S238544 – UNITED AUBURN INDIAN COMMUNITY OF THE AUBURN RANCHERIA v. NEWSOM
(Groban, J., not participating, Fybel, J., assigned justice pro tempore)
- Appellant’s Petition for Review Filed on November 22, 2016
- Appellant’s Request for Judicial Notice Filed on November 22, 2016
- Appellant’s Request for Judicial Notice Filed on December 14, 2016
- Appellant’s Opening Brief on the Merits Filed on March 27, 2017
- Appellant’s Request for Judicial Notice Filed on March 28, 2017
- Respondent’s Answer Brief on the Merits Filed on June 26, 2017
- Appellant’s Reply Brief on the Merits Filed on August 23, 2017
- Amicus Curiae Brief of The Mooretown Rancheria of Maidu Indians of California and The Cachil Dehe Band of Wintun Indians of the Colusa Indian Community Filed on September 28, 2017
- Amicus Curiae Brief of Picayune Rancheria of Chukchansi Indians Filed on October 10, 2017
- Amicus Curiae Brief of North Fork Rancheria of Mono Indians Filed on October 10, 2017
- Amicus Curiae Brief of Estom Yumeka Maidu Tribe of the Enterprise Rancheria, California, Filed on October 10, 2017
- Amicus Curiae Brief of Stand Up For California! Filed on October 10, 2017
- Respondent’s Response to Amicus Curiae Brief Filed on December 8, 2017
- Respondent’s Supplemental Brief Filed on May 22, 2020
In the California Supreme Court, here:
UAIC Opening Brief
State Answer Brief
Lower court decision here.
Two part determination letter here: BIA Letter.
Documents and previous coverage here.
The Court held this court rule to be invalid:
The rule provides: “If after notice has been provided as required by federal and state law a tribe responds indicating that the child is eligible for membership if certain steps are followed, the court must proceed as if the child is an Indian child and direct the appropriate individual or agency to provide active efforts under rule 5.484(c) to secure tribal membership for the child.” (Rule 5.482(c), italics added.) We conclude the rule is invalid as a matter of state law.
But this rule to be valid:
Rule 5.484(c)(2) provides: “In addition to any other required findings to place an Indian child with someone other than a parent or Indian custodian, or to terminate parental rights, the court must find that active efforts have been made . . . to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, and must find that these efforts were unsuccessful. [¶] . . . [¶] (2) Efforts to provide services must include pursuit of any steps necessary to secure tribal membership for a child if the child is eligible for membership in a given tribe, as well as attempts to use the available resources of extended family members, the tribe, tribal and other Indian social service agencies, and individual Indian caregivers.”
This is the In re Isaiah H. decision, where amici included the United States and California Indian Legal Services on behalf of appellant mother. Briefing was completed in this case more than a year ago, and oral arguments were heard in May.
We granted review to decide whether a parent who does not bring a timely appeal from a juvenile court order that subsumes a finding of ICWA‘s inapplicability may challenge such a finding in the course of appealing from a subsequent order terminating parental rights. Because ICWA imposes on the juvenile court a continuing duty to inquire whether the child is an Indian child, we hold that the parent may a challenge a finding of ICWA‘s inapplicability in an appeal from the subsequent order, even if she did not raise such a challenge in an appeal from the initial order.
The continuing nature of a juvenile court‘s duty to inquire into a child‘s Indian status appears on the face of section 224.3(a). As noted, that provision reads: “The court . . . ha[s] an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . has been . . . filed is or may be an Indian child in all dependency proceedings and in any juvenile wardship proceedings if the child is at risk of entering foster care or is in foster care.” (§ 224.3(a).) The plain language of this provision — declaring an “affirmative and continuing duty” that applies to “all dependency proceedings” — means that the juvenile court in this case had a present duty to inquire whether Isaiah was an Indian child at the April 2013 proceeding to terminate Ashlee‘s parental rights, even though the court had previously found no reason to know Isaiah was an Indian child at the January 2012 proceeding to place Isaiah in foster care. Because the validity of the April 2013 order is necessarily premised on the juvenile court‘s fulfillment of that duty, there is nothing improper or untimely about Ashlee‘s contention in this appeal that the juvenile court erred in discharging that duty.
Depublication briefs here, here, and here.