Here.
Presentation is by one of the many excellent CILS attorneys–Mica Llerandi.
ICWA
AFCARS Data Implementation Rule Delayed and Will be Revised. Again.
From the Administration for Children and Families here.
The rule is delayed until 2020 and the Administration is going to “streamline” the data elements. And then it might just be delayed again based on the “streamlining”:
The Children’s Bureau published in the Federal Register on August 21, 2018 a final rule to delay implementation of the December 2016 AFCARS final rule until October 1, 2020 (83 FR 42225). However, since we plan to revise the AFCARS data points, we will revisit this implementation date to provide a timeframe to allow title IV-E agencies time to comply with the revised AFCARS data points.
ICWA Pro Hac Vice Rule Proposal in Wisconsin
Here:
Our Pro Hac Vice page is here.
Wisconsin Proposed Pro Hac Vice Waiver for Tribal ICWA Attorneys
In the Matter of the Petition to Amend Wisconsin Supreme Court Rule 10.03(4), Regarding Pro Hac Vice Admission for Nonresident Counsel Appearing in Matters Involving the Indian Child Welfare Act, Petition 18-04
Proposal to Amend WI SCR 10.03(4) to add the following:
(g) Nonresident counsel is not required to associate with an active member of the State Bar of Wisconsin and is not subject to any application or fees for pro hac vice admission if they establish to the satisfaction of the Court that:
- The nonresident counsel seeks to appear in a Wisconsin court for the limited purpose of participating in an “Indian child custody proceeding” as defined by s. 48.028(2)(d), or an “Indian juvenile custody proceeding” as defined by s. 938.028(2)(b), pursuant to the Wisconsin Indian Child Welfare Act (WICWA) s. 48.028, or a “child custody proceeding” as defined by 25 U.S.C. § 1903, pursuant to the Indian Child Welfare Act of 1978, 25 U.S.C. § 1901 et seq.; and
- The nonresident counsel represents an Indian Tribe pursuant to 25 USC § 1911(c), s. 48.028(3)(e), or s. 938.028(3)(e); and
- The Tribe has affirmed the child is an Indian child defined by 25 USC § 1903(4) and s. 48.02(8g) or an Indian Juvenile as defined by s. 938.02(8g).
As background: WA, MN, OR, MI, & NE all have rules/laws making pro hac vice easier for tribal attorneys in ICWA cases. AZ and CA have pending rules.
To submit a comment:
- Submitting a comment to a rules petition
A comment to a pending rule petition shall be submitted in hard copy (include one original and nine copies). The paper copies shall be mailed to the Clerk of the Supreme Court, P.O. Box 1688, Madison, WI 53701.
A person submitting a comment shall e-mail an electronic copy of the comment in MS Word format MS Word to the Office of the Clerk of the Supreme Court at clerk@wicourts.gov and carrie.janto@wicourts.gov.
- Contents of comment
The comment shall identify the rule petition to which it relates.
III. Service of comment on petitioner
A copy of the comment shall be forwarded to the petitioner in a timely manner. See the rule petition for the name and contact information of petitioner.
https://www.wicourts.gov/scrules/1804.htm
CTFC Press Release on Dismissal of Goldwater (ICWA) Lawsuit
FINAL Release – ICWA Again Survives Challenge by Fringe Group
The California Tribal Families Coalition, a coalition of tribes and tribal leaders, this week applauded the recent ruling by the Ninth Circuit Court of Appeals to dismiss an ill-conceived challenge against the Indian Child Welfare Act (ICWA) arising from claims in Arizona by the Goldwater Institute, a conservative fringe anti-ICWA group.
The Aug. 6 dismissal marks the end of the latest in a series of cases brought by the group against ICWA as part of a years-long, systematic and disturbing effort to undermine the 40-year-old federal statute that protects Indian children. To date, the Goldwater Institute has failed in its every attempt to upend ICWA.
Despite the encouraging dismissal, the Sacramento-based California Tribal Families Coalition (CTFC) also warned of additional, pending attacks that seek to unwind ICWA and the decades of critical legal protections it has provided against separating tribal children from their families and tribal communities.
This release is discussing the Goldwater litigation, which was the first major attempt to get ICWA declared unconstitutional. Both Navajo Nation and the Gila River Indian Community intervened in this case involving tribal children.
Since 2015, there have been nine federal lawsuits attacking ICWA directly on constitutional groups. There is on-going litigation directly attacking ICWA and tribal court jurisdiction in the Eighth Circuit and the Northern District of Texas.
Montana Supreme Court ICWA Notice Case
¶28 In this case, CPS Lebrun’s testimony that an unidentified person orally confirmed that “they are not eligible, just they can only be descendent members” does not satisfy the Department’s ICWA burden. As a direct result of the Department’s failure to satisfy this burden—and likely assuming the Department had, prior to filing its Notice of No ICWA Involvement, followed up with formal inquiry with the Blackfeet Tribe as CPS Lebrun testified he would—the District Court proceeded to termination without conclusive determination from the Tribe. No documentation or testimony of an authorized tribal representative either dispelled or confirmed the District Court’s and Department’s belief that the children were not Indian children as defined by ICWA. Under the circumstances of this case, we hold the District Court erred by proceeding to terminate Mother’s rights to D.E. and A.E. without a conclusive tribal determination of their tribal membership status and eligibility.¶29 Accordingly, 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. We reverse and remand for an appropriate threshold determination of whether D.E. and A.E. are Indian children based on a conclusive tribal determination of tribal membership and eligibility in the Blackfeet Tribe. Further, if D.E. and A.E. are conclusively identified as Indian children subject to the requirements of ICWA, the District Court shall hold further proceedings as may be necessary to meet the evidentiary burdens of ICWA.
North Carolina “Reason to Know” ICWA Notice Case
Here.
*Whether the evidence presented at the adjudication hearing should have caused the trial court to have reason to know an “Indian child” may be involved and trigger the notice requirement is the issue before us. The federal regulations implementing ICWA and promulgated in 2016, clearly the states court has reason to know an “Indian child” is involved if: “Any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child.” 25 C.F.R. § 23.107(c)(2) (2018).
The ICWA proscribes that once the court has reason to know the child could be an “Indian child,” but does not have conclusive evidence, the court should confirm and “work with all of the Tribes … to verify whether the child is in fact a member.” 25 C.F.R. § 23.107(b)(1). Federal law provides: “No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary[.]” 25 U.S.C. § 1912(a). Further, a court must “[t]reat the child as an Indian child, unless and until it is determined on the record that the child does not meet the definition of an ‘Indian child.’ ” 25 C.F.R. § 23.107(b)(2).
Other jurisdictions have recognized that “Indian child” status of the juvenile can only be decided by the tribe itself; therefore, only a suggestion that the child may be of Indian heritage is enough to invoke the notice requirements of the ICWA. In re Antoinette S., 104 Cal. App. 4th 1401, 1408, 129 Cal.Rptr.2d 15, 21 (2002). Additionally, ICWA provides that even after the completion of custody proceedings, if the provisions of ICWA were violated, “any parent or Indian custodian from whose custody such child was removed, and the Indian child’s tribe may petition any court of competent jurisdiction to invalidate such action.” 25 U.S.C. § 1914 (2012).
In In re A.R., the Respondent-father claimed that he had “a family connection to a registered Native American group” which consequently qualified his children for the protections under ICWA. In re A.R., 227 N.C. App. 518, 523, 742 S.E.2d 629, 633 (2013). . . . Further, this Court held that “[t]hough from the record before us we believe it unlikely that [the juveniles] are subject to the ICWA, we prefer to err on the side of caution by remanding for the trial court to … ensure that the ICWA notification requirements, if any, are addressed … since failure to comply could later invalidate the court’s actions.” Id.
In the case of In re C.P., the respondent-mother made the bare assertion that she and her children could possibly be eligible for membership with a band of Potawatomi Indians. In re C.P., 181 N.C. App. at 702, 641 S.E.2d at 16. The trial court required the ICWA notice to be sent. Id. When the time required under ICWA had passed without response from the tribe, the trial court allowed two continuances before determining ICWA did not apply and resumed the proceedings. Id. at 703, 641 S.E.2d at 16-17.
***
Our Court has required social service agencies to send notice to the claimed tribes rather than risk the trial court’s orders being voided in the future, when claims of Indian heritage arise, even where it may be unlikely the juvenile is an Indian child. See In re A.R., 227 N.C. App. at 524, 742 S.E.2d at 634; In re C.P., 181 N.C. App. at 702, 641 S.E.2d at 16.
New Mexico’s Children’s Law Institute Conference Call for Presentations
2019 Call for Workshop Proposals
I was just asked to speak at this event, and they also forwarded the call for presentations. So submit something, and we can hang out while we educate!
We are looking for 1.5 hour long workshops that relate to child welfare, juvenile justice, service providers, advocates, educators, and legal professionals in those systems. Workshops can be geared toward one or more professions. We are seeking intermediate and advanced presentations for experienced professionals and volunteers. Academic paper proposals are not likely to be accepted.
The New Mexico Children’s Law Institute (CLI) is seeking proposals for inspirational, skill building, and solution focused workshops for the 26th annual conference in Albuquerque, New Mexico, January 9-11, 2019.
Deadline for proposal submission is August 17, 2018
2018 ICWA Agents for Notice Includes Incorrect Contact Information
ETA: This is NOT limited to California
I have received word that some information in the 2018 Fed Reg ICWA Agents for Notice publication is completely (and wildly) incorrect, even though the information in 2017 was correct (and hadn’t changed): “It was absolutely correct last year. The person listed is not and has never been affiliated with [TRIBE]. The address is completely wrong, including the city.”
Tribes! PLEASE check this document to make sure your ICWA agent for notice information is correct. If you can, let me know if it isn’t. We are trying to get a sense of whether this is limited to California tribes or not. This is the document we all train on and send people to (I was honestly in the middle of teaching a class on notice when I received this information). Thank you.
Turtle Talk 
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