ICWA

2024 Michigan Supreme Court Candidates and ICWA

Matthew L.M. Fletcher

Michigan judicial campaigns are down-ballot and nonpartisan but sometimes candidates reveal their ideological biases.

One Michigan Supreme Court candidate is a Republican member of the Michigan House of Representatives who recently made a speech in opposition to an amendment to the Michigan Indian Family Preservation Act. This candidate believes the Indian Child Welfare Act is unconstitutional because two members of the United States Supreme Court dissented in Haaland v. Brackeen. Dissents are not the law. He also made material misrepresentations about tribal membership rules and how the state law best interests of the child standard works in ICWA cases.

The other Michigan Supreme Court candidate has expressed her commitment to the rule of law. We like her lots.

Incidentally, the MIFPA amendment passed and is now law.

Alaska SCT Affirms ICWA Tribal Court Transfer over Foster Parents’ Objection

Matthew L.M. Fletcher

Here is the opinion in Rosalind M. v. State of Alaska:

sp-7718.pdfDownload

Arizona COA Issues ICWA Decision . . . And Its Not Great

Matthew L.M. Fletcher

Here is the opinion in In re Guardianship of A.K.

California SCT Issues Two Opinions Ordering Conditional Reversal under Cal-ICWA for Failure of the State Agency to Conduct an Adequate Inquiry on Whether the Child is Indian

Matthew L.M. Fletcher

Here is opinion in In re Dezi C.

Available briefs:

Calif Counties Assn Amicus Brief

California Appellate Defense Counsel Amicus Brief

Opening Brief

Reply

Here is the opinion in Kenneth D. that holds an appellate court may not consider postjudgment evidence to determine whether a trial court’s error was harmless.

Available briefs:

Petitioner’s Opening Brief

Answer Brief

Reply

Minnesota COA Rejects Equal Protection Challenge to ICWA/State ICWA

Matthew L.M. Fletcher

Here is the opinion in the Matter of the Welfare of the Children of L.K. and A.S.:

Opinion.pdfDownload

Available briefs:

Appellant Foster Parent Brief

Guardian ad Litem Brief

Minnesota AG Brief

Minnesota Tribes Amicus Brief

Tribal Orgs Amicus Brief

Red Lake Nation Brief

ACLU Amicus Brief

Mother Brief

Mother Reply

Foster Parent Reply

Michigan COA Decision on Standard of Review of Michigan Official’s Consent to Adoption of Indian Child

Matthew L.M. Fletcher

Here are the opinions in In re JCR:

Majority Opinion .pdfDownload
Concurring Opinion.pdfDownload

Split Michigan COA Affirms Placement of Indian Child in Foster Care

Matthew L.M. Fletcher

Here is the majority opinion in In re Peters/Brinton/Mathews and in In re Brinton (note the complete absence of any mention of ICWA or MIFPA)

Majority.pdfDownload

And here is Judge Maldonado’s dissent, which is based entirely on ICWA/MIFPA and is 🔥:

Dissent.pdfDownload

California ICWA Case Describing the State of Inquiry Cases

Kate Fort

In re Samantha F.

Figuring out where the California Court of Appeal courts are on the initial inquiry duty when a child is removed from their home is about as easy as detangling a ball of Christmas lights. The Samantha F. case does a nice job of going through where everything is, and what courts have held. This issue is fairly specific to California, which has certain ICWA inquiry requirements in state law and court rules for the removal of any child from their home.  The question at issue seems particularly frustrating, because certain California courts have held there is no duty for contacting a child’s extended family re. tribal citizenship if the child was removed from the home with a warrant. However, there is such a duty if they were removed from the home without a warrant. In reading the cases, it feels like there was an oversight in drafting the state laws rather than some kind of legislative intent to suss out. Regardless, this has been the top litigated issue in California ICWA cases for almost a year now.  In fact, it was nearly a year ago I posted about this at length.  Apparently  filing is finally underway in the In re Ja. O. case now.  Briefing in the other set of cases appears to be complete but oral argument has not yet been set.

AFCARS Model Comment Available

Kate Fort

As a reminder, comments for the ICWA AFCARS are due April 23. The Indian Law Clinic has developed a model comment for tribes to edit and use if they so wish. For a copy of the comment, please contact Cody Fowler, who has done the heavy lifting on this work, is an MSU grad and is helping out the Clinic for a few weeks! He can be contacted at:

fowler48@msu.edu

The proposed rule is here, as well as the link to submit comments:

https://www.federalregister.gov/documents/2024/02/23/2024-03373/adoption-and-foster-care-analysis-and-reporting-system

As a reminder, this is a proposed rule to require nationwide data collection about ICWA children in foster care. We have never had nationwide data on ICWA cases, despite nearly ten years of active litigation to try to get the 2016 rule back, and many years of activism before that to get the 2016 rule.

Reminder: AFCARS Comments on ICWA Due April 23

Kate Fort

I posted about this here, and comments are due April 23. The Indian Law Clinic should have a model comment available for tribes to use and edit by the end of next week.

This rule proposes to require states that receive federal funding for their foster care systems to gather accurate data on children in state courts who are subject to ICWA’s protections. This is done through the Adoption and Foster Care Analysis and Reporting System (AFCARS) If you are a state worker, please encourage your state agency to comment in favor of this rule.

The proposed rule is here and is nearly identical to the one promulgated in 2016 (and then withdrawn by the Trump administration).