ICWA

Goldwater Litigation on the Constitutionality of ICWA Dismissed Without Prejudice

Kate Fort1 Comment

This is the attempted class action litigation claiming ICWA violated the Constitution.This is a big win for ICWA and the legal advocates who worked on this case at the state, federal, and tribal levels.

Here is the Order.

The legal questions Plaintiffs wish to adjudicate here in advance of injury to themselves will be automatically remediable for anyone actually injured. The very allegations of wrongfulness are that such injuries will arise in state court child custody proceedings, directly in the court processes or in actions taken by state officers under the control and direction of judges in those proceedings. Any true injury to any child or interested adult can be addressed in the state court proceeding itself, based on actual facts before the court, not on hypothetical concerns. If any Plaintiffs encounter future real harm in their own proceedings, the judge in their own case can discern the rules of decision. They do not have standing to have this Court pre-adjudicate for state court judges how to rule on facts that may arise and that may be governed by statutes or guidelines that this Court may think invalid.

Here is the joint press release from the ICWA Defense Project.

New Article on Structural Racism and Court Appointed Special Advocates

Kate Fort

If you sat in on a class I taught last week, you’d know this is my new favorite article:

Here.

This paper turns attention away from discussions of the race and economic poverty of the families most affected by the system, and instead looks at the impact of the race and privilege of these volunteer child advocates on child welfare decision-making

Court Appointed Special Advocates (CASA) are volunteers appointed by the court in child welfare cases to argue for a child’s best interests. There are many issues with this system, and I have been in many loud arguments about it (some of you have witnessed them). This article identifies many of those concerns and grounds them in the history of state child welfare systems–including how those systems affect Indian children.

As a side note, I know people personally who have worked hard to develop Tribal CASA programs. Those programs are particularly sensitive to ensuring their volunteers understand the culture of the tribe and their children, which counters the issues inherent in state systems. This article is specifically discussing the issue of CASAs in state systems.

Stephen Pevar: “In South Dakota, Officials Defied a Federal Judge and Took Indian Kids Away From Their Parents in Rigged Proceedings”

Matthew L.M. Fletcher

Here, from ACLU’s Speak Freely blog.

Updated ICWA Defense Project Memo

Kate Fort

It’s been a couple of months, so here is the updated ICWA Defense Memo on the cases we are monitoring.

Unpublished Notice Case in California Regarding Alaska Native Villages

Kate Fort1 Comment

Here. The Fourth Appellate District does more research than DPSS (the agency tasked with notice), and put it into the decision:

Respondent argues that there is no federally recognized “Innuit Eskimo” tribe, so notice was not required. It is not quite so simple. The term “Innuit” is a collective term (the plural of Inuk), for a group of culturally similar indigenous peoples inhabiting the Arctic regions of Alaska, Greenland, Canada, and Siberia. (http://www.newworldencyclopedia.org/entry/Inuit.) The Alaskan Innuit comprises the Alutiiq, Yup’ik (or Yupiat) and Inupiat tribes. (http://www.encyclopedia.com/history/united-states-and-canada-north-american-indigenous-peoples/.) The term “Eskimo,” as it pertains to Alaskan indigenous peoples, has been replaced by “Inuit.” (Ibid.) There are 229 federally recognized Alaskan villages. (http://www.alaskannature.com/inuit.htm; see also, 81 Fed. Reg. 5023-5025, (No. 19, January 29, 2016).) For this reason, one will not find “Eskimo” or “Innuit” in the Federal Register’s list of federally recognized Native Entities.

The Federal Register lists the 229 Alaskan villages. The names, addresses and telephone numbers of approximately 15 Tribal Leaders and BIA Servicing Centers may be found in the BIA Tribal Leaders Directory. (See, http://www.bia.gov/cs/groups/public/documents/text/idc002652.pdf.) At the very minimum, the social worker should have provided notice to the Native Alaskan Entities through the BIA, if not to the individual tribal entities.[5]

And, in case you were wondering what that footnote five is all about, it’s worth posting as well:

[5] By way of a letter, DPSS requests that we identify the specific Native American entity to which notice should be provided. We have identified four entities listed in the Federal Register in our opinion, whose names comprise a form of the words “Innuit” or “Inuk.” We also recommended contact with the BIA. However, the duty to identity and locate the appropriate Native American entity is more appropriately borne by the DPSS working with the court.

 

Order Denying Stay Pending Appeal in Oglala Sioux v. Fleming (Van Hunnik)

Sarah M Donnelly

Download(PDF): Doc. 332 – Order (2/9/2017)

Link: Previous posts

New: ICWA Guide for Tribal Governments and Leaders

Victoria Sweet

New from the Capacity Building Center for Tribes: ICWA Guide for Tribal Governments and Leaders. Available here, pdf here.

Our Children, Our Sovereignty, Our Culture, Our Choice

A word from the authors: Our tribes are threatened by the removal of our youngest and most vulnerable members, our children. As leaders we want to make informed decisions to protect the future of our tribe, our culture, our children and families. Historically, we have seen state and federal programs compromise our dignity and culture by breaking up our families and tribes. Even today we hear of unwarranted removal of our Indian children and the attempts to keep them separated from their culture and tribal identity. The Indian Child Welfare Act (ICWA), when complied with, can help prevent these unwarranted removals and ensure Indian children are kept safe while remaining with their families. The purpose of this Guide is to recommend actions that tribal leadership can take towards ensuring compliance with ICWA.

The recommendations that appear in this guide were made by Tribal Court judges, Tribal attorneys, Tribal educators who train on ICWA, Tribal legislators, a former Tribal Governor/Social Services Director, Counsel for the County (who was also a Tribal member), and Directors of Social Services for Tribal child welfare programs. It is important to note that these are recommendations, not mandates, made by individuals who work in various arenas in child welfare.

Active Efforts Case out of the Nebraska Court of Appeals

Kate Fort

Here.

NICWA, however, adds two additional elements the State must prove before terminating parental rights in cases involving Indian children. In re Interest of Walter W., supra. First, the State must prove by clear and convincing evidence that active efforts have been made to prevent the breakup of the Indian family and that these efforts have proved unsuccessful. See § 43-1505(4); see also In re Interest of Walter W., supra. Second, the State must prove by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. See § 43-1505(6).

***

Although the record indicates that for the first two years this case was pending in the juvenile court, there is some question about whether the Department was doing as much as it “possibly could have been” under an active efforts standard, it is clear that for the last two years this case was pending, the Department was providing Louisa with active efforts toward achieving reunification with her children. Despite the two years of active efforts, Louisa failed to make significant or sustainable progress towards reunification. Moreover, while we recognize that during the beginning stages of the juvenile court case the Department may have failed to provide active efforts, this does not mean that the Department failed to provide any efforts. The record is clear that Louisa has been receiving services from the Department since prior to the petition being filed in this case in November 2011. Despite all of those efforts, coupled with the Department’s recent active efforts, Louisa has not made progress towards reunification with her children. Louisa’s assertion that she has not been given enough time to turn her life around is simply without merit.

 

Oregon Proposed Pro Hac Vice Waiver for Tribal ICWA Attorneys

Kate Fort

Here is the proposed rule:

{(9) An applicant is not required to associate with local counsel pursuant to subsection (1)(c) of this section or pay the fee established by subsection (6) of this section if the applicant establishes to the satisfaction of the Bar that:

(a) The applicant seeks to appear in an Oregon court for the limited purpose of participating in a child custody proceeding as defined by 25 U.S.C. §1903, pursuant to the Indian Child Welfare Act of 1978, 25 U.S.C. §1901 et seq.;

(b) The applicant represents an Indian tribe, parent, or Indian custodian, as defined by 25 U.S.C. §1903; and

(c) The Indian child’s tribe has executed an affidavit asserting the tribe’s intent to intervene and participate in the state court proceeding and affirming the child’s membership or eligibility of membership under tribal law.}

The proposed change is to rule 3.170, and comments in support of the rule change must be made by February 24th. Now both Michigan and Oregon have these proposed rule changes in the works. These are really important state rule changes for tribes and Native families–the cost of pro hac in Oregon alone is $500, and in other states tribal attorneys are still being denied the right of intervention without following long and onerous pro hac requirements–sometimes making it impossible to participate in child welfare hearings involving Native kids. 

Arizona COA Holds ICWA Applies to Abandonment Proceedings

Matthew L.M. Fletcher4 Comments

Here is the opinion in S.S. v. Stephanie H. (Ariz. Ct. App. — Div. 1).

An excerpt:

As Mother and the Tribes argue, ICWA’s plain language does not limit its scope to proceedings brought by state-licensed or public agencies. By its own terms, ICWA applies to any petition to terminate a parent’s rights. 25 U.S.C. § 1903(1)(ii) (“‘termination of parental rights’ . . . shall mean any action resulting in the termination of the parent-child relationship”). “Read naturally, the word ‘any’ has an expansive meaning, that is, ‘one or some indiscriminately of whatever kind.'” United States v. Gonzales, 520 U.S. 1, 5, 117 S. Ct. 1032, 137 L. Ed. 2d 132 (1997) (quoting Webster’s Third New International Dictionary 97 (1976)). It follows that Congress did not intend that ICWA would apply only to termination proceedings commenced by state-licensed or public agencies. See D.J. v. P.C., 36 P.3d 663, 673 (Alaska 2001) (“ICWA applies to termination proceedings when a party other than the state seeks the termination.”); In re N.B., 199 P.3d 16, 19 (Colo. App. 2007) (“ICWA’s plain language is not limited to action by a social services department.”); In re D.A.C., 933 P.2d 993, 1000-01 (Utah App. 1997) (ICWA applies to any proceeding in juvenile court with permanent consequences to the parent-child relationship).

The Court goes on to wrestle with the concept of active efforts in such a proceeding, an issue that was in play in a recent Washington Supreme Court case:

The children argue there are no services that can prevent a parent from abandoning a child. Cf.A.R.S. § 8-533(B)(8) (petition to sever parental rights based on out-of-home placement requires proof “that the agency responsible for the care of the child has made a diligent effort to provide appropriate reunification services”). But “active efforts,” particularly in the context of abandonment, will not always implicate formal public services. Under Arizona law, a parent abandons a child by failing “to provide reasonable support and to maintain regular contact with the child, including providing normal supervision.” A.R.S. § 8-531(1). Construing ICWA broadly to promote its stated purpose, we interpret the “active efforts” requirement of § 1912(d) in an abandonment proceeding to include informal private initiatives [*12]  aimed at promoting contact by a parent with the child and encouraging that parent to embrace his or her responsibility to support and supervise the child. See In re C.A.V., 787 N.W.2d at 103 (mother met “active efforts” requirement by “facilitating visits before [father’s] incarceration and by inviting continued contact during his prison stay”).

P23 In the abstract, “active efforts” to prevent a parent from abandoning a child might include, inter alia, informing the parent about the child’s educational progress and interests; sending the parent photographs of the child; keeping the parent informed of irregular but significant expenses, such as medical expenses, to which the parent would be expected to contribute; and, where appropriate, inviting the parent to school and extracurricular events and allowing the child to accept communications from the parent. See, e.g., In re N.B., 199 P.3d at 25 (“[D]espite its finding of abandonment, the trial court also found that stepmother could have engaged in active efforts to provide remedial services and rehabilitative programs by informing the child of the identity of his biological mother and seeking to preserve the relationship between them by showing the child pictures of her.”).

***

Finally, the Arizona court flatly rejected an equal protection argument:

Without [*15]  citation to authority, the children finally argue that application of ICWA to Father’s petition violates their constitutional rights to equal protection, based on their “race and tribal affiliation.” We join the several other courts that have concluded that the additional requirements ICWA imposes on severance of a parent’s rights to an Indian child are based not on race, but on Indians’ political status and tribal sovereignty, and that those requirements are rationally related to the federal government’s desire to protect the integrity of Indian families and tribes. See, e.g., In re N.B., 199 P.3d at 22-23 (citing cases).