Greg Abalvsky Commentary on the Herrera Argument

Matthew L.M. Fletcher

From SCOTUSBlog, here.

Federal Magistrate Recommends Dismissal of Shinnecock Members’ Off-Reservation Fishing Rights Suit

Matthew L.M. Fletcher

Here are the materials in Silva v. Farrish (E.D. N.Y.):

54-3 county defendants motion to dismiss

54-4 reply

54-5 plaintiffs opposition

56-3 state defendants motion to dismiss

56-6 plaintiffs opposition

56-8 reply

63 magistrate report

Prior post here.

UPDATE:

64 objections

65 Suffolk County

Response

66 Silva Reply

Saginaw Chippewa Disenrollees’ Suit Dismissed

Matthew L.M. Fletcher

Here is the order in Cavazos v. Zinke (D.D.C.):

16 DCT Order

Briefs here.

Maine Supreme Judicial Court Affirms Denial of Intervention in Child Welfare Case

Kate Fort

Here.

The State removed non-member children from their tribal member mother, and opposed the Passamaquoddy Tribe’s request for intervention. While intervention is one of right under ICWA, because these children are non-member children, the Court found that ICWA did not apply. In addition, the Court denied the Tribe’s request for permissive intervention in a cursory paragraph. The Court based much of its interpretation and decision on the Maine Indian Claims Settlement Act, making it fairly specific to tribes in Maine. Regardless, the reasoning is frustrating, especially for a permissive intervention, which is apparently allowed “when a ‘[nonparty’s] claim or defense and the main action have a question of law or fact in common’ and intervention will not ‘unduly delay or
prejudice the adjudication of the rights of the original parties.’” M.R. Civ. P. 24(b).

The dissent, pointing out that “In the matter before us, for the safety of the children, the District Court (Calais, D. Mitchell, J.) rejected the request to place the children in a kinship placement with their maternal grandmother. Instead, it authorized the Department of Health and Human Services to seek a foster placement for the children off the reservation and with caregivers who are not related to the children and are not members of the Passamaquoddy Tribe”, therefore “[w]ith the prospect of the children being removed from their Passamaquoddy relatives and the reservation community, the Passamaquoddy Tribe sought to intervene as a matter of right or, alternatively, with the court’s permission.” The dissent also acknowledges the Tribe’s assertion that”their participation in decisions related to the placement and resources available to the children are matters of importance to the court in addressing the needs of the children, whose mother is a member of the Passamaquoddy Tribe. The Tribe’s role, distinct from the role of family members, is important in informing the court of options regarding tribal resources and connections to tribal culture.”

(You had to know I’d end a series of ICWA posts on the case I found the most frustrating.)

Transfer to Tribal Court Decision from Maine Supreme Judicial Court

Kate Fort

Here

[¶1] Shirley T. and David W. appeal from an order of the District Court (Portland, Powers, J.) denying their and the Oglala Sioux Tribe’s motions to transfer jurisdiction of this child protection matter to the Oglala Sioux Tribal Court pursuant to the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C.S. §§ 1901-1963 (LEXIS through Pub. L. No. 115-277). Shirley T. and David W. challenge the court’s determination that there is good cause within the meaning of ICWA not to transfer the matter to the Tribal Court. We affirm the court’s denial of the motion to transfer jurisdiction.

The Court essentially used an inconvenient forum analysis, based on the Regulations, Guidelines and numerous other state court opinions.

Grandparent Standing Case in Arizona Court of Appeals

Kate Fort

Here.

While the Court of Appeals found that the grandmother didn’t have standing and properly dismissed the case, opinion notes the Tribal Court had already been exercising jurisdiction over the child in a concurrent child custody matter.

Oral Argument Transcript in Herrera v. Wyoming

Matthew L.M. Fletcher

Here.

Background materials here.

Tribal Standing Issue in California Court of Appeals ICWA Decision

Kate Fort

Here

Mother next contends the juvenile court’s order granting the Tribe’s petitions for modification, and giving full faith and credit to an amended tribal customary adoption order, must be reversed because the Tribe did not have standing to file section 388 petitions for modification. We reject her contention.

Determination of Indian Child ICWA Case out of Montana Supreme Court

Kate Fort

Here.

In affidavits supporting the TIA and TLC petitions, Child Protection Specialists (CPS) noted they had no reason to believe that any of the children were subject to the Indian Child Welfare Act (ICWA). However, at a May 2016 show cause hearing, the District Court was notified that ICWA possibly applied to K.J. considering K.J.’s father received benefits from the Arapahoe Tribe. The benefits signaled potential for K.J. to meet the “Indian child” designation of ICWA. Yet, further correspondence with the Arapahoe Tribe conclusively determined that ICWA was inapplicable to K.J. The District Court granted the Department authority to investigate and work with the parents and children.

In October 2016, the Department again filed petitions for adjudication as YINC and TLC for all three children. CPS Mariesa Wallis submitted three identical affidavits in support which included the statement: “To the best of my knowledge and belie[f] the child is an Indian Child subject to [ICWA].” Wallis’ affidavit did not reference specific tribes or details concerning possible tribal affiliations. The petition and accompanying affidavits are the sole documents in the record suggesting J.J.C. or R.G. were Indian children.

Emphasis added. The Court found that ICWA did not apply (actually, that there was no reason to believe the child was an Indian children, which . . . seems like the wrong finding). Assuming, however, the communication with the Tribe was accurate, it is correct for the trial court to follow that determination rather than the state social worker’s affidavit.