ICWA

California Tribal Families Coalition Press Release on Texas ICWA Case

Matthew L.M. Fletcher

U.S. District Court Decision Puts Native American Children and Families at Risk

The California Tribal Families Coalition joined others nationwide in expressing disappointment over the ruling.

In an unprecedented ruling that threatens Native American children and families, U.S. District Court Judge Reed O’Connor in the Northern District of Texas declared the federal Indian Child Welfare Act (ICWA) unconstitutional in an opinion in Brackeen et. al. v. Zinke, filed October 4, 2018.  

While unnerving, attorneys fighting for ICWA say the decision is not applicable throughout the United States. Rather, it is limited in scope and will likely be stayed pending appeal. The decision from a U.S. District Court in Texas is not applicable in California. 

The Indian Child Welfare Act (ICWA) is a 40-year old remedial statute that protects Indian children, families and tribes. The original complaint was filed by adoptive parents and supported by Texas, Indiana and Louisiana, and the decision is contrary to Congressional intent, the Constitution and decades of well-established Indian law.

California Attorney General Xavier Becerra, leading a bipartisan coalition of Attorneys General, filed an amicus brief in the case to defend the ICWA. ICWA sets specific child welfare rules designed to ensure that cases regarding abuse, neglect and adoption involving Native American children are handled in a culturally appropriate manner. 

“Those of us who were raised in Indian Country, those of us who raise our children on the reservations, those of us who know Indian families – we know that ICWA protects our children. This targeted and well-financed attack on ICWA only reminds tribes of the long and tortured history we have endured in the United States,” Robert Smith, chairman of the California Tribal Families Coalition  and the Pala Band of Mission Indians.

About the California Tribal Families Coalition.

Comprised of tribes and tribal leaders from across the state, the California Tribal Families Coalition’s mission is to promote and protect the health, safety and welfare of tribal children and families, which are inherent tribal governmental functions and are at the core of tribal sovereignty and tribal governance. For information, please visit https://www.caltribalfamilies.org

Contact: Delia M. Sharpe, CTFC Executive Director, 916-583-8289 ordelia.sharpe@caltribalfamilies.org

Tribes’ Statement re: Brackeen v. Zinke Decision

Matthew L.M. Fletcher

STATEMENT REGARDING RULING STRIKING DOWN THE INDIAN CHILD WELFARE ACT

We strongly disagree and are deeply disappointed with Judge O’Connor’s decision in Brackeen v. Zinke in the U.S. District Court for the Northern District of Texas striking down the Indian Child Welfare Act, four decades after it was enacted. We remain steadfast in our commitment to defend the constitutionality of ICWA by all available means for one simple reason: If ICWA is struck down in whole or in part, the victims will be our children and our families, Native children and Native families.

The apparent goal of Plaintiffs’ litigation is an extreme one — to separate children from their parents. Before ICWA, as many as one-third of all tribal children were forcibly removed from their families and their communities by state governments. Thorough and objective analysis of the systematic removal of Indian children from Indian homes found many removals were wholly unjustified. These policies devastated tribal communities and we refuse to go back to those darker days. We are heartened by the support of so many states that stand shoulder to shoulder with us in this litigation to protect families.

We are in consultation with our legal counsel and exploring all available options.  Rest assured, we consider the trial level decision today as one part of a long process. In the interim, we will seek a stay of the decision until higher courts have an opportunity to review it.  We will continue to work in state courts throughout the country to ensure the protections of ICWA for Native children, families, and tribes. We strongly believe that, in the end, our rights protected by the Indian Child Welfare Act will be affirmed and reinforced.   

  • Principal Chief Bill John Baker, Cherokee Nation
  • Chairman Robert Martin, Morongo Band of Mission Indians
  • Chairman Tehassi Hill, Oneida Nation
  • President Fawn Sharp, Quinault Indian Nation

Federal Judge Rules ICWA Unconstitutional in Brackeen v. Zinke

Matthew L.M. Fletcher3 Comments

Here is the opinion in Brackeen v. Zinke (N.D. Tex.):

166_DCT Order.pdf

Case page with briefs here.

A federal court has held that ICWA violates the equal protection component of the Fifth Amendment’s Due Process Clause, rejecting the Morton v. Mancari argument and applying strict scrutiny. The court further held that ICWA violated the Tenth Amendment’s prohibition on commandeering state legislative functions. The court more or less summarily rejected the argument that the Indian Commerce Clause authorized Congress to enact ICWA. Finally, the court struck down the ICWA regulations.

Still, there will certainly be an appeal. The case is limited only to the parties involved.

Provide Comments on WI Pro Hac Vice for ICWA Attorneys Pending Rule

Kate Fort

Well, since I did the California post yesterday on this, multiple people from Wisconsin reminded me that we all need to submit supportive comments there. Many thanks to NL for spelling it out in an email so I can just cut and paste it here (ie making it easy for me):

Over in Wisconsin, we have a pending ICWA pro hoc vice rule petition that could use some more supporting comments, especially from adjacent states!  You can find the petition here (https://www.wicourts.gov/scrules/1804.htm).

The process for submitting a comment is as follows:

To submit a comment:

I. Submitting a comment to a rules petition
A comment to a pending rule petition shall be submitted in hard copy (include one original and nine copies). The paper copies shall be mailed to the Clerk of the Supreme Court, P.O. Box 1688, Madison, WI 53701.

A person submitting a comment shall e-mail an electronic copy of the comment in MS Word format MS Word to the Office of the Clerk of the Supreme Court at clerk@wicourts.gov and carrie.janto@wicourts.gov.

II. Contents of comment
The comment shall identify the rule petition to which it relates.

III. Service of comment on petitioner
A copy of the comment shall be forwarded to the petitioner in a timely manner. See the rule petition for the name and contact information of petitioner.

https://www.wicourts.gov/scrules/1804.htm

 

Rapid City News Article on Pennington Co ICWA Procedures

Kate Fort

Sometimes the results change a little even when a court decision goes the wrong way: County to Stick with Current ICWA Hearing Procedures

California Eliminates Pro Hac Vice Barriers for ICWA Cases

Kate Fort

In a celebrate-the-victories post, the state with the most number of ICWA cases has removed major barriers for out of state ICWA attorneys. California notoriously had some of the highest pro hac fees and tightest limitations on the number of appearances an attorney can make. When I was started poking around about the idea of court rule changes, California always rose to the top. Thanks to California Tribal Families Coalition (CTFC) and their ED, Delia Sharpe, California passed both a bill (to eliminate fees) and a court rule (to eliminate association with local counsel). Here is the CTFC press release.

If California (and Washington and Michigan and Minnesota and Nebraska and Oregon) can get this done, so can your state. There’s a whole crew of in-house ICWA attorneys backing you up–send us an email.

 

Oglala Sioux Tribe Files En Banc Petition in South Dakota ICWA Case

Matthew L.M. Fletcher

Here is the petition in Oglala Sioux Tribe v. Vargo (AKA Oglala Sioux Tribe v. Fleming, and FKA Oglala Sioux Tribe v. Van Hunnik):

En Banc Petition

Panel decision here.

Briefs here.

 

Eighth Circuit Dismisses Oglala Sioux v. Fleming Under Abstention Doctrine

Kate Fort3 Comments

Here.

This is the long running (initiated before Adoptive Couple v. Baby Girl) case that is attempting to address the due process and ICWA violations against Native families in Pennington Co., South Dakota. Brought by Oglala Sioux, Rosebud Sioux and two individual tribal citizen mothers on behalf of a class of similarly situated parents, this case has highlighted the disturbing practices of the county (which, even more disturbingly, are not that surprising to trial level practitioners in our child welfare system). The District Court had found for the plaintiffs at each stage, and found specifically that abstention/Younger doctrine did not a apply to this case. The Eighth Circuit found differently.

Setting aside the due process claims for the sake of this point, ICWA itself creates a right of action under 25 USC 1914 (a parent, custodian, or tribe may petition a court of competent jurisdiction to invalidate any cases in violation of 1911 [jurisdiction], 1912 [notice/active efforts/burden of proof], or 1913 [voluntary proceedings]). This right, however, has often been limited by federal courts under abstention doctrines, which means the state courts that are causing the abuses of the law are the only places to address the abuses of the law. As the Court states, “Although the plaintiffs complain that state court proceedings do not afford parents an adequate opportunity to raise broad constitutional challenges under the Due Process Clause, they have not established that South Dakota courts are unwilling or unable to adjudicate their federal claims.” There are a number of federal cases on ICWA–that is, ones that are attempting to demonstrate a violation of the law–that end up with a hollow 1914. See Yancey v. Bonner, 2008 WL 4279760 (W.D. Okla. 2008), Navajo Nation v. LDS Family Services, 2006 WL 3692662 (D. Utah 2006), Kickapoo Tribe of Oklahoma v. Rader, 822 F.2d 1493 (10th Cir. 1987)

I’d also note while the Court said “[t]he relief requested would interfere with the state judicial proceedings by requiring the defendants to comply with numerous procedural requirements at future 48-hour hearings,” those procedural requirements are ones required by both the Constitution and the Indian Child Welfare Act.

The ICWA Appellate Project filed an amicus brief on behalf of the Navajo Nation, Cherokee Nation, the ICWA Law Center, NICWA and NCAI in this case.

Tribal Comments Needed for Notice for Proposed Model Family Foster Home Licensing Standards

Kate Fort

Here is the link. Comments are due by October 1.

By April 1, 2019, title IV-E agencies, which include all states and 12 tribes, must provide the HHS specific and detailed information about:

○ Whether the state or tribal agency foster family home licensing standards are consistent with the model licensing standards identified by HHS, and if not, the reason; and

○ Whether the state or tribal agency waives non-safety licensing standards for relative foster family homes (pursuant to waiver authority provided by section 471(a)(10)(D) of the Act), and if so, how caseworkers are trained to use the waiver authority and whether the agency has developed a process or provided tools to assist caseworkers in waiving these non-safety standards to quickly place children with relatives.

At this stage, HHS is trying to identify the model by which the state and direct IV-E tribes will be measured against. In this notice, the Children’s Bureau provides what they would like to use as that model: “We are proposing one set of standards for comment to apply to relatives and non-relatives, as well as state and tribal title IV-E agencies.”

The model appears problematic at best and is causing concern among both state and tribal IV-E workers and attorneys. As just one example, “i. A continuous supply of safe drinking water. ii. A properly operating kitchen with a sink, refrigerator, stove, and oven;”. We have families in Michigan that do not have a continuous supply of safe drinking water right now. What does “continuous supply” mean if you have to haul water? What is “properly operating”. There are many, many provisions like this in the model (like a functional literacy requirement), and if your tribe is concerned about getting homes licensed by either state or direct tribe IV-E agencies, this will affect you. I don’t see any comments submitted yet, or cannot access them, but if we receive good models or see ones submitted, I will post them as examples.

NICWA’s website further states: “There is no penalty for states or tribes that use different foster care standards than the national ones, but NICWA has raised concerns about how these will be used in future technical assistance and training with tribes by ACF. In addition, the national standards have not adequately taken into consideration unique cultural issues for AI/AN children and families and issues related to tribal authority to establish foster care standards.”

Rare Published Notice Opinion out of California Court of Appeals

ilpc

In re EH (Fourth District, 1st Div). For reference, so far this year California has had 48 unpublished notice decisions and 19 unpublished inquiry decisions. This is the first published notice case this year.

We agree with Mother that, considering Sally Y.H.’s statement to the Agency that her paternal family had Tohono O’odham Nation heritage, the Agency had a duty to attempt to obtain Sally Y.H.’s father’s identifying information and to provide notice of any such information obtained to the Tohono O’odham Nation. We further conclude that the Agency has not demonstrated that it fulfilled that duty by providing the Tohono O’odham Nation with information pertaining to an individual named Bruno Y. since it is not clear from the record that Bruno Y. is Sally Y.H.’s father. Moreover, if Bruno Y. is Sally Y.H.’s father, and E.H.’s great-great-grandfather, the Agency failed to properly describe his ancestral relationship to E.H. on the notice provided to the Tohono O’odham Nation. Finally, given that Sally Y.H. told the Agency that her paternal family had heritage from the Tohono O’odham Nation, we cannot conclude that the Agency’s errors were harmless. Accordingly, we reverse the judgment for the limited purpose of having the Agency provide the Tohono O’odham Nation with proper notice of the proceedings in this case, including accurate information pertaining to all known direct lineal ancestors of E.H., in accordance with all applicable law.3

***

FN 3. Mother also contends that the notice that the Agency provided to the Tohono O’odham Nation was deficient for several additional reasons, including that the Agency erred in listing her current address as being “no information available,” and in failing to update the notice when information about her residence became available. In light of our reversal, we need not consider these contentions, but we direct the juvenile court to ensure that the Agency provides Mother’s correct current address at the time of noticing upon remand, if known.

In addition, Mother contends that the Agency provided the tribe an incorrect address for Sally Y.H. The Agency concedes that the address that it provided for Sally Y.H. contained typographical errors, including listing the city of her residence as ” ‘Alpaso’ ” rather than ” ‘El Paso,’ ” but argues that any errors were harmless. In support of its harmlessness argument, the Agency asks this court to take judicial notice of the fact that “El Paso is a city in the state of Texas and Alpaso is not.” The juvenile court is directed to ensure that the Agency provides Sally Y.H.’s correct current address at the time of noticing upon remand, if known. We deny the Agency’s request for judicial notice as moot.

Finally, Mother states that the Agency was required to list Mother’s and Sally Y.H.’s telephone numbers on the notice that it provided to the Tohono O’odham Nation. On remand, the juvenile court shall direct the Agency to provide Mother’s and Sally Y.H.’s telephone numbers, if known. (See Welf. & Inst. Code, § 224.2 [specifying that notice sent to a tribe shall include “[a]ll names known of the Indian child’s biological parents . . . and great-grandparents . . . as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known”], italics added; unless otherwise specified, all subsequent statutory references are to the Welfare and Institutions Code.)

***

This argument is unpersuasive since the letter from the Tohono O’odham Nation does not indicate the basis upon which the tribe made its determination as to E.H.’s Indian child status. Nor can we agree with the Agency’s suggestion that the fact that the Tohono O’odham Nation did not ask for further information demonstrates that the Agency’s error was harmless. The tribe was not required to ask the Agency to provide information that the record indicates the Agency should have reasonably attempted to obtain and provide to the tribe. Thus, we decline to find the Agency’s error harmless simply because the tribe did not indicate that further information might have altered its determination, particularly given the other noticing errors acknowledged by the Agency.