ICWA – Page 15 – Turtle Talk

Tribal Intervenor Statement here:

FOR IMMEDIATE RELEASE

November 7, 2019

Contact: Tania Mercado tmercado@skdknick.com

Native American Tribes Continue to Stand with Indian Children and Families Following Court Decision to Rehear Fifth Circuit Case

WASHINGTON, D.C. – Today, Cherokee Nation Principal Chief Chuck Hoskin, Jr., Morongo Band of Mission Indians Chairman Robert Martin, Oneida Nation Chairman Tehassi Hill and Quinault Indian Nation President Fawn Sharp issued the following statement in response to the Fifth Circuit Court of Appeals decision to rehear a challenge to the Indian Child Welfare Act en banc:

“We never want to go back to the days when Indian children were ripped away from their families and stripped of their heritage. We continue to believe that the Fifth Circuit decision affirming the constitutionality of ICWA was the right decision. While it is unfortunate that the attacks on this critical law continue, we are confident that the court will once again uphold the constitutionality of ICWA, as courts have repeatedly done over the past 40 years. ICWA provides a process for determining the best interests of Indian children in the adoption and foster care systems, which is why it is overwhelmingly supported across the political spectrum. We remain devoted in our efforts to defend ICWA because our number one priority remains fighting for the wellbeing, health and safety of children and families.”

In 2017, individual plaintiffs Chad and Jennifer Brackeen, a couple from Texas, along with the state attorneys general in Texas, Louisiana, and Indiana, sued the U.S. Department of the Interior and its now-former Secretary Ryan Zinke to challenge ICWA. The Morongo, Quinault, Oneida and Cherokee tribes intervened as defendants in the case Brackeen v. Bernhardt.

In October 2018, a federal judge in the Northern District of Texas struck down much of ICWA. Defendants appealed the lower court’s decision and asked the Fifth Circuit Court of Appeals to reverse the decision. Last December, the Fifth Circuit Court of Appeals granted a stay requested by the defendants, putting a hold on the ruling. In March 2019, the Fifth Circuit Court of Appeals heard oral arguments from plaintiffs and defendants in the Brackeen case.

On August 9, 2019, the Fifth Circuit Court of Appeals reaffirmed that the Indian Child Welfare Act is constitutional and serves the best interests of children and families. On October 1, 2019, plaintiffs in Brackeen v. Bernhardt chose to continue their attacks on Indian children and tribal families and requested an en banc rehearing before the Fifth Circuit.

There is broad, bipartisan support against this misguided attack on a law that is crucial for protecting the well-being of Indian children and Indian sovereignty. A total of 21 attorneys general, representing a broad range of states, filed an amicus brief in support of the defendants, arguing that ICWA is an appropriate exercise of Congress’s authority to legislate in the field of Indian affairs and does not violate the Tenth Amendment or equal protection laws. The Trump administration has also reiterated its support for ICWA, tribal sovereignty and the safety of Indian children.

An additional 325 tribes, 57 tribal organizations, members of Congress, Indian law and constitutional law scholars, and 30 leading child welfare organizations have also filed friend-of-the-court briefs in support of the defendants.

For additional information on this case and the Indian Child Welfare Act please visit: http://www.ProtectIndianKids.com.

###

Difficult Case out of California [ICWA]

November 5, 2019ilpc

Here

The question of whether Mom could have her child back with his siblings came down to his best interest–which kept him in the guardianship, despite the mom’s sobriety, job, handling a child with cancer, and raising a number of children. The Tribe, fearful of losing contact with the child entirely if they picked a side in the case, supported the mom but also ended up not weighing in on the final decision, instead asking the court to order whoever had the child keep him in contact with the Tribe. But this conclusion from the court is simply heartbreaking. It is not clear the child is related to the guardians, and as such the court equates a biological parent to non-relative foster care in a troublesome way:

We recognize this case was a difficult one for the juvenile court, not least because it was forced to choose between two families, both of whom love minor very much and both of whom may have been able to provide a stable, loving home where he remains connected to his siblings, other relatives, and his tribe. We can only express our hope, as did the juvenile court, that these families can find a way to remain connected in the interest of allowing minor to be loved and cared for by as many people as possible. It is also a difficult case because mother demonstrated her commitment to regaining custody by complying with her case plan, maintaining her sobriety and full employment, and garnering the support of the Department and the Tribe to have minor returned to her care. *** On this record, we perceive no abuse of discretion in the juvenile court’s determination that mother failed to meet her burden to demonstrate return to mother’s custody would be in minor’s best interest.

And no, I don’t entirely understand why the court isn’t using much higher ICWA standards here.

ICWA Article in the Deseret News

October 29, 2019October 29, 2019Kate Fort

Here

SALT LAKE CITY — Over the summer, Shari Pena’s 3-month-old foster son chuckled for the first time when his older sister sneezed, kicking off a new family tradition.

The Penas gathered to celebrate the giggle, a milestone in the child’s Navajo culture. They shared a chicken and rice dish in their West Valley home and took a pinch of salt from the baby’s palm, a gesture symbolizing his generosity.

As the federal law governing child welfare cases for Native American children has withstood recent legal challenges in Utah and in other states, the Penas are among those cheering the victories. The Indian Child Welfare Act sets special standards in the adoption and foster care proceedings and gives preference to Native American families — part of an effort by Congress to correct historical bias against them.

“It’s important that these kids stay in native homes,” Pena said. “We understand one another, our past and our ancestors.”

Pena, a citizen of the Cherokee Nation, said certain aspects of Navajo culture mirror her own upbringing in Oklahoma, including a strong focus on family. For newer factors like the first laugh party, she seeks guidance from the child’s biological grandmother and his four foster siblings.

Briefing Complete in Brackeen v. Bernhardt En Banc Petition

October 24, 2019ilpc

Documents here.

The Tribes and U.S. did not seek any amicus support in opposing the petition for en banc review.

QEW Case out of the Colorado Court of Appeals [ICWA]

October 23, 2019Kate Fort

Here.

The question is whether the parent should have had attorney representation during the interview with the qualified expert witness. This is a really interesting question, especially given that in this case the mother was assigned her own Guardian ad Litem. The Court ultimately held that she did not have the right to representation during the interview and upheld the termination of parental rights.

Unpublished Opinion from Washington Court of Appeals [ICWA]

October 22, 2019October 22, 2019ilpc

Here.

Another court finds that a temporary guardianship where the parent cannot have the child returned upon demand meets the definition of a foster care placement under ICWA. Unfortunately the court decided not to publish the decision.

The ICWA Appellate Project filed an amicus brief in this case with the Center of Indigenous Research and Justice on behalf of minor mom.

Paul Petersen Involved in at Least One ICWA Case

October 22, 2019ilpc

Here.

Indian Child Welfare Act experts agreed that the Bright Star contract potentially misled the adoptive parents by saying the law “does not apply” in their situation.

“That is just wrong,” said Professor Fort, who also serves as director of the Indian Law Clinic at Michigan State University and authored a case law book titled American Indian Children and the Law.

She pointed to a section in the Indian Child Welfare Act that states the law does apply in adoptions of Native children. And she invoked a federal regulation published in 2016, which states that the Indian Child Welfare Act applies in any “voluntary proceeding that could prohibit the parent or Indian custodian from regaining custody of the child upon demand.”

In other words, the Indian Child Welfare Act applies in voluntary adoption cases when a Native birth mother gives up her parental rights. It’s unclear from the September Bright Star contract whether the birth mother agreed to give up her parental rights after the birth of her child.

This is the gentleman who is also now indicted for trafficking Marshallese women and selling their babies.