family law

Recent UCCJEA Cases Involving Tribal Courts

Kate Fort

There has been a small spate of Uniform Child Custody Jurisdiction Enforcement Act cases this year involving family law cases and tribal courts. In most states, tribes are considered “states” for the purposes of determining a child’s “home state” jurisdiction. These are generally (but not always) non-ICWA cases like parental custody and child support. These kind of cases seem rare to practitioners, but nationally there’s a fair number of them (and will continue to be the kind of reasoning tribal and state judges will need to engage in to as more and more cases arise in this subject area).

McGrathBressette (Michigan, child custody v. child protection)

MontanaLDC (Montana, child custody)

NevadaBlount (Nevada, third party custody)

 

(And yes, I have a pile of ICWA cases to share with you that have built up in the last month or so.)

Reminder: AALS Indian Nations & Indigenous Peoples Call for Papers on Same-Sex Marriage & LGBT Families

Ann Tweedy

The deadline is coming up 9/1. Please submit if you have a qualifying research project and also feel free to share widely:

The Indian Nations and Indigenous Peoples Section of the American Association of Law Schools (AALS) invites paper proposals on the following topic. How do Indian Tribes, First Nations, and other Indigenous Peoples regulate same-sex marriage, same-sex relationships, and adoption and foster parenting by same-sex couples and LGBT individuals? What role does evidence of Tribal culture and tradition, if any, play in these decisions? Additionally, what are the processes by which Tribes change their laws with respect to same-sex relationships? More broadly, we are interested in the ways in which Tribes, First Nations and other Indigenous Peoples regulate sexuality and family structure.

Please send proposals of 500 to 1000 words summarizing a paper or work-in-progress you would present on an AALS panel on these issues. The selected panelists will be invited to present their work in a joint program of the Indian Nations and Indigenous Peoples and the Law and Anthropology Section, which will be co-sponsored by the Family Law Section. The Program will be held at the AALS Annual Meeting, January 6-10, 2016. Selected papers will be published in the William Mitchell Law Review. Please submit your proposal on or before September 1, 2015 to Michalyn Steele, Chair-Elect, at steelem@law.byu.edu. Questions can also be directed to Ann Tweedy, Chair.

AALS Indian Nations & Indigenous Peoples Call for Papers

Ann Tweedy1 Comment

The Indian Nations and Indigenous Peoples Section of the American Association of Law Schools (AALS) invites paper proposals on the following topic. How do Indian Tribes, First Nations, and other Indigenous Peoples regulate same-sex marriage, same-sex relationships, and adoption and foster parenting by same-sex couples and LGBT individuals? What role does evidence of Tribal culture and tradition, if any, play in these decisions? Additionally, what are the processes by which Tribes change their laws with respect to same-sex relationships? More broadly, we are interested in the ways in which Tribes, First Nations and other Indigenous Peoples regulate sexuality and family structure.

Please send proposals of 500 to 1000 words summarizing a paper or work-in-progress you would present on an AALS panel on these issues. The selected panelists will be invited to present their work in a joint program of the Indian Nations and Indigenous Peoples and the Law and Anthropology Section, which will be co-sponsored by the Family Law Section. The Program will be held at the AALS Annual Meeting, January 6-10, 2016. Selected papers will be published in the William Mitchell Law Review. Please submit your proposal on or before September 1, 2015 to Michalyn Steele, Chair-Elect, at steelem@law.byu.edu. Questions can also be directed to Ann Tweedy, Chair.

NCJFCJ 77th Annual Conference, July 13-16, 2014

Victoria Sweet

Join us in Chicago, Illinois for this year’s 77th Annual Conference featuring a wide range of juvenile and family law topics including child abuse and neglect, trauma, custody and visitation, judicial leadership, juvenile justice, sex trafficking of minors, family violence, drug courts, psychotropic medications, children testifying in court, detention alternatives, substance abuse, and the adolescent brain.

In addition, this year we are offering a preconference workshop, Special Consideration for Working with Adolescents with Substance Abuse Issues, designed for professionals working with juvenile justice involved youth who also have mental health, substance abuse, or trauma issues. Any juvenile court judges, juvenile drug court coordinators, attorneys, probation officers, case managers, and substance abuse treatment counselors are encouraged to attend.

Information available here.

White Earth Nation Taking over Human Services Cases from Surrounding Counties

Victoria Sweet

In 2011, the Minnesota legislature authorized White Earth to take over all human services programs for tribal members and families in surrounding counties.

Bill text here.

With more tribes looking at options to provide more services for tribal members residing off reservations, it will be interesting to see how this implementation process will work for White Earth.

News coverage on the transfer here.

Before the transfer began, White Earth was offering some human services programs, including tribal child care assistance, child welfare programs, disability waivered services and food distribution programs.

However, people also qualified for several other programs that only the counties offered.

That meant a lot of back and forth and confusion for recipients who were juggling programs from different agencies.

The complete transfer – the first of its kind in Minnesota – will mean people will have their cases streamlined into one place where they can receive all benefits together.

Document with the transfer proposal for Mahnomen county cases here.

H/T to Adrea Korthase!

Navajo SCT Decides Family Law Matter

Matthew L.M. Fletcher1 Comment

Here is the opinion in Ashkii v. Kayenta Family Court. From the court’s syllabus:

The Supreme Court issues its opinion regarding a petition for extraordinary writ filed by a mother in a paternity and custody matter in which the judge required that both parents pay $1,000 each for a State of Arizona custody evaluator and, furthermore, informed the mother that she would lose custody if the money was not paid. The Court stated that no Navajo rule or statute requires custody cases to be submitted to mediation or custody evaluation, furthermore a State of Arizona evaluator would not be familiar with customs and traditions of the Navajo people. A custody decision based solely on a parent’s inability to pay for a service that is not mandated by law is contrary to fairness and the best interest of the child. Parents should be informed of all options, including pre-trial settlement and peacemaking to resolve custody issues themselves. If information is needed by the family court, a guardian ad litem or Social Services are available to provide reports without charge.

 

Navajo Nation SCT Defines Customary Adoption in Family Law Case

Matthew L.M. Fletcher

Here is the opinion in James v. Window Rock Family Court.

Here is the court’s syllabus:

The Court grants James’ petition for writ of mandamus where James’ adoption filing was not acted on by the family court for several months. The writ compels the timely processing of cases within statutory and rule-based timeframes and emphasizes the responsibilities of the Court Administrator. The Court also addressed the family court’s erroneous interpretation of the adoption statute, which the family court interpreted as requiring a separate petition for termination of parental rights (TPRs) to be filed when an adoption is sought.  Clarifying that the Navajo Nation favors formal adoptions with TPRs only in cases of child abuse or neglect, the Court stated that the recent Alchíní bi Beehaz’áanii Act emphasizes that “customary adoptions” must be considered before all other options, including TPR as a last resort.  As the Act does not define customary adoptions, the Court provides the definition in this opinion.

 

Patrice Kunesh on ICWA: “Borders Beyond Borders”

Matthew L.M. Fletcher

Patrice Kunesh (South Dakota Law) has posted “Borders Beyond Borders: Protecting Essential Tribal Relations Off Reservation Under the Indian Child Welfare Act” on her BEPRESS Selected Works site.

Patrice presented her paper at the 3rd Annual Indigenous Law Conference, “Facing the Future: The Indian Child Welfare Act at 30.”

Abstract:

2008 is the thirty year anniversary of the enactment of the Indian Child Welfare Act (ICWA), one of the most dynamic pieces of legislation in federal Indian affairs that irrevocably changed the jurisdictional prerogatives of states and tribes. ICWA’s tribal wardship provision is remarkably constructive because it vests tribes with exclusive jurisdiction over Indian children who are wards of the tribal court–irrespective of the child’s domicile. This jurisdictional scheme, a rough mixture of territorial and personal criteria, defies the normative notions of state court jurisdiction over family relations. And the cross-hatching of state and tribal interests in off-reservation child welfare matters has engendered serious tension and questions about the precise contours of tribal sovereignty and the boundary line between state and tribal power.

This article investigates the transformation point between tribal and state jurisdiction over Indian child welfare matters. From an examination of the historical development of tribal wardship decisions and ICWA’s legislative history, material unexamined in this context in other scholarship, I posit that tribes, as unique political entities in our federal system of government, possess inherent attributes of sovereignty to regulate their internal social relations. ICWA is premised on the dual nature of tribal sovereignty, and allows, if not encourages, tribes to redefine their relationship to state governments by recognizing that the power to adjudicate internal matters, including child custody matters, derives from a source independent of the land. Thus, there are no real boundaries to protecting these essential tribal relations where the exercise of tribal authority is vital to the maintenance of tribal integrity and self-determination.