As we previously posted, for the first time, the federal government is proposing to collect data on state ICWA cases. If you, or your employer, or your tribe are willing to let the feds know you think this is a good idea, please submit comments by MAY 9 over here.
Want to submit something but aren’t sure what to write or don’t have time to research all of these acronyms? We have you covered:
Model comment for in-house counsel from MSU
Just got to the hard part when they took the picture!
One of our very favorite groups we get to work with has a beautiful new video up:
Password: icwa
The Minneapolis ICWA Law Center represents parents in ICWA cases, among other things.
Fletcher & Singel have posted “Indian Children and the Federal Tribal Trust Relationship” on SSRN.
Here is the abstract:
This article develops the history of the role of Indian children in the formation of the federal-tribal trust relationship and comes as constitutional challenges to the Indian Child Welfare Act (ICWA) are now pending. We conclude the historical record demonstrates the core of the federal-tribal trust relationship is the welfare of Indian children and their relationship to Indian nations. The challenges to ICWA are based on legally and historically false assumptions about federal and state powers in relation to Indian children and the federal government’s trust relationship with Indian children.
Indian children have been a focus of federal Indian affairs at least since the Framing of the Constitution. The Founding Generation initially used Indian children as military and diplomatic pawns, and later undertook a duty of protection to Indian nations and, especially, Indian children. Dozens of Indian treaties memorialize and implement the federal government’s duty to Indian children. Sadly, the United States then catastrophically distorted that duty of protection by deviating from its constitution-based obligations well into the 20th century. It was during this Coercive Period that federal Indian law and policy largely became unmoored from the constitution.
The modern duty of protection, now characterized as a federal general trust relationship, is manifested in federal statutes such as ICWA and various self-determination acts that return self-governance to tribes and acknowledge the United States’ duty of protection to Indian children. The federal duty of protection of internal tribal sovereignty, which has been strongly linked to the welfare of Indian children since the Founding, is now as closely realized as it ever has been throughout American history. In the Self-Determination Era, modern federal laws, including ICWA, constitute a return of federal Indian law and policy to constitutional fidelity.
After winning a partial summary judgment (twice, if you count the motions for reconsideration), the plaintiffs in the federal class action ICWA/Due Process lawsuit have filed their brief requesting remedies.
The four Defendants in this action are largely ignoring this Court’s summary judgment ruling of March 30, 2015, Oglala Sioux Tribe v. Van Hunnik, 100 F. Supp. 3d 749 (D.S.D. 2015) (hereinafter “Oglala II”),1 in which the Court found that the Defen-dants were violating seven of Plaintiffs’ federal rights. Today, more than a year later, the Defendants continue to commit six of those violations, and only partially halted the seventh. As a result, more than one hundred additional Indian families have suffered the injuries Oglala II intended to prevent, and new families fall victim every week.
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Mr. Hanna had previously written Judge Robert Mandel, the Seventh Judicial Circuit judge who heard most of the 48-hour hearings in 2015, to see if he would convene a meeting with Mr. Hanna and representatives from the States Attorney’s Office and Dakota Plains Legal Services to discuss how this Court’s summary judgment ruling could be implemented in the Seventh Circuit’s 48-hour hearings. Judge Mandel declined, and attached to his response a telling article entitled: “Federal law in the state courts: The freedom of state courts to ignore interpretations of federal law by lower federal courts.” (This correspondence and the article are attached as Plaintiffs’ Exhibit 2R). To Plaintiffs’ knowledge, in not one 48-hour hearing in 2015 did Judge Mandel incorporate the procedural protections this Court held in Oglala II are required by the Due Process Clause of the Fourteenth Amendment.
Somehow in all of the recent ICWA-related new, we missed the March 16 release of the updated list of designated tribal agents for ICWA notice.
Here, at 81 Fed. Reg. 10887 (March 16, 2016). We did a quick control+F search in the list for “Mohawk,” and the St. Regis Mohawk designated agent for ICWA popped right up. This list should be bookmarked on every state child welfare worker’s computer.
Reason #678 why my response to state actors when they complain about notice issues is “are you absolutely certain you did notice correctly?”:
In this short unpublished decision, the Department concedes that it concluded not once, but twice, that there is no federally recognized Mohawk tribe.
Why a Conservative Legal Organization is Trying to Kill the Indian Child Welfare Act.
A long article with lots of great sources (Shannon Smith of the ICWA Law Center is quoted extensively, for example) and solid research.
Despite what the URL might indicate, the video and site do not belong to an organization with a long history of pushing to expand civil rights protections to minority groups. Rather, they are part of a campaign by the Goldwater Institute — a conservative legal organization mostly known for its anti-government and pro-property rights work — aimed at eliminating ICWA, a 1978 federal law designed to protect Native American kids from more than 100 years of government-mandated assimilation. That legislation established tougher requirements for removing Native American children from their biological families and gave federally recognized tribes control over the adoption and custody processes for their citizens’ kids.
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Matthew L.M. Fletcher, who directs the Indigenous Law and Policy Center at the Michigan State University College of Law says the key function of ICWA is that it “gives tribes a chance to have a say in what happens to their kids.” He notes that the due process requirements it provides have been held up by child welfare advocacy groups as “the gold standard for child welfare decisions for all children.”
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Kathryn E. Fort, who works with Fletcher at MSU’s Indigenous Law and Policy Center, agrees. “I think what ICWA has done is given a backstop, in many ways, to the worst abuses,” she said. But recent problems in South Dakota, for instance, are proof that there are “still counties where they’re just not following the law.” Last March, a federal judge found that state officials had improperly removed scores of Native American children in one county from their parents’ custody, failing to follow ICWA’s procedure.
If the Goldwater Institute’s challenge is successful, not only will the strongest tool to stop those kinds of discrimination be taken away — so might a whole host of other laws.
Due in parts to comments filed on the original proposed rule change for Automated Foster Care and Adoption Reporting System (our primary source of data regarding kids in care), the Administration for Children and Families has added collecting ICWA-related data to the proposed rule:
In this supplemental notice of proposed rulemaking (SNPRM), ACF proposes to require that state title IV-E agencies collect and report additional data elements related to the Indian Child Welfare Act of 1978 (ICWA) in the AFCARS. ACF will consider the public comments on this SNPRM as well as comments already received on the February 9, 2015 NPRM and issue one final AFCARS rule.
Here is the proposed rule page, and we strongly recommend tribes and organizations file comments on the proposed changes–which are due May 9. The comments make a difference:
ACF issued the AFCARS NPRM (80 FR 7132, hereafter referred to as the February 2015 AFCARS NPRM) to amend the AFCARS regulations at 45 CFR 1355.40 and the appendices to part 1355. In it, ACF proposed to modify the requirements for title IV–E agencies to collect and report data to ACF on children in out-of-home care and who were adopted or in a legal guardianship with a title IV–E subsidized adoption or guardianship agreement. At the time the February 2015 AFCARS NPRM was issued, ACF concluded that it did not have enforcement authority regarding ICWA and, therefore, was not able to make the requested changes or additions to the AFCARS data elements regarding ICWA.
However, in the time since publication of the February 2015 AFCARS NPRM, ACF legal counsel reexamined the issue and determined it is within ACF’s existing authority to collect state-level ICWA-related data on American Indian and Alaska Native (AI/ AN) children in child welfare systems pursuant to section 479 of the Social Security Act. Such determination was informed by comments received on the February 2015 AFCARS NPRM as well as an extensive re-evaluation of the scope of ACF’s statutory and regulatory authority.
Because of the recent media attention to ICWA, here’s a quick update and clarification of some legal details:
ICWA has not been amended, updated, or changed. Ever. The same language that Congress passed in 1978 is the same language in effect today.
In 2015 the Bureau of Indian Affairs updated the ICWA Guidelines for State Courts for the first time since 1979. These non-binding Guidelines are considered persuasive by many states and are in effect now. State courts are using them in their decisions. The National Council for Adoption (NCFA) and Building Arizona Families (BAF) challenged the implementation of the 2015 Guidelines in the Eastern District of Virginia (E.D.Va) where they lost a motion to dismiss. However, they have filed an appeal in the Fourth Circuit, which is where the case currently sits.
Also in 2015, the Department of the Interior proposed federal regulations. Those regulations went through an intensive comment period (you can still read all of those comments here). The regulations have not yet been promulgated, which means the federal government has not released them pursuant to the Administrative Procedures Act–which means they do not currently exist. No one knows when they will be promulgated, or what they look like at this point. People (including us) speculate on when or if they will be promulgated before the end of the Administration, but we do not know. We do anticipate (speculate) there will be litigation over the regulations if/when they are.
Finally, the Goldwater litigation, which attracted a big splash of media attention when the complaint was filed in 2015, is on-going. Their goal is to have a court find that ICWA is a race-based law, meaning that the law would be subject to strict scrutiny in the federal courts (you can read a Wall Street Journal op-ed by the Goldwater attorneys discussing this here, but only if you want to and you probably don’t). This, of course, completely disregards long settled federal and state law (1) regarding tribes, tribal people, political status, and citizenship, which NICWA addresses perfectly at the end of an article here (and you can now disregard the reporter’s claim that ICWA has been amended because you’ve read this post and know that’s wrong). Along those lines, the plaintiffs in the Goldwater case just tried to add two new named plaintiffs, one of whom is not eligible for membership in any tribe. This has led to recent filings by both the federal and state governments named in this case asking the judge to dismiss. Both filings explain in detail why ICWA is not a race-based law.
(1) See, e.g., In the Interest of A.B., 663 N.W.2d 625, 636 (N.D. 2003); In re A.A., 176 P.3d 237, 240 (Kan. App. 2008); In re Adoption of Hannah S., 48 Cal. Rptr. 3d 605, 610-11 (Cal. Ct. App., 3rd. Dist. 2006); In re Interest of Phoenix L., 708 N.W.2d 786, 797-89 (Neb. 2006), rev’d on other grounds; Matter of M.K., 964 P.2d 241, 244 (Okla. Ct. App. 1998); In re Marcus S., 638 A.2d 1158, 1159 (Maine 1994); State ex rel. Children’s Services Div. v. Graves, 848 P.2d 133, 134 (Or. Ct. App. 1993); In re Miller, 451 N.W.2d 576, 579 (Mich. App. 1990); Matter of Appeal in Pima County Juvenile Action No. S-903, 635 P.2d 187, 193 (Ariz. Ct. App. 1981); Matter of Guardianship of D.L.L., 291 N.W.2d 278, 281 (S.D. 1980).
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