ICWA
Gallegos and Fort on ICWA in the Harvard Public Health Review
Here.
ICWA enhances protective factors by requiring court and agency compliance in child welfare proceedings with two cutting-edge provisions: active efforts and placement preferences. Congress deliberately created a higher standard for Indian child welfare proceedings requiring state agencies to provide active efforts to AI/AN families compared to non-Indian proceedings – which require use of reasonable efforts. Active efforts are defined as “affirmative, active, thorough, and timely efforts intended primarily to maintain or reunite an Indian child with his or her family.”15, 17
2017 ICWA Appellate Cases by the Numbers
Here’s our annual contribution to the ICWA data discussion. It’s looking like we have the final 2017 data set of appealed ICWA cases. 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 or SUPREME COURT cert petitions (maybe that’s another post entirely) This is our third year writing this post (here and here). This year, THOUGH, Addie Smith and I have a plan to publish a longer version of this, hopefully on an annual basis. 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 214 appealed ICWA cases this year, up 39 from last year. There were 34 reported ICWA cases this year. As always, California leads the states with 152 cases, 5 reported. Alaska is second with 6, 3 reported. Michigan has 5, 2 reported. So did our new favorite state, Texas (5/2). Kansas (4/2), Arizona (4/3), and Washington (4/0) all had four cases. Arkansas (3/0) and Utah (3/3) both had three. Montana (2/1), North Carolina (2/1), and Minnesota (2/0) had two. Finally the following states had 1 ICWA case: Connecticut, Indiana, Iowa, Massachusetts, Nebraska, Nevada, Ohio, Oregon, South Dakota, and Missouri, Vermont, North Dakota, Illinois, and Wisconsin.
In California, the cases further breakdown to 52 in the 4th Appellate District, 46 in the 2nd, 23 in the 3rd, 10 in the 1st, 16 in the 5th, and 5 in the 6th. California has considerably more cases this year, but half the number of reported cases. The numbers by district have also shifted considerably over last year. California is the only state where we track by appellate districts at this time.
Supreme Courts in Alaska (6), Montana (2), Arizona, Nevada, Utah, South Dakota, Vermont and North Dakota all decided ICWA cases this year (of course some of these states don’t have an intermediate court of appeals).
Of the 214 total appeals, 105 were affirmed, 97 were remanded, 6 were reversed, 2 were dismissed as moot, 2 were vacated and 2 dismissed.
Top litigated issues were as follows: Notice (132), Inquiry (29), Placement Preferences (7), Active Efforts (10), Termination of Parental Rights (9), Transfer to Tribal Court (4), and QEW (4). This year 73 (more than half) of the Notice cases were remanded for proper notice.
57 different tribes were named as the first named tribe in a case. In 26 cases the tribe was unknown (parent did not know name of tribe). In 17, the tribe was unnamed (court did not record name of tribe in the opinion).
Finally, of all the cases, only three were appealed by tribes (Navajo Nation, Nenana Native Village, and Gila River Indian Community).
ICWA Pro Hac Vice Rule Open for Comments in Washington
This is so exciting! Kristi Healing, (in-house at Stillaguamish) submitted this pro hac rule change proposal.
Here is the proposed rule in PDF form: WA_Proposed_APR8
Submit comments in support, please!
Unless otherwise noted, all comments should be submitted to the Clerk of the Supreme Court by either U.S. mail or Internet e-mail. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, WA 98504-0929, or supreme@courts.wa.gov. Comments submitted by e-mail may not exceed 1500 words.
Our state by state pro hac page is here. I’m also aware of efforts in two other states that are not yet public for comment.
Standing Case out of California (ICWA)
This is a follow up appeal related to an earlier Indian Custodian case. The Court determined the appellant was not an Indian Custodian, and then here tries to determine if he still had standing (he didn’t). Maybe useful for some of the de facto parent language in it.
(Why yes, I am again catching up on the ICWA cases from the holidays. But also the last time there were this many reported ICWA cases in a row was in August.)
Placement Preference Case out of California
It’s not clear from the docket who requested this case be published from Nov. 29, but tribal attorneys should take note of the reasoning in the section regarding the tribal government’s ability to change ICWA’s placement preferences. This is the second time (and state) I’ve heard this reasoning, but the first published opinion. It’s contrary to what I’ve advised in the past, and some tribal practices I’m aware of.
Termination of Parental Rights Decision out of Wisconsin
The Wisconsin Court of Appeals affirmed a termination of parental rights decision under ICWA and WICWA using Adoptive Couple v. Baby Girl (finding abandonment/lack of continued custody by non-Indian father).
Child Welfare Jurisdiction Case out of Utah
The child welfare case did not fall under ICWA because the child was not as a member or eligible for membership in the tribe, so the Court used the UCCJEA to determine jurisdiction.
New Amended Complaint in ICWA Suit Texas (Brackeen) v. Zinke
The plaintiffs in the ICWA suit out of the federal court in Texas asked for time to file an amended complaint. It’s here. Case page is here.
Additional state parties are Indiana and Louisiana. Additional children involved are from White Earth and Ysleta del sur Pueblo.
A word of warning–I swore at the complaint by paragraph 4.
ETA: This interesting (related?) article out of Indiana: DCS Director Resigns
Unpublished ICWA Case from MN, Judge Jesson Concurrence
Here. This is an unpublished termination of parental rights out of the Minnesota Court of Appeals. Here is the concurrence in its entirety::
With a backdrop of historical trauma and a high number of Indian children being removed from their families and tribes by nontribal agencies, Congress passed the Indian Child Welfare Act (ICWA). See Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32-37, 109 S. Ct. 1597, 1599-1602 (1989) (detailing the background for ICWA). Government must meet a high bar to terminate a parent’s parental rights in any case. ICWA and the Minnesota Indian Family Preservation Act require an even higher standard to terminate parental rights to an Indian child: proof beyond a reasonable doubt that returning the children to the parent will likely result in serious emotional or physical harm to the child. 25 U.S.C. § 1912(f) (2016) (ICWA); Minn. Stat. § 260.771, subd. 6(a) (2016)
Scant attention was given to this high standard during trial. This is troubling. Only one witness was asked to opine on the ultimate question of proof beyond a reasonable doubt. And, as the majority points out, that witness equivocated. And even after this court remanded the case to the district court, asking the court to directly address this question, the district court did not elaborate on the critical issue. It simply amended the findings to state that “[c]ontinued custody of [the children] by [mother and father] is likely to result in serious emotional or physical damage to the Children.”
I expect more when it comes to termination of parental rights for Indian children. We all should.
Yet I concur with the majority’s decision despite my view that, based on the nature of the expert testimony, this is a close case. I concur because the majority is correct that when we dive deep into the record we see children who suffered serious emotional damage with no realistic path to a different future with their parents. I concur because the tribe was unwilling to accept a transfer of jurisdiction to tribal court. I concur because the tribe supports termination of parental rights. And, most fundamentally, I concur because these children, like all children, deserve a permanent home, without additional delay.
But I remain concerned. In a state in which out-of-home placement for Indian children far exceeds the percentage for any other group of children, we need greater diligence in adhering to the high standards dictated by ICWA and the Minnesota Indian Family Preservation Act.
Turtle Talk 
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