Who Won Indian Law and Policy 2014? First Round Bracket — 8 of 8

Last one for the day!

Still on category 4, groups.

# 2 Tribal Supreme Court Project

They’ve need a win, and Bay Mills was a biggie! While they were unable to persuade SCOTUS not to take the case in the first (even the SG failed there), and they were unable to persuade the tribe not to bring this case in the first place, but that said, they did help tribal interests avoid problems in a lot of other cases (here, here, here, here, and here). Actually, I have no idea if they helped or not but we’ll give them some credit anyway.


# 15 Tribal Law and Policy Institute

Always been a big fan of Jerry Gardner and his crew. One of the funniest men around. Did amazing work on the Attorney General’s Advisory Committee on American Indian and Alaska Native Children Exposed to Violence Report this year.

#7 Native American Bar Association

NABA will be releasing a report arising out of a survey that over 500 Indian lawyers completed this year, so maybe this posting is a year early.


#10 Tribal In-House Counsel Association

New organization that has the potential to revolutionize the practice of law in Indian country. I’m hoping that TICA members will be able to cut through a lot of this in the coming generation.

#3 Authors of law review articles on Adoptive Couple v. Baby Girl

Yes, there’s a lot, lot, lot of these out there. Some are brilliant and inspiring, some are, well, kinda scary.


#14 Authors of law review articles on Michigan v. Bay Mills Indian Community

Not as many, and most are less scary. Here, here, here, here. Some are just weird.

# 6 Carcieri challengers

The people, groups, tribes, and states and state subdivisions that want to use a poorly-reasoned Supreme Court decision to stop Indian gaming at all costs are legion. Samples here, here, here, here, here, here, and elsewhere (just type Carcieri into TT’s search engine). Interior has opined about it here.


# 11 Tribal sovereign lenders


Rehearing Petition and Amicus Briefs in Support in Native Village of Tununak ICWA Appeal

Here are the new materials in Native Village of Tununak v. State, Dep’t of Health & Social Services, Office of Children’s Services:

Appellant’s Petition for Rehearing

Brief for Grandmother as Amicus Curiae in Support of Appellant

Brief for the United States as Amicus Curiae In Support of Appellant

The court’s opinion is here.


Split Montana SCT Affirms Denial of Indian Child Welfare Matter’s Transfer to Blackfeet Tribe

Here is the opinion and the various briefs in In the Matter of S.B.C.:

Appellant Brief — Blackfeet Tribe

Appellant Brief — Father

Appellant Brief — Mother

Appellee Brief — Response to Father

Appellee Brief — Response to Tribe

Appellee Brief — Response to Mother

Reply — Blackfeet Tribe

Reply Brief — Father

Reply Brief — Mother

Montana SCT Opinion


N.B. (Birth Mother) and S.B.C. (Biological Father) appeal from the order entered by the Fourth Judicial District Court, Missoula County, terminating both parents’ rights to their minor child, S.B.C, Jr. (S.B.C), and granting the Department of Public Health and Human Services, Child and Family Services Division (Child Services) permanent legal custody with right to consent to adoption. The Birth Mother and Biological Father also challenge the District Court’s order denying transfer of jurisdiction to the Blackfeet Tribal Court. The Blackfeet Tribe (Tribe) has filed a cross-appeal likewise challenging the denial of its motion to transfer jurisdiction to the Blackfeet Tribal Court and the termination of Biological Father’s parental rights. We affirm.


Lastly, the Tribe argues the District Court improperly considered the socio-economic conditions of the Tribal Court. Subsection (c) of the Guidelines prohibit the consideration of the “[s]ocio-economic conditions and the perceived adequacy” of the tribal court system in making a determination of good cause. 44 Fed.Reg. 67591. In an attempt to demonstrate that the court based its decision on the inadequacy of the Tribal Court system, the Tribe draws our attention to a number of assertions the District Court made in its findings of fact and conclusions of law. The District Court remarked throughout its findings of fact and conclusions of law that the Tribe “chose to sit on its hands and delay seeking jurisdiction over [S.B.C] for tribal financial reasons.” Further, the court insinuated that the Tribe believes its children are sacred “only when it is in its best financial interests to do so.”

From the dissent:

I disagree with the majority’s analysis of the “advanced stage” guideline. The State filed its termination petition on March 6, 2013. The Tribe, having intervened early in the case, moved to transfer jurisdiction on April 10, 2013, thirty-five days later. The District Court order faulted the Tribe for seeking transfer after “all the critical court proceedings [were] completed and decisions made,” yet the District Court had not conducted a hearing nor made a decision to terminate the parents’ rights. The hearing was not held until September 10, 2013, and the order of termination was not signed until January 15, 2014, eight months after the motion to transfer was filed. This situation does not implicate the dangers the “advanced stage” rule is designed to protect against and there is no indication of manipulation by any party.


Finally, I agree with the majority that the District Court’s repeated statements that the Tribe “sat on its hands” until it had a financial reason to seek jurisdiction were inappropriate. The BIA Guidelines specifically provide that a state court cannot base the “good cause” determination on “socio-economic conditions and the perceived adequacy of tribal social services or judicial system.” 44 Fed.Reg. 67,591. These statements reflect, at best, a refusal to comply with the Guidelines and, at worst, a strong bias against the Tribe and the Tribal judicial system. Such statements have no place in the District Court’s order and were highly inappropriate.

New Scholarship on Removals of Indian Children from their Homes

Alyosha Goldstein has posted “Possessive Investment: Indian Removals and the Affective Entitlements of Whiteness,” published in the American Quarterly, on SSRN. Here is the abstract:

In 2013 the US Supreme Court effectively granted custody of an almost four-year-old child to adoptive white parents over the opposition of her Cherokee birth father and the Cherokee Nation in Adoptive Couple v. Baby Girl (the “Baby Veronica” case). This essay examines the Court ruling, and the protracted custody and jurisdictional struggles in its wake, in order to show how whiteness in the US has been historically constituted not only as a form of property but also as the capacity to possess. Against the perspective that colonialism persists in the US only insofar as indigeneity remains legible as racial difference, this essay focuses on how Adoptive Couple served as a means of reasserting white heteronormative rights to possess and to deny culpability for the ongoing conditions and consequences of colonization and multiple forms of racial violence in the present.

Montana ICWA Case: Notice, Active Efforts and a Look at Adoptive Couple Citations


A footnote in the case,

The record does not clarify whether G.S. ever had custody of M.S. The record is silent regarding G.S.’s relationship with M.S. prior to his incarceration. We recognize that 25 U.S.C. 1912(d) does not apply where the “breakup of the Indian family” has long since occurred. In re J.S., 2014 MT 79, P29, 374 Mont. 329, 321 P.3d 103 (citing Adoptive Couple v. Baby Girl, 570 U.S. __, 133 S.Ct. 2552, 2559 (2013)). Although the District Court asked during the April 22, 2013 hearing, before Baby Girl was decided, how the ICWA standard for termination applies in a situation where the child was never in the parent’s custody, the parties did not dispute that ICWA’s active efforts were required. Because this potential issue was not raised, we will not address it in this appeal.

got me looking for other cases that have cited Adoptive Couple. According to Westlaw, that would be 19 cases, including this one. Striking four of them as not child welfare cases, all 15 remaining were involuntary proceedings. Five from California, two from Montana, and one in Alaska, Nebraska, Oklahoma, North Carolina, North Dakota, Minnesota, Michigan, and Virginia.  Three cases “distinguished” Adoptive Couple, though that included the Alexandria P. case, so distinguishing Adoptive Couple doesn’t necessarily mean the court followed ICWA. Seven of the cases only cited the case (including this one).

Those that used the Adoptive Couple reasoning (instead of citing the case for fairly standard ICWA language)  include:

Native Villiage of Tununak v. State (holding that the adoption preferences of ICWA didn’t apply if the preferred placement didn’t “formally” move to adopt the child);

In re J.S. (applying the “continued custody” reasoning to a guardianship); and

In re Elise W. (discussing whether the case would change notice requirements when a parent never had custody)(unpublished case out of California’s First District).

In re T.S. (discussing when active efforts must start, in light of 1922 and 1912(d))

Alaska SCT Applies Adoptive Couple to Affirm Non-Native Adoption

Here is the opinion in Native Village of Tununak v. State, Dep’t of Health & Social Services, Office of Children’s Services (Alaska).

An excerpt:

We asked the parties to provide supplemental briefing and oral argument on the effect of the Supreme Court’s Baby Girl decision on the adoption appeal currently before us.26 We now hold that because the United States Supreme Court’s decisions on issues of federal law bind state courts’ consideration of federal law issues — including the Indian Child Welfare Act — the decision in Baby Girl applies directly to the adoptive placement case on remand and to this adoption appeal. We discern no material factual differences between the Baby Girl case and this case, so we are unable to distinguish the holding in Baby Girl. Because the Supreme Court’s holding in Baby Girl is clear and not qualified in any material way, and because it is undisputed that Elise did not “formally [seek] to adopt” Dawn in the superior court, we conclude that, as in Baby Girl, “there simply is no ‘preference’ to apply[,] [as] no alternative party that is eligible to be preferred under § 1915(a) has come forward[,]” and therefore ICWA “§ 1915(a)’s [placement] preferences are inapplicable.”27 We affirm the superior court’s order granting the Smiths’ petition to adopt Dawn and vacate our remand order in Tununak I requiring the superior court to conduct further adoptive placement proceedings. We do not otherwise disturb our decision in Tununak I.

We posted briefs here.

Article on Birth Mother in Adoptive Couple Case Dropping Federal Suit


In a statement Tuesday, Cherokee Nation Assistant Attorney General Chrissi Ross Nimmo said officials did not actively follow the suit because they were never served with a complaint, meaning they were unaware the case was closed until last week.

“We are pleased Ms. Maldonado and the unnamed plaintiffs voluntarily dismissed the suit,” she said. “We never believed the suit had any merit, and we’re prepared to actively defend the suit had we ever been served.”