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California Appeals Court Finds Court Rules about Indian Children Inconsistent with Legislative Intent

June 17, 2014Kate Fort

Decision (a rare published ICWA decision for CA).

The children were eligible for membership at Cherokee Nation of Oklahoma. The trial court ordered DHHS to help enroll the children as active efforts. DHHS appealed. The appellate court found that both ICWA and California state law limited the definition of Indian child (member, or bio child of a member and eligible), and if the children did not fit in that definition, the laws did not apply. As such, the rules were beyond the scope of the Judicial Counsel to pass.

The rules:

Rule 5.482(c) states, “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 5.484(c) states, “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, in any proceeding listed in rule 5.480, to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, and must find that these efforts were unsuccessful.
“(1) The court must consider whether active efforts were made in a manner consistent with the prevailing social and cultural conditions and way of life of the Indian child’s tribe.

(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.”

Yurok Tribe enters MOA with USFWS to bring the California condor back to California’s North Coast

April 26, 2014Ann Tweedy

The Yurok Tribe has entered an MOA with USFWS, other federal and state agencies, and a non-profit. As described here, captive birds will be reintroduced.

CA Senate Approves Casino Deal for North Fork Rancheria of Mono Indians

June 28, 2013Victoria Sweet

The 22-11 vote, which split members of both parties, will allow the North Fork Rancheria of Mono Indians to build a new casino with 2,000 slot machines on a 300-acre parcel just north of Madera in the Central Valley that was once slated to be a NASCAR track.

The deal was made possible through a rare federal approval process that allowed the tribe to build on land it has just recently acquired. Federal law stipulates that typically casinos can be build only on lands recognized as belonging to tribes before 1988, the year the federal government officially sanctioned tribal gambling.

The exception made for North Fork angered other neighboring and large casino-owning tribes around the state who said the North Fork were “reservation shopping.” The new location’s proximity to a major state highway and the city of Madera also touched off concerns about the encroachment of Indian casinos into urban areas.

Article here.

Previous coverage here.

California Network of Marine Reserves Now Complete

December 19, 2012Ann Tweedy

The article from the LA Times, here, describes how the last section, which just became official today, required an agreement with tribes, fishers, and others.

Karuk Tribe Files Lawsuit to Challenge Suction Dredges

April 5, 2012Adrea Korthase

An article from Courthouse News Service is here and an AP article via the Washington Post is here.

Complaint is here.

ICWA, California, and “Family Lore”

September 19, 2011September 19, 2011Kate Fort5 Comments

A new phrase caught our eye while researching California notice cases for 2011 (far fewer than back in 2007, strangely enough, and far fewer ICWA cases nationwide). However, so far in 2011, the phrase “family lore” has popped up three times in ICWA cases in California cases. It cropped up twice (in the same unpublished case) in 2010, but not once from 2000-2009. And in case you were wondering, there have been 37 cases remanded for ICWA notice compliance so far this year in California. All three cases this year come out of the 2nd Appellate District, and have different judges. However, because they are all out of the same lower court (Superior Court of L.A. County), they share the same County counsel and Assistant County counsel (chief of the Dependency division), though each had different Principle Deputy County counsels. The phrase seems to be coming out of the juvenile court record in each case.

Here are the cases and how “family lore” is used:

In re Jeremiah L.

2011 WL 3964653 (Cal.App. 2 Dist. Sept. 9, 2011)

Father appealed whether the court had reason to know ICWA should apply. The court rejected his argument.

The Department was ordered to contact maternal great-grandmother on maternal grandfather’s side for further information. The court stated, ‘At this time the court has no reason to know that the children would fall under the Indian Child Welfare Act. It sounds like family lore at this point.’ *8

and,

The suggestion that maternal great great-grandmother was part Cherokee came from maternal grandfather, who was told this by maternal great-grandfather and maternal great great-grandmother. Maternal grandfather stated he would find out from maternal great-grandmother if there was further information. In these circumstances, the fact he did not make himself available to the social worker for a follow-up interview reasonably indicated that the story of Indian ancestry was nothing more than unfounded ‘family lore.’ *9

In re Hunter W.

2011 WL 3806151 (Cal.App. 2 Dist. Aug. 30, 2011)

The mother appealed claiming ICWA applied. The court rejected her argument.

The court held that it ‘does not believe that family lore, pursuant to case law, is reason to know a child would fall under [ICWA],’ and no notice need be given to any tribe or to the Bureau of Indian Affairs. The court ordered the parents to ‘keep [DCFS], their attorney, and the court aware of any new information relating to possible ICWA status.'” *9

and

However, as we have discussed, the court also concluded mother’s claim of Indian heritage through her father was too speculative to begin with, ruling that ‘[t]he court does not believe that family lore … is reason to know a child would fall under [ICWA].’ We conclude that this is an independent and valid reason for the court to find that ICWA did not apply. *10

In re Christina W.
2011 WL 635869 (Cal.App. 2 Dist. Feb. 23, 2011)

Mother and father appealed lack of notice for ICWA. Court reversed and remanded on the issue of notice (“Although the Father has not provided detailed information, his claim of Cherokee or Lakota ancestry was enough to satisfy the ‘minimal showing required to trigger the statutory notice provisions.'” *18). This case also includes some of the juvenile court transcript.

‘Pursuant to 224.3, relative membership which is remote or family lore without any reason or family lore without any recent identification with any tribe is not reason to know. The court is finding, based upon this information that the court does not have, at this particular point, any reason to know that the [ICWA] is involved.’ *14 (quoting the juvenile court)

[California Welfare & Institutions Code 224.3 makes no reference to family lore nor to the remoteness of the relationship as a reason NOT to know an Indian child is involved].

In re J.T.
2010 WL 2505639 (Cal.App. 4 Dist. June 22, 2010)
Father appealed lack of inquiry to determine if ICWA applied. Court rejected the appeal.

Here, mother was asked about possible Indian ancestry, in both the current and prior cases, and denied it. Consequently, if she later discovered that family lore indicates Indian ancestry, or if she had previously known it but had chosen not to disclose it, it was up to her to disclose that information to the court or to the department in order to trigger a duty either to make further inquiry or to give notice. Such information was exclusively within her knowledge, and its disclosure was wholly within her control. (See ibid.) *7.

Students Sue to Restore Affirmative Action in California

February 17, 2010Matthew L.M. Fletcher

From How Appealing:

“Students sue to restore affirmative action at UC”: Josh Richman of The Oakland Tribune has this news update.

And The Associated Press reports that “Calif race-based admissions law challenged anew.”

Published Active Efforts Case in California

June 11, 2009June 11, 2009Kate Fort

This question was debated often in my ICWA class this year–what would active efforts consist of for a sex offender and/or pedophile parent (father, in this case)? The California Court of Appeals, 4th district, held there are none required:

Nevertheless, his history clearly demonstrates the futility of offering reunification services: He is a registered sex offender with a prior conviction for lewd and lascivious acts on a child under the age of 14. . . . The parents do not suggest any services which might have been offered to the father under the circumstances and we cannot conceive of any services which could usefully be offered to a registered sex offender with a prior conviction for molesting a child and a current finding of molesting a different child. For these reasons, requiring the court to provide services to the father would be at best an idle act which would not further the legislative purposes of ICWA.

While this quote is from the section of the case discussing active efforts prior to removal to foster care, the court came to the same conclusion for active efforts prior to termination.

Oddly, the court is also confused as to whether the father is Cherokee or Choctaw, using them interchangeably at one point.

In re K.B. Opinion