This case was the challenge to the 2015 BIA ICWA Guidelines. The case was dismissed at the district court level, and NCFA appealed the case to the Fourth Circuit. Earlier this week, the appellants motioned to vacate, and today the court granted it. Given the BIA withdrew the 2015 Guidelines and they are no longer in effect, this makes sense.
This does mean the lower court decision is no longer precedent, to the extent we used it as such.
Here.
NICWA, however, adds two additional elements the State must prove before terminating parental rights in cases involving Indian children. In re Interest of Walter W., supra. First, the State must prove by clear and convincing evidence that active efforts have been made to prevent the breakup of the Indian family and that these efforts have proved unsuccessful. See § 43-1505(4); see also In re Interest of Walter W., supra. Second, the State must prove by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. See § 43-1505(6).
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Although the record indicates that for the first two years this case was pending in the juvenile court, there is some question about whether the Department was doing as much as it “possibly could have been” under an active efforts standard, it is clear that for the last two years this case was pending, the Department was providing Louisa with active efforts toward achieving reunification with her children. Despite the two years of active efforts, Louisa failed to make significant or sustainable progress towards reunification. Moreover, while we recognize that during the beginning stages of the juvenile court case the Department may have failed to provide active efforts, this does not mean that the Department failed to provide any efforts. The record is clear that Louisa has been receiving services from the Department since prior to the petition being filed in this case in November 2011. Despite all of those efforts, coupled with the Department’s recent active efforts, Louisa has not made progress towards reunification with her children. Louisa’s assertion that she has not been given enough time to turn her life around is simply without merit.
Here is the proposed rule:
{(9) An applicant is not required to associate with local counsel pursuant to subsection (1)(c) of this section or pay the fee established by subsection (6) of this section if the applicant establishes to the satisfaction of the Bar that:
(a) The applicant seeks to appear in an Oregon court for the limited purpose of participating in 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.;
(b) The applicant represents an Indian tribe, parent, or Indian custodian, as defined by 25 U.S.C. §1903; and
(c) The Indian child’s tribe has executed an affidavit asserting the tribe’s intent to intervene and participate in the state court proceeding and affirming the child’s membership or eligibility of membership under tribal law.}
The proposed change is to rule 3.170, and comments in support of the rule change must be made by February 24th. Now both Michigan and Oregon have these proposed rule changes in the works. These are really important state rule changes for tribes and Native families–the cost of pro hac in Oregon alone is $500, and in other states tribal attorneys are still being denied the right of intervention without following long and onerous pro hac requirements–sometimes making it impossible to participate in child welfare hearings involving Native kids.
Here’s our annual contribution to the ICWA data discussion. While a few cases might yet come in, we have our final list of 2016 appealed ICWA cases sorted. 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. We did this last year as well. Sadly no, I haven’t yet published this anywhere but Turtle Talk, and yes, it is next on the to-do list. 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 175 appealed ICWA cases this year, down 74 from last year. There were 30 reported ICWA cases this year. As always, California leads the states with 114 cases, 10 reported. Michigan is second with 13, 2 reported. Texas, which didn’t have any cases we could find last year, had 7 cases this year, 1 reported. Then Iowa with 6, 1 reported, Oklahoma with 4 reported, Nebraska with 3, 2 reported, and Alaska and Arizona with 3, 1 reported each. States with 2 appealed ICWA cases include Arkansas (none reported), Indiana (none reported), Ohio (none reported), Oregon (2 reported), Washington (1 reported), Illinois (1 reported). Finally the following states had 1 ICWA case: Idaho, New Jersey, New Mexico, South Dakota, Utah, Kansas, North Carolina, Vermont, Kentucky, and Massachusetts.
In California, the cases further breakdown to 37 in the 4th Appellate District, 33 in the 2nd, 24 in the 1st, 9 in the 5th, 6 in the 3rd, and 3 in the 6th. California is the only state where we track by appellate districts at this time.
Supreme Courts in Oklahoma (2), Alaska (2), Idaho, Nebraska (2), South Dakota, California (2), Vermont and Washington all decided ICWA cases this year.
Of the 175 total appeals, 90 were affirmed, 67 were remanded, 14 were reversed, and the four remaining were affirmed in part and reversed in part (1), denied as moot (1), dismissed (1), vacated and remanded (1).
Top litigated issues were as follows: Notice (106), Inquiry (21), Placement Preferences (10), Active Efforts (8), Determination of Indian Child (8), Burden of Proof (5), Transfer to Tribal Court (5), Intervention, Termination of Parental Rights, Existing Indian Family, (2 cases for each one). The other cases with 1 each: Qualified Expert Witness, Indian Custodian, Tribal Customary Adoption, Application to Divorce, Ineffective Assistance of Counsel, Foster Care Placement
52 different tribes are represented in the first named tribe in a case. There were 56 cases involving claims of Cherokee citizenship. Of those appeals, 48 involved issues of notice and inquiry. In 21 cases the tribe was unknown (parent did not know name of tribe). In 14, the tribe was unnamed (court did not record name of tribe in the opinion).
4 cases were appealed by tribes (Cherokee Nation, Gila River, Shoshone Bannock). 92 were appealed by mom, 49 by dad, and 24 by both. Other parties who appealed include agency (1), child’s attorney (1), foster parents (1), great aunt and uncle (1), Indian custodian (1), and state and foster mother (1).
The first video is here, and features Quinault President Fawn Sharp and her family. Deepest thanks to her for being a leader unafraid to share her story to help Native families.
From Stephen Pevar:
Judge Viken issued four sweeping orders in the Rapid City Indian Child Welfare Act case. One is a Permanent Injunction barring the defendants from continuing to violate seven federal rights of Indian children, their parents, and their tribes. It mandates an “immediate halt” to those violations. The Injunction is accompanied by a 27-page decision explaining the need for the remedies being imposed by the Court.
Here is the final Adoption and Foster Care Analysis and Reporting System Rule incorporating a number of new data elements states will have to report to the feds. These elements include important information on ICWA cases and placements. Many people in our field worked very hard to get these elements included, which required a supplemental notice and comment period.
This is the first time these ICWA data elements will be required by the federal government. The first anticipated annual AFCARS report that will include the information is anticipated by 2020 (thanks, Heather, for this information!).
Here are the 2016 Guidelines. For those keeping track at home:
February 2015, Updated Guidelines replacing the 1979 Guidelines (No Longer in Effect)
June 2016, Federal Regulations released (Became Binding on December 12)
December 2016, Updated Guidelines replacing the February 2015 Guidelines
What this means:
25 USC 1901 et seq (ICWA) has not changed in 1978, and provides the minimum federal standards for Indian families. State ICWA laws (and corresponding court rules) that provide higher standards still apply. The federal Regulations are now binding and are like the federal law. The December 2016 Guidelines are now in effect and are non-binding interpretation of the Regulations (given the way they are drafted).
Here. And the OK Supreme Court agreed to publish the decision.
This case involved a guardianship:
ICWA defines “foster care placement” as “‘any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated.'”25 U.S.C. 1903(1)(i). This guardianship case is governed by this definition of foster care placement because Mother cannot have her children returned on demand as shown by the fact that she requested that the guardianship be terminated and her request was denied.
The case also discusses the requirement of clear and convincing evidence to deny transfer. The trial court denied transfer stating it was the advanced stage of the proceedings–which it was because Cherokee Nation didn’t receive notice, and the delay was beyond the Nation’s control.
This is only the 16th time an appellate court reversed the lower court and ordered transfer. This is one of two from this year.
Turtle Talk 
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