Updated ICWA Appellate Page

We’ve updated and cleaned up the ICWA Appellate Page. We’ve also added the eight comprehensive state ICWA laws to the page.

A link to the page is now available at the top of Turtle Talk in the menu, and the address is http://www.turtletalk.wordpress.com/icwa

2016 ICWA Appellate Cases by the Numbers

Here’s our annual contribution to the ICWA data discussion. While a few cases might yet come in, we have our final list of 2016 appealed ICWA cases sorted. A note on the data–these are cases that are on Westlaw and/or Lexis Nexis, and ICWA (or state equivalent) was litigated. We collect the case name, the date, the court, the state, whether the case is reported (also called published) or not, the top two issues, up to three named tribes, the outcome of the case, and who appealed the case. These are standard state court ICWA cases, and do not include any of the ongoing federal litigation. We did this last year as well. Sadly no, I haven’t yet published this anywhere but Turtle Talk, and yes, it is next on the to-do list. If you know we are missing a case based on the numbers, and it’s publicly available, *please* send it to me [fort at law.msu.edu] so we can add it. I’m also happy to answer questions at the same email.

There were 175 appealed ICWA cases this year, down 74 from last year. There were 30 reported ICWA cases this year. As always, California leads the states with 114 cases, 10 reported. Michigan is second with 13, 2 reported. Texas, which didn’t have any cases we could find last year, had 7 cases this year, 1 reported. Then Iowa with 6, 1 reported, Oklahoma with 4 reported, Nebraska with 3, 2 reported, and Alaska and Arizona with 3, 1 reported each. States with 2 appealed ICWA cases include Arkansas (none reported), Indiana (none reported), Ohio (none reported), Oregon (2 reported), Washington (1 reported), Illinois (1 reported). Finally the following states had 1 ICWA case: Idaho, New Jersey, New Mexico, South Dakota, Utah, Kansas, North Carolina, Vermont, Kentucky, and Massachusetts.

In California, the cases further breakdown to 37 in the 4th Appellate District, 33 in the 2nd, 24 in the 1st, 9 in the 5th, 6 in the 3rd, and 3 in the 6th. California is the only state where we track by appellate districts at this time.

Supreme Courts in Oklahoma (2), Alaska (2), Idaho, Nebraska (2), South Dakota, California (2), Vermont and Washington all decided ICWA cases this year.

Of the 175 total appeals, 90 were affirmed, 67 were remanded, 14 were reversed, and the four remaining were affirmed in part and reversed in part (1), denied as moot (1), dismissed (1), vacated and remanded (1).

Top litigated issues were as follows: Notice (106), Inquiry (21), Placement Preferences (10), Active Efforts (8), Determination of Indian Child (8), Burden of Proof (5), Transfer to Tribal Court (5), Intervention, Termination of Parental Rights, Existing Indian Family, (2 cases for each one). The other cases with 1 each: Qualified Expert Witness, Indian Custodian, Tribal Customary Adoption, Application to Divorce, Ineffective Assistance of Counsel, Foster Care Placement

52 different tribes are represented in the first named tribe in a case. There were 56 cases involving claims of Cherokee citizenship. Of those appeals, 48 involved issues of notice and inquiry. In 21 cases the tribe was unknown (parent did not know name of tribe). In 14, the tribe was unnamed (court did not record name of tribe in the opinion).

4 cases were appealed by tribes (Cherokee Nation, Gila River, Shoshone Bannock). 92 were appealed by mom, 49 by dad, and 24 by both. Other parties who appealed include agency (1), child’s attorney (1), foster parents (1), great aunt and uncle (1), Indian custodian (1), and state and foster mother (1).

Updated ICWA Defense Project Memo

The ICWA Defense Project (NCAI, NARF, NICWA, and ICWA Appellate Project) has updated the memo detailing the various federal court challenges to ICWA.

Here.

On February 25, 2015, the Bureau of Indian Affairs (BIA) published revisions to the Guidelines for State Courts and Agencies in Indian Child Custody Proceedings. These revised Guidelines address areas of Indian Child Welfare Act (ICWA) non-compliance occurring over the past 36 years.

One month later, the BIA proposed to advance its reforms by proposing draft federal Regulations to govern the implementation of ICWA in state courts and agencies. On June 17, 2016, the BIA issued final Regulations for Indian Child Welfare Act Proceedings, as well as Frequently Asked Questions regarding the final rule. In addition, the U.S. Department of the Interior Solicitor issued a Memorandum describing BIA’s authority to issue the Regulations.

In response to the 2015 reforms, a network of ICWA opponents filed multiple lawsuits challenging the Guidelines and ICWA’s constitutionality. The National Indian Child Welfare Association (NICWA), the Native American Rights Fund (NARF), the National Congress of American Indians (NCAI), and the ICWA Appellate Project at Michigan State University College of Law—collectively known as the ICWA Defense Project—are working collaboratively to defend ICWA and the long overdue reforms.

This memorandum summarizes the pending litigation and describes some of the legal and communications strategies developed by these partner organizations to inform, advance, and unify a coordinated effort across Indian Country in response to these attacks.

Federal ICWA Cases Update Memo

We originally posted this when the first three lawsuits were filed. There have been two additional ones since then. Here is the memo with the most recent updates.

The National Indian Child Welfare Association (NICWA), the Native American Rights Fund (NARF), the National Congress of American Indians (NCAI), and the ICWA Appellate Project at Michigan State University College of Law—collectively known as the ICWA Defense Project—are working collaboratively to defend ICWA and the long overdue reforms to it introduced this year. This memo will summarize the pending litigation and describe some of the legal and communications strategies these partner organizations have developed to inform, advance, and unify a coordinated effort across Indian Country to respond to these attacks.

Here is a link to the page where we are keeping all of the PACER documents.

ICWA Defense Project Memo on Recent Federal ICWA Cases

Here.

In February 2015, the Bureau of Indian Affairs (BIA) published its revisions to the Guidelines for State Courts and Agencies in Indian Child Custody Proceedings. The new guidelines address areas of Indian Child Welfare Act (ICWA) non-compliance that have occurred over the past 36 years. In March 2015, the BIA announced its intent to advance further reform by proposing for the first time ever, legally binding federal regulations, Regulations for State Courts and Agencies in Indian Child Custody Proceedings, to govern the implementation of ICWA in state courts and agencies. The BIA received over 2,100 public comments during the notice and comment period that closed mid- May. The BIA will review these comments and then promulgate final regulations, likely by early spring 2016. A network of ICWA opponents has responded to the reforms by filing multiple lawsuits challenging the guidelines and ICWA’s constitutionality.

The National Indian Child Welfare Association (NICWA), the Native American Rights Fund (NARF), the National Congress of American Indians (NCAI), and the ICWA Appellate Clinic at Michigan State University College of Law—collectively known as the ICWA Defense Project—are working collaboratively to defend ICWA and the long overdue reforms to it introduced this year. This memo will summarize the pending litigation and describe some of the legal and communications strategies these partner organizations have developed to inform, advance, and unify a coordinated effort across Indian Country to respond to these attacks.

Also, here is the NICWA Board Resolution and
talking points for conversations with state Attorneys General.