Indian Child Welfare Act experts agreed that the Bright Star contract potentially misled the adoptive parents by saying the law “does not apply” in their situation.
“That is just wrong,” said Professor Fort, who also serves as director of the Indian Law Clinic at Michigan State University and authored a case law book titled American Indian Children and the Law.
She pointed to a section in the Indian Child Welfare Act that states the law does apply in adoptions of Native children. And she invoked a federal regulation published in 2016, which states that the Indian Child Welfare Act applies in any “voluntary proceeding that could prohibit the parent or Indian custodian from regaining custody of the child upon demand.”
In other words, the Indian Child Welfare Act applies in voluntary adoption cases when a Native birth mother gives up her parental rights. It’s unclear from the September Bright Star contract whether the birth mother agreed to give up her parental rights after the birth of her child.
This is the gentleman who is also now indicted for trafficking Marshallese women and selling their babies.
The Indian Law Section of the State Bar of Arizona is pleased to announce its Character and Fitness Scholarship. The scholarship is intended for individuals who are applying for admission to the AZ Bar, and has been created to assist with Character and Fitness Application fees. Please find the application, which includes all the relevant details. The deadline to apply is June 1, 2019.
The Arizona Journal of Environmental Law & Policy (AJELP) is putting out an open call for submissions on a rolling basis for Fall 2018 publication. We are looking for publications focused on environmental issues and policy, specifically with the Southwest in mind. We welcome any and all perspectives! Click here for more information.
COMMENTS NEEDED for this rule change–go HERE.
Here’s the clarification–the proposed rule change provides TWO options for out of state attorneys in Arizona ICWA cases:
The first is the change to Rule 38, which requires the course (online, about 6 hours, available here). That rule is for the out of state attorneys who contemplate being involved in a number of ICWA cases in AZ over a two year period (say you’re a tribe that divides up your ICWA cases and responsibilities by region, FOR EXAMPLE).
The second change is to Rule 39 and is for attorneys that have an immediate need and/or the rare case in AZ and only plans on appearing for that case. The course is not required for a Rule 39 exception.
This is a really interesting model. Out of state tribal ICWA attorneys are STRONGLY encouraged to file comments explaining your need for special practice rules, and any suggested changes you think might improve the rules.
Thank you to everyone who helped explain Arizona practice, the UBE, and the distinction to between the rules.
The Hopi Tribe is accepting requests for a Contract to provide legal services to Hopi Tribe in connection with the Indian Gaming Regulatory Act, matters under the Arizona Tribal State Gaming Compact and applicable Hopi Tribe laws and policies. The Contractor will work on amendments, negotiations and implementations of the Compact relative to transfer agreements and/or gaming facilities. The Contractor will assist the Office of General Counsel with transactional services which includes, but not limited to review and drafting Hopi Tribe laws and policies with respect to gaming regulatory, drafting of contracts, review of licensing issues, amendments, negotiations and implementation of the Compacts and any ancillary issues related to the aforementioned. Proposals must be postmarked by 5:00pm MST on March 2, 2018.
UPDATED POST HERE.
The Arizona tribal-state judicial forum has submitted a proposed rule change to allow out of state ICWA practitioners to enter into cases without having to associate with local counsel or pay a fee. This proposed rule has a few more requirements than other similar state rules or proposals.
For example, can an Arizona practitioner tell us what this is or looks like in practice:
“(j) Completion of Course on Arizona Law. Before being admitted to the practice of law in Arizona, Arizona uniform bar examination applicants, applicants for admission by transfer of uniform bar examination score, and applicants for admission upon motion must complete a course on Arizona law, the content and delivery of which shall be approved by the Supreme Court.”
The proposed rule (Rule 38 (2)(C)(iv)) requires the completion of this course before being able to use the pro hac vice exception in an ICWA case. The standard pro hac vice admission rule does not include this requirement (Rule 39), but it is required of those looking to be admitted to the state bar (Rule 34). It would be useful to know if this course is something like a formal semester long class (and therefore renders the rule change less useful for the immediacy of an ICWA/child dependency preceding), or is an afternoon course available online, for example.
Comments must be made by May 21, and you must register with the Arizona courts to submit them online. The proposed rule change page here. Updates on this and other state pro hac vice rules are here. If we receive any information on what the required course entails, we will do another post.
I gave a talk last week in Arizona. Here are some links and resources from that presentation:
Cases I discussed:
Carter v. Washburn/Goldwater class action
Fletcher and Singel, Indian Children and the Federal-Tribal Trust Relationship (I read quotes from pp 945-950)
The ICWA Regulations in final CFR format, 25 CFR pt. 23 (Title 25 regs are put into the CFR every April, hard copies are available in July(ish)).