Here is the bill: HB0317
There has been a lot of wrangling on this one, but in the end this bill has the protections of ICWA as well as incorporating language from the federal regulations.
And just for the record, the Montana Legislature is currently run by a Republican super majority, as is Wyoming and North Dakota, all of which have now passed state ICWA bills. ICWA is a bipartisan law.
Here is a link to the legislative page. The downloaded bill is on the Turtle Talk State ICWA Law Page.
Press coverage here:
Lawmakers voted nearly unanimously this week to pass House Bill 1536, which would weld the crux of the federal Indian Child Welfare Act (ICWA) onto North Dakota’s law books. The bipartisan legislation now goes to Gov. Doug Burgum, whose spokesman did not immediately respond to a request for comment.
Here is the opinion
This is a truly unfortunate opinion with absurdly weak analysis that extends the reasoning in Castro-Huerta to reservations in Oklahoma for ICWA cases involving non-member Indian children residing on reservation.
So we are all on the same page, 1911(a) of ICWA states:
An Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law.
(emphasis added)
This case involves the jurisdiction of the Chickasaw Nation tribal court over a Muskogee child. The parents appealed a state child protection case claiming the state did not have jurisdiction over the child after McGirt and the Chickasaw Nation had exclusive jurisdiction. There is, of course, an easy answer to this, which is the Tribes after McGirt all signed 1919 agreements with the State of Oklahoma to ensure continued concurrent jurisdiction post-McGirt when it involves an ICWA case. The Oklahoma Supreme Court would like you to know that this is a “misunderstanding of the construction of 1911(a)” which, frankly, came as a surprise to me and seems to be lacking any legal support, but here we are.
Instead, the Oklahoma Supreme Court took it upon itself to, for the first time I’ve ever seen, claim that 1911(a) only refers to territorial jurisdiction but not subject matter jurisdiction. In fact, the Court wrote “Whether § 1911’s ‘jurisdiction’ means ‘subject matter jurisdiction’ has received little attention, but requires our review.” I mean, I really don’t think it did, but here we are. Again.
In doing so, the Court decided that Castro-Huerta, involving the prosecution of non-Indians on reservation, is broad enough to hold that the state courts have subject matter jurisdiction over tribal reservations for . . . all the things?
When federal Indian law issues arise, we must take special care to determine if federal law preempts or ousts the state of its general adjudicative authority. Id. When determining jurisdictional disputes for cases arising within the external boundaries of a reservation, we must remember that Oklahoma’s sovereignty does not stop at reservation borders. Castro-Huerta, 597 U.S. at ___, 142 S. Ct. at 2488. The U.S. Constitution authorizes Oklahoma district courts to exercise jurisdiction in Indian country–Oklahoma’s territory includes “Indian country.” Id. at 2493.
Indian country is part of the State, not separate from the State. To be sure, under [the United States Supreme Court’s] precedents, federal law may preempt that state jurisdiction in certain circumstances. But otherwise, as a matter of state sovereignty, a State has jurisdiction over all of its territory, including Indian country. See U.S. CONST., Amdt. 10.Id. The general rule is that Oklahoma is “‘entitled to the sovereignty and jurisdiction over all the territory within her limits.'” Id. (citing Lessee of Pollard v. Hagan, 44 U.S. (3 How.) 212, 228, 11 L. Ed 565 (1845)).
The State of Oklahoma by its Constitution has broadly authorized its district courts to exercise subject matter jurisdiction over “all justiciable matters” unless otherwise noted in the Constitution. Okla. Const. art. VII, § 7(a). Adjudicating children deprived surely is a “justiciable matter.” Ibid. While the parties refer to ICWA’s general reference to “jurisdiction” as “subject matter jurisdiction,” we decline to accept this characterization. This is especially so given the presumption of a district court’s general adjudicatory jurisdiction
Therefore, the Court holds that the state has concurrent jurisdiction on reservation over non-member Indian children, because 1911(a) only means tribes have territorial jurisdiction exclusive concurrent as to its members. To be fair, the opinion is fairly confusing, but ultimately states:
When a child appears before a district court judge and is subsequently determined to be a member Indian, the district court maintains subject matter jurisdiction. But the sovereign status of a tribe and its territorial jurisdiction over its members and territory necessitates disposition of the matter in that tribe’s tribal courts because self-governance is implicated. See Holyfield, 34. (Abusive state practices with respect to Indian Children “seriously undercut the tribes’ ability to continue as self-governing communities. Probably in no area is it more important that tribal sovereignty be respected than in an area as socially and culturally determinative as family relationships.” (citations omitted) (quotations omitted). Section 1911’s “jurisdiction” does not concern a district court’s subject matter jurisdiction; it concerns the connection to the forum and to the group of people (tribe).
I mean, ICWA seems pretty clear that the exclusive jurisdiction is over any child custody proceeding, which feels like subject matter jurisdiction to me, and every court I’ve ever been in front of, but the Oklahoma Supreme Court seems to believes the state maintains subject matter jurisdiction over all child protection proceedings whether on or off reservation. It’s truly fascinating to see the Oklahoma Supreme Court claim that territorial jurisdiction “as a concept of international law, is important for our state . . .”
The Court then holds, without citation, that 1911(a) requires the Indian child to be residing on their own reservation rather than any reservation for exclusive (?) jurisdiction–though it is certainly not clear from the language of the law that is the intent. The Court notes again this question hasn’t been subject to “judicial scrutiny,” which is probably because the language is pretty straightforward and tribal jurisdiction over non-member Indians is noncontroversial. It appears from the last sentence of the opinion that the Chickasaw Court doesn’t have jurisdiction over the non-member Indian child at all. I guess, here we are.
At Fed Bar this year, I spoke about concerns regarding the definition of an Indian child for the purposes of ICWA when the child is eligible and the parent is a tribal member. This is the third case I’ve seen where there is an argument that a parent’s eligibility should be enough. Unfortunately, this isn’t the definition, and it has been an unsuccessful argument.
We hold that evidence that the tribe “considered” Amber a member for purposes of ICWA is insufficient. The plain language of § 43-1503(8) provides as relevant that an “Indian child” must have a biological parent who is a member of a tribe. The evidence adduced in the juvenile court shows that Amber is not currently a member of the tribe; the children, in turn, do not have a biological parent that is a member of the tribe.
One practice tip may be for tribes to apply for permissive intervention under the state court rules rather than the mandatory intervention under ICWA. This may be compelling for a judge when a parent is in the process of becoming a tribal member–at which point, ICWA would apply moving forward.
Andrea Martin has posted “Beyond Brackeen: Active Efforts Toward Antiracist Child Welfare Policy,” forthcoming in the Yale Law and Policy Journal, on SSRN. Here is the abstract:
Due to structural racism, legal protections afforded to families of children in the foster care system have been significantly eroded and continue to be challenged. As a result, families of color, who are disproportionately represented in the foster care system, do not receive the support needed to maintain or regain custody of their children and preserve their families.
The latest attempt to dismantle child welfare protections for a historically marginalized group was a prolonged attack on the Indian Child Welfare Act. In Haaland v. Brackeen, Indian adversaries reached the pinnacle of their incessant attack on the law’s heightened requirements to protect Indian children, families, and tribes. This Article shows that federal child welfare legislation once provided similar safeguards for non-Indian children, but those protections were eroded based on the racist ideology that many children in foster care would fare better if adopted by white families.
In 1978, Congress passed the Indian Child Welfare Act, requiring “active efforts” toward family preservation for Indian children and their families. Two years later, Congress passed similar legislation for non-Indian children, mandating the use of “reasonable efforts” toward enabling families to remain together. Although varying standards were used, both required high levels of involvement by social agencies in providing necessary resources to maintain families. This alignment and focus on family preservation significantly benefited groups and individuals subjected to systemic issues that intersect with the child welfare system including racism, poverty, and homelessness.
However, after twenty years, child welfare protections for non-Indian children were substantially reduced with the passage of the Adoption and Safe Families Act in 1997. Premised on racist assumptions that the disproportionately represented Black and brown parents of thousands of children in foster care were inherently unfit parents, this legislation reduced “reasonable efforts” to a negligible standard. Many families in the child welfare system no longer receive the level of services required to prevent unnecessary removals of their children or to regain custody of their children. This substantially affects African American children who are overrepresented in foster care.
On the other hand, child welfare protections for Indian children and their families remained constant for 45 years. Nevertheless, White foster families seeking to adopt Indian children ignored past discrimination against American Indian families, failed to acknowledge the importance of cultural preservation, and engaged in a concerted effort to dismantle the Indian Child Welfare Act. However, by accentuating the Act’s critical family preservation standards, its opponents fortuitously offered insight into how federal child welfare policies should be realigned to protect all children against unwarranted removals from their homes.
Regardless of the outcome of Brackeen, this Article urges Congress to bolster the level of remedial services offered to all families by requiring “active efforts” to prevent the removal of children from their homes and assist in family reunification. Employing a standard of “active efforts” would reestablish consistency in federal child welfare legislation, better serve families in foster care, and improve outcomes for all children. This standard comports with the new and developing American Law Institute’s Restatement of the Law, Children and the Law, which is “built on the understanding that the state’s goal is to assist parents” in providing adequate care for their children, “not to remove children from their homes if other assistance suffices.”
The Family Law Quarterly Volume 56 No. 2&3 is titled “Family Law and the Supreme Court, 2022-2023.” It includes three articles on ICWA including ones by Marcia Zug and Julia Gaffney. The website is not yet updated but should be soon. Here is the full edition with all the articles:
All pages FINAL flq-v56n02-winter23-design-cc23
Here is “After Brackeen: Funding Tribal Systems”
Kathryn E. Fort article FINAL flq-v56n02-winter23-design-cc23-3
Though the Court may not issue a decision until June of 2023, the question that arises time and again is how to preemptively fix what the Court might do to ICWA and federal Indian law. If the Court accepts virtually any of Texas’s arguments, the legal landscape of federal Indian law may be fundamentally changed. At a minimum, it is likely ICWA practice will change at least in some respects. The Court’s ultimate decision, however, does not mean tribes will suddenly stop fighting to protect their children and families. In addition, advocates will continue to fight for just solutions to the massive issues created by the current child welfare system.
57 Family L. Q. 206-207
In order for tribes to continue that fight, there must be a solution to the funding structure in place now for tribal child welfare and justice systems. The Brackeen litigation has laid bare the importance of tribal governments administering their own child protection and justice systems separate and apart from the states. Tribal governments must have the ability to successfully secure sources of funding for tribal child welfare systems. Without significant changes to the amount of funding and the funding structure, tribes will continue to be at a massive disadvantage, and will be unable to serve their member children and families.
Here:
The Journal of Appellate Practice and Process – Winter 2023 Issue Now Available
The Winter 2023 issue of The Journal of Appellate Practice and Process(Volume 22, Issue 1) is now available. This special issue focuses on appellate issues in and around Indian country. It features the following articles:
This week both Minnesota and Wyoming adopted new state ICWA laws.
After nearly a year of dedicated work by stakeholders, including tremendous tribal leadership, Minnesota updated the Minnesota Indian Family Preservation Act.
Minnesota-2023-SF667-Engrossed
In addition, due to tremendous tribal leadership, the state of Wyoming adopted the entire federal ICWA into state law, creating the Wyoming Indian Child Welfare Act. This act was signed into law by the governor yesterday.
I’m getting a lot of calls and emails about state ICWA laws in light of the pending Brackeen case. A good state ICWA law that is specific to the state practices (see Oregon ICWA law or MIFPA as an example) can take months to complete, especially to ensure participation by all stakeholders, including tribal, parental, and state interests. Until Brackeen is released, it is very difficult to preemptively legislate, or legislate in a way that protects ICWA from the Court’s ruling. However, for states that have no state ICWA laws, if there is the political will to follow the Wyoming lead of incorporating the entire federal law into state law, this would be beneficial if the Court rules that ICWA violates commandeering concerns (ie. states can’t be forced to follow ICWA because it is federal law commandeering their agencies).
But it is important to remember that the Court can rule in a myriad of ways, there is no way to predict the outcome, and it is entirely possible that states will have to revisit their state laws in light of the decision–even those that replicate ICWA. I particularly like the Wyoming model of also passing a law creating *and funding* a taskforce to develop a state specific ICWA as well.
We keep state ICWA laws here: https://turtletalk.blog/icwa/comprehensive-state-icwa-laws/.
https://www.washingtonpost.com/obituaries/2023/02/24/james-abourezk-senator-dakota-dies/
Senator James Abourezk passed away on Friday. He was 92 years old. He was the first chair of the Senate Committee on Indian Affairs. In that role, he was the lead Senator pushing for ICWA, and held hearings for over three years, taking testimony on what was happening to Native families across the country. He sponsored S.1214, the Senate bill that led to the House bill which became ICWA. He held the 1974 Hearings, as well as the 1977 and 1978 Hearings. NARF has collected his letters, where he expressed unreserved support for Native children, families, and tribes. Here is the opening paragraph of one of his letters on the eve of voting:
Throughout the course of this legislation the authors of this bill have been charged with having placed the interests of Indian tribes and the parents of Indian children above the interests of the child itself. I have always rejected this charge. The central concern of this legislation is the welfare of Indian children. Both the Senate and the House version are based on the assumption and indeed the finding that the interests of Indian children are best served by preserving their relationship with their natural family whenever possible, and when that is not possible, placing them with a family or in a setting which shares their own cultural values and heritage.
ICWA was a result of the hard work of so many people, but Senator Abourezk was instrumental in not only its passage, but in preserving the testimony of Native parents, leaders, and elders about the time before ICWA. His kindness to those who were testifying about horrible treatment they received is evident in the record, as was his indignation at that treatment. He did all of this in a single term in the Senate, and was also instrumental in ISDEAA and AIRFA. From the Washington Post:
Mr. Abourezk represented South Dakota for single terms in the U.S. House and U.S. Senate during the 1970s, where he exemplified a brand of Democratic politician known as Prairie Populist. He fought passionately — and with humor — for those he felt were the downtrodden: farmers, consumers and Native American people.
Mr. Abourezk was the first chair of the Senate Committee on Indian Affairs and successfully pressed for the American Indian Policy Review Commission. It produced a comprehensive review of federal policy with American Indian tribes and sparked the Indian Self-Determination and Education Assistance Act, the American Indian Religious Freedom Act and the Indian Child Welfare Act — a landmark piece of legislation meant to cut down on the alarming rate at which Native American children were taken from their homes and placed with White families.
I never got to meet the Senator, but it is still very difficult for me to put into words the impact of his single Senate term. I can’t help but think that his leadership in the Senate, with his unreserved support for Native families and tribes, is especially needed now.
Turtle Talk 
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