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.
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
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
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.
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.
Here is the opinion in Desert Water Agency v. Dept. of Interior (C.D. Cal.):
Update: Here is the complaint:
The Desert Water Agency, based in southern California, has sued the Department of the Interior over the tax provisions in its new Indian leasing regulations.
The Department of the Interior published revised surface leasing regulations in November 2012, after a year-long public notice and comment rulemaking process. Those regulations govern surface leasing of Indian lands, and include a new provision clarifying the tax status of property and activities under a lease:
§ 162.017 What taxes apply to leases approved under this part?
(a) Subject only to applicable Federal law, permanent improvements on the leased land, without regard to ownership of those improvements, are not subject to any fee, tax, assessment, levy, or other charge imposed by any State or political subdivision of a State. Improvements may be subject to taxation by the Indian tribe with jurisdiction.
(b) Subject only to applicable Federal law, activities under a lease conducted on the leased premises are not subject to any fee, tax, assessment, levy, or other charge (e.g., business use, privilege, public utility, excise, gross revenue taxes) imposed by any State or political subdivision of a State. Activities may be subject to taxation by the Indian tribe with jurisdiction.
(c) Subject only to applicable Federal law, the leasehold or possessory interest is not subject to any fee, tax, assessment, levy, or other charge imposed by any State or political subdivision of a State. Leasehold or possessory interests may be subject to taxation by the Indian tribe with jurisdiction.
In its complaint, the Desert Water Agency is challenging the application of this provision to the fees it assesses to water users/lessees on tribal lands (particularly the Agua Caliente Reservation) in southern California. It asserts that its taxes are not preempted by federal law, and that the new regulation either does not apply or is arbitrary and capricious.
As part of its claim, the Desert Water Agency asserts that Congress has expressly permitted state and local government to levy such taxes on Executive Order reservations (like Agua Caliente’s) through 25 U.S.C. Section 398c. (It also asserts that its taxes are permitted under the traditional Bracker balancing test).
The Desert Water Agency’s reliance on 398c is curious, because that provision was included in 1927 legislation that Congress enacted to address Indian mineral leasing.
As most Indian law practitioners know, the federal Indian surface estate and the Indian mineral estate are governed under separate legal regimes. The Department of the Interior’s leasing regulations expressly apply to surface leasing under 25 U.S.C. Section 415 and related statutes. They are inapplicable to mineral leases on Indian lands (in fact, 398c is not even listed as authority for the regulations).
Either the Desert Water Agency’s attorneys are unaware of this key distinction in Indian law, or they are deliberately misrepresenting 25 U.S.C. 398c. Given the history of Indian law, either is possible – though I’m not sure that either is a good position to be in.
The Desert Water Agency has also claimed that it was unaware of the rule change until it had already gone into effect on January 2013. I find these types of claims particularly weak, given the fact that Indian leasing reform was a signature initiative of the Department of the Interior in President Obama’s first term. The President himself announced the proposed change at the 2011 Tribal Nations Conference, and it was published in the Federal Register through the traditional public notice and comment rulemaking process with a version of the tax provision included. The BIA even hosted a tribal consultation session in January 2012 at the publicly-owned Palm Springs Convention Center in the Desert Water Agency’s backyard.
Challenges to the tax provisions of the new leasing regulations were inevitable, especially considering the stakes involved. The fact that it has only taken several months for this type of suit to arise speaks to those stakes. It will be interesting to watch this case unfold.
Turtle Talk 
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