ICWA

Tribal Nation Comments on the Proposed ICWA Regulations

Kate Fort1 Comment

An updated list–I know there are still some missing that were submitted, so please send them on if you’d like to be added (Fort@law.msu.edu)

Prairie Band Potawatomi Nation
Grand Traverse Band of Ottawa and Chippewa Indians
Swinomish Indian Tribal Community
Habematolel Pomo of Upper Lake
Mashantucket Pequot Tribal Nation
Pueblo of Pojoaque Tribal Court
Southern Ute Indian Tribe
Stillaguamish Tribe of Indians
Omaha Tribe of Nebraska
Tulalip Tribes
Central Council Tlingit and Haida Indian Tribes of Alaska
Cedarville Rancheria of Northern Paiute Indians
Colorado River Indian Tribes
Lac du Flambeau Band of Lake Superior Chippewa Indians
Confederated Salish and Kootenai Tribes of the Flathead Nation
Wyandotte Nation
Fond du Lac Band of Lake Superior Chipppewa
Yakutat Tlingit Tribe
Sac and Fox Nation
Big Sandy Rancheria
Gila River Indian Community
Elem Indian Colony
Port Gamble S’klallam Tribe
Native Village of Port Heiden
Beaver Village Council
Lower Elwha Klallam Tribe
Confederated Tribes of the Umatilla Indian Reservation
Pokagon Band of Potawatomi
Samish Indian Nation
Confederated Trbies of Siletz Indians
White Earth Nation
Sault Ste. Marie Tribe of Chippewa Indians
Ho-Chunk Nation
Ho-Chunk Nation, Tribal Attorney
Temecula Band of Luiseno Mission Indians
Nottawaseppi Huron Band of the Potawatomi
Standing Rock Sioux Tribe
The Shoshone-Bannock TribesNative Council of Port Heiden
Puyallup Tribe of Indians

Cherokee Nation of Oklahoma
Cherokee Nation Principal Chief Proclamation
Cherokee Nation Tribal Council Resolution
Letter from AAG, Chrissi Ross Nimmo
Letter from ICW ED, Nikki Baker Limore

Comanche Nation Social Services
Nez Perce Tribe Social Services Department
Quinault Indian Nation, Office of the Attorney General
Lac Vieux Desert Band of Lake Superior Chippewa Indians, Office of the Prosecutor
Oklahoma Indian Child Welfare Association
Alaska Native Health Board
United South and Eastern Tribes

Principal Defendant in South Dakota ICWA Suit is Replaced as Seventh Circuit Chief Judge

Matthew L.M. Fletcher

Here.

Unpublished California ICWA Inquiry Case Requires Reversal of Orders

Kate Fort

Here. Out of Ventura County.

Although mother and the maternal grandmother advised HSA of Olivia’s Choctaw ancestry, no further inquiry was made. Had HSA asked, it would have learned that the maternal great-grandmother, Roberta Mae J., is alive, is an enrolled member of the Choctaw Nation, and was born on the Kiowa Reservation in Lawton, Oklahoma.

***

After the writ petition was filed, mother’s counsel submitted certificates and enrollment applications to the Choctaw Nation tribe. On May 5, 2015, we granted mother’s request to take additional evidence that Choctaw Nation issued membership cards to mother and Olivia on April 15, 2015. The tribe’s determination that Olivia is a member of Choctaw Nation is conclusive. (§ 224.3, subd. (e)(1); In re Jack C.III (2011) 192 Cal.App.4th 967, 980; Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 255.) HSA’s failure to comply with the ICWA notice requirements before the six month review hearing requires that we reverse the February 2, 2015 order terminating reunification services, the order granting Olivia’s caretakers de facto parent status, and the order for a section 366.26 hearing.

California ICWA Decision on Placement Preferences and Standing

Kate Fort

Here.

Mother did not have standing to challenge a violation of placement preferences once her parental rights were terminated.

Response to Motions to Reconsider in Oglala Sioux v. Van Hunnik

Kate Fort1 Comment

Here.

Motions to reconsider here.

Unpublished California ICWA Case on Determining Child’s Tribe

Kate Fort

Here.

Grandmother argued child is Native Hawaiian and registered with OHA. Mother argued child is affiliated with Mooretown Rancheria. Mooretown Rancheria argued same. Lower and appellate courts held under a significant contacts discussion child is affiliated with Mooretown, and registration with OHA doesn’t disturb the Mooretown affiliation for the application of ICWA.

Side note–Looks like California law doesn’t list the preference of the parent in the significant contacts determination. Cal. Welf. & Inst. Code 224.1(2). The updated Guidelines and proposed Regs both list preference of the parent first as allowable considerations. (B.4 (C)(1) & 23.109(c)(1)(i). Regardless, the outcome in this case is consistent with both.

Article on Yesterday’s Public Hearing on Proposed ICWA Regulations

Kate Fort2 Comments

Here, via NICWA.

“That’s been the plan from the beginning,” Bradley Goodsky told a mostly sympathetic audience at Mystic Lake Casino on Wednesday. “It’s like [child protection] has a crystal ball and we’re doomed to fail.”

Goodsky was one of the speakers to address federal administrators who are considering making it more difficult for social workers to put Indian children in foster care. The Bureau of Indian Affairs is proposing new rules that it says will strengthen the Indian Child Welfare Act, the 1978 law passed by Congress to stop the “often unwarranted” breakup of Indian families.

The act provides guidelines to child protection agencies and juvenile courts that set a high standard for placing Indian children into foster care, and it gives tribes a say in those cases. The proposed changes would raise that bar even higher, by requiring that child protection and the courts first determine if a child is Indian, and then only remove that child from a home where there is “present or impending risk of serious bodily injury or death.”Kevin Washburn, the U.S. Interior Department assistant secretary who leads the BIA, is touring the country with other agency officials to hear from tribes and the public about the proposals.

“Guidelines are great,” Washburn told the group at the casino in Prior Lake. “We need things that are legally enforceable.”

Do you have your written comments in yet? They are due May 19.

ICWA Placement Preferences Case out of Oklahoma

Kate Fort

A disturbing case that is also a prime example of why ICWA Regulations are needed in addition to the new Guidelines (submit comments by MAY 19!)

Opinion here.

The court reads a best interest determination into the good cause to deviate from placement preferences, and skates alarmingly close to the existing Indian family exception reasoning.

ICWA Qualified Expert Witness (primarily) Case Out of Alaska

Kate Fort

Here.

Footnote 7 discusses the old and new Guidelines with regards to QEWs, though the court relied primarily on the old Guidelines (the professional person who is an expert professional). The specific qualifications of the QEW in this case is discussed at pages 17-20.

Court held no due process violations and that termination was affirmed.

ICWA Notice Case out of Alabama

Kate Fort

Here.

Moreover, the record indicates that the tribe [Stockbridge-Munsee] received the inquiry form from DHR on November 7, 2014, less than a week before the juvenile court conducted the November 13, 2014, termination hearing. Section 1912(a) dictates that no termination of parental rights proceeding pertaining to an Indian child may be conducted until at least 10 days after an Indian tribe has received the noticed required in that section.
***
Therefore, we reverse the juvenile court’s judgment insofar as it terminated the mother’s parental rights to the child, and we remand the cause for the juvenile court to comply with the provisions of the ICWA . . .