New NCJFCJ Publication on Active Efforts

Here.

Congress passed the Indian Child Welfare Act (ICWA) in 1978 to address the widespread practice of state entities removing American Indian and Alaskan Native children from their homes and families. Congress found “an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by non-tribal public and private agencies and that a high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.”

This publication is a companion to others developed by the National Council of Juvenile and Family Court Judges (NCJFCJ) regarding ICWA for judges, court staff, attorneys, child welfare professionals, and other stakeholders involved in child welfare cases. It focuses on the use of active efforts as an essential tool in the implementation of ICWA and as a best practice in child welfare. It is intended to provide the history behind ICWA and, in doing so, outline both the why and the how of active efforts in ICWA implementation. 

Kansas Indian Law CLE January 29

Here is the announcement.

Not to be too promotional, but they got three pretty solid presenters (no manel here!) for this CLE: 

Working for Tribal Clients – Ethics
An overview of ethical responsibilities and obligations of legal practitioners who represent tribal clients, including tribal nations, tribal organizations and tribal members. (1.0 Ethics CLE)
Presented by: Vivien Olsen, Managing Attorney for the Legal Assistance to Victims program of the Kansas Coalition Against Sexual and Domestic Violence.
 
Indian Child Welfare Act: Litigation and Legislation
Are you familiar with ICWA (1978)? Any attorney practicing in family law or child-related cases will benefit from this session where Professor Kate Fort will review ICWA and key cases from 2019 and 2020, including recent state legislation and court rules adopted to protect ICWA. (1.0 General CLE)
Presenter: Professor Kate Fort, Michigan State University, Indian Law Clinic
 
The Violence Against Women Act & the Missing and Murdered Indigenous Persons Crisis
4 in 5 Indigenous women will experience violence in their lifetimes. – National Institute of Justice Report
 
This session will discuss the re-authorization of VAWA efforts over the past two years and will discuss the most recent efforts to pass legislation that will address the crisis of missing and murdered Indigenous Persons in the United States. (1.0 General CLE)
Presented by: Mary Kathryn Nagle, member of Cherokee Nation, partner at Pipestem Law PC

California Inquiry and Notice Case [ICWA]

Ok, remember when I said this morning the California inquiry and notice process is in a . . . growth process? Here is another example. This case disagrees with the really not great In re Austin J. case and is from the same appellate district

In re T.G. returns to the low bar for notice and inquiry California appellate courts have traditionally adhered to. 

We agree the Department failed to adequately investigate Tamara’s claim of Indian ancestry and the juvenile court failed to ensure an appropriate inquiry had been conducted before concluding, if it ever actually did, ICWA did not apply to these proceedings. In reaching this result, we disagree with the holding in In re Austin J. (2020) 47 Cal.App.5th 870, 888-889 (Austin J.) that amendments enacted by Assembly Bill No. 3176 (2017-2018 Reg. Sess.) (Assembly Bill 3176) were intended to limit the Department’s robust duty of inquiry. Accordingly, we conditionally reverse the orders for legal guardianship and remand the matters to allow the Department and the juvenile court to rectify their errors and to take all other necessary corrective actions.

So again, if you are practicing in California, this is a vital area to be following. If you are not practicing in California, I think it’s worth seeing how the new changes to the state laws shake out on appeals this year (2021). If you are a tribal attorney, know that California is supposed to be contacting a tribe very early in the proceedings, even if it is not with a formal notice packet. 

Application of ICWA Case out of Arkansas Court of Appeals

This is an interesting and frustration case on the law. There are a few states, and I believe both Arkansas and Missouri are two, where a parent has to preserve any ICWA issue for appeal. That is not the case in a number of other states. But in this case, the agency and state attorney agree there was error in not noticing the Tribe (Klamath) on the TPR, and that this failure could upend any permanency findings under 25 U.S.C. 1914. They ask the court to remand for notice. However, the Court held:

Accordingly, we cannot rely on Dominguez to remand in this instance. Unlike the situation in Dominguez, the final order herein terminated both parents’ rights, leaving no parental right unaddressed. Here, the application of the ICWA cannot be addressed on remand without reversing the circuit court’s TPR order. We hold that the ICWA issue is not preserved for appellate review.

Adjudication orders are immediately appealable. Ark. Sup. Ct. R. 6-9(a)(1)(A) (2019). A parent’s failure to appeal rulings made in an adjudication order precludes appellate review of those findings in an appeal from a subsequent order. Ashcroft v. Ark. Dep’t of Human Servs., 2010 Ark. App. 244, at 8, 374 S.W.3d 743, 747. No party appealed the circuit court’s findings that the ICWA did not apply or that neither Amanda nor A.W. were members of an Indian tribe. Further, we have held that compliance with the notice requirements of the ICWA must be raised below in order to be preserved for appellate review. Lauman v. Ark. Dep’t of Human Servs., 2010 Ark. App. 564, at 2.

I’m also just going to leave the facts here about the ruling, re. application of ICWA:

The court noted that Amanda had provided a roll number for the Klamath Modoc tribe at the probable-cause hearing, that the Klamath Modoc tribe had been notified on February 12, and that the tribe had not responded nor contacted DHS; therefore, the court found that “at this time,” the ICWA “does not apply.” In a separate finding, the circuit court stated, “[Amanda] does not have membership in or descent from an Indian tribe; the legal father does not have membership in or descent from an Indian tribe; the juvenile does not have membership in or descent from an Indian tribe.”

Notice Case from Montana [ICWA]

This is the year of notice and reason to know. Courts are finally wrestling with what the regulations do and do not require–and there is considerable concern about what to do if there is no response from a tribe. 

Whenever a court “knows or has reason to know” that a child is an “Indian child” under ICWA, the court is to verify the child’s status prior to conducting termination proceedings. 25 U.S.C. § 1912(a); In re L.D., 2018 MT 60, ¶ 13, 391 Mont. 33, 414 P.3d 768 (internal citations omitted). Whether a child is eligible for tribal membership is a question of fact dependent upon the child’s actual ancestry, and an Indian tribe provides the determination conclusively as a matter of law. 25 C.F.R. § 23.108(b); In re L.D., ¶ 14 (internal citations omitted); In re Adoption of Riffle, 273 Mont. 237, 242, 902 P.2d 542, 545 (1995).

¶22 It follows that a district court does not have authority to make a de novo conclusion regarding eligibility. 25 C.F.R. § 23.108(b); In re L.D., ¶ 14 (internal citations omitted). Instead, the district court must determine “(1) whether the court has reason to believe that a subject child may be an ‘Indian child’ and (2) whether an Indian tribe has conclusively determined that the child is a member or eligible for tribal membership.” In re L.D., ¶ 14 (internal citations omitted). Absent a conclusive tribal determination, a court abuses its discretion by terminating parental rights if there is “reason to believe” the child is an Indian child. In re L.D., ¶ 14 (internal citation omitted).

In this case, however, the issue was the Agency didn’t contact the Tribe at all, leading to the remand.

We hold the District Court abused its discretion in terminating Mother’s parental rights without a conclusive tribal determination of tribal membership status and enrollment eligibility in the United Keetoowah. Since the United Keetoowah is a federally recognized Cherokee tribe,3 and the Department did not contact the tribe, the District Court made a de novo determination regarding M.T. and L.T.’s United Keetoowah tribal eligibility, a determination which is in the sole province of the tribe.

Notice Case out of California [ICWA]

If you find the current published notice and inquiry cases out of California particularly confusing, join the club (and I’ve been trying to sort them out!). I think the important thing for tribal attorneys to know is that California is trying to do very early contact during the inquiry phase before they send formal notice. For some tribes this is very welcome, and for others, it’s a big change in practice. However, this does mean that California is trying to formalized very specific steps into law–from initial inquiry, reason to believe, further inquiry, reason to know, notice (I think). This means California case law probably won’t be particularly useful in this area in other state appeals.  

Guardianship Case out of California [ICWA]

Well all, I have absolutely fallen down on the ICWA TurtleTalk beat since the Washington Supreme Court decision in Z.J.G. Since I am getting older, I’m going to blame the new WordPress interface (please ignore that Fletcher is older than me and obviously figured it out just fine). So now, a series of posts with links to the reported cases since September 2020–don’t worry, this was an exceptionally small year for reported ICWA cases. 

 N.S. is a guardianship case (reading this, it’s possible I just wanted to end the year after Z.J.G. on a positive note). Here is the description of the lower court’s holding, which the appellate court affirmed. There is some preemption discussion on p 27-28 in the 54 page opinion, but not much. 

Regarding substantial interference with N.S.’s connection to the Tribe, the court found that “once [Grandmother] is properly informed, once the expectations are concretely articulated, . . . she will encourage [N.S.] to learn about his heritage.” The court further found that given N.S.’s development, maturity, and curiosity, he would not “permit anybody [to] dissuad[e] him from making up his own mind as to not just his Indian heritage, but how it fits into his life.” Thus, the court concluded that there was not a compelling reason not to terminate parental rights based on a substantial interference with N.S.’s connection to the Tribe. 25

Regarding the Tribe’s identification of guardianship as the best permanent plan for N.S., the court believed that N.S.’s “guardianship was a very vital tool and opportunity for him to get to this point.” However, the court asserted that, “merely identifying guardianship to maintain the status quo would not recognize the increasing, the deep, the published connection [that N.S.] has with his grandmother.” The court found that in light of N.S.’s “current developmental progression and attachment to the grandmother,” guardianship was not in his best interests; therefore, the Tribe’s identification of guardianship as N.S.’s permanent plan had not “been established as a compelling reason not to terminate parental rights.”

Gold Standard Lawyering in The NACC Guardian

Here

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.