Bay Mills to host 4th Annual Noojimo’iwewin: The VAWA & ICWA Training


The 2022 Noojimo’iwewin features a series of hands-on training units. Each unit focuses on a topic related to violence and provides tools to support community healing. Engaging, expert faculty facilitate each unit which has been designed to help advocates, providers, and legal professionals implement effective service strategies. The training is hosted both in-person at the Bay Mills Resort & Casino and virtually via Whova. CLE and Social CEU credits pending.

Top Side Briefing in Haaland v. Brackeen

This case is a little complicated regarding the name and who is filing when. The Court is keeping all of the documents under case number 21-376, which is Haaland v. Brackeen. But in its order granting cert, the Court stated that Texas and the foster families would file first, or be “top side” in the briefing schedule. The federal government and the tribes will file on August 5, and the subsequent amicus briefs on August 12.

If you are thinking about a pro-ICWA amicus brief and have not yet talked to Dan Lewerenz (lewerenz@narf.org) at NARF now is the time to reach out. If you are a tribe looking to sign on to the tribal amicus brief, please reach out to Erin Dougherty Lynch (dougherty@narf.org), also at NARF.

Top Side Principle Briefs

Brackeen_Haaland v. Brackeen — Opening Brief

Texas_Haaland v. Brackeen – Opening Br. for Texas

Top Side Amicus Briefs

CatoGoldwaterFosterParents_Amicus Brief

CJJr_PLF Amicus Brief – BRACKEEN – 2022.06.01 – FINAL

OklahomaOhio_Brackeen Amicus

ProjectforFairRep_21-376 -377 -378 -380 ICWA Amicus Brief

NewCivilLiberties_21-378 Amicus NCLA Supp. Pet.

CERA_CERF Amicus Brief in Support of No Party -Final-6-2-22

ChristianICWA_21-376 -377 -378 and -380 Brief

AAAA_21-376 Amicus AAAA and NCFA

Notable additions to the anti-ICWA amicus briefs include Oklahoma and parties of ICWA cases past.

Minnesota Court of Appeals on Reason to Know: How to Write an Opinion On This [ICWA]

OPa220311-051622

All the Courts of Appeals facing the question of reason to know should just go read this one (I’m looking at you, Colorado).

In this case the court ordered another investigation to ensure the children were not Indian children, and this bothered the state So Much that it asked for a writ of prohibition to avoid the order. The Court is pretty clear that the lower court has the power to order an investigation and dismisses the state’s argument that the lower court didn’t have “reason to know” in one succinct paragraph.

Finally, we reject the county’s assertion that the district court erroneously replaced the reasontoknow standard with a lower standard: that the children “might” be Indian children. [R]eason to know” is “[i]nformation from which a person of ordinary intelligence . . . would infer that the fact in question exists or that there is a substantial enough chance of its existence that, if the person exercises reasonable care, the person can assume the fact exists. Black’s Law Dictionary 1520 (11th ed. 2019). The word might” means “to express possibility.” Random House Dictionary of the English Language Unabridged 1219 (2d ed. 1987). There is significant overlap between when a court “has reason to know” that a child is an Indian child and when there is a “possibility” that a child is an Indian child. On this record, we cannot say that the district court applied an incorrect standard. Moreover, as noted, even if a court has something less than a reason to know that a child is an Indian child, the court may nevertheless “choose to require additional investigation into whether there is a reason to know the child is an Indian child. ICWA Guidelines, supra, at 11

Iowa Supreme Court Decision on Notice and Indian Child [ICWA]

Opinion here:

210324_D8AD4E4B97EB1

Court page with oral arguments here.

I have delayed in posting this one mostly because I found this one particularly difficult, but I’ve referenced it in multiple presentations, so here it is. In essence, the child is a Lakota child, but due to COVID and tribal citizenship requirements and enrollment delays, ICWA did not apply to their case.

Red Cloud [Oglala Sioux ICWA Director] testified that he first met Mother the day before the hearing. He testified that he had consulted with his supervisor and that it was absolutely the intention of the tribe to intervene in the proceeding. When the State pointed out that the motion to intervene contained a reference to a stranger who was not a party to the proceedings, Red Cloud apologized for the error.

Red Cloud testified that because of staff difficulties and COVID-19, there were two years’ worth of cases that were not followed up on by the Oglala Sioux Tribe. He testified that the Bureau of Indian Affairs (BIA), which ordinarily signed off on tribal enrollments, had not done enrollments since March of 2020. When asked, however, whether Z.K. was “eligible for enrollment” in the Oglala Sioux Tribe, Red Cloud responded “Yes.”

On cross-examination, Red Cloud stated that it was hard to get enrollment certified because of the health issues of a BIA employee responsible for certification. Yet, Red Cloud testified that the tribe could determine whether somebody is a member or eligible for membership without certification by the BIA.

***

Red Cloud further stated that the Mother is at least half Native American regardless of whether she is a member of the Standing Rock Sioux or Oglala Sioux Tribe, and as a result, “there was no way that [the Court] can determine that [Z.K.] is not an Indian.” Red Cloud added, “[W]e need the time to figure this out.”

Obviously, that time didn’t happen and the Court found ICWA did not apply because the mother was not a citizen of Oglala. This is especially frustrating coming out of Iowa, which has an ICWA statute that attempted to define an “Indian child” as one that was recognized as such by her community. However, in 2007, the Iowa Supreme Court found that portion of the statute unconstitutional.

Colorado’s Recent Struggles with Notice Standard [ICWA]

21ca0381-pd

21CA0659-PD

21CA0764-PD

Colorado has long had a very low bar to trigger the reason to know provision of ICWA. The B.H. case from 2006 has long been a model for other states that involve the question of what information does a court need to trigger the “reason to know” requirement of 25 U.S.C. 1912(a). And here, in a recent CO Court of Appeals case, is what the current debate over how the regulations have changed the standards boils down to:

But an assertion of possible Indian heritage alone does not fall within a “reason to know” factor that would permit a participant or the court to assume the child is an “Indian child” under section 19-1-126(1)(a)(II). Thus, this type of an assertion does not require formal notice to a tribe or tribes to determine whether the child is an “Indian child.”

In re A-J.A.B., 2022 COA 31, P58

The state law referenced is the Colorado adoption of 25 C.F.R. 23.107(c), the regulations that are supposed to guide courts regarding the “reason to know” standard. However, this is a fundamentally different standard than that articulated by B.H.:

Because membership is peculiarly within the province of each Indian tribe, sufficiently reliable information of virtually any criteria upon which membership might be based must be considered adequate to trigger the notice provisions of the Act.

138 P.3d 299, 304

The court of appeals states that state law has changed enough that B.H.’s reasoning was done under a different standard than the one in effect today (ICWA, of course, has not changed).

Much like the discussion in the In re Z.J.G. case, we are again debating the points of the six factors the regulations articulate as giving a court reason to know, and how they (according to the CO Courts of Appeals) narrow the reason to know standard, rather than guide it.

We agree with the E.M. division that information about the child’s heritage does not constitute “reason to know” that the child is an Indian child under section 19-1-126(1)(a)(II)(A). Information about a possible affiliation with two tribal ancestral groups does not satisfy one of the six reason to know factors

2022 COA 31 at P71

It is honestly stunning to me (though it should not be), that the passage of federal regulations means we are all now re-litigating notice issues that had long been settled. Last week, the Colorado Court of Appeals held

We conclude that a parent’s assertion of Indian heritage, standing alone, is insufficient to trigger ICWA’s notice requirements but, rather, it invokes the petitioning party’s obligation to exercise
due diligence under section 19-1-126(3). We further conclude that the exercise of due diligence under this provision is flexible and depends on the circumstances of, and the information presented to the court in, each case. Nonetheless, the record needs to show that the petitioning party earnestly endeavored to gather additional information that would assist the court in determining whether there is reason to know that the child is an Indian child.

People in re J.L., 2022 COA 43, P3

And now, “due diligence” is an “earnest endeavor” on the part of the state when a parent tells the Court they have tribal relations. However, in both cases the court of appeals sent the case back due to the lack of “due diligence” to follow up on these statements by the parents. The Court in A-J.A.B. gives a very detailed remand instruction regarding due diligence, and what the Court will need by date certain.

To lower my blood pressure and end this post, I will remember what the Washington Supreme Court held, when faced with very similar facts and laws:

We hold that a court has a “reason to know” that a child is an Indian child when any participant in the proceeding indicates that the child has tribal heritage. We adopt this interpretation of the “reason to know” standard because it respects a tribe’s exclusive role in determining membership, comports with the canon of construction for interpreting statutes that deal with issues affecting Native people and tribes, is supported by the statutory language and implementing regulations, and serves the underlying purposes of ICWA and WICWA. Further, tribal membership eligibility varies widely from tribe to tribe, and tribes can, and do, change those requirements frequently. State courts cannot and should not attempt to determine tribal membership or eligibility. This is the province of each tribe, and we respect it.

In re Z.J.G., 471 P.3d 853, 865.

Reported Inquiry Case from California [ICWA]

E077791

So for the first time since 2015, I’m giving myself permission to only read the reported ICWA cases rather than all of the unreported ones. So what does California do? Start reporting way more cases! Five in this first quarter (as opposed to 1 in 2021).

This case itself notes that this is not a particularly unique, but that by reporting it, just the reporting might lead to compliance.

We publish our opinion not because the errors that occurred are novel but because they are too common. Child protective agencies and juvenile courts have important obligations under ICWA. Failing to satisfy them serves only to add unnecessary uncertainty and delay into proceedings that are already difficult for the children, family members, and caretakers involved. Delayed investigation may also disadvantage tribes in cases where it turns out ICWA does apply, as their opportunity to assume jurisdiction or intervene will come at a late stage in the proceeding.

Unfortunately, I don’t think just reporting a case will lead to compliance, especially when this is the final result:

We conditionally reverse the section 366.26 orders. On remand, the juvenile court shall (1) direct CFS to comply with the inquiry and notice provisions of ICWA and sections 224.2 and 224.3 and update the court on their inquiry and the tribes responses and (2) determine whether ICWA applies. If the court determines ICWA does not apply, the orders terminating parental rights shall be reinstated and further proceedings conducted, as appropriate.

(emphasis added)

I haven’t crunched the numbers, but I am not convinced conditional reversal helps with compliance. Vivek Sankaran made this argument in the In re Morris case here in Michigan, and the sheer numbers in California indicate conditional reversal doesn’t seem to do much to change practice. I’m not sure reporting the case will change that. I still believe we should be reporting far more of the ICWA cases than we currently do, given that only about 20% of total ICWA appellate cases are reported.

Jurisdiction Case out of Alaska Supreme Court [ICWA]

sp-ord-116

These kind of cases feel like they are coming in a rapid speed right now–this is the third one I am aware of that have been/will be decided this spring. The issue is the attempted interference by foster parents in a transfer to tribal court proceeding, usually by trying to achieve party status.

Having considered the parties’ briefing — and assuming without deciding both that J.P. and S.P. were granted intervenor-party status in the superior court and that such a grant of intervenor-party status would have been appropriate4 — we dismiss this appeal as moot. “If the party bringing the action would not be entitled to any relief even if it prevails, there is no ‘case or controversy’ for us to decide,” and the action is therefore moot.5 As explained in our order of July 9, 2021, even if we were to rule that the superior court erred in transferring jurisdiction, we lack the authority to order the court of the Sun’aq Tribe, a separate sovereign, to transfer jurisdiction of the child’s proceeding back to state court.6 And we lack authority to directly review the tribal court’s placement order.7

The Court cites my all time favorite transfer case–In re M.M. from 2007. Not only is that decision a complete endorsement of tribal jurisdiction, it also explains concurrent jurisdiction (especially useful when you are operating in a PL280 state), which is not the power to have simultaneous jurisdiction, but the power to chose between two jurisdictions.

When we speak of “concurrent jurisdiction,” we refer to a situation in which two (or perhaps more) different courts are authorized to exercise jurisdiction over the same subject matter, such that a litigant may choose to proceed in either forum.FN13 As the Minnesota Supreme Court explained in a case involving an Indian tribe, “[c]oncurrent jurisdiction describes a situation where two or more tribunals are authorized to hear and dispose of a matter *915 and the choice of which tribunal is up to the person bringing the matter to court.” (Gavle, supra, 555 N.W.2d at p. 290.) Contrary to Minor’s apparent belief, that two courts have concurrent jurisdiction does not mean that both courts may simultaneously entertain actions involving the very same subject matter and parties.

Transfer to Tribal Court Case from Iowa Supreme Court [ICWA]

210243_816EBFA59A154

This is a very useful decision directly addressing one for the most difficult parts of a transfer process–whether the state court will use a best interest analysis to determine jurisdiction.

These are not reasons to deny a tribe jurisdiction over a child welfare case:

The State argued that transfer should be denied because of the lack of
responsibility by Mother and Father, the efforts of the foster parents to promote
the children’s Native American heritage, and the good relationship between the
current professionals and the children. The guardian ad litem for the children
joined the State in resisting the transfer of the case to tribal court.

Oh, and would you look at that, a CASA:

The juvenile court noted that the court appointed special
advocate (CASA) for the children recommended that the parental rights of the
parents be terminated and the children continue living with the foster parents.

But don’t worry–the Iowa Supreme Court clearly channeled the Washington Supreme Court in its thoughtful discussion of ICWA and its purpose, summarizing that

The federal ICWA and accompanying regulations and guidelines establish a framework for consideration of motions to transfer juvenile matters from state court to tribal court. Although good cause is not elaborated at length, both the statute and regulations state in some detail what is not good cause. Absent an objection to transfer or a showing of unavailability or
substantial hardship with a tribal forum, transfer is to occur. Clearly, Congress
has an overall objective in enacting ICWA to establish a framework for the preservation of Native American families wherever possible.

The Court goes on to discuss the Iowa ICWA at length, along with some bad caselaw in Iowa, specifically the In re J.L. case, which is a really awful decision and has been a pain to deal with for years.

This Court states,

State courts have struggled with the statutory question of whether federal
or state ICWA statutes permit a child to raise a best interests challenge to
transfer to tribal courts. In In re N.V., 744 N.W.2d 634, we answered the
question. After surveying the terms of the federal and state ICWA statutes, we
concluded that the statutes did not permit a child to challenge transfer on best
interests grounds. Id. at 638–39.

***

In short, there can be no substantive due process violation arising from a
statute that refuses to allow a party to present on an issue irrelevant to the
proceeding. To that extent, we overrule the holding ofIn re J.L. (emphasis ADDED)

***

In conclusion, if there is no objecting child above the age of twelve, we hold
that the transfer provisions of ICWA which do not permit a child from raising the
best interests of the child to oppose transfer does not violate substantive due
process.

Therefore,

In an ICWA proceeding, the United States Supreme Court observed that
“we must defer to the experience, wisdom, and compassion of the . . . tribal
courts to fashion an appropriate remedy” in Indian child welfare cases. Holyfield,
490 U.S. at 54 (quoting In re Adoption of Halloway, 732 P.2d at 972). These
observations apply in this case

There is a small dissent on whether the Father could appeal this case, but no issues with the Tribe’s appeal. Also, a reminder that the issue of jurisdiction was never a question Brackeen and decisions like this one are tremendously helpful for tribes seeking to transfer cases.