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ICWA
Important ICWA Case Out of Oklahoma on Application and Transfer to Tribal Court
Here. This is a long post, but there’s some data at the end! The Oklahoma Supreme Court wins favorite sentence in an ICWA case of 2016:
“Appellants’ [State of Oklahoma and foster mother] unlearned understanding of what is binding case law and attempts to broaden holdings of this Court, the United States Supreme Court [Adoptive Couple v. Baby Girl], and the Tenth Circuit Court of Appeals [Neilson v. Ketchum], and ICWA’s provisions dealing with termination of parental rights will not support a reversal of the district court’s order. Because the district court did not err in granting the motion to transfer to tribal court, we affirm the order granting the motion to transfer.”
Facts (everything in bold is emphasis added):
M.H.C. (the child) was born in September of 2013. The Oklahoma Department of Human Services (DHS) placed the child in protective custody on November 5, 2013. In the initial petition filed on November 18, 2013, the State of Oklahoma1 (the State) declared ICWA’s provisions applicable. On November 21, 2013, the Cherokee Nation appeared at the initial appearance, and the natural mother informed the court that she had a Certificate of Degree of Indian Blood but was not currently a tribal member.
¶3 Thereafter, the Cherokee Nation received official notice from the State that it planned to adjudicate the child as deprived. The Cherokee Nation sent DHS a response notifying DHS that the child was eligible for enrollment in the tribe and enclosing a tribal-enrollment application for DHS to complete. The Cherokee Nation testified it could not complete the application without access to the child’s case file and birth certificate. After the Cherokee Nation’s initial attempt to have DHS complete the enrollment application, the Cherokee Nation sent DHS three additional enrollment applications. DHS employee Ms. Choate testified to seeing at least one application and acknowledged that a DHS employee can fill out a child’s enrollment application without natural mother’s assistance. Ms. Choate testified she had previously filled out a child’s application to help the child gain tribal membership.
¶4 On December 3, 2013, the district court ruled ICWA inapplicable. At the first family team meeting, the Cherokee Nation, the natural mother, and DHS were present. The natural mother was informed if she gained membership in the Cherokee Nation, ICWA would apply. The natural mother was also told if ICWA applied, the child would likely have to leave foster mother’s care because foster mother was a non-ICWA compliant placement. No party informed the natural mother of ICWA’s benefits and protections.2 The natural mother declined to enroll at the time. The district court subsequently found the State broke confidentiality by allowing the Cherokee Nation to attend a family team meeting in a non-ICWA case.
¶5 In September 2014, the State filed a motion to terminate the natural mother’s rights due to her absence in the pending court proceedings.The State served the natural mother by publication. On December 18, 2014, the court entered a Default Order of Termination of Parental Rights against the natural mother for failure to appear and defend her rights to her child. On February 5, 2015, the natural mother became an enrolled citizen of the Cherokee Nation. On February 19, 2015, the Cherokee Nation filed a motion to intervene and, on March 24, 2015, filed a motion to transfer to tribal court. In the spring of 2015, the district court vacated the order terminating the natural mother’s rights due to statutorily defective service. On June 9, 2015, the district court found natural mother’s rights were still intact and the permanency plan should be reunification.
The Appellants made the following arguments as to why OICWA and ICWA should not apply:
1. “Appellant’s position is that congressional intent to limit ICWA’s reach is found in its rejection of a proposed definition of ‘Indian’ to include all persons eligible for membership in an Indian tribe within ICWA’s purview whether or not a parent was a tribal member.”
2. “OICWA, 10 O.S.2011 §§ 40-40.9, limits ICWA’s application to children who are Indian children prior to the proceedings’ initiation.”
3. “ICWA’s plain language prohibits applying ICWA to a case where the child is not in a parent’s custody at the time the child comes within ICWA’s definition of Indian child.”
4. “Their initial premise is that the child was not removed from an Indian family because the mother was not enrolled at the time the State removed the child. Appellants assert that pursuant to Section 1902’s policy statement, ICWA applies only to ‘intact Indian families,’ and no Indian family existed at the time of the child’s removal.” An argument the Oklahoma Supreme Court called “at best, confusing.”
The Oklahoma Supreme Court found that “[t]he provisions of ICWA become effective in a state child custody proceeding on the date that the record supports a finding that ICWA applies. Section 1911(b) became applicable, with prospective application, when the child met the definition of an Indian child under ICWA. Appellants have failed to provide any authority which would require a different finding.”
The Supreme Court also agreed that transfer was appropriate, stating among other things:
Appellants claim the best interests of the child support denial of the transfer to tribal court. The record does not support their argument. The goal of the district court’s permanency plan was reunification with the natural mother. Appellants failed to present any evidence which would show that transfer to tribal court would not promote this goal. Although Appellants introduced evidence of a bond with a half-sibling in the foster mother’s care, they introduced no evidence of a bond with the foster mother and failed to present any evidence of physical or emotional harm to the child if the proceedings were transferred to tribal court. Appellants’ evidence was that the child would suffer from a change in foster-care placement-an issue not before the district court or this Court. ICWA’s placement preference are applicable to district court proceeding. And lastly, the best interests of the child can just as easily be determined by the tribal court.One argument Appellants strongly imply is that a tribal court could not make this determination. Appellants have not supported this implication, and we refuse to make such a finding.
Since the last time a state appellate court has affirmed a lower court’s transfer to tribal court, (In re Jayda L., Neb. Ct. App. 2012), there have been at least 13 other transfer cases. Only 2 others ended up with a transfer to tribal court (Kansas, Nebraska). This is the 20th case ever where the appellate court affirmed the lower court’s transfer decision. In comparison, there have been 22 times where the appellate court reversed the lower court’s decision to send the case to tribal court.
Series of Articles on ICWA in the Minnesota Star Tribune
Fletcher (again) on ICWA in Cato Unbound
Here is “A Civics Lesson.”
An excerpt:
In legal analysis, facts matter, and so it is time to return to the war on facts in this series. Mr. Sandefur still tries to attack ICWA in the Alexandria P. matter, even though California law that applies to all children would have Lexi back with her relatives, an outcome all parties excepting the foster parents wanted and prepared for. Along the way, Mr. Sandefur incorrectly states that the Mississippi Band of Choctaw Indians was involved when in fact it was the Choctaw Nation of Oklahoma. Mr. Olson incorrectly assumes that the Shoalwater Bay Tribe had interfered in In re T.A.W. when in fact the non-Indian parent filed the appeal asserting ICWA claims; the tribe is not a party to the case and opposes the non-Indian parent, who served time in prison for robbery and whom the tribal court found to have engaged in domestic violence. One could read the courts’ opinions to find these facts, except in one case, Baby Girl. Here, Mr. Sandefur forgets that the Cherokee dad was an active duty serviceman served with adoption papers immediately before his deployment to an active war zone without the advice of counsel. These are facts the Supreme Court majority also chose to ignore. Conversely, the South Carolina Supreme Court’s opinion addressed all these facts in reaching the opposite outcome. Facts, in law, matter.
All of the cases discussed in this series are complicated cases with difficult fact patterns, and perhaps no one case can vindicate or condemn the ICWA. Consider Mr. Olson’s reference to In re M.K.T. He seems to argue that the case is about a Cherokee father who tried to relinquish his tribal membership in order to avoid ICWA’s application, but the Cherokee Nation stubbornly refused to yield. The facts are more complicated and actually highlight how ICWA could have been useful if the parties had complied initially. The Cherokee father signed the tribal membership relinquishment form without the advice of counsel. The foster parent brought him the form while he was in prison (recall here the incarcerated parent that Mr. Olson accidentally champions by attacking the tribe in T.A.W.), bringing a notary along to cement the deal. The father later testified that he did not understand the legal ramifications of his relinquishment under tribal law, and that no one informed him that there was an Indian family available or anything else about the state of his child. All ICWA requires is the basic procedural right for Indian parents to seek the advice of counsel and to give knowing consent before a judge before their parental rights are terminated. The coercion of an imprisoned father into signing away his rights is a strange fact pattern on which to rest any conclusions about ICWA. Had the Cherokee father access to legal advice in the first instance like the public policy grounding ICWA supports, the case likely would never have been litigated, let alone reached the Oklahoma Supreme Court. The same was true for Baby Girl, where counsel for the adoptive couple failed to properly notify the tribe at the inception of the adoption process, and Alexandria P., where the foster couple fought against the wishes of all other parties to the case and against the best interests of Lexi.
In conclusion, ICWA stands up to scrutiny. Because of the treaty tradition, federal statutes like ICWA, and modern tribal governance, 21st century American Indian people know who they are and where they come from. Modern tribal governance is a triumph of the rule of law over years and years of American greed and bigotry. Indian tribes exist to preserve their homelands, includingAnishinaabeki, allowing contemporary Indian people to access sacred sites and to know where their ancestors are buried. Indian tribes encourage their people to learn their languages, includingAnishinaabemowin, and cultures. Indian children are learning their histories and languages, rather than being delivered to assimilationist boarding schools or shipped out to non-Indian families. Anishinaabe children are learning mino-bimaadiwin, the principle holding that all beings are connected and that actions of people have consequences on all. And because tribes are working to protect children, rather than treat them as cogs in a state bureaucratic hell or chattel to be bartered through the private adoption market, Indian children have a place to turn for help. Tribal law – inaakonigewin – speaks for itself.
My previous entry in this series is here.
Kristen Carpenter’s entry is here.
Published Decision out of the California Court of Appeals (ICWA Inquiry)
The father ultimately dropped his appeal of the ICWA inquiry, but the court’s comment is worth noting:
To be sure, the juvenile court’s analysis whether the evidence is sufficient to trigger ICWA’s notice requirements for Andrew and Kailey will be enhanced if additional information concerning Jonathan’s Indian ancestry is presented to the court. But the burden of developing that information is not properly placed on Jonathan alone. Section 224.3, subdivision (a), imposes on child protection agencies, as well as the juvenile court, the affirmative and continuing duty to inquire whether a dependent child is or may be an Indian child. (See In re Kadence P., supra, 241 Cal.App.4th at p. 1386; In re H.B. (2008) 161 Cal.App.4th 115, 121; see also Cal. Rules of Court, rule 5.481(a).) As soon as practicable, the social worker is required to interview the child’s parents, extended family members, the Indian custodian, if any, and any other person who can reasonably be expected to have information concerning the child’s membership status or eligibility. (§ 224.3, subd. (c); In re Shane G. (2008) 166 Cal.App.4th 1532, 1539; Cal. Rules of Court, rule 5.481(a)(4).) From the record presented to us, it appears the Department and the juvenile court failed to satisfy that duty; neither the court nor the Department made any effort to develop additional information that might substantiate Jonathan’s belief he may have Indian ancestry by contacting his siblings or other extended family members. Both federal and state law require more than has been done to date. On remand, an adequate investigation by the Department with a full report to the court must be promptly completed.
Transfer to Tribal Court Case out of the Arizona Court of Appeals
Here.
This decision from last Thursday highlights the 1911(b) explicit transfer provision, which allows for foster care and termination proceedings to be transferred, but is silent on pre-adoptive or adoptive proceedings. The final footnote may provide some guidance in the future:
18 Because the Community sought transfer of jurisdiction only under the authority of 25 U.S.C. § 1911(b), we do not analyze or address the propriety of such a motion under any other authority. See In re Welfare of the Child of R.S. & L.S., 805 N.W.2d at 57 (Dietzen, J., concurring) (“The court’s consideration of those issues is dictum and not binding on the
court.”). See also 2016 BIA Final Rule, 81 Fed. Reg. 38822, J(1), Response to Comment (“Parties may request transfer of preadoptive and adoptive placement proceedings, but the standards for addressing such motions are not dictated by ICWA or these regulations. Tribes possess inherent jurisdiction over domestic relations, including the welfare of child citizens of the Tribe, even beyond that authority confirmed in ICWA. . . . Thus, it may be appropriate to transfer preadoptive and adoptive proceedings involving children residing outside of a reservation to Tribal jurisdiction in particular circumstances.” (citations omitted)); 25 U.S.C. § 1902 (providing a Congressional declaration of policy stating that ICWA establishes “minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture”).
Event to Recruit Native Foster Homes in L.A.
Kristen Carpenter on ICWA and Indian Status
Kristen Carpenter has published “Indian Status Is Not Racial: Understanding ICWA as a Matter of Law and Practice” as part of the CATO Unbound series on the Indian Child Welfare Act.
An excerpt:
On August 31, 2013, a little girl clad in a purple shawl, holding the hands of her father and stepmother, skipped into the grand entry of the Cherokee Nation’s annual powwow. An honored participant, the little girl followed in the steps of the Nation’s principal chief and first lady, and behind them a long line of Cherokees wearing U.S. military uniforms, tear dresses and ribbon shirts, buckskin, and jingle dresses fell into the circle. In brush arbors and bleachers, spectators visited with friends and relatives, and even deeper outside, the thick dark northeastern Oklahoma night, full and bright with crickets, stars, and spirits. At the very center of it all, the little girl smiled in the embrace of her Cherokee people. She danced in the heart of their landscape and in the landscape of their hearts.
Then the drum stopped, cameras flashed, and the little girl was whisked away to a tribal safe house. A contentious legal battle was being waged over her future, and there had been threats against her and her family. Beauty in a fade, to quote the immortal John Trudell.
Within weeks, the little girl, clutching a teddy bear, would be strapped into a car seat, and driven a thousand miles away from her family and home. The Supreme Court ruled the Indian Child Welfare Act did not apply, that her dad – her own loving biological Cherokee dad who had just served a tour of duty in Iraq and was adjudicated “fit” for parenthood – didn’t have a case for custody.[1] As a result, the little girl, like generations of Indian children before her, was taken from her Indian family. Taken away from her sister, cousins, grandparents and great-grandparents, away from her princess toys and pet geese, away from shell-shaker lessons and stomp grounds – to wake up and begin her life anew in a different home, with non-Indian adoptive parents. Across Indian Country, people prayed that she would survive this experience and promised to be there one day when hopefully she would return.
Texas COA Reinstates State Court Jurisdiction over Indian Child Custody Dispute
Here is the opinion in Villarreal v. Villarreal (Tex. Ct. App.):
Article on California’s Report on ICWA (non) Compliance
Report: Compliance with Indian Child Welfare Act Spotty
The report found that state and local agencies still struggle with the law, according to Kimberly Cluff, a task force member and staff member of the Morongo Band of Mission Indians. She said the tribes feel like they’re at “ground zero.”
“The law provides the tribes and, more importantly, tribal children with a bunch of rights, but if the tribe doesn’t know the child is in foster care, or if nobody asks the question of family tribal status, then all those protections are lost,” Cluff said. “If we don’t know that child is an Indian, we can’t protect them as an Indian and it’s just somewhat shocking that 40 years after the passing of this law, we’re still talking about basic implementation.”
A copy of the Report is here.
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