WA Supreme Court En Banc Decision on Active Efforts [ICWA]

Justice Montoya-Lewis does it again, soundly rejecting the futility doctrine when it comes to providing active efforts to parents, and providing a treatise on what active efforts are and why ICWA requires them. Trying to pull out one quote is nearly impossible–just go read from page 16 to the end. And her last paragraph may become on one of the most quoted in ICWA caselaw:

The history of the United States and its relationship with Native tribes, communities, and families tell a story of promises made and broken. We rely on the commitment made by Congress and the Washington State Legislature to decline to remove Native children from their families and communities unless absolutely necessary and to actively work toward reunification in those limited instances when the high standard for removal has been met. Today, we hold our state child welfare system and our courts to those promises. We reverse the dependency court’s finding that the Department provided active efforts and remand to the trial court with instructions to order the Department to provide active efforts in accordance with this ruling. We also order the dependency court to not proceed to hear the termination petitions until the Department has provided active efforts.


In addition, the Washington team assembled a number of amicus briefs (including the MSU Indian Law Clinic) on this case. A special shout out to Tara Urs for being so on top of these cases every time. 

Gold Standard Lawyering in The NACC Guardian


By Sheri Freemont

Imagine being a Native American person and being in a court that will judge your family and
parenting where the judge, the lawyers, the social workers, the security guard, the court
reporter, the judicial assistant, are all non-natives? As a native person who is aware of the
history of the nation to condemn Native Americans as parents, and even as humans, how
does it feel? Will native people feel comforted by the explanation that they have due process
rights? Consider: the government cannot take your child away from you without due process.
Does having due process rights mean they will still take your child away, but you get notice
and an opportunity to be heard, and a lawyer to represent you? A lawyer who has never been
inside a native person’s home, who has never heard about boarding schools or Indian massacres, or the hundreds of years of attacking the familial ways of native people. More than plain
language explaining the laws and process is needed to serve these families in child welfare
cases.5 We need to use the gold standard of legal practice, borrowing from what the Indian
Child Welfare Act can teach us about how to do child welfare practice differently.

APSAC Advisor Issue on ICWA

The American Professional Society on the Abuse of Children published an issue on ICWA.


Articles include:

Vandervort, The Indian Child Welfare Act: A Brief Overview to Contextualize Current Controversies

Fletcher & Fort: The Indian Child Welfare Act as the “Gold Standard”

Piper: The Indian Child Welfare Act: In the Best Interest of Children?

Piper: Response to Fletcher and Fort

Fletcher & Fort: Response to Piper