ICWA

Kathryn Fort on Tribal-State Cooperation and the Indian Child Welfare Act

Matthew L.M. Fletcher

Our own Kathryn Fort has posted her new paper, “Waves of Education: Tribal-State Cooperation and the Indian Child Welfare Act,” on SSRN. It is forthcoming in the Tulsa Law Review.

Here is the abstract:

This article focuses on the relationship and agreements between tribal and state judicial systems in Michigan. In tracing that work, the article demonstrates the cyclical nature of tribal-state court relations, and the way the welfare of Indian children binds together tribal and state judicial systems, regardless of either side’s participation. Federal intervention in this area under the auspices of the Indian Child Welfare Act (“ICWA”) virtually forces tribes and states to work together. How the personnel in the tribal and state systems interact has a huge impact on the children of the tribes in Michigan.

Twice in the past twenty years representatives of the tribal and state judiciaries in Michigan have come together to negotiate agreements, create rules, and draft legislation. Once the work is done, however, how do the courts handle these kind of agreements? Part of the problem with state ICWA laws elsewhere is the courts’ unwillingness to affirm a state law that differs from ICWA. Tribes and states willing to do the work to create a state ICWA law that is tailored to state laws, while providing more than the minimum standards created by the federal ICWA, have at times been greeted with hostility in the courts. Regardless, the relationships that develop through the process of drafting these laws and agreements benefit both tribal and state systems.

Unpublished ICWA Opinion out of Nebraska

Kate Fort

In re Zylena R..

The court found that the denial of transfer to tribal court was not an abuse of discretion by the trial court. In this case the blood quantum requirements of the tribe initially led to a determination that the children were not eligible for membership, though it turns out the determination was in error. Because of the error, the tribe was late to intervene, and the trial court denied transfer. The State and the GAL opposed transfer, and the court used a best interests standard to deny transfer. It’s not a pretty opinion and touches on a number of the usual issues involved in these cases (permanency, termination of parental rights, whether foster care placement and termination proceedings are separate or intrinsically linked).

Petitioner’s Reply Brief in Support of Cert in Nielson v. Ketchum

Matthew L.M. Fletcher

Here:

Petitioner’s Cert Stage Reply Brief

Alabama-Coushatta Tribe of Texas 2nd Judicial Symposium

Matthew Campbell

Save the Date is here: Alabama-Coushatta Tribe of Texas 2nd Judicial Symposium

South Dakota SCT Decides ICWA Doesn’t Apply to Children Not Eligible for Membership

Matthew L.M. Fletcher7 Comments

Here is today’s opinion in In re L.S.

An excerpt:

In the circumstances here, however, the Crow Creek Sioux Tribe requires an application for membership. See Constitution and By-Laws of the Crow Creek Sioux Tribe of Fort Thompson, South Dakota, Art. II, Membership. An Indian tribe’s determination of its membership and eligibility for membership is binding and conclusive in an ICWA proceeding. In re Adoption of C.D., 751 N.W.2d 236, 241-42 (N.D. 2008). C.S. has not taken the necessary steps to enroll in the Crow Creek Sioux Tribe, even though she had sixteen months to do so from the time L.S. was removed. Therefore, L.S. is not a biological child of a member of an Indian tribe.

Idaho Court Decides ICWA Active Efforts/Qualified Expert Witness Case

Matthew L.M. Fletcher

Here is the opinion in Idaho Dept. of Health and Welfare v. Doe.

Michigan COA ICWA Notice Case

Kate Fort

In re Yost

Given this evidence regarding the efforts made to notify possible tribes which the children might have been affiliated with, as well as the lack of any mention by respondent throughout the proceedings regarding the application of the ICWA, we cannot conclude that petitioner and the circuit court violated the notice requirements of 25 USC 1912(a).1

Cert Opposition Brief in Nielson v. Ketchum

Matthew L.M. Fletcher

Here:

Ketchum Cert Opp

The cert petition and link to lower court materials is here.

Minn. Public Radio on Minnesota ICWA Gap Fix

Matthew L.M. Fletcher

Here. Our post on the bill is here.

An excerpt:

Minnesota American Indian tribes and their allies in the state Legislature are seeking to plug a gap in child custody laws opened by a state Supreme Court decision last year.

The court’s decision derailed the common practice of giving tribal courts a role during pre-adoption and adoption for off-reservation American Indian kids.

Until the late 1970s, American Indian children across the country were adopted outside their communities at very high rates. The practice had a devastating effect on tribes, as generations of youth were cut loose from their cultural identities.

“People thought they understood that children would fare better if they were raised in white middle class homes,” said Andrew Small, a lawyer and former tribal judge in the state. “When you remove a child from their home, that begins a process that sometimes is impossible to stop… a child is going to be lost to the tribe.”

In 1978, Congress passed the Indian Child Welfare Act, which was designed to allow tribes a say in child custody and adoption proceedings. Since then, Minnesota state courts dealing with custody of an American Indian child off the reservation have been able to transfer jurisdiction to tribal court, even in the later part of the proceedings, which are called adoptive or pre-adoptive stages.

But a Minnesota Supreme Court decision late last year found a gap in the Indian Child Welfare Act. The court decided that neither federal nor Minnesota statute explicitly allowed state courts, when dealing with an American Indian child living away from a reservation, to transfer jurisdiction during the later portion of custody proceedings.

 

Michigan COA Decides Another ICWA Notice Case

Matthew L.M. Fletcher

Here is the opinion:

Brent COA Opinion

An excerpt:

The record reveals that petitioner investigated N. Brent’s claim that his uncle was an “Alleganian Indian” by notifying the Bureau of Indian Affairs. Petitioner received a response from the United States Department of the Interior Bureau of Indian Affairs stating that “there is not a federally recognized Alleganian tribe.” On appeal, respondents argue that petitioner should have understood that the Allegany Indian Reservation is not a tribe, but a reservation occupied by Seneca and Cayuga Indians, however there is no indication that respondents conveyed this information to petitioner. Regardless, this issue is now moot. An issue becomes moot when a subsequent event renders it impossible for the appellate court to fashion a remedy. Kieta v Thomas M Cooley Law Sch, 290 Mich App 144, 147; 799 NW2d 579 (2010). The remedy for a violation of the ICWA would be to remand to the trial court “for the purpose of providing proper notice to any interested Indian tribe pursuant to the ICWA.” See In re IEM, 233 Mich App 438, 456; 592 NW2d 751 (1999). The trial court has already terminated its jurisdiction over the children. Because the trial court no longer has jurisdiction, there is no longer any party seeking either foster care placement or termination of parental rights. 25 USCA 1912(a). The remedy of transferring proceedings to a tribe unless the tribe declines jurisdiction, 25 USCA 1911(b), is no longer necessary because the proceedings have been concluded.