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.)

Standing Rock/NoDAPL Motion to File Amicus in Support of Dakota Access and ACOE Brief Regarding Remedy

Here are the briefs(PDF) in the matter of Standing Rock Sioux Tribe et al v. U.S. Army Corps of Engineers et al, (D.D.C. 16-cv-01534):

Link: Previously filed documents

Major Utah Supreme Court ICWA Case

In a case that has been pending for just under two years (oral arguments were a year ago May), the Utah Supreme Court found for the biological Indian father in the case, and reversed and remanded the trial court’s decision denying his intervention in the voluntary adoption case involving his child.

The decision is a contentious bear of an opinion, at 103 pages with a very split court (Justices Himonas [writing], Durham, Pearce were the majority for Parts II.B, II.D, and III; Justices Lee [writing], Durrant, Pearce were the majority for Part I. I’m still trying to sort out what the deal is Part II.A).

Here is the opinion. Warning: this post got a little long.

In this case, birth mother lied about the paternity of her baby. When birth father found out, he attempted to stop the adoption proceedings in Utah state court. The detailed facts are laid out in the opinion. The trial court found he had not established paternity, and also that he could only intervene in involuntary proceedings, not voluntary ones. The Supreme Court wrote:

The court is not of one mind on the issues. With respect to issue 1, a minority of this court would hold that where, as here, neither biological parent has validly consented to the adoption nor had their parental rights otherwise terminated, our courts lack subject matter jurisdiction to go ahead with adoption proceedings. With respect to issue 2, the minority would further hold that Birth Father has standing under our traditional approach to standing, and the right, under section 1914 of ICWA, to challenge Birth Mother’s consent and the termination order and to argue the lack of subject matter jurisdiction. And with respect to issue 3, which is separate from the jurisdictional questions, a majority of this court holds that Birth Father is a “parent” under ICWA and, as such, is entitled to participate in the proceedings below on remand. The decision of the district court is therefore reversed and the matter remanded for proceedings consistent with this opinion.

ICWA defines a parent as “any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include the unwed father where paternity has not been acknowledged or established” 25 U.S.C. 1903(9). There is no federal definition of “acknowledged or established”.

Because of the lack of a definition, we look instead to the plain meaning of the terms “acknowledge” and “establish.” We conclude that the plain meaning of the terms is so broad that it offers little guidance, so we then address the question of whether the procedures and timing for acknowledging or establishing paternity are defined by state law or are subject to a tribal or federal standard.

¶ 51 The district court determined that “Congress intended for ICWA to defer to state and/or tribal law standards for establishing paternity” and that Birth Father failed to comply with Utah or South Dakota requirements for establishing paternity. We disagree. Instead, we hold that Congress intended that a federal standard apply. We also hold that Birth Father’s actions were timely and sufficient to acknowledge paternity under ICWA.

***

By arguing that the definition of paternity in the context of Indian affairs is a state issue, the dissent’s position largely ignores the federal government’s plenary powers over Indian affairs, not to mention the purpose and text of ICWA as a whole. We are loath to pour state law back into ICWA when ICWA’s whole reason for being is to drain what, in Congress’s view, is an inequitable swamp—displacing state law on the matters on which ICWA speaks.

***

Applying state law to determine who is a parent under ICWA would, in some cases, provide a lower level of protection of parental rights than ICWA intends. Utah law serves as the perfect example of this problem. Whereas ICWA provides that an unmarried biological father may “acknowledge[] or establish[]” paternity, id. § 1903(9) (emphasis added), Utah law provides no viable procedure for acknowledging paternity in cases where the mother wants to place the child for adoption at birth and does not consent to the acknowledgment.

***

Having rejected the application of state law to define the procedures and timing for acknowledging or establishing paternity under ICWA, we hold that a federal standard applies.24 We acknowledge that ICWA does not explicitly define the procedures and timing required, but in light of the congressional findings and the purpose of ICWA as discussed above, as well as its protectiveness of parental rights pertaining to Indian children, we conclude that the requirements must be less exacting than those for establishing paternity under Utah law. Instead, we conclude that a reasonability standard applies to the time and manner in which an unwed father may acknowledge or establish his paternity.

Because biological dad established his paternity, he can bring a challenge under 25 U.S.C. 1914:

Because we conclude that Birth Father is a “parent” under ICWA, we now look to language in section 1914 that arguably requires not just that a person bringing a challenge to a termination action be a “parent” but also that he be a parent “from whose custody such child was removed.” Birth Father may bring an action under this section because, as a parent, he had legal custody of the Child, and to the extent he did not have physical custody of the Child, it was because of Birth Mother’s misrepresentations.

The opinion also addresses the Existing Indian Family exception:

Where, as here, a father took every reasonable step to obtain physical custody but was thwarted by the mother’s misrepresentations, we hold that he is not barred from challenging an action under section 1914.

¶ 83 We also note that the majority of courts, including our court of appeals, have adopted a similar view in rejecting the idea that ICWA’s language about “the removal of Indian children from their families” requires an existing Indian family for the child to be removed from.

***

To hold that a parent who has never had physical custody—through no fault of his own—could not bring an action under section 1914 would have the same baffling effect of barring the very people the Act is intended to benefit.

Finally, the opinion finds that the proceedings were not voluntary proceedings as to father:

We disagree with the district court’s characterization of “involuntary proceedings” as “state sponsored proceedings” and “voluntary proceedings” as “proceedings initiated by an Indian parent seeking to terminate her parental rights.” Rather, we hold that proceedings to terminate a parent’s parental rights against his or her will are involuntary proceedings under ICWA.

The question of whether Mother’s consent was done legally under ICWA was the subject of supplemental briefing. The implications of the decision in this area is not entirely clear. The issue seems to be that the question of mother’s consent was not presented to the court on appeal (the procedural posture of this case was kind of a mess, as it went straight up from the trial court’s decision about the father’s right to intervene to the Supreme Court with no stop at the Court of Appeals), and the court is split on the issue of subject matter jurisdiction.

We have no quarrel with Justice Himonas’s assertion that our court has a duty to make a sua sponte assessment of our own subject matter jurisdiction. See supra ¶ 19. But upon review of the supplemental briefing, we see no basis for the conclusion that the district court lacked jurisdiction to decide E.T.’s motion to intervene. We see at least four independent grounds for rejecting Justice Himonas’s determination of a subject-matter jurisdiction defect.

Part I continues for 25 pages and I will leave it to you to read it.

On a side note, it’s difficult to read the Justices’ concern about the length of time this adoption has been held in limbo, given that it took their court nearly two years to issue a decision in the matter.

 

Friday Job Announcements

Job vacancies are posted on Friday. Some announcements might still appear throughout the week. If you would like your Indian law job posted on Turtle Talk, please email indigenous@law.msu.edu.

Central Council of the Tlingit and Haida Indian Tribes of Alaska

ICWA Attorney, Juneau, AK. The attorney will provide civil legal representation to CCTHITA on child welfare cases and issues. The incumbent’s primary responsibility is to advise the Tribal Family & Youth Services (TFYS) department staff regarding the application of the Indian Child Welfare Act (ICWA) and other State and Federal legislation that impact Tribal families.

Cheyenne River Sioux Tribe

Executive Director, Economic Development Corporation. Responsible for carrying out the day-to-day directives of CREDCO, the Board of Directors, and the Cheyenne River Sioux Tribe. Closes Monday, June 12, 2017.

Great Lakes Inter-Tribal Council

Chief Executive Officer/Executive Director, Lac du Flambeau, WI. As principal executive officer of the Great Lakes Inter-Tribal Council (GLITC) organization, this position directs and coordinates the operations of GLITC to ensure established goals and objectives are met, regulatory requirements are complied with, resources are utilized efficiently and effectively, and the needs of the tribal communities are being met. Closes Monday, June 19, 2017.

AmeriCorps

Medical-Legal Partnership Attorney Member, Monument Valley, UT. The AmeriCorps Member will provide direct legal assistance to low-income patients at Utah Navajo Health Systems.

Medical-Legal Partnership Attorney Member, Albuquerque, N.M. The AmeriCorps Member will provide direct legal assistance to low-income patients at First Nations Community HealthSource.

From last week:

(2) Limited Term Faculty, Bora Laskin Faculty of Law at Lakehead University, Ontario, CA.

Associate Attorney, Frye Law Firm, Albuquerque, N.M.

Heather Dawn Thompson Awarded Bush Fellowship

Here’s the press release from Greenberg Traurig:

Greenberg Traurig’s Heather Dawn Thompson Awarded
Prestigious Bush Fellowship

DENVER – Apr. 3, 2017 – Heather Dawn Thompson, an attorney in the American Indian Law Practice of international law firm Greenberg Traurig, LLP, was recently awarded a Bush Fellowship for her extraordinary leadership in Indian Country. The Fellowship provides an educational grant to pursue the training and experiences Fellows need to become more effective leaders in their community.

Thompson, a member of the Cheyenne River Sioux Tribe, will focus her Bush Fellowship on “self-sufficiency,” for Tribal governments. Thompson wants to better engage the private sector with the Great Plains Tribes in their efforts to build their strength and self-determination. She is experienced in Indian law and economic development nationwide; and, in result, has witnessed economic independence bring freedom to invest in language, culture, and service to tribal citizens. She also believes strong leadership requires the wisdom that the Lakota language and values provide. She will use her Bush Fellowship to pursue corporate and tribal finance, combining it with a focus on traditional Lakota values of leadership and self-sufficiency.

“We are honored to have someone with Heather’s knowledge of Indian country, Native American Law, and tribal economic development serving our clients and also always seeking to learn more to benefit tribes in the Great Plains and beyond,” said Jennifer H. Weddle, co-chair of the American Indian Law Practice. “Her exceptional background and leadership provides valuable perspective to our clients.”

Thompson was selected from nearly 650 applicants, from across Minnesota, North Dakota, South Dakota, and the 23 Native nations that share the same geography. Fellows determine what they need to become a more effective leader and receive the fellowship grant to make it happen.

Thompson is from South Dakota, where she served as an Assistant U.S. Attorney for the U.S. Attorney’s Office in South Dakota’s Indian Country Section prior to joining Greenberg Traurig. She also previously served as the Director of Government Affairs for the National Congress of American Indians (NCAI), the nation’s oldest and largest inter-tribal organization. In addition, she is Past President of both the South Dakota Indian Country Bar Association and the National Native American Bar Association.

She focuses her practice at Greenberg Traurig on American Indian law, federal Indian policy and advocacy, tribal sovereignty, tribal economic development, and tribal nation building. Thompson works with individual tribes, tribal and Indian-owned businesses, intertribal associations, and businesses seeking to partner with tribal corporations. Thompson was published recently, writing an article on “Doing Business with Native American Tribal Corporations.”