Somehow in all of the recent ICWA-related new, we missed the March 16 release of the updated list of designated tribal agents for ICWA notice.
Here, at 81 Fed. Reg. 10887 (March 16, 2016). We did a quick control+F search in the list for “Mohawk,” and the St. Regis Mohawk designated agent for ICWA popped right up. This list should be bookmarked on every state child welfare worker’s computer.
Materials in re Oglala Sioux Tribe et. al. v. Van Hunnik et. al. (D. S.D.):
Doc 114 – Plaintiffs’ Motion For Sanctions
Doc 237 – Plaintiffs’ Stipulation to Dismiss Motion for Sanctions
Doc 238 – Order Granting Relief
Link to previous case postings here.
Reason #678 why my response to state actors when they complain about notice issues is “are you absolutely certain you did notice correctly?”:
In this short unpublished decision, the Department concedes that it concluded not once, but twice, that there is no federally recognized Mohawk tribe.
Due in parts to comments filed on the original proposed rule change for Automated Foster Care and Adoption Reporting System (our primary source of data regarding kids in care), the Administration for Children and Families has added collecting ICWA-related data to the proposed rule:
In this supplemental notice of proposed rulemaking (SNPRM), ACF proposes to require that state title IV-E agencies collect and report additional data elements related to the Indian Child Welfare Act of 1978 (ICWA) in the AFCARS. ACF will consider the public comments on this SNPRM as well as comments already received on the February 9, 2015 NPRM and issue one final AFCARS rule.
Here is the proposed rule page, and we strongly recommend tribes and organizations file comments on the proposed changes–which are due May 9. The comments make a difference:
ACF issued the AFCARS NPRM (80 FR 7132, hereafter referred to as the February 2015 AFCARS NPRM) to amend the AFCARS regulations at 45 CFR 1355.40 and the appendices to part 1355. In it, ACF proposed to modify the requirements for title IV–E agencies to collect and report data to ACF on children in out-of-home care and who were adopted or in a legal guardianship with a title IV–E subsidized adoption or guardianship agreement. At the time the February 2015 AFCARS NPRM was issued, ACF concluded that it did not have enforcement authority regarding ICWA and, therefore, was not able to make the requested changes or additions to the AFCARS data elements regarding ICWA.
However, in the time since publication of the February 2015 AFCARS NPRM, ACF legal counsel reexamined the issue and determined it is within ACF’s existing authority to collect state-level ICWA-related data on American Indian and Alaska Native (AI/ AN) children in child welfare systems pursuant to section 479 of the Social Security Act. Such determination was informed by comments received on the February 2015 AFCARS NPRM as well as an extensive re-evaluation of the scope of ACF’s statutory and regulatory authority.
Download press release here.
Excerpt:
The principal co-chairs of the ICWA Interagency Workgroup are the DOI Assistant Secretary – Indian Affairs, the HHS Assistant Secretary for the Administration for Children and Families; and the DOJ Assistant Attorney General for the Environment and Natural Resources Division. Each agency will designate a senior staff member to serve as a staff co-chair of the Workgroup.
The Workgroup will meet monthly at a staff level, with principal-level meetings at least twice a year, and will identify priorities, goals and tasks, as well as establish committees to carry out its work. It also will seek input from and conduct outreach to federally recognized tribes and other stakeholders via existing federal tribal advisory groups, stakeholder groups, tribal consultations, listening sessions, and public meetings.
From the docket:
The writ of supersedeas was denied. Here.
The application to transfer the case out of the court of appeals and directly to the California Supreme Court was also denied. Here.
The underlying appeal against the placement order remains open in the California court of appeals. Here.
What is a writ of supersedeas? It’s what California still calls a stay of proceedings. A writ of supersedeas is defined in California’s Rules of Court here. Under rule 8.824, a writ of supersedeas is a stay of a judgment or order pending appeal. The petition for the writ must bear the same title (or name) as the appeal (hence a lot of confusion). In this case, the petition for the writ was filed to in an attempt to stop the transfer placement to Utah while the California court of appeals hears the foster parents’ appeal of the March 8th placement order. The court of appeals denied the petition for the writ of supersedeas on March 18. The first time this case went up on appeal, the appeal process took nine months from filing to opinion.
In addition, the California Rules of Court allow for a transfer of a case pending in the court of appeals to the California Supreme Court. Rule 8.552 allows a party to petition for the transfer, but the case must present “an issue of great public importance that the Supreme Court must promptly resolve.” in order for the transfer to be granted.
Tl;dr? The case is ongoing, it will stay in the California court of appeals for now, but the child will not be moved back to California during the pendency of the appeal.
The County filed a petition for relief in Humboldt county superior court and attached the investigative subpoena on the Humboldt County Department of Health and Human Services from the California DOJ. The subpoena includes a request for all internal communications relating to tribes and children who are eligible for enrollment or enrolled in any tribes, among a fair number of other ICWA-related inquiries.
NICWA’s statement.
Choctaw Nation’s statement.
NCAI’s statement.
California Children’s Law Center statement.
NAJA’s statement.
We will continue to add statements from other groups as we receive them. And, because it’s what we do, we’ve created a page with all of the publicly available primary source documents in this case. You can find that here.
The foster parents’ attorney has issued a statement claiming she will use this case to appeal ICWA up to the U.S. Supreme Court if necessary. We’ve heard this before, and there are very few legal routes left for them to do that, but we still expect they will try them all.
Meanwhile, this case is not just about Indian Country. The role of foster care in this country is clear–to provide a temporary, loving home for a child while her family receives services to so the child can go home safely. It is also provides time for the state to search for other -relative- homes for the child. This is a best practice regardless of whether the child is Native or not. It’s actually state law in California. Ann.Cal.Welf. & Inst.Code § 361.3. In fact, it’s the law in a lot of states. That’s because relative preference in placement is also required by the federal government for states to receive Title IV-E funding. 25 U.S.C. 671(a)(19). Preventing a child from living with her siblings and relatives –family she knows, and who have spent considerable time planning this transition– contrary to court order is not the role of foster parents.
Finally, the use of the media in this case to inflame opinion, spread false information about the situation, publicize a child’s name and face, and to try to dismantle ICWA itself [again] is deplorable. The type of comments that NICWA, the California Children’s Law Center, Choctaw Nation and other individuals are receiving, particularly on social media, should disturb us all. Those taking the brunt of this deserve our full support and thanks.
Additional Resources:
The Michigan Legislature
The Washington Legislature
The Nebraska Legislature
The Minnesota Legislature
The Wisconsin Legislature
The California Legislature
2013 Statement of National Council Juvenile and Family Court Judges
2013 Position Statement of Casey Family Programs
2013 Press Release of the following child welfare organizations in support of ICWA: Casey Family Programs, Children’s Defense Fund, Child Welfare League of America, Annie E. Casey Foundation, Donaldson Adoption Institute, North American Council on Adoptable Children, Voice for Adoption, Black Administrators in Child Welfare, Inc., Children and Family Justice Center, Family Defense Center, First Focus Campaign for Children, Foster Care Alumni of America, FosterClub, National Alliance of Children’s Trust and Prevention Funds, National Association of Public Child Welfare Administrators, National Association of Social Workers, National Court Appointed Special Advocate Association, and National Crittenton Foundation.
After losing a partial summary judgment in March, the state defendants filed motions to reconsider. Those have now been denied. The order is here.
The DSS Defendants miss the point of the court’s findings. The issue is not what the Indian parents knew about the reasons their children were initially removed from the parents’ custody, but rather the factual basis supporting continued separation of the family. This is the information mandated for disclosure to the parents and for consideration by the state court judges in determining whether continued separation of the family is necessary under ICWA. (Docket 150 at pp. 27-28).
The court acknowledged the DSS Defendants claimed to have provided the ICWA affidavit. See id. at p. 13. What was troubling to the court and justified the findings made on the issue was that “disclosure of an ICWA affidavit and petition for temporary custody to a parent was not mentioned in 77 out of 78 cases.” Id. at pp. 13-14. Then in seven cases there were specific references in the transcripts to complaints by the parents or the Tribe’s counsel that they had not received the documents allegedly justifying continued placement with DSS. Id. at pp. 14-15.
Turtle Talk 
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