Reason to Know Decision from Washington Court of Appeals [ICWA]

Here.

ICWA and WICWA require a court conducting a 72-hour shelter care hearing to inquire whether the child is or may be an Indian child. A court substantially complies with that requirement if prior to the hearing the Department has begun a good faith investigation into the child’s Indian status, the parties elicit the relevant evidence during the hearing, and the court considers that evidence before ruling on shelter care.

Ok, sounds good.

The reason-to-know standard turns on evidence that the child is a tribal member, or the child is eligible for tribal membership and a biological parent is a tribal member. If there is a reason to know a child is or may be an Indian child, then ICWA and WICWA require the court to treat the child as an Indian child pending a conclusive membership determination by a tribe. A parent’s mere assertion of Indian heritage absent other evidence is not enough to establish a reason to know a child is or may be an Indian child. Because the Department’s good faith investigation before the shelter care hearing did not reveal evidence that a parent or a child was a tribal member, the court did not err in concluding that there was no reason to know the children were Indian children based on the evidence available at the time of the shelter care hearing, Of course, the Department has an obligation to continue its investigation before proceeding to a dependency or termination hearing.

Oohkay. Then what did the investigation reveal?

The investigation revealed that the mother was eligible in the Central Council of Tlingit and Haida, where her mother is enrolled, the Klawock Cooperative Association, and that father was potentially eligible at Umatilla.  This was not just the parent’s assertion (which frankly, given the specificity, should be enough*)–this included the testimony of the social worker who called Central Council. It turns out what this Court means by reason to know is actual evidence of membership:

Because the Department’s good faith investigation before the shelter care hearing did not reveal evidence that a parent or a child was a tribal member,

The children were removed on June 27. The first hearing (shelter care) took place on July 2-3. At that point, the state social worker had called Central Council and knew grandma was enrolled, but not mom. She then testified that “to her knowledge”, dad was not enrolled, but there is nothing in the opinion on how she would know that. The social worker then testifies it was possible the children were eligible for enrollment.  But then, the court’s shelter care order states there is “not a reason to know” the children are Indian children. When Central Council intervenes in the case on July 30, the Court then decided there was reason to know (well, yes, because then we all know).

Everyone knows (ahem) that three-five days is not enough time for a full notice as required by the law (by mail, return receipt requested). Those of us who do this work ALSO know it may take a tribe longer than that to determine membership. The purpose of the Regs (to treat potential/reason to know Indian children as Indian children until determined otherwise) was to ensure those children were treated as Indian children until membership is all sorted out. The Washington Court of Appeals manages to do the opposite–equating “reason to know” with just plain old “know”. Why does this all matter? The legal standard applied at the shelter care hearing:

Specifically, the information before the court at the shelter care hearing as a
result of the Department’s good faith investigation did not establish a reason to know Z.G. and M.G. were Indian children. Because there was no reason to know,
the normal serious threat of substantial harm standard applied at the shelter care hearing.

Unless a Tribe responds the parent is absolutely a member at that first phone call from the state (not even legally required notice), or the parent happens to have legal evidence of membership on him or her, Washington will claim there is no reason to know, and apply a lower burden of proof than the emergency standard required by ICWA under 1922.

*I decided not to rant about why the parent’s testimony isn’t enough/why parents in court aren’t listened to, but imagine I did.

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.

California Indian Legal Services

Staff Attorney, Escondido, C.A. Will assume a varied case load that may include: brief counsel and services to low income Indian individuals; state and federal court litigation; contract negotiation; advising tribal clients; developing and implementing constitutions, codes, and policies for tribal clients; making presentations; and ICWA related dependency cases.

Central Council Tlingit and Haida Indian Tribes of Alaska

Court Investigator/GAL (RFP), Juneau, A.K. Tlingit & Haida Tribal Court is soliciting contractual-service proposals for a Guardian Ad Litem (GAL) to represent the interests of minor children and a Court Investigator for cases involving children in the Tribal Court. The Tribal Court will contract with up to three (3) GALs and/or Court Investigator for a one (1) year contact with three (3) one year Options for a maximum of four years.

Confederated Tribes of the Umatilla Indian Reservation

Facilitator, 2018 Board of Trustees Retreat. The Executive Director is seeking cost quotes from vendors for facilitation services related to the Board of Trustees (BOT) strategic planning retreat. In November of odd years, the Board of Trustees is elected and takes office by early December for a 2-year term. The incoming BOT usually holds a 2-3 day retreat in its first few weeks in office to lay out their collective goals and
priorities for the coming two years. The 9-member board typically has had 2-4 new members with the balance being returning members from the previous term (although all nine positions are up for election). Due Friday, November 3, 2017.

Yurok Tribe

Summer 2018 Law Clerks, Klamath, C.A. The Law Clerk position is unpaid. Applicants are encouraged to seek financial support through relevant public interest programs or through other public interest scholarships. If you intend to seek school credit if selected for this position, please briefly summarize the supervisor obligations in your cover letter. To apply to the Law Clerk position, please email the application materials to Legal Secretary, Shawna Bowen, at shbowen@yuroktribe.nsn.us by Monday November 13, 2017.

Little River Band of Ottawa Indians

Staff Attorney, Manistee, M.I. Provide in-house legal services to the Tribe. The duties and obligations of the Tribal Staff Attorney are primarily governed by the Tribe’s Unified Legal Department Act of 2015.

Department of Justice

Assistant U.S. Attorney, Northern District of Oklahoma, Tulsa, O.K. Serve in the Criminal Division prosecuting a wide range of violations of federal criminal law.

Previous Friday Job Announcements10/20/17

Federal Court Dismisses Railroad Expansion Project Suit under Rule 19 for Failure to Join Indispensable Tribes

Here are the materials in Union Pacific Railroad v. Runyon (D. Or.):

28 Tribal Motion to Dismiss

42 Response

44 Reply

56 DCT Order

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.

Lower Brule Sioux Tribe

Tribal Court Public Defender, Lower Brule, S.D. The chosen applicant will have a law degree from an ABA accredited law school and be a member in good standing of the bar of any state (South Dakota licensure preferred). Must never have been convicted of a felony. Provides legal counsel and representation to adults accused of criminal offenses and juveniles accused of delinquent acts. Examines evidence and prepares and presents cases for the defense in criminal actions/delinquency actions.   Review police reports. Draft motions, legal memorandums, and other pleadings. Conducts client and witness interviews. File pretrial motions. Identifies appropriate sentencing alternatives for clients and assists with getting clients into treatment. Appear in court on a daily basis. Knowledge of federal Indian law, criminal law, criminal procedure, juvenile law and procedure; and drug court or alternative courts process and procedures. Ability to argue legal positions effectively and persuasively, recognize, formulate and implement viable case defense theories, investigations and litigation strategies. Ability to communicate effectively both orally and in writing, multi-task, prioritize assignments, and remain organized. Work effectively with others. Code writing (such as updating or amending tribal laws). Assist with grant writing. Be a contributing asset to the office and welcome the opportunity to promote justice on the reservation. Other duties as may be assigned by Chief Judge. Salary: Negotiable, depending on experience. Closing Date: Until filled. Applications shall be in writing, to include a professional resume, legal qualifications and any other submissions at the option of the applicant. Native American preference applies. Applications may be obtained from the LBST Personnel Office, Lower Brule, South Dakota (phone:  605-473-5561) or by contacting or Chief Judge Lorrie Miner at 605-473-5528.

Pueblo of Pojoaque

General Counsel, Santa Fe, N.M. Position open until filled. Email sofstehage@pojoaque.org

Alaska Legal Services Corporation

Tribal Court Support Attorney, Bethel, A.K. Provide legal advice and representation to YK Delta tribal governments to enhance and develop tribal justice systems handling matters related to child protection and community and family safety.

ICWA Staff Attorney, Bethel, A.K. This position primarily involves representation of tribal clients in state child welfare proceedings and enforcing the Indian Child Welfare Act, and may also involve litigating other Native law matters on behalf of AVCP Tribes and tribal members.

Grand Traverse Band of Ottawa and Chippewa Indians

SDVCJ Project Coordinator, Peshawbestown, M.I. Open until filled. GTB Application.

Confederated Tribes of the Umatilla Indian Reservation

RFP Will & Estate Planning Attorney Services, Pendleton, O.R. Submissions must be postmarked no later than March 24, 2017.

Cherokee National Historical Society

Executive Director, Park Hill, O.K. Primary responsibility for leading the organization’s strategic planning and fundraising efforts, managing the day-to-day operations and directing the work of a professional staff, and serving as the primary spokesperson for the organization

Superior Court Finds Upper Skagit Tribe Necessary Party in Declaratory Action

Download Court’s letter opinion in re: Schuyler v. Unsworth & Dept. of Fish and Wildlife, Thurston County Cause No. 14-2-02373-9 here.

A member of the Upper Skagit Tribe filed an action in Superior Court for declaratory relief on certain tribal hunting and fishing rights guaranteed by the Treaty of Point Elliot.  However, the Court held that the case affects the rights of the Tribe and therefore the case must be dismissed if it cannot be joined within 90 days.

Oregon COA Affirms Governor’s Authority to Enter into Indian Gaming Compacts

Here are the materials in Dewberry v. Kitzhaber (Or. App.):

Oregon COA Opinion

Appellants Opening Brief

Respondents Joint Answer Brief

Tribal Amicus Brief

Appellants Reply Brief

An excerpt:

In summary, the Oregon legislature authorized the Governor to enter into agreements with tribes to ensure that the state does not infringe on tribal rights under federal laws, such as IGRA. The trial court correctly concluded that the Governor acted lawfully under ORS 190.110 in negotiating and entering into the tribal-state compact with the Tribes.