Here is the opinion from the California Court of Appeals (3rd District) in In re K.P.
An excerpt:
We decline to extend the ICWA to cover an allegation of membership in a tribe not recognized by the federal government. Neither HHS nor the juvenile court was under a duty to comply with the notice provisions of the ICWA.
Here is the opinion in In re S.B., from the California Court of Appeals, 2d District.
An excerpt:
An attorney practicing dependency law in the juvenile court should be sufficiently familiar with ICWA notice requirements to point out a flaw in notice if the record shows that there is one-especially when specifically asked to do so. One court has observed that “trial counsel for a parent in dependency proceedings rarely brings ICWA notice deficiencies to the attention of the juvenile court. That job, it seems, is routinely left to appellate counsel for the parent.” ( In re Justin S. (2007) 150 Cal.App.4th 1426, 1436.) That practice ignores the importance to a child’s well-being in achieving permanence as soon as possible. The court in Justin S. “implore [d] counsel for the Department, and certainly counsel for the minor, to make more robust efforts, early on in dependency proceedings,” to insist on adherence to the ICWA notice requirements. ( Ibid.)
We agree, and add that counsel for the parents bear a responsibility to raise prompt objection in the juvenile court to any deficiency in notice so that it can be corrected in a timely fashion. This will best serve the interests of the dependent children, the Indian tribes, and the efficient administration of justice.
Kathryn E. Fort has posted her paper, “The Cherokee Conundrum: California Courts and the Indian Child Welfare Act,” on SSRN. Here is the abstract:
This article was prepared for presentation at the American Indian Identity Conference held at Michigan State University, October 16-17, 2008. After classifying a year of Indian Child Welfare Act (ICWA) cases in state courts, it became apparent that California had both the highest number of ICWA cases and that most of these cases were because of noncompliance with the notice provision of ICWA. In addition, it became clear that the majority of California cases involved parents claiming Cherokee affiliation. This article concludes there could be many reasons for this, including an informal exercise of the Existing Indian Family doctrine at the social worker level.
And Matthew Fletcher posted “The Indian Child Welfare Act: A Survey of the Legislative History” on SSRN. Here is the abstract:
This paper is prepared for the University of Michigan Law School Native American Law Students Association’s annual Indian Law Day, April 10, 2009. The materials in this paper derive from an early draft of an amicus brief filed by the American Indian Law Section of the State Bar of Michigan in the Michigan Supreme Court case, In re Lee. The paper focuses on the legislative history of the Indian Child Welfare Act, with particular emphasis on Michigan.
The case is In re Jeremiah G. An excerpt:
We publish this opinion to emphasize, again, what we thought that our court made clear in In re O.K. (2003) 106 Cal.App.4th 152. In a juvenile dependency proceeding, a claim that a parent, and thus the child, “may” have Native American heritage is insufficient to trigger ICWA notice requirements if the claim is not accompanied by other information that would reasonably suggest the minor has Indian ancestry. Here, the assertion that there was a “possibility” the great-grandfather of the minor’s father “was Indian,” without more, was too vague and speculative to require ICWA notice to the Bureau of Indian Affairs. ( Id. at p. 157.) This is particularly so in this case because the minor’s father, who made the assertion, later retracted it, telling the juvenile court that he “didn’t actually have [Indian ancestry].” Thus, mother’s appellate claim of ICWA error lacks merit.
The California Court of Appeals (2nd District) affirmed the termination of parental rights over a parent’s claim that the child was either Cherokee or Choctaw and the state had not provided sufficient notice to those tribes. Here is the opinion — In re K.M.
Here is an unpublished decision in the California Court of Appeals, 4th District, affirming the quashing of a subpoena against the Barona Band.
Here is the opinion from the California Court of Appeals in Ameriloan v. Superior Court — ameriloan-v-superior-court-opinion
This appears to be a case similar to one decided recently in the Colorado Court of Appeals, Colorado v. Cash Advance, the so-called “Rent-A-Tribe” case. There, as in this case, the state appellate court reversed a lower court decision not to quash a summons against these instant loan companies, or payday lenders. The legal theory was, and is, that the company is owned by an Indian tribe and therefore immune from suit in state court.
This case involves the Miami Tribe of Oklahoma and the Santee Sioux Tribe, the same tribes involved in the Colorado case.
This is an unpublished disposition from the California Court of Appeals, First District — Robinson Rancheria v. Anderson.
The California court of appeals (1st district) reversed a lower court ruling holding that ICWA was unconstitutional as applied to the facts in the case. Here is the opinion.
An excerpt:
Mother next argues that the family court erred in concluding that Cecelia’s placement with Nicole was constitutionally insulated from the ICWA. We agree that the family court acted prematurely in finding the ICWA unconstitutional as applied to Cecelia’s custody decision. Prudent judicial restraint requires courts to avoid the unnecessary decision of constitutional issues. (E.g., Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1357.) Without determining that the ICWA actually required Cecelia’s return to Mother, the family court concluded that the ICWA could not constitutionally require such a return. Under the doctrine of judicial restraint, the family court should not have proceeded to consider the constitutional question unless it had first concluded, after applying the various substantive provisions of the ICWA, that a constitutional issue actually existed. Such restraint is particularly important in these circumstances because the constitutional right invoked by the court is by no means well established. Accordingly, we must remand the matter to the family court for application of the substantive provisions of the ICWA. In doing so, we do not mean to suggest any view as to the proper outcome of this matter under the ICWA.
The Sixth District of the California Court of Appeals reversed (for a second time) the termination of parental rights for failure to comply with the notice requirements of the Indian Child Welfare Act.
Here is the opinion.
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