Cherokee

Michigan COA, on Remand from Mich. SCT, Decides ICWA Notice Case

Matthew L.M. Fletcher1 Comment

Here is that opinion. An excerpt:

This termination of parental rights case returns to this Court on remand from the Supreme Court “for reconsideration of the respondent father’s appeal in light of the confession of error by petitioner Department of Human Services regarding the failure of it and the Wayne Circuit Court, Family Division, to comply with the notice requirements of the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq.” In re C I Morris, ___ Mich ___; 796 NW2d 51 (Docket No. 142759, decided April 22, 2011). We readopt our original opinion and conditionally affirm the circuit court, but we remand this case with regard to both respondents for further proceedings consistent with this opinion.

Here is the Supreme Court’s remand order.

Interview of Cherokee Woman Opposing W.Va. Coal Mining

Matthew L.M. Fletcher

Here:

Maria GunnoeMaria Gunnoelarger >>

Maria Gunnoe’s family has lived on the same West Virginia land since they settled there after escaping the Trail of Tears. The area has long been coal mining country. Maria’s grandfather and two brothers mined for coal. But the methods of mining for coal have begun to change to something called “mountain top removal”. Maria recently won a major environmental prize in honor of her opposition to this kind of mining. Maria talks to Dick Gordon about fighting for her land, and how she draws strength from the memory of her Cherokee grandfather.

California COA Holds that ICWA Notice to Tribe Not Required Where “Reasonable Probability” is that Child is Not Indian

Matthew L.M. Fletcher

Here is the opinion in In re Skyler H.:

An excerpt:

While the standard for ICWA notice is low, it is not without reasonable limits. This case raises the issue whether a child’s specific but attenuated Indian heritage invokes ICWA notice requirements under section 224.3, subdivision (b), which describes circumstances that may provide reason to know the child is an Indian child. We hold the trial court has discretion to consider the totality of the information presented concerning the child’s family circumstances to determine whether it meets the threshold required for ICWA notice-“the court knows or has reason to know the child is an Indian child.” (§ 224.2.) We further hold ICWA notice is not required unless the totality of the family’s circumstances indicate there is a low but reasonable probability the child is an Indian child. Here, we conclude the case need not be remanded for ICWA notice because the family’s specific but attenuated Indian heritage does not provide reason to know the child is an Indian child.

California Appellate Court Decides ICWA Notice Case

Matthew L.M. Fletcher

Here is the opinion in In re I.W. An excerpt:

As we have mentioned, this case began in 2006 and the section 366 .26 hearing occurred in August 2008. Between those times, mother had provided information about her Indian ancestry to the Department and the Department had sent notices and received negative responses from the Cherokee and Blackfeet tribes. At a hearing about ICWA compliance in December 2008, however, mother revealed for the first time that she had a maternal aunt who was a member of the Choctaw tribe and living in Oklahoma. The Department then sent ICWA-030 notices to the Choctaw tribes in Oklahoma, Louisiana, and Mississippi and resent notices to the Cherokee and Blackfeet tribes. At a hearing in February 2009, the Department reported to the juvenile court as follows: “Attached to an addendum for today’s hearing are letters from the Blackfeet tribe in Browning, Montana, indicating that the Act does not apply to any of the children; a letter from the Jena band of Choctaw Indians in Jena, Louisiana, indicating that the Act does not apply to any of the children; and three letters from the Eastern Band of Cherokee Indians, the Cherokee Boys Club in Cherokee, North Carolina. There is one for each child indicating that the Act does not apply as far as that child is concerned. [¶] Otherwise, attached to the prior addendums and reports are the return receipts for all the tribes that were noticed as well as the letters, tribal responses from other tribes that were previously submitted.”

The Trillion-Dollars-in-Gold-Coins Complaint

Matthew L.M. Fletcher

As reported by the New Jersey News (and How Appealing), here is the trillion dollar complaint in New Jersey Sand Hill Lenape and Cherokee Indians v. De Facto State of New Jersey. Actually, it’s an amended complaint, and the prayer for relief is only $999,999,999.

sand-hill-amended-complaint

ICWA Notice Case in Cal. Court of Appeal

Matthew L.M. Fletcher

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.

Tiya Miles on The Narrative of Nancy, a Cherokee Woman

Matthew L.M. Fletcher

Tiya Miles (University of Michigan) has published “The Narrative of Nancy, a Cherokee Woman” in the recent issue of Frontiers: A Journal of Women’s Studies (H/T Legal History Blog). From the intro:

On November 24, 1801, Nancy, “by appearance an Indian woman,” gave testimony at Fort Southwest Point, a garrison in eastern Tennessee established in 1792 to defend white settlements against Indian attack.1 In a statement recorded under the title “The Narrative of Nancy, A Cherokee Woman,” Nancy claimed that she had been wrongfully held as a slave in Virginia since the year 1778. At the time of her testimony, Nancy was approximately thirty one years old and living with a white man named, incredibly, Captain John Smith. Smith had purchased Nancy from John Fulton, who had bought her from William Kennedy. Nancy described the crime of her capture in graphic detail in the narrative, testifying that

[S]he was taken when a child from her mother, that the white people afterwards boasted that they held their guns over her mother’s head to frighten her when they took her away: that sometime afterwards she was carried a great way on horseback to a place where there were a number of houses . . . that she had two masters before Mr. Fulton bought her, that she had brothers and sisters when she was taken away from her mother, that she never saw any waters larger than the Tennessee and Clinch Rivers.

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Mich. COA Decides ICWA-Related Case

Matthew L.M. Fletcher

The opinion in In the Matter of Coyle is here. The Court of Appeal concluded that ICWA’s tribal notice requirements did not apply. An excerpt:

Finally, respondent argues that petitioner should have notified the Cherokee tribe, and there was insufficient evidence that any tribe was notified. ***

In the present case, respondent stated during the preliminary hearing that her grandparents were Cherokee Indians. However, she never mentioned the Cherokee tribe again and never objected to references to the Chippewa Tribe of Sault Ste. Marie in several later hearings. Her statement that her father tried to get her grandparents’ tribe involved in 2003, followed by references to the Chippewa tribe trying to get involved in 2003, strongly indicated that her grandparents’ tribe was actually the Chippewa and she was mistaken when she called it Cherokee. Respondent did not give the trial court reason to believe her children might actually be members of a Cherokee tribe, in light of her repeated failure to object to references to the Chippewa and failure to request that another tribe or the Bureau of Indian Affairs be notified. Respondent also did not question petitioner’s assertions that the Chippewa tribe was contacted. Petitioner’s unchallenged assertions constitute sufficient evidence that notice occurred. The trial court did not commit any error requiring reversal.

Michigan Court of Appeals Decides ICWA Case

Matthew L.M. Fletcher

The case is in the Matter of Cordell Minors (here) and it is unpublished. Like most Michigan ICWA case, the Michigan  COA conditionally affirmed the termination of parental rights pending compliance with the Indian Child Welfare Act. And like so many Michigan ICWA cases, the trial court failed to comply with ICWA by sending proper notice to the relevant tribe(s).

ICWA Case on Alleging Tribal Membership

Matthew L.M. Fletcher

The Massachusetts appellate court issued a decision in a case captioned In re Sabrina. The case is available on Westlaw at 2008 WL 597447. It is unpublished.
Here is a telling paragraph:

We have, however, a more fundamental reason why we are not prepared to have this case reopened on the issue, and that is the flimsiness of the factual showing regarding the father’s possible Native American ancestry. The only evidence on the subject is contained in an affidavit submitted by the father’s appellate counsel. The only relevant assertions are that “[i]n taking a history from [the father], I (the attorney) determined that [the father] is a Cherokee Native American, entitled to membership in said tribe through his paternal ancestors.” No other evidence, by the father or otherwise, was provided. We are thus left with an unsupported “determination” by counsel, plainly based on information provided by the father (which is not disclosed), and lacking any indication that counsel has the kind of expert credentials required to make such a judgment. We are not prepared to order the reopening of the record on such a showing.

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