Another (unpublished) Arkansas ICWA Case Lacking Strong Parent Representation

Kate Fort

Here. Another reason for more parent attorney partnerships and training. Matthew noted this happened last September in Arkansas too. From the opinion, it’s not remotely clear the agency notified the Cherokee tribes of dad’s claim here.

In addition to the termination of Daniel’s parental rights, the trial court found ICWA did not apply. His counsel explains that this finding does not provide a meritorious basis for reversal, and we agree. Daniel attempted to establish the applicability of ICWA at the outset of the termination hearing—despite the fact the trial court had earlier determined that ICWA did not apply in the probable-cause order dated July 8, 2015. The only documentation he submitted in support of his assertion was a form application for membership in the Cherokee Nation he filed only a couple of days prior to the hearing. In order to establish the applicability of ICWA, a child who is the subject of a dependency neglect action must be an “Indian child,” which is defined as any unmarried person who is under eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. 25 U.S.C. § 1903(4). Here, there was no evidence A.B. and D.B. satisfied these requirements. It is undisputed the children are not members of an Indian tribe, and the only evidence submitted was the form application prepared by Daniel two days before the hearing—there was no evidence the application had been accepted or that the children were in any other way eligible for membership, and there was not even any evidence Daniel was their biological father, although he did not dispute that fact. This issue provides no meritorious basis for reversal.

In more than one state, this would provide a meritorious basis for remand at minimum, and maybe reversal. It’s fair that it might not yet be a basis for reversal in Arkansas, but it’s clearly time for someone to bring the argument.

 

(Why yes, I am currently on a four hour flight, and have a backlog of ICWA cases to post . . .)

Published ICWA Inquiry Case from Colorado Court of Appeals

Kate Fort

Here.

The court found that the agency has to ask about tribal citizenship each time a the agency initiates proceedings against a parent, and not rely on findings in a separate, previous proceeding.

Moreover, while not applicable here, we note that new federal regulations that codify this inquiry obligation became effective on December 12, 2016. See 25 C.F.R. §§ 23.107-.109, .111 (2016). The new regulations were quickly followed by new guidelines issued in December 2016. See Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act (Dec. 2016),https://perma.cc/3TCH-8HQM (2016 Guidelines). Consistent with the 2015 Guidelines applicable here, these new regulations and guidelines require the court to ask all participants in the case whether there is reason to know the child is an Indian child and to instruct the participants to inform the court if they later discover information that provides reason to know the child is an Indian child. See 25 C.F.R. § 23.107(a); 2016 Guidelines at 11. And, if a new child custody proceeding is initiated for the same child, the court must again inquire into whether there is a reason to know that the child is an Indian child. 25 C.F.R. § 23.107(a).

Unpublished ICWA Case from Texas

Kate Fort1 Comment

Here. Probably need to do some training down in Texas:

On September 9, 2016, the [Texas] Department’s attorney sent proper notice to the Bureau of Indian Affairs. The [Texas] Department [of Family and Protective Services] also sent a letter dated March 16, 2017, to the Secretary of the Interior, ICWA, and to the Bureau of Indian Affairs, stating that W.C. testified that his Indian tribe was “maybe Lakota Sioux.” According to the Department’s letter, that tribe is not federally recognized as eligible for services or, more particularly, is not an “Indian tribe” pursuant to the ICWA. See 25 U.S.C.A. § 1903(8) (Westlaw through Pub. L. No. 115-22).

Emphasis added.

NYTs: “Will Bears Ears Be the Next Standing Rock?”

Matthew L.M. Fletcher

Here. 

Statement on the First National Day of Awareness for Missing and Murdered Native Women and Girls

Victoria Sweet

Statement from the National Indigenous Women’s Resource Center,  Link Here

The current reports of abduction and murder of American Indian women and girls are alarming and represent one of the most severe aspects of the spectrum of violence committed against Native women. The murder rate of Native women is more than ten times the national average. Often, these disappearances or murders are connected to crimes of domestic violence, sexual assault, and sex trafficking.

The NIWRC recognizes that before this crisis will be sufficiently addressed it must first be acknowledged. This past year, over 200 tribal, state and national organizations joined with NIWRC and signed on in support of a resolution to create a National Day of Awareness for Missing and Murdered Native Women and Girls.  The Montana delegation Senator Steve Daines, Senator Jon Tester, and then Congressman Ryan Zinke introduced the resolution in memory of Hanna Harris, a Northern Cheyenne tribal member, who was murdered in July 2013. The resolution was introduced in April 2016 on the same day that RoyLynn Rides Horse, a Crow tribal member, passed away after having been beaten, burned, and left in a field to die. This past Wednesday, May 3, 2017, the United States took a historic step forward and passed the Senate resolution #60 by unanimous consent.

The NIWRC was honored to have worked with so many sister organizations at the tribal, state and federal levels to see the passage of this historic resolution. Today, May 5th 2017, organized community actions are taking place across tribal nations in honor of missing and murdered Native women and girls. The national office of NIWRC is honored to walk with Melinda Harris, mother of Hanna Harris, Senator Steve Daines, staff of Senator Jon Tester and so many others at a walk organized at Lame Deer, Montana. Tribal actions are being held at the Muscogee Creek Nation, the Mohawk Nation, the Oglala Sioux Indian Nation, the Northern Cheyenne Indian Nation, and many other locations.

We ask all of those concerned about safety and justice for American Indian, Alaska Native, and Native Hawaiian women to join together today to honor Native American women and girls who have disappeared and those who have been murdered. Together we can work to bring an end to this crisis endangering not only Indigenous women and girls but Indian nations.

The NIWRC is committed to organizing to increase safety and access to justice for American Indian and Alaska Native women and girls, to bringing awareness to this critical issue, and to preventing future acts of violence in our Nations.

 

Lucy Simpson
Executive Director, NIWRC

Cherrah Giles
Board Chair, NIWRC

Friday Job Announcements

Sarah M Donnelly

Job vacancies are posted on Friday. Some announcements might still appear throughout the week. If you would like your Indian law job posted on Turtle Talk, please email indigenous@law.msu.edu.

Grand Traverse Band of Ottawa and Chippewa Indians

Guardian Ad Litem. Soliciting contractual-service proposals for Guardian Ad Litem (GAL) to work in the Family Healing to Wellness Court (FHTWC). The contractual services will start upon completion of contract negotiations and end on 9/30/19. This contractual position is paid from Grant Number #4030 (Grant) from the U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention.

Squaxin Island Tribe

Staff Attorney (previously posted 4/7/17). The Legal Department advises and represents the Squaxin Island Tribe in federal, Tribal and state courts and in administrative proceedings. The work environment is collegial, collaborative and dynamic, and with an emphasis on creative problem-solving. We seek qualified individuals with top-notch skills. UPDATE: The position will remain open until filled.

Interior Secretary Meets With Ute Indian Tribe Leaders

Sarah M Donnelly1 Comment

 

Statement from the Department:

Today Secretary of the Interior Ryan Zinke met with leaders of the Ute Indian Tribe of the Uintah Ouray. The Tribal leaders and the Secretary discussed several issues including energy development, the nature of sovereignty, public lands, and the Bears Ears National Monument. The meeting was the first of many conversations. The Secretary and the Tribal leaders committed to maintaining an ongoing open and positive dialogue.

W.D. of New York Dismisses Seneca County’s Counterclaims in Tax Foreclosure Suit

Sarah M Donnelly

Download briefs and order in the matter of Cayuga Indian Nation of New York v. Seneca County, New York, 11-cv-06004 (May 2, 2017):

Links: Previous posts and further documents

Indian Law Week and Summer Indian Law Courses at University of Montana School of Law

Sarah M Donnelly

Download: 2017 Indian Law Week Poster

Link: Summer American Indian & Indigenous Law, previous post

Law students, grad students, attorneys, tribal leaders:

JOIN US for the Summer American Indian and Indigenous Law Program here at the Alexander Blewett III School of Law at the University of Montana in beautiful Missoula. We are once again offering a unique slate of courses (for which we have also requested CLE credit) taught by some of the preeminent scholars and practitioners in our field. Topics include:

  • June 5-9: Indian Law Research, Stacey Gordon
  • June 12-16: Mastering American Indian Law, Maylinn Smith
  • June 19-23: Tribal Business Law, Matthew Fletcher
  • June 26-30: Environmental Justice in Indian Country, Wenona Singel
  • July 10-14: Criminal Jurisdiction in Indian Country, Kevin Washburn
  • July 17-21: Good Native Governance, Angela Riley
  • July 24-28: Sacred Sites and Religious Freedom, Hillary Hoffmann
  • July 31- August 4: Indian Child Welfare Act & Indian Civil Rights, Stephen Pevar
  • August 7-11: Taxation and Finance in Indian Country, Rob Roy Smith

The program is a great opportunity for students, attorneys, and tribal leaders to gain or feed a passion for Indian law by engaging with other outstanding students and professors in a beautiful and scenic location. Please have them check out the brochure or our website: www.umt.edu/indianlaw. Also, please feel free to post the brochure at your institution and pass the website and brochure along to others who may be interested in this opportunity to spend a few weeks this summer learning with us here in Missoula.

The Wisconsin Experiment

Teresa Walrod1 Comment

“Donald Trump’s war on the environment was prototyped by far-right politicians in state government. We can learn from Indigenous communities who fought back in the name of science and democracy — and won.“

In the opening months of the Trump administration, we have seen concerted attacks on science, environment, and democracy. Climate change denier Scott Pruitt was put in charge of the Environmental Protection Agency, although he could not name a single regulation he favors. Congress revoked rules against dumping mining waste in streams, and the president began rolling back Obama-era climate actions. The draft federal budget includes deep cuts to the EPA, NOAA, and public lands agencies, slashing more than 50 programs, including environmental justice. 1 If dismantling environmental law is the first step toward what White House strategist Steve Bannon calls “the deconstruction of the administrative state,” 2 that’s because it touches everything Trump holds in contempt: empirical evidence, international cooperation, democratic process, the rights of minorities, the future itself.

HERE