Update on South Dakota Road Closure Dispute

Here are the leading primary source docs so far:

BIA Road Closure Guidance

5-8-20 Correspondence from Governor Noem to Chairman Frazier

5-8-20 Correspondence from Governor Noem to President Bear Runner

CRST Letter to Gov. Noem

Noem Letter to White House

Federal Court Dismisses Treaty Group Challenge to Self-Determination Contract between Oglala Sioux Tribe & Cheyenne River Sioux Tribe and Indian Health Service

Here are the materials in Gilbert v. Weahkee (D.S.D.):

5 Amended Complaint

17 IHS Motion to Dismiss

19 Response

19-3 Oglala Tribal Court Decision

31 Reply

38 Plaintiffs Motion for Summary J

39 Opposition

40 Reply

44 DCT Order

Tribal Motions for Summary Judgment in Standing Rock v. Army Corps [Dakota Access Pipeline]

Here are the new materials in Standing Rock Sioux Tribe v. United States Army Corps of Engineers (D.D.C.):

418 DCT Order on Administrative Record

433-2 Standing Rock Motion for Summary Judgment

434-2 Oglala Motion for Summary Judgment

435-1 Yankton Motion for Summary Judgment

436-1 Cheyenne River Motion for Summary Judgment

439 NCAI Amicus Brief

ICWA Jurisdiction Case Out of North Carolina Court of Appeals

Here.

There is a lot going on here, including problematic reasoning over full faith and credit to a tribal court order, but I think it is worth focusing on “ward of the tribal court” language. In 25 USC 1911(a), tribes retain exclusive jurisdiction regardless of the domicile of the child if the child is a “ward of the tribal court.” The weakness in this language was exploited in Rye v. Weasel, the existing Indian family case out of Kentucky (which continues to be one of the few states that upholds this exception).

This opinion essentially creates a definition of “ward”, using the more restrictive language available:

ICWA and the related sections of the Code of Federal Regulations do not instruct as to who should make a finding regarding a child’s status as a tribal court’s ward and North Carolina does not use the term “ward” in the context of adoptions. Black’s Law Dictionary defines a “ward” as “a person, usu[ally] a minor, who is under a guardian’s charge or protection.” WardBLACK’S LAW DICTIONARY (11th ed. 2019). More specifically, Black’s defines “ward of the state” as “[s]omeone who is housed by, and receives protection and necessities from, the government.” Ward of the StateBLACK’S LAW DICTIONARY (11th ed. 2019). For purposes of ICWA, we adopt this definition for the term “Tribal Court Ward.” Applying this definition to the relevant provision of ICWA, once a child has stopped being housed by or provided protections and necessities from the tribe, she will cease being its ward for purposes of 25 U.S.C. § 1911(a)

In 2011, South Dakota DSS was granted full custody of the children. In 2012, the Tribe was granted renewed jurisdiction over the children’s case and placed the children in the care of their “paternal aunt,” Appellant. There is no evidence the children ever made the reservation their domicile or residence after that point in time, nor is there evidence the Tribe housed them or provided protections or necessities thereafter. In fact, the Appellant sought and obtained guardians for the children from the courts of North Carolina. Having lived most of their life outside the Tribe’s reservation and without provision of protections and necessities therefrom, we hold K.L.J. and K.P.J. were not wards of the Tribal Court. The Tribal Court cannot assert exclusive jurisdiction over this matter under 25 U.S.C. § 1911

While I believe this is far too constrained a reading of the text (“protections and necessities” are vague at best, and not required if we were dong a home state analysis of jurisdiction under the UCCJEA, for example), I do think it is a good reminder to tribes to ensure their guardianship codes provide for on-going review of tribal guardianship orders if they wish to maintain the exclusive jurisdiction over the child not living on the reservation. In many states, simply stating that the children are “wards” in the court order is not going to be enough (yes, it should be, but it generally is not).

ICWA/MIFPA Case from the Michigan Court of Appeals

We are wrapping up a training in Montana where every person in the room answered the ICWA pop quiz question: “Do ICWA protections apply to non-Native parents of Indian children?” correctly. Luckily the Michigan Court of Appeals answered it correctly as well. The Court of Appeals also provides an excellent discussion of why Adoptive Couple v. Baby Girl did not apply to this, and similarly situated cases. There is a lot of useful language in this case for attorneys who continue to run into these issues in trial court across the country.

In re Beers/LeBeau-Beers

The trial court applied the appropriate heightened standards or
burdens when terminating respondent-mother’s parental rights, but it failed to apply them when terminating the parental rights of respondent-father, ostensibly because the Indian heritage of the children is solely through their mother’s bloodline. Respondent-father argues that ICWA and MIFPA standards govern the termination of his parental rights, considering that TB is his biological child and an Indian child, regardless of respondent-father’s personal heritage. We agree and conditionally reverse the termination of respondent-father’s parental rights to TB and remand for proceedings consistent with ICWA and MIFPA, as well as MCR 3.977(G).

In addition, however, the Court correctly analyzed whether Adoptive Couple v. Baby Girl applied to this case, and raised this issue sua sponte “whether the heightened standards of ICWA, MIFPA, and MCR 3.977(G) should apply to the termination of respondent-father’s parental rights when he never had legal or physical custody rights in regard to TB.”:

Given the equivocal nature of Justice BREYER’s concurrence [in Adoptive Couple], it cannot truly be said that a majority of the United States Supreme Court created an inflexible rule for purposes of “continuing custody” analysis under § 1912(f), as well as the analysis of § 1912(d). And even assuming the contrary, it certainly is not clear whether the Supreme Court would impose the rule based solely on whether a parent had physical custody, in the strictest sense of the term under the law, where a custodial-like environment existed on a practical level absent any technical custodial rights.

***

We hold that under the particular facts of the instant case, which are entirely dissimilar to those in Adoptive Couple where the father effectively abandoned the child from birth and even in
utero, the beyond-a-reasonable-doubt standard applies to the termination of respondent-father’s parental rights, although he never had legal or physical custody rights, as those terms are legally employed. When DHHS’s petition was filed in August 2015 and for a period thereafter, respondent-father, respondent-mother, and TB lived together as a familial unit wherein respondent-father was providing some care and custody for TB. And petitioner was providing
reunification services. The family unit dissolved only when TB was removed by court order, although respondents remained together. The removal of TB discontinued the custodial arrangement that had existed with respect to both respondents and TB, if not in law, in practice.

Supreme Court Cert Stage Briefing in R.K.B. v. E.T.

As a reminder, this is the cert petition regarding the very long Utah Supreme Court decision which held there is a federal reasonableness standard for determining whether an unwed father is a parent under ICWA. That decision is here.

Another reminder–there are generally no cert stage amicus briefs filed in opposition to a cert petition. And a cert petition is just asking the Supreme Court to take the case. It doesn’t mean the Court has taken the case.

RKB Petition for Certiorari

R.K.B. NCFA Amicus ISO Cert Final

R.K.B. v. E.T. FINAL AMICUS BRIEF AAAA

Amicus Brief- Utah Adoption Council

Amicus Curiae Brief Goldwater

R.K.B v. E.T. Brief in Opposition

North Dakota ICWA Case on Qualified Expert Witness

Here: Interest of K.S.D. and J.S.D., 2017 ND 289

The lack of qualified expert testimony on whether the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child leaves this record without evidence necessary for the district court to find the State established the ICWA requirement by proof beyond a reasonable doubt. 25 U.S.C. There is a line of authority that upholds termination of parental rights absent an ICWA qualified expert witness. We choose to follow the other branch of authority because the United States Code and the United States Code of Federal Regulations require—and do not merely suggest—that a qualified expert witness testify on the ICWA requirements in all ICWA terminations.

 

(Unrelated, one has to love a Court that only allows opinions to be downloaded as WordPerfect documents. That’s commitment.)