ICWA

Another (unpublished) Arkansas ICWA Case Lacking Strong Parent Representation

Kate Fort

Here. Another reason for more parent attorney partnerships and training. Matthew noted this happened last September in Arkansas too. From the opinion, it’s not remotely clear the agency notified the Cherokee tribes of dad’s claim here.

In addition to the termination of Daniel’s parental rights, the trial court found ICWA did not apply. His counsel explains that this finding does not provide a meritorious basis for reversal, and we agree. Daniel attempted to establish the applicability of ICWA at the outset of the termination hearing—despite the fact the trial court had earlier determined that ICWA did not apply in the probable-cause order dated July 8, 2015. The only documentation he submitted in support of his assertion was a form application for membership in the Cherokee Nation he filed only a couple of days prior to the hearing. In order to establish the applicability of ICWA, a child who is the subject of a dependency neglect action must be an “Indian child,” which is defined as any unmarried person who is under eighteen and is either (a) a member of an Indian tribe or (b) 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). Here, there was no evidence A.B. and D.B. satisfied these requirements. It is undisputed the children are not members of an Indian tribe, and the only evidence submitted was the form application prepared by Daniel two days before the hearing—there was no evidence the application had been accepted or that the children were in any other way eligible for membership, and there was not even any evidence Daniel was their biological father, although he did not dispute that fact. This issue provides no meritorious basis for reversal.

In more than one state, this would provide a meritorious basis for remand at minimum, and maybe reversal. It’s fair that it might not yet be a basis for reversal in Arkansas, but it’s clearly time for someone to bring the argument.

 

(Why yes, I am currently on a four hour flight, and have a backlog of ICWA cases to post . . .)

Published ICWA Inquiry Case from Colorado Court of Appeals

Kate Fort

Here.

The court found that the agency has to ask about tribal citizenship each time a the agency initiates proceedings against a parent, and not rely on findings in a separate, previous proceeding.

Moreover, while not applicable here, we note that new federal regulations that codify this inquiry obligation became effective on December 12, 2016. See 25 C.F.R. §§ 23.107-.109, .111 (2016). The new regulations were quickly followed by new guidelines issued in December 2016. See Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act (Dec. 2016),https://perma.cc/3TCH-8HQM (2016 Guidelines). Consistent with the 2015 Guidelines applicable here, these new regulations and guidelines require the court to ask all participants in the case whether there is reason to know the child is an Indian child and to instruct the participants to inform the court if they later discover information that provides reason to know the child is an Indian child. See 25 C.F.R. § 23.107(a); 2016 Guidelines at 11. And, if a new child custody proceeding is initiated for the same child, the court must again inquire into whether there is a reason to know that the child is an Indian child. 25 C.F.R. § 23.107(a).

Unpublished ICWA Case from Texas

Kate Fort1 Comment

Here. Probably need to do some training down in Texas:

On September 9, 2016, the [Texas] Department’s attorney sent proper notice to the Bureau of Indian Affairs. The [Texas] Department [of Family and Protective Services] also sent a letter dated March 16, 2017, to the Secretary of the Interior, ICWA, and to the Bureau of Indian Affairs, stating that W.C. testified that his Indian tribe was “maybe Lakota Sioux.” According to the Department’s letter, that tribe is not federally recognized as eligible for services or, more particularly, is not an “Indian tribe” pursuant to the ICWA. See 25 U.S.C.A. § 1903(8) (Westlaw through Pub. L. No. 115-22).

Emphasis added.

Alaska ICWA Case on QEW and Guardianship

Kate Fort

Here.

Ultimately the question turned on whether a long term guardianship is a foster care placement or a termination of parental rights (which have differing standards of proof). The court found it was a foster care placement, and required the testimony of a qualified expert witness.

Updated ICWA Appellate Page

Kate Fort

We’ve updated and cleaned up the ICWA Appellate Page. We’ve also added the eight comprehensive state ICWA laws to the page.

A link to the page is now available at the top of Turtle Talk in the menu, and the address is http://www.turtletalk.wordpress.com/icwa

Notice of Appeal in Goldwater ICWA Litigation

Kate Fort

As they promised they would, Goldwater filed their notice of appeal to the 9th Circuit in the Arizona ICWA class action case.

Here.

Order they are appealing is here.

As always, documents in the case will be housed here.

Op-Ed in Maclean’s About Canada’s Child Welfare Crisis

Kate Fort

Here, by Pam Palmater. Canada’s numbers of Native children in care may be currently worse than pre-ICWA numbers in the United States (Task Force Four Report).

The increasing number of First Nations children being placed into foster care in Canada is nothing short of a crisis. Although Indigenous children make up only seven per cent of the population in Canada, they represent 48 per cent of all children in foster care. It is an astounding number until one examines these rates on a province-by-province basis. In Alberta, Manitoba and Saskatchewan, Indigenous children represent a shocking 73 per cent, 85 per cent and 87 per cent of all children in care respectively, according to the most recent Statistics Canada report. However, Manitoba reports that their numbers of Indigenous children in care are increasing and currently stands at 90 per cent, which represents one of the highest rates in the world. This isn’t much of a surprise given that one newborn is taken away from his or her mother every day in Manitoba as a matter of course—the vast majority being Indigenous. They are not the only provinces implicated as Indigenous children in Ontario are 168 per cent more likely to be taken into care than white children.

2017 Designated Contacts for ICWA Service

Kate Fort3 Comments

If you don’t use these, I will find out and talk about it in one of my presentations when I’m in your state. Or when I’m in other states. I travel a lot. Print them out and use them PLEASE:

2017-Designated Agents for ICWA Service

The Rights of Indian Children ABA Article

Kate Fort

The Rights of Indian Children: Indian Child Welfare Act Regulations | Section of Litigation : Children’s Rights Litigation | Section of Litigation

The tribe I worked for decided to “bring the children home” through a focus on children in their community and ensuring resources to support that work. Many strategies were employed, depending on case specifics. Ensuring the tribal children were closer to home, both in proximity and culturally, was the goal. Some cases achieved the goal through reunification with the natural parents, others by placement within kinship care from stranger foster care. One of the primary practices was the transfer of cases to tribal court when the parents were amenable. In the end we brought all but one child back into tribal custody with an over 75 percent kinship placement rate.

A Right-Wing Think Tank Is Trying to Bring Down the Indian Child Welfare Act. Why? | The Nation

Matthew L.M. Fletcher

Here.

Possibly the critical portion of this article is the last paragraph, which confirms that Goldwater has absolutely no interest whatsoever in helping Indian children:

At Goldwater’s offices in Phoenix, Sandefur insisted that his case is about nothing more than the welfare of Indian children. “It was a white Congress in Washington, DC, that passed a law saying, ‘The best interest of all Indians is as follows.’ Isn’t that why we have the problems we have?” When asked if Goldwater is working with any Native American members of Congress to reform ICWA or improve the circumstances of Native children, Sandefur said no—he hadn’t heard anything about that.