Wallis submitted three identical affidavits in support which included the statement: “To the best of my knowledge and belie[f] the child is an Indian Child subject to [ICWA].” Wallis’ affidavit did not reference specific tribes or details concerning possible tribal affiliations. The petition and accompanying affidavits are the sole documents in the record suggesting J.J.C. or R.G. were Indian children.

Emphasis added. The Court found that ICWA did not apply (actually, that there was no reason to believe the child was an Indian children, which . . . seems like the wrong finding). Assuming, however, the communication with the Tribe was accurate, it is correct for the trial court to follow that determination rather than the state social worker’s affidavit.

Application of ICWA to Guardianship in South Dakota Supreme Court

Kate Fort

Here

ICWA Termination of Parental Rights Case out of Texas Court of Appeals

Kate Fort

Opinion here.

On October 4, 2018, a federal district court in the Northern District of Texas issued an order declaring that portions of the Indian Child Welfare Act, including its placement preferences, are unconstitutional for several reasons, including that it violates equal protection and improperly requires state agencies to apply federal standards to state claims. See Brackeen v. Zinke, Civil Action No. 4:17-cv-00868-O, — F.Supp.3d —, 2018 WL 4927908 (N.D. Tex., October 4, 2018). In the Brackeen case, foster and adoptive parents, and the states of Texas, Louisiana, and Indiana filed suit against the United States, United States Department of the Interior and its Secretary, Bureau of Indian Affairs (BIA) and its Director, BIA Principal Assistant Secretary for Indian Affairs, and the Department of Health and Human Services (HHS) and its Secretary seeking a declaration that Indian Child Welfare Act (ICWA) was unconstitutional. Id. The Department contends that the United District Court’s order renders J.R.M.’s complaints moot, but the order does not indicate that the plaintiffs challenged the specific ICWA provisions at issue in this case. Further, the Brackeen case may be appealed and ICWA has previously been upheld by the United – 5 – States Supreme Court. See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989). Therefore, we will address the merits of the issues raised on appeal.

Fifth Circuit Grants Stay in Texas v. Zinke (ICWA)

ilpc

The Northern District of Texas’s decision finding ICWA unconstitutional is stayed (put on hold and does not apply) pending the appeal of the decision to the Fifth Circuit.

Here

NCAI and NARF Information on Tribal Amicus Brief for Texas v. Zinke

ilpc

Here:

Information on the case here.

Important Indian Child Welfare Act Case, Brackeen v. Zinke, likely to be appealed to the Fifth Circuit Court of Appeals. NCAI and its partners urge tribal nations to join tribal amicus brief.

We need your help. The National Congress of American Indians (NCAI), the Association on American Indian Affairs (AAIA), the National Indian Child Welfare Association (NICWA) and the Native American Rights Fund (NARF) need your help in securing tribal nations as signatories to an amicus brief to the Fifth U.S. Circuit Court of Appeals in support of the Indian Child Welfare Act (ICWA).

The four intervening tribal nations in this case – the Cherokee Nation, Morongo Band of Mission Indians, Oneida Nation, and Quinault Indian Nation – appreciate the work of NCAI, AAIA, NICWA, and NARF in asking that all 573 federally recognized tribal nations stand together on one brief. The ongoing amicus strategy emphasizes the importance of Indian Country speaking with one voice in our support of ICWA before the Court. One focused tribal brief also makes it more likely to be seriously considered by the Court than an approach where multiple briefs are submitted by tribal nations. Any federally recognized tribal nation, inter-tribal organization, or ICWA organization may join this brief free of charge.

Details:

·     There is no cost to join the amicus brief. The ICWA attorneys at NARF and the law firm Dentons have volunteered to draft this tribal brief pro bono, as with the tribal amicus briefs before the district court and previous federal litigation.

·     NARF is coordinating tribal signatories. Any tribal nation, inter-tribal organization, or ICWA organization interested in signing on to the amicus brief can contact Dan Lewerenz at lewerenz@narf.org and/or Erin Dougherty Lynch at dougherty@narf.org.

·     The notice of appeal was just filed yesterday, and the briefing schedule has not yet been set. Tribes and organizations that express their interest will be notified of upcoming deadlines, and if requested will receive a draft of the brief for review in advance of filing. Instructions on how to obtain the review draft, and how to formally join the brief as a signatory tribe or organization, will follow at a later date.

Background:

In Brackeen v. Zinke, No. 4:17-cv-00868 (N.D. Texas), several individual plaintiffs and the States of Texas, Indiana, and Louisiana have sued the United States Departments of the Interior and of Health and Human Services, arguing that ICWA is unconstitutional and that the Department of the Interior’s 2016 regulations (Final Rule) violated the Administrative Procedure Act (APA).

The United States has defended ICWA and the Final Rule, and four tribal nations – Cherokee Nation, Morongo Band of Mission Indians, Oneida Nation, and Quinault Indian Nation – have intervened as tribal defendants. (Navajo Nation also recently moved to intervene as a defendant on appeal; that motion is still pending.) On October 4, 2018, the District Court granted a decision in favor of the plaintiffs and the States, holding (1) that ICWA operates as a racial statute and violates the Constitution’s guarantee of equal protection, (2) that ICWA violates the Tenth Amendment by forcing States to carry out federal policy, (3) that ICWA includes an unconstitutional delegation of Congress’s legislative authority to tribal nations, and (4) that the Final Rule violates the APA.

This tribal brief is part of a coordinated amicus strategy among ICWA supporters that aims to present the court will all of the information it needs to reverse the district court’s erroneous decision, while hopefully avoiding unnecessary duplication with other briefs. As part of that strategy, the tribal brief will focus on three arguments: (1) It will explain the historical conditions that made ICWA necessary, and demonstrate ICWA’s continuing relevance today; (2) it will push back against the District Court’s assertion that the political relationship between the federal government and tribal nations is limited to on- and near-reservation Native people; and (3) it will explain why ICWA does not “delegate” authority to tribal nations, but rather lawfully affirms tribal nations’ authority to legislate concerning child welfare and other domestic relations.

Again, there is no cost to join this amicus brief. 

Any tribal nation or organization interested in joining this brief, please contact Dan Lewerenz at lewerenz@narf.org and/or Erin Dougherty Lynch at dougherty@narf.org. NARF will share with interested tribal nations and organizations a draft brief when it is ready for circulation, and will keep them informed of all upcoming deadlines.

Thank you for your support and do not hesitate to contact Dan Lewerenz atlewerenz@narf.org and/or Erin Dougherty Lynch at dougherty@narf.org if you have any questions about the brief itself or amicus brief strategy.

NCAI Contact Info: Derrick Beetso, General Counsel, dbeetso@ncai.org

Placement Preferences/Active Efforts (ICWA) Case from South Dakota Supreme Court

Kate Fort

InreMD

Footnote 4:

4. We are aware of the recent decision of the United States District Court for the Northern District of Texas holding parts of ICWA, including its placement preferences, unconstitutional. Brackeen v. Zinke, No. 4:17-cvoo868-0, 2018 WL 4927908 (N.D. Tex. Oct. 4, 2018). However, the decision may be appealed and ICWA has previously been upheld by the United States Supreme Court. Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S. Ct. 1597, 104 L. Ed. 2d 29 (1989). Moreover, we are not bound by the decision of the District Court in Texas and must presume that ICWA is constitutional. U.S. v. v. Nat’l Dairy Prods. Corp., 372 U.S. 29, 32, 83 S. Ct. 594, 597, 9 L. Ed. 2d 561 (1963) (noting that Acts of Congress have “strong presumptive validity’); State v. Rolfe, 2013 S.D. 2, ¶ 13, 825 N.W.2d 901, 905 (“Statutes are presumed to be constitutional[.]”).

The Father argued the state failed to provide active efforts when the children were not placed within the placement preferences. The Court did not agree with his argument.

WaPo Op-Ed: “Why conservatives are attacking a law meant to protect Native American families”

Matthew L.M. Fletcher

Here.