Survey for Tribal Justice Practioners

Monica Williamson

Tribal Justice Tools Flyer.jpg

The Center for Court Innovation is conducting a national survey of risk-need assessment tools and data management technologies being used by tribal courts.

The best person to fill out this survey is someone who works in a tribal court, or who has clients who are involved in a tribal justice system. Judges, court staff, prosecutor and defense attorneys, treatment providers, social service providers, case workers, probation officers, etc.

The results of the survey will be used to help develop new risk-need assessment tools and court-based data management technologies designed specifically for tribal courts.

Visit https://www.courtinnovation.org/areas-of-focus/tribal-justice

Questions? TribalJustice@courtinnovation.org

Qualified Expert Witness Case out of Utah Court of Appeals [ICWA]

Kate Fort

Here.

In this case, the GAL petitioned to remove the child from the mother’s care. This GAL has considerable issues with the application of ICWA:

The GAL argued that since ICWA does not explicitly
define what qualifies a witness as an expert, the juvenile
court had “discretion to determine whether a witness has
adequate qualifications to provide the proffered testimony.” Although the three therapists were not qualified to testify regarding tribal cultural standards, the GAL asserted that the court was not bound by the BIA regulations and urged the court to qualify the therapists as expert witnesses anyway . . .

The Court of Appeals instead agreed with mother and Tribe, stating:

Therefore, because the BIA is a federal administrative agency and ICWA is a federal statute, we must employ the principles articulated in Chevron to determine whether the BIA’s 2016 regulation defining “qualified expert witness” is entitled to deference.

***
Determining that a “qualified expert witness” “should be qualified to testify as to the prevailing social and cultural standards of the Indian child’s Tribe” is consistent with Congressional intent and is reasonable.

Unfortunately, the appellate court ultimately held that:

Although the juvenile court correctly applied Chevron
deference to the BIA’s interpretation of ICWA, it did not
correctly apply the regulation, because it rejected the GAL’s experts solely on the ground that they were not qualified to testify regarding the Tribe’s cultural standards without considering whether those standards had any actual bearing on the proposed grounds for removal. Further, the juvenile court erred in determining that Mother could claim therapist–patient privilege with respect to testimony from her therapist and the family therapist. We therefore reverse the juvenile court’s decision and remand for further proceedings consistent with this opinion.

Published Notice Case from California Court of Appeals [ICWA]

Kate Fort

Here

One might think, given that as of the end of July, California had more than 70 ICWA notice violation cases and in 41 one of them (fifty six percent of the time) the appellate court sent it back down to get inquiry and notice correct, the state agency might spend less time arguing why they shouldn’t do notice at all and instead just do notice right the first time. Also, this is one of those cases that makes me furious given that the Tribe intervened in mother’s case when SHE was a dependent child. But instead, let’s look at what the state argued it should do rather than give notice to the Picayune Rancheria:

It is well established that a non-Indian parent has standing to assert an ICWA notice violation on appeal. (In re Jonathon S. (2005) 129 Cal.App.4th 334, 339.) Nonetheless, the County argues that this court does not have jurisdiction, the case is not ripe for appeal, and parents do not have standing because they did not first bring a petition for invalidation in the juvenile court.

***

The County argues that because this specific remedy [25 U.S.C. 1914]  for ICWA violations exists, appeal is an improper remedy. It argues that a petition for invalidation is the exclusive remedy available for ICWA notice and inquiry violations and, as such, parents were required to unsuccessfully pursue such a petition in the juvenile court prior to seeking relief on appeal. Because they did not do so, it reasons, this court is without jurisdiction to hear their appeal.

Yet despite arguing that a petition for invalidation is the exclusive remedy for an ICWA violation, the County also argues parents do not have standing to file such a petition for invalidation. It argues the petition is only available to parents of Indian children—not parents of a potential Indian child for whom ICWA inquiry and notice was not effectuated. (emphasis added)

***

We also decline the County’s invitation to reexamine the “non-forfeiture doctrine”—or, more accurately described as the principle that a parent is not foreclosed from raising an ICWA inquiry or notice violation even if the issue could have been more timely raised by appeal from an earlier order.

***

Again, the County suggests we revisit established case law and depart from the requirement that the agency give ICWA notice to tribes when there is reason to know a child may be eligible for membership and require notice only when the court knows or has reason to know the child is definitively a member (or knows a parent is definitively a member and the child is eligible for membership). We decline the invitation.

Therefore,

Here, having reason to know the minor may be an Indian child, the juvenile court ordered the County to provide notice to the Picayune Rancheria of the Chukchansi Indians tribe in accordance with the ICWA. The County knew that the maternal grandfather was a member of that tribe and that he lived on the tribe’s reservation. It also knew, or should have known, that mother was found to be an Indian child when she was a dependent of the court and that the Picayune Rancheria of the Chukchansi Indians tribe had intervened in that case. We conclude, as did the juvenile court in this case, that the County was required to send ICWA notice to the Picayune Rancheria of the Chukchansi Indians tribe in this case. (emphasis added)

And the kicker (court’s emphasis not italics, mine in red):

Here, the County sent notice to the Picayune Rancheria of the Chukchansi Indians tribe on January 25, 2016, of the “Pre-Jurisdictional Status Conference,” which was scheduled for February 9, 2016. The juvenile court was apprised that the tribe had not received the notice but proceeded with the hearing, which was ultimately held on February 23, 2016. Thereafter, no notice of any subsequent hearing was ever sent to either the tribe or the BIA. Nonetheless, the court held the jurisdiction and disposition hearing on February 23, 2016, sustained the petition, removed the minor, and ordered reunification services. After that hearing, the County “resent” notice—apparently resending the same documents (i.e. the family history, section 300 petition, and notice of the then-passed February 9, 2016 hearing date)—thus, only providing the tribe with notice of a hearing which had already passed. The tribe received that notice on March 3, 2016. On April 26, 2016, less than 60 days thereafter, the juvenile court held an unnoticed ICWA compliance hearing and found the ICWA did not apply.

 

Indigenous Law Journal 2019 Call for Submissions

Matthew L.M. Fletcher

ILJ

Indigenous Law Journal – Call For Submissions!

Please download our Call for Submissions!

Deadline: September 13, 2019

Please contact the Submissions Manager prior to making an oral submission, or to submit written work: submissions.ilj@utoronto.ca

If someone you know would like to receive future calls for submissions, please signup here! You may unsubscribe from our list using the link at the bottom of this email.

Sincerely,

Olivia Hodson and Daniel Diamond
Editors-in-Chief
The Indigenous Law Journal

American Indian Law Journal: Call for Submissions to Fall 2019 Issue

Matthew L.M. Fletcher

AILJ

The American Indian Law Journal, published by the Seattle University School of Law, serves as a vital online resource providing high quality articles on issues relevant to Indian law practitioners and scholars across the country. The American Indian Law Journal accepts articles and abstracts on Indian Law for consideration from students, practitioners, tribal members, and law school faculty members.

The American Indian Law Journal is currently
accepting submissions for potential publication
in the fall 2019 issue.

Submission Deadline:

Fall issue September 15, 2019

Article submissions are accepted through Scholastica, BePress, and AILJ@seattleu.edu. The editing process for publication begins soon after these deadlines for each respective issue. The American Indian Law Journal respectfully requests that authors please use footnotes rather than endnotes. All footnotes must conform to the 20th edition of The Bluebook.

For more information or to submit an article, please contact Phoebe Millsap, Content Editor, millsapp@seattleu.edu.

MGM Sues Interior over Off-Rez Gaming in Connecticut

Matthew L.M. Fletcher

Here is the complaint in MGM Resorts Global Development LLC v. Dept. of Interior (D.D.C.):

1-complaint

Native Village of Eklutna Sues Interior over Gaming-Related Denial

Matthew L.M. Fletcher

Here is the complaint in Native Village of Eklutna v. Dept. of Interior (D.D.C.):

1 Complaint

Federal Court Refuses to Allow Law Firm to Intervene in Trust Breach Suit to Collect Fees against Tribe

Matthew L.M. Fletcher

Here are the materials in Yankton Sioux Tribe v. Bernhardt (D.D.C.):

69 Herman Law Motion to Intervene

72 Yankton Response

74 Reply

88 Yankton Supplemental Brief

90 Herman Law Supplemental Brief

110 DCT Order

Fifth Circuit: ICWA is Constitutional on All Counts

ilpc

Here.

The Fifth Circuit overturned the Northern District of Texas today with strong language supporting ICWA. The Court found that the plaintiffs did have standing, but found against them on all other counts. There is a dissent forthcoming from Judge Owens.

Equal Protection:

We begin by determining whether ICWA’s definition of “Indian child” is a race-based or political classification and, consequently, which level of scrutiny applies. The district court concluded that ICWA’s “Indian Child” definition was a race-based classification. We conclude that this was error.

We disagree with the district court’s reasoning and conclude that Mancari controls here. As to the district court’s first distinction, Mancari’s holding does not rise or fall with the geographical location of the Indians receiving “special treatment.”

Anti-Commandeering:

We examine the constitutionality of the challenged provisions of ICWA below and conclude that they preempt conflicting state law and do not violate the anticommandeering doctrine.

Non-Delegation:

We find this argument unpersuasive. It is well established that tribes have “sovereignty over both their members and their territory.” See Mazurie, 419 U.S. at 557 (emphasis added)”

For a tribe to exercise its authority to determine tribal membership and to regulate domestic relations among its members, it must necessarily be able to regulate all Indian children, irrespective of their location.

Authority to Issue Regulations

Here, section 1952’s text is substantially similar to the language in Mourning, and the Final Rule’s binding standards for Indian child custody proceedings are reasonably related to ICWA’s purpose of establishing minimum federal standards in child custody proceedings involving Indian children. See 25 U.S.C. § 1902. Thus, the Final Rule is a reasonable exercise of the broad authority granted to the BIA by Congress in ICWA section 1952.

Conclusion:

For these reasons, we conclude that Plaintiffs had standing to bring all claims and that ICWA and the Final Rule are constitutional because they are based on a political classification that is rationally related to the fulfillment of Congress’s unique obligation toward Indians; ICWA preempts conflicting state laws and does not violate the Tenth Amendment anticommandeering doctrine; and ICWA and the Final Rule do not violate the nondelegation doctrine. We also conclude that the Final Rule implementing the ICWA is valid because the ICWA is constitutional, the BIA did not exceed its authority when it issued the Final Rule, and the agency’s interpretation of ICWA section 1915 is reasonable.

D.C. Circuit Decides United Keetoowah Band of Cherokee Indians v. FCC

Matthew L.M. Fletcher

Here is the opinion.

An excerpt:

We grant in part the petitions for review because the Order does not justify the Commission’s determination that it was not in the public interest to require review of small cell deployments. In particular, the Commission failed to justify its confidence that small cell deployments pose little to no cognizable religious, cultural, or environmental risk, particularly given the vast number of proposed deployments and the reality that the Order will principally affect small cells that require new construction. The Commission accordingly did not, pursuant to its public interest authority, 47 U.S.C. § 319(d), adequately address possible harms of deregulation and benefits of environmental and historic-preservation review. The Order’s deregulation of small cells is thus arbitrary and capricious. We do not reach the alternative objections to the elimination of review on small cell construction. We deny the petitions for review on the remaining grounds.

Prior post here.