ICWA

NCJFCJ Seeks Senior Policy Analyst

Kate Fort

Or as some us might call it, “Gina Jackson’s Job.”

The National Council of Juvenile and Family Court Judges (NCJFCJ) seeks a Senior Policy Analyst in their Juvenile Law’s Child Abuse & Neglect program.

The minimum requirements for this position include a degree from an accredited university and at least five years of experience in child welfare, domestic violence, or juvenile/family law-related field. Preference will be given to candidates with a graduate degree in social work, public administration, law, political science, sociology, or closely related field preferred (a JD is particularly desirable). Substantial experience working with tribes and tribal courts, along with experience and knowledge of delinquency, dependency, or domestic violence systems, ICWA, and VAWA are key ingredients for the Senior Policy Analyst position.

This position will serve as the primary staff liaison to the Tribal Court Judicial Leadership Committee and as an internal staff resource on tribal court/tribal issues. A strong emphasis is on providing public presentations and/or on-site technical assistance to tribal and state courts as well as critical thinking, analytical ability, writing policy briefs and papers, and working collaboratively with partners and system representatives. Applicants must have strong organizational skills with both a broad vision and attention to detail, comprehensive computer skills, and a willingness and ability to travel nationwide. Occasional lifting up to 50 lbs. may be required

For more information visit here.

Prof. Karen Tani Writes About “Remembering the ‘Forgotten Child'” in Light of Adoptive Couple at Jotwell

Kate Fort

Here.

These revelations are sure to disturb any reader, but the point of Jacobs’s important article is not to expose adoption proponents as disingenuous or malevolent. It is to place an ongoing phenomenon—Indian children’s disproportionately high rate of separation from their families—in proper historical context. (P. 154.) “It is no coincidence,” Jacobs writes, “that the IAP arose during the era in which the federal government promoted termination [of tribal nations’ special status] and relocation policies for American Indians.” (P. 152.) Adoptions enabled the federal government to terminate its responsibilities, child by child, by shifting them to “the ultimate ‘private’ sector.” (P.154.) By extension, Jacobs argues, adoptive families also advanced the government’s long-term “effort[] to eliminate Indianness.” (P. 154.) This, Jacobs demonstrates, was the backdrop for the ICWA. When tribal leaders and advocacy organizations convinced Congress to enact the new law, it was a small victory in a long war. And when plaintiffs invoke the ICWA today, they raise a hard-won shield.

We agree that Margaret Jacobs “Remembering the ‘Forgotten Child’: The American Indian Child Welfare Crisis of the 1960s and 1970s” 37 American Indian Quarterly 136 (2013) is an excellent and important article.

ICWA Jurisdiction Case out of North Carolina

Kate Fort1 Comment

Here.

Finding the tribe, not the state, has exclusive jurisdiction over child welfare issues arising on tribal land. Also interesting is the state courts’ continued resistance to recognizing tribal-state agreements surrounding ICWA (pp 9-12) (see, eg, In re R.S. (Minn. 2011)).

For purposes of the ICWA, Ellen’s domicile was that of her
parents. See Miss. Band of Choctaw Indians v. Holyfield, 490
U.S. 30, 48, 104 L. Ed. 2d 29, 46 (1989). At the time DSS filed
the juvenile petition on 8 November 2011, respondents were
domiciled in Cherokee, North Carolina, within the Tribe’s Qualla
Boundary land trust.4 Therefore, this case is governed by 25
U.S.C. § 1911, which grants exclusive jurisdiction to the tribal court, “except where such jurisdiction is otherwise vested in
the State by existing Federal law.” 25 U.S.C. § 1911(a).

In re Z.A.: Stackbridge or Stockbridge

Kate Fort

Here.

California Court of Appeals, 4th district, 2nd division, remands for DPPS to notify the proper tribe:

Here, DPSS was informed at the earliest point in the proceedings that the biological grandmother was an enrolled member of a tribe and that mother, herself, was an enrolled member of an Indian tribe. DPSS was therefore aware that an Indian child might be the subject of the involuntary custody proceeding. The problem arose when mother completed the ICWA 020 form, in which she listed the possible tribe to which she belonged as the “Stackbridge” tribe. Without conducting any inquiry on her own, the social worker accepted information from an unnamed noticing clerk indicating that the “Stackbridge” tribe did not exist, and did not send any notice to that tribe.

Without difficulty, we found the tribe. The Department of Interior’s list of “Indian Entities Recognized and Eligible to Receive Services From the Bureau of Indian Affairs” (otherwise known as the list of Federally Recognized Tribes) includes the “Stockbridge Munsee Community, Wisconsin.” (77 Fed.Reg. 47868, 47871 [No. 155, 2012].) The Stockbridge–Munsee Community of Wisconsin reveals that the tribe descended from a group of Mohican Indians who joined the Oneida Indians in New York in 1785, and, together, both tribes were relocated to Wisconsin. (Stockbridge–Munsee Band of Mohican Indians, http:// witribes.wi.gov/docview.asp?docid=19080 & locid=57 [as of Aug. 31, 2013], p. 2.)

California COA Decides ICWA Notice Appeal

Matthew L.M. Fletcher

Here is the opinion in In re Brianna M.:

In re Brianna M

An excerpt:

Francisco contends finally that he is a member of the Gila River Community, a federally recognized Indian tribe. He urges that DCFS therefore was required by ICWA to provide notice of the proceedings to the tribe, and to give the tribe the opportunity to intervene. DCFS concedes that ICWA notice was not properly given and does not object to a remand with directions to the juvenile court to order DCFS to provide proper notice.
Pursuant to 25 United States Code section 1912(a), “[i]n any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, [DCFS] shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.” Welfare and Institutions Code section 224.2, subdivision (a)(1) similarly provides that notice to the tribe “shall be sent by registered or certified mail with return receipt requested.”

Because DCFS failed to provide proper ICWA notice, we remand the matter to the juvenile court with directions to direct DCFS to comply with the notice provisions of ICWA. However, we decline to reverse the jurisdictional and dispositional orders because there is not yet a sufficient showing that Brianna is an Indian child within the meaning of ICWA. If after proper inquiry and notice a tribe determines Brianna is an Indian child, any interested party may petition the court to invalidate any orders that violated ICWA. (See In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467, 135 Cal.Rptr.3d 355; In re Damian C. (2009) 178 Cal.App.4th 192, 199–200, 100 Cal.Rptr.3d 110.)

AAIA and NICWA Legal Guide to Adoptive Couple v. Baby Girl

Kate Fort5 Comments

Here. (pdf)
Includes summary of the case and legal analysis, including the impact of state statutes and tribal/state agreements.

Dustin Brown to Stop All Legal Proceedings

Kate Fort3 Comments

Tulsa World coverage here.

Ending a custody battle that stretched across two states and dragged on for nearly four years, Dusten Brown will drop all litigation in the “Baby Veronica” case, he announced Thursday.
“I cannot bear to continue it any longer,” Brown said, holding back tears. “I love her too much to continue.”

A Positive ICWA Case Out of California

Kate Fort

We almost never see a positive case out of California. Here is one (In re C.S.), and the words of the juvenile referee Sobel from state court:

The court granted the section 388 petitions filed by mother and father, concluding, “We have an American Indian child. That’s different. We have siblings who are with relatives. That’s different. We have a new baby who has been safely in the mother’s care since the [non-detain] petition was filed. That’s different. So, when you say that the children who are placed with foster parents at birth, that is their parent, the parent that is there night and day, you are correct, in every case, that’s correct. But the point of this is what happens to parents in the part that we call reunification? Where at some point do the parents earn the right to become those people? Where is that transference into being able to be a parent? Now, with the two other children . . . , they are with relatives. Those relatives are glad to step back and be relatives. If they need to adopt, they will. But the fact is they are grandparents. They prefer to be grandparents. I have two parents in complete compliance with their original case plan and American Indian. As to [C.’s older sibling and half-sibling], there’s no question there are changed circumstances here. The issue is best interest and I find it’s in the best interest of [the older sibling and half-sibling] to grant the 388 and place the children home of parents: mom for [the half-sibling and sibling], dad and mom for [the sibling]. We’ve already taken [the baby] off the track [by dismissing the non-detain petition as to her]. . . . [C.] is American Indian. She has three siblings. Those siblings are going home. . . . I am telling you, from my heart, an American Indian child belongs in an American Indian home, especially when that home has siblings in it and parents who are appropriate. There is no question that ICWA requires that I do what is right under ICWA; that I do what’s right for this family, understanding and knowing that C. loves [her de facto parents] both as a primary attachment. . . .    I’m granting mother[’s] and father’s 388 as to C., finding there are changed circumstances and that it is in the child’s best interest to be returned to her parents.”

Dissents in the Lift of Stay in Baby Girl Case and Additional Coverage of Proceedings

Kate Fort

From the Oklahoma Supreme Court. Here.

 In addition to Veronica’s interests, the Cherokee Nation has been a party to all of the proceedings in the courts of South Carolina, in the United States Supreme Court, and in the courts of this State. As such, the Cherokee Nation has a direct and substantial interest in seeing that Veronica’s rights as an Indian child and member of the Cherokee Nation are fully protected, including the right to the special best interests determination under the law of the case. It would be virtually impossible for any court to make this special best interests determination without hearing from the Cherokee Nation.

Reif, V.C.J.

 

Everything in the life of Baby Girl has changed since 2011, and therefore, I cannot join the majority’s decision to dissolve the temporary stay and to deny original jurisdiction.1 Although this is a complicated case, we should accept our legal responsibility to follow established law in making a determination having such a profound impact on the life of this child.

Gurich, J.

H/T Constitutional Law Prof Blog

Today’s Tulsa World coverage here (including a discussion of the contempt charges in South Carolina).

Blatant Notice Disregard in California ICWA Case

Kate Fort

Here. The decision is unpublished. It isn’t just cases where the parent is unsure of their tribal affiliation where this is happening.

In August 2011, at the outset of this case, John told the social worker that he was “a member of the Mission Digueno Tribe[,] a band of the Kumeyaay Indians,” and had a roll number. John also said that he had “Native American Ancestry with the Chumash Tribe in the Santa Ynez reservation….” In his Parentage Inquiry, he declared he had “Chumash and Digueno” heritage. In his Parental Notification of Indian Status, he declared he might have Indian ancestry through a Kumeyaay Tribe and a “Mission Digueno / Chumash” band. In September, John’s sister gave the social worker the roll number shared by all family members.
The social worker sent incomplete ICWA notices to the tribes. Most of the notices listed the roll number only in connection with a relative, did not explain how that relative was related to Matthew and did not explain that the whole family shared the roll number. Most of the notices omitted known information that John and other paternal relatives had received medical and dental treatment at an Indian health clinic. Most of the notices listed a Chumash Tribe association only for the paternal great-grandmother.
None of the responses to the ICWA notices were positive. The court found that ICWA did not apply. In May 2013, the court terminated parental rights.