Published Burden of Proof ICWA/MIFPA Case out of Michigan Court of Appeals

Kate Fort

Here.

As set forth above, the relevant provisions of the ICWA and the MIFPA are essentially identical; that is, each requires proof by “clear and convincing evidence” to remove an Indian child and place him or her into foster care, 25 USC § 1912(e), MCL 712B.15(2); proof sufficient to satisfy the trial court that active efforts have been made to terminate parental rights, 25 USC § 1912(d), MCL 712B.15(3); and proof “beyond a reasonable doubt” that continued custody will harm the child, 25 USC § 1912(f); MCL 712B.15(4). Thus, as with its federal counterpart, the Legislature, in enacting the MIFPA, set forth specific evidentiary standards in MCL 712B.15(2) and (4), while declining to do so in MCL 712B.15(3). The inevitable conclusion, therefore, is that, like Congress, the Legislature intended for the “default” evidentiary standard applicable in child protective proceedings—i.e. clear and convincing evidence—to apply to the findings required under MCL 712B.15(3) as to whether “active efforts” were made to prevent the breakup of the Indian family. Accord In re JL, 485 Mich. at 318–319; In re Roe, 281 Mich. at 100–101. Therefore, because a default standard of proof applies to MCL 712B.15(3), it is not unconstitutionally vague.

 

Eighth Circuit Affirms $5M Fine against Bettor Racing

Matthew L.M. Fletcher

Here is the opinion in Bettor Racing Inc. v. National Indian Gaming Commission.

Briefs here.

Alex Skibine on Federal Statutes of General Applicability

Matthew L.M. Fletcher

Alexander Tallchief Skibine has posted “Practical Reasoning and the Application of General Federal Regulatory Laws to Indian Nations” on SSRN.

Here is the abstract:

There are many Federal regulatory laws of general applicability, such as the NLRA, FLSA, ADEA and ADA, that do not specify whether they are applicable to Indian Nations inside Indian reservations. Because the United States Supreme Court has never issued a final ruling on this issue, the federal circuit court of appeals have developed no less than four different approaches to determine whether such regulatory laws should apply to Indian nations. After describing and evaluating the four approaches, this Article recommends applying “Practical Reasoning” to interpret congressional silence concerning application of those laws to Indian nations. Practical Reasoning is a theory of statutory interpretation developed by Professor William Eskridge and the late Professor Philip Frickey. According to these two scholars, “Practical Reasoning” is an “approach that eschews objectivist theories in favor of a mixture of inductive and deductive reasoning seeking contextual justification for the best legal answers among the potential alternatives.” Applying this theory, the Article explains why the approaches developed by the Tenth Circuit as well as in a 1993 opinion authored by Judge Posner for the Seventh Circuit, are more consistent with Practical Reasoning.

Tulalip Tribes and State Sign MOA for Child Welfare Cases

Victoria Sweet

MOAs and MOUs are tools many Tribes are using to proactively work with a State to help tribal families remain intact or at least keep tribal children and youth closely connected with their Tribes.

Tulalip and the state of Washington have signed a formal MOA in child welfare cases. Here is a pdf copy of the MOA

Word copies  (instead of pdf) of the agreement are available by writing to tribal attorney Michelle Demmert.  (See Tulalip Tribes legal department website for contact information)

Here is a copy of a news article highlighting the impact of this new MOA here

From the article:

The signed agreement formalizes the government-to-government relationship between the Tribe and the State with child welfare cases. It’s based on the fundamental principles of the government-to-government relationship acknowledged in the 1989 Centennial Accord and recognizes the sovereignty of the Tribes and the State of Washington and each respective sovereign’s interests. What does this mean? It means the State of Washington now officially recognizes Tulalip has jurisdiction over Tulalip children wherever found and that Tulalip desires to assert its jurisdiction and authority to protect Tulalip children and keep families together whenever possible. . . .

Pursuant to the Indian Child Welfare Act and our sovereignty, the Tulalip Tribes have jurisdiction to handle all child abuse and neglect cases for our children. Some may be wondering, haven’t we always had that jurisdiction? The simple answer is no. In certain situations state agencies were able to, and would, circumvent the tribe altogether in cases involving allegations of child neglect or abuse. Now, with this agreement in place, the tribe can no longer be circumvented. Going forward, any time a state agency comes to investigate an allegation of child neglect or abuse, a beda?chelh case manager will be on the scene.

***

This agreement ensures Tulalip staff and representatives are always actively involved in any and all cases involving our children, and that we are taking the lead when the opportunity is there. The bottom line is we want our primary goal to be child safety, and to make sure any services or treatment families are receiving is defined by the tribe. That’s why this agreement also lends itself to the creation of a Tulalip Family Intervention Team (FIT), which will contact families of low-risk assessment and provide skill based services to parent their children, so that no court intervention is necessary.

FIT aims to keep families together and act as a proactive solution offering culture based services to families, while getting parents actively involved. It’s a way to handle things more traditionally between the Tribe and the families.

It may be an agreement of this nature is long overdue, but it took many days and long hours from individuals across several different tribal and state agencies to carefully craft and fine tune in order to get it right, not just for Tulalip children and families, but for all Native children and families. With Tulalip leading the way, there are sure to be multiple tribes who model their own government-to-government child welfare agreements after this one.

Request to all Tribal Courts from California Forum

Sarah M Donnelly2 Comments

As Co-Chair of the Tribal Court-State Court Forum in California and Chief Judge of the Yurok Tribal Court, I would like to learn whether you are encountering any problems getting your tribal court protection orders enforced in California.  I am seeking your help because protection orders issued by tribal courts in California are not recognized or enforced unless they are entered into the DOJ California Restraining and Protective Orders System (CARPOS) through California Law Enforcement Telecommunications System (CLETS) by county law enforcement.  Because tribal courts in California do not have access to these statewide databases, we have had to develop workarounds. Despite VAWA and California law mandating full faith and credit for protection orders tribal courts have been registering their orders with the state courts in order to have them entered into the statewide DOJ databases.

If you have any examples of recent times when your tribal court protection orders have not been recognized or enforced by law enforcement, we would appreciate learning about these instances.  Please contact Pat Lenzi, forum member and Chief Judge of the Cedarville Rancheria Tribal Court, if you have any information you can share with us.  Judge Lenzi can be reached at  Lenzi.patricia@gmail.com

Judge Abby Abinanti
Co-Chair of the Tribal Court-State Court Forum

Nez Perce Tribe Department of Law & Justice seeks IN-HOUSE PUBLIC DEFENDER

Sarah M Donnelly

HR-16-102 full-time regular.

Applicant must provide evidence of a Juris Doctorate degree from an accredited college of law, and of active membership in good standing in a State Bar Association.  Must have at least one (1) year documented successful litigation experience, preferably in a Tribal Court.  Must have an understanding of Tribal, federal, and state law and the multijurisdictional issues which often arise in a Tribal Court.  Excellent legal research and writing skills required.  Salary DOE.   Includes generous health insurance and other benefits.

Submit resume listing contact information for at least three work-related references, and legal writing sample. Pre-employment drug testing required.  Applicant must possess a valid driver’ license with the ability to be insured under the Tribe’s policy. (If driver’s license is not issued by Idaho a Motor Vehicle Report (MVR) from the issuing state is required with application.)  NPT application forms available online at www.nezperce.org or by contacting the Human Resources office. Tribal preference applies.

Thanks very much,
Alice Koskela
Law and Order Executive Officer
Nez Perce Tribe

Eastern Band Cherokee Seeking Tribal Prosecutor

Victoria Sweet

Job responsibilities to include prosecuting criminal and juvenile charges in Cherokee Court and prosecuting criminal cases in Federal Court as a Special Assistant United States Attorney (SAUSA).

The job closes on February 12th at 4pm.
Applications can be mailed to: E.B.C.I Employment Department PO Box 553 Cherokee, NC 28719.

Applicants can also call 828-359-6388 and see if it’s possible to email/scan.

Full job description Tribal Prosecutor II

Application checklist 2013-Revised-Application

News Release From the Confederated Tribes of Siletz Indians in Support of the Burns Paiute Tribe

Sarah M Donnelly

Link to press release here.

Lac Vieux Desert Band Buys Bellicose Capital, LLC

Sarah M Donnelly

Link to news coverage here.

In a major deal that will bring millions of dollars in economic development to the Lac Vieux Desert Band of Lake Superior Chippewa Indians (LVD) and its geographically isolated reservation in Watersmeet, MI, LVD has today announced that it has completed the purchase of Bellicose Capital. Bellicose has been a valued service provider to the Tribe’s lending business and talks to acquire Bellicose have been underway for several years.