tribal membership

California Court of Appeals Holds ICWA Doesn’t Apply Where Pala Band Member Child is Disenrolled During Adoption Proceedings

Matthew L.M. Fletcher

Here is the unpublished opinion in In re K.P.:

In re K.P.

An excerpt:

Michelle T., a member of the Pala Band of Mission Indians, contends that the juvenile court violated the Indian Child Welfare Act (ICWA), title 25 United States Code section 1901 et seq. and Welfare and Institutions Code section 224 et seq. by terminating her parental rights to her children, K.P. and Kristopher P., under section 366.26.
Throughout most of their dependency cases, K.P. and Kristopher were eligible for membership, or were enrolled, in the Pala Band of Mission Indians (Pala Band). At the children’s first section 366.26 hearing, the Pala Band did not consent to the children’s adoption and the juvenile court ordered a plan of guardianship. Several years later, when the children’s cases proceeded to a second section 366.26 hearing, the juvenile court learned that the Pala Band of Mission Indians had disenrolled K.P. and Kristopher, and others, on the ground that they lacked the blood quantum necessary for membership.
Michelle argues that in view of a pending appeal in the United States Court of Appeals for the Ninth Circuit challenging the validity of the Pala Band’s enrollment ordinance that resulted in the disenrollment of K.P. and Kristopher and the others, the juvenile court erred when it found that K.P. and Kristopher were not Indian children within the meaning of the ICWA and declined to apply ICWA’s substantive and procedural protections at the children’s second section 366.26 hearings. Michelle also argues that enrollment in a tribe is not required to be considered an Indian child, and that the Pala Band did not provide written confirmation that enrollment is a prerequisite for Pala Band membership.
We conclude that the juvenile court correctly ruled that the Indian tribe has the sole authority to determine its own membership and that the juvenile court must defer to the membership decisions of an Indian tribe. Under federal and state law, the Indian tribe’s membership determination is conclusive. The record shows that enrollment is a prerequisite for Pala Band membership, and that the Pala Band determined that K.P. and Kristopher are not members of its tribe. Therefore, the juvenile court did not err when it determined that K.P. and Kristopher are not Indian children within the meaning of the ICWA and terminated parental rights without applying ICWA’s heightened substantive and procedural protections. We affirm.

Grand Ronde Disenrollees’ Appeal Denied by Tribal Court

Matthew L.M. Fletcher

Here is the order in Alexander v. Confederated Tribes of Grand Ronde:

ORDER 10-27-15-2-2

“Nooksack tribal members facing disenrollment win records fight”

Matthew L.M. Fletcher1 Comment

News coverage from the Bellingham Herald here.

Materials on the St. Germain v. DOI case here.

Rina Swentzell Walks On

Matthew L.M. Fletcher

We’ve known for a few days that our great friend and inspirational leader Rina Swentzell had walked on, but we’ve taken a few extra days to collect our thoughts on how to best represent her.

We invited Rina to Michigan State’s annual Indian law conference in 2008 and she was very gracious in accepting our invitation. That year’s conference was dedicated to the 40th anniversary of the Indian Civil Rights Act legislation, and would eventually lead to a volume of edited essays on the Act published in 2012, the misleadingly titled book, The Indian Civil Rights Act at 40.

We knew about Rina from her prior appearances at law school conferences, but mostly from her compelling talk (published as a law review article), “Testimony of a Santa Clara Woman.” The talk remains for us one of the most compelling pieces of legal scholarship, cutting through the theoretical doctrines of law we hold so dear to the muscle and bone of what federal Indian law means to the Indian people it affects. In some ways she might not have understood at the time (although I suspect she might have), her testimony was a powerful and yet gentle rebuke to commentators critical and even supportive of the Supreme Court’s decision in Santa Clara Pueblo v. Martinez, which had held that there was no federal forum to challenge a tribal law that discriminated against on its face against Indian women and their children.

At our 2008 conference, we invited several American Indian women from all over the country to talk about the Martinez decision, its legacy and its impact on their lives — Rina, Eva Petoskey, Rebecca Miles, Francine Jaramillo, and Gloria Valencia-Weber — as well as Catharine MacKinnon, one of the decision’s most critical detractors. To our surprise, all of the Indian women voiced strong support for the decision, despite the outcome. Rina was the center of that discussion. We published the commentaries of the Indian women next to Professor MacKinnon’s paper in the book in 2012.

Rina’s argument, over spirited objections, that the federal courts, even the Supreme Court, was no place to force change on tribal government and tribal law eventually prevailed. In 2014, the people of the Santa Clara Pueblo changed the tribal law in question in Martinez to be more reflective of tribal norms. Rina was a driving force in that tribal political movement.

We are terribly sad to hear of Rina’s passing, but we celebrate what she taught us.

Here is “Rina Swentzell, 1939-2015: Daughter says Santa Clara artist, activist fought for all but put family first.”

Disenrollment Resolution and Studies from the Association of American Indian Physicians

Matthew L.M. Fletcher2 Comments

Here:

Dr. Walker Disenrollment Background Paper

Dr. Adachi Disenrollment Background Paper

Dr. Hill Background on Resolution

AAIP Resolution on Disenrollment

Tribal Disenrollee (San Pasqual Band of Diegueño Mission Indians) Suit in Federal Court against Interior Fails

Matthew L.M. Fletcher1 Comment

Here are the materials in Alto v. Jewell (S.D. Cal.):

103-2 Alto Motion for Summary J

110-1 Interior Cross Motion

111 Alto Reply

113 Interior Reply

125 DCt Order

We posted on this case here, here, here, and here.

Federal Court Grants Voluntary Dismissal in Nooksack Case After BIA Waives FOIA Fees

Sarah M Donnelly1 Comment

Here are the materials in St. Germain v. Dept. of Interior (W.D. Wash.):

doc. 56 – Plaintiffs’ Motion for Voluntary Dismissal

doc. 59 – Order on Motion for Summary Judgment

Prior pleadings in this matter here, here, and here.

Sherman Alexie on Disenrollments

Image Matthew L.M. Fletcher3 Comments

Sherman

7 Grand Ronde Ancestors Posthumously Disenrolled; Appeals Dismissed

Matthew L.M. Fletcher2 Comments

Here are the newest materials in Alexander v. Confederated Tribes of Grand Ronde:

At request of counsel for the plaintiffs (see statement below), we have removed these docs:

To Whom It May Concern:
At the behest of the Grand Ronde Tribal Government’s legal counsel, we have removed from our firm’s social media pages any links to certain legal briefs which were sealed under the Grand Ronde Tribal Court’s order issued in September of 2014.  We ask that you likewise remove any legal briefs from your pages.  We regret the inadvertent disclosure of these legal briefs.