Update in Texas v. Zinke (federal ICWA case)

Here are the updated filings in the federal ICWA case in Texas:

The federal government filed a motion to dismiss, here.

But THEN, Plaintiffs filed (another) amended complaint–here.

It’s about 8 pages longer than the previous complaint, and adds the Department of Health and Human Services, the Secretary of the Department, and the United States as defendants. While the complaint still requests the court find all of ICWA unconstitutional and unenforceable, it also broadens the discussion beyond 1915 placement preferences to the collateral challenge provisions in 1913 and 1914. The complaint also still contends that certain provisions of IV-B and IV-E (parts of the Social Security Act) are not enforceable–those that purportedly link state compliance with ICWA to federal funding.

The feds will file another (slightly longer) motion to dismiss, and it will be here as soon as it is available.

However, the court has ALSO granted the tribal motion for intervention, available here.

Parties seek intervention in Right-of-Way Regulation Lawsuit

The Three Affiliated Tribes of Ft. Berthold and the New Mexico Oil and Gas Association have sought to intervene in Western Energy Alliance v. Jewell.

The materials for the Three Affiliated Tribes are here:

Motion to Intervene: TAT Mot to Int

Brief in Support: TAT Br in Supp of Mot to Int

Special Appearance and Answer to Complaint:Special Appearance & Ans TAT

The materials for the New Mexico Oil and Gas Association are here:

Brief in Support of Intervention: New Mex Oil & Gas Assoc Br for Interv

Exhibit A for Brief: Exh A to NM Oil & Gas Assoc Br

 

Draft Model Indian Juvenile Code Posted in the Federal Register Today

Here.

The Bureau of Indian Affairs is announcing availability of a draft Model Indian Juvenile Code for comment. The draft Model Indian Juvenile Code is intended as a tool to assist Indian Tribes in creating or revising their juvenile codes. DATES: Comments are due by midnight ET on May 27, 2016. See the SUPPLEMENTARY INFORMATION section of this notice for dates of Tribal consultation sessions.

BIA Oil & Gas Regs for Osage County Put on Hold

A federal judge put the regulations on hold in response to a suit filed by the Osage Producers Association and a similar suit filed by Osage Minerals Council, a tribal entity. A news article is here, and Fredericks Peebles & Morgan’s press release is here: 08 12 15 Press Release

Additional Comments on Proposed ICWA Regulations

More than 1,000 additional comments were posted this week to regulations.gov on the proposed ICWA regulations, bringing the total number of comments to 1,869. We have updated the tribal nations comments page here, and the organizations page here.

Here are a few additional individual comments we noted as we scrolled through them:

361_-_Erdrich,_Karen_Louise
942_-_Jones,_Laura
919_-_Spotted_Elk,_Sheldon
2097_-_Blanchard,_Evelyn
298_Hirsch_Bertram
1525_-_Houska,_Tara
886_-_Lidot,_Tom
1280_-_Drobnick,_Heidi_A
Sweet_Victoria

Article on Yesterday’s Public Hearing on Proposed ICWA Regulations

Here, via NICWA.

“That’s been the plan from the beginning,” Bradley Goodsky told a mostly sympathetic audience at Mystic Lake Casino on Wednesday. “It’s like [child protection] has a crystal ball and we’re doomed to fail.”

Goodsky was one of the speakers to address federal administrators who are considering making it more difficult for social workers to put Indian children in foster care. The Bureau of Indian Affairs is proposing new rules that it says will strengthen the Indian Child Welfare Act, the 1978 law passed by Congress to stop the “often unwarranted” breakup of Indian families.

The act provides guidelines to child protection agencies and juvenile courts that set a high standard for placing Indian children into foster care, and it gives tribes a say in those cases. The proposed changes would raise that bar even higher, by requiring that child protection and the courts first determine if a child is Indian, and then only remove that child from a home where there is “present or impending risk of serious bodily injury or death.”Kevin Washburn, the U.S. Interior Department assistant secretary who leads the BIA, is touring the country with other agency officials to hear from tribes and the public about the proposals.

“Guidelines are great,” Washburn told the group at the casino in Prior Lake. “We need things that are legally enforceable.”

Do you have your written comments in yet? They are due May 19.

BIA Proposes Federal Rule (!) to Govern ICWA Implementation

Press release here:

In keeping with President Obama’s commitment to supporting Indian families and building resilient, stable and thriving tribal communities, Assistant Secretary – Indian Affairs Kevin K. Washburn today announced that the Bureau of Indian Affairs (BIA) has published a proposed rule to govern the implementation of the Indian Child Welfare Act of 1978 (ICWA) by state courts and child welfare agencies. The proposed rule also includes changes to current regulations that govern notice to state agencies under ICWA.

“The Bureau of Indian Affairs’ proposed rule clarifies and strengthens implementation of the Act’s requirements in Indian child custody proceedings to ensure that Indian families and tribal communities do not face the unwarranted removal of their youngest and most vulnerable members,” Washburn said. “I want to thank all those who attended listening sessions and provided comments and recommendations for our updated guidelines. Their contributions helped inform this proposed rule, which seeks to protect Indian children and families. We look forward to receiving more comments and feedback throughout the rulemaking process.”

The Department will be conducting tribal consultations and public meetings on the proposed rule through May 2015 to facilitate input and comment on the proposed rule. Tribal consultations are open only to representatives of federally recognized Indian tribes. Public meetings are open to everyone.

The public and tribal hearings times and locations are listed on the press release. It looks like the first public one is in Portland during the NICWA conference. Written comments will be due 60 days after publication (3/20/15).

These are different from the recently released Guidelines in that they would be binding–not persuasive–authority. 

Pre-publication regulations here. 55 pages long. From the overview–

This proposed rule addresses ICWA implementation by State courts and child welfare agencies, including updating definitions, and replacing current notice provisions at 25 CFR 23.11 with a proposed new subpart I to 25 CFR part 23. The proposed new subpart also addresses other aspects of ICWA compliance by State courts and child welfare agencies including, but not limited to, other pretrial requirements, procedures for requesting transfer of an Indian child custody proceeding to tribal court,
adjudications of involuntary placements, adoptions, and termination of parental rights, voluntary proceedings, dispositions, and post-trial rights.

For example, the proposed rule clarifies ICWA applicability and codifies that there is no “Existing Indian Family Exception (EIF)” to ICWA. Since first identification of the EIF in 1982, the majority of State appellate courts that have considered the EIF have rejected it as contrary to the plain language of ICWA. Some State legislatures have also explicitly rejected the EIF within their State ICWA statutes. When Congress enacted ICWA, it intended that an “Indian child” was the threshold for application of ICWA.

The Department agrees with the States that have concluded that there is no existing Indian family exception to application of ICWA. The proposed rule also promotes the early identification of ICWA applicability. Such identifications will promote proper implementation of ICWA at an early stage, to prevent–as much as possible—delayed discoveries that ICWA applies

Federal Register site here.

Federal Initiative to Hire More Native Vets at BIA

Press Release here. Website here.

To achieve the goal of hiring more American Indian and Alaska Native veterans throughout Indian Affairs offices and bureaus, Washburn announced plans to increase the number of Indian veterans hired from the current rate of 9 percent to 12.5 percent.