Here are the materials so far in Cherokee Nation v. Dept. of the Interior (D.D.C.):
42 DCT Order Denying Motion to Dismiss
54-1 Federal Motion to Dismiss
55-1 Federal Motion for Protective Order
60 Cherokee Opposition to Motion to Dismiss
85 DCT Order Re Protective Order
88-1 Cherokee Motion for Summary J
98 Cherokee Motion for Summary J
99 Cherokee Reply in Support of MSJ
Alaska elected its first Alaska Native to represent it in Congress. Rep. Elect Peltola is Yup’ik and grew up in Bethel, Alaska. A few things to note–this was a special election to replace Rep. Young, so there will be another election in November for the regular election. This was also Alaska’s first use of ranked voting and an open primary, something that many democratic reformers believe is a fairer process for elections.
https://www.npr.org/2022/08/31/1120327126/palin-peltola-begich-alaska-special-house-election-results
https://www.bbc.com/news/world-us-canada-62747378
I did not realize how far behind I was on these. Here is a case from the end of June on active efforts from the Colorado Supreme Court.
To be honest, this case holding is one that most, if not all, states have come to agreement on either in case law, state law, or state policy.
The court concludes that ICWA’s “active efforts” is a heightened standard requiring a greater degree of engagement by agencies like DHS with Native American families compared to the traditional “reasonable efforts” standard.
Here:
Questions presented:
Lower court materials here.
Here is the opinion in Vandecar v. Muscogee (Creek) Nation:
Here is the complaint in Glacier County Regional Port Authority v. Esau (D.Mont.):
Here are the new pleadings in State of Oklahoma v. Dept. of the Interior (W.D. Okla.):
Prior post here.
The question of qualified expert witness (QEW) has confounded the Alaska Court for years, and unfortunately the regulations and guidelines didn’t provide quite as much clarification as they needed. That said, this decision seems to chart a new course for the Alaska Supreme Court:
As explained further below, the superior court’s interpretation of Oliver N. was mistaken. An expert on tribal cultural practices need not testify about the causal connection between the parent’s conduct and serious damage to the child so long as there is testimony by an additional expert qualified to testify about the causal connection.
* * *
In both cases there is reason to believe cultural assumptions informed the evidence presented to some degree. Had the cultural experts had a chance to review the record — particularly the other expert testimony — they may have been able to respond to and contextualize it. For instance, Dr. Cranor emphasized attachment theory and the economic situation of the families in both cases — areas that may implicate cultural mores or biases. If the cultural experts were aware of this testimony, they could haven addressed attachment theory, economic interdependence, and housing practices in the context of prevailing tribal standards.
Catching up on posting the summer’s reported ICWA cases, so I’m starting with this Washington Supreme Court opinion on active efforts for the initial or shelter care hear.
We took discretionary interlocutory review of this case primarily to decide whether WICWA required the State to take active efforts to prevent the breakup of J.M.W.’s family before taking him into emergency foster care. Consistent with the plain text and purpose of WICWA, we conclude that it did. We also conclude that the trial court was required to make a finding on the record at the interim shelter care hearing that J.M.W.’s out of home placement was necessary to prevent imminent physical damage or harm. We remand to the trial court for further proceedings consistent with this opinion.
This opinion is trying to find some clarity in what ICWA standards apply when. Here are the two questions the Court sought to answer:
First, whether the department is required to make active efforts to keep an Indian child with their family under such circumstances as presented here. Second, whether the trial court was required to make a formal finding at the interim shelter care hearing that continued placement out of the home was necessary to prevent imminent physical damage or harm to the child.
The section question is essentially asking if the emergency standard of 1922 should apply whenever a child is placed out of the home and there is no 1912 (active efforts, QEW) findings. Interim shelter care hearings often happen before a jurisdictional/adjudication hearing, and can sometimes (often) extend the time before adjudication hearing happens. In many states the 1912 findings happen either at adjudication or even after that, at the disposition hearing.
Turtle Talk 
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