ICWA

Unpublished ICWA Related Opinion out of California

Kate Fort

Here.

There’s a fair amount going on in the description of this case (active efforts, involvement of the tribe, CA statutory tribal adoption), but we were interested in this near the end of the opinion:

Mother relies on the tribal representative’s response to the termination of reunification services. In an October 23, 2014, e-mail correspondence, the tribal representative wrote, “[W]e … believe that it was a HUGE disservice to the family to discontinue active efforts. Here in the State of Alaska, the department must provide active efforts right up until the day of reunification, guardianship is finalized or termination of parental rights.”
The tribal representative’s concern appears to have been the California practice of discontinuing reunification services at the review hearing held several months prior to the selection and implementation hearing. Whether a “disservice” or not, the juvenile court terminated services at the point contemplated by our dependency scheme.

ICWA Notice Case out of Washington Court of Appeals

Kate Fort

Here.

The Blackfoot/Blackfeet notice issue comes up pretty regularly. Depending on what court the parent is in, the Department may or may not be ordered to notice Blackfeet even if a parent says Blackfoot. In this case, the Washington Court of Appeals said the was no need to notice Blackfeet when dad said Blackfoot and Cree. According to the opinion, notice went out to “several Cherokee, Cree, and Hopi Indian tribes.”

Additional Comments on Proposed ICWA Regulations

Kate Fort

More than 1,000 additional comments were posted this week to regulations.gov on the proposed ICWA regulations, bringing the total number of comments to 1,869. We have updated the tribal nations comments page here, and the organizations page here.

Here are a few additional individual comments we noted as we scrolled through them:

361_-_Erdrich,_Karen_Louise
942_-_Jones,_Laura
919_-_Spotted_Elk,_Sheldon
2097_-_Blanchard,_Evelyn
298_Hirsch_Bertram
1525_-_Houska,_Tara
886_-_Lidot,_Tom
1280_-_Drobnick,_Heidi_A
Sweet_Victoria

Placement Preference Case out of Nebraska Court of Appeals

Kate Fort

Here.

In conclusion, we find that good cause exists for a deviation from statutory placement preferences under the ICWA and that the trial court did not err by denying the Tribe’s motion to change placement. Further, the record supports a showing by a preponderance of the evidence that active efforts were made by DHHS to prevent the breakup of the Native American family. Therefore, we affirm the order of the trial court.

The Court cited to the ’79 Guidelines and state law to find ICWA’s placement preferences do not require “strict placement,” but are a “statutory preference” to be allowed “absent good cause to the contrary.”

Michigan Supreme Court Denies Review in ICWA Transfer Case

Kate Fort

Order here.

Original decision from court of appeals transferring the case to tribal court is here.

ICWA/PL-280 Case out of Idaho Supreme Court

Kate Fort

Here.

Difficult case involving extreme domestic violence, a step-parent adoption, tribal court orders, state court orders, and interpretation of exclusive tribal jurisdiction under ICWA and PL-280. The challenge to state jurisdiction was brought by bio-father whose parental rights were terminated, which ultimately lead to the Court’s holding:

We find this reasoning to be persuasive and determine that Public Law 280 and Idaho Code section 67-5101 constitute an exception to ICWA’s exclusive jurisdiction mandate. Thus, we reject Doe’s argument that the magistrate court erred in exercising jurisdiction in this case.

Unpublished Michigan Court of Appeals ICWA/MIFPA Notice Case

Kate Fort

Here.

While it looks like the State gave notice to Cherokee Nation and Blackfeet Tribe with all the information on the record, and it’s also good the State noticed local Michigan tribes (State is required to contact a tribe in the county where the child is located under 712B.9(3)), the original notice to *all* of the tribes should be in the record. And noticing UKB when a parent claims Cherokee is not something above and beyond, but what the State is supposed to do (along with CNO and Eastern Band):

In addition to the above notifications, the lower court record contains evidence of additional efforts made by DHS to ascertain whether RI and KI had Indian heritage. Specifically, the record contains a response from the United Keetowah Band of Cherokee Indians in Oklahoma indicating that neither RI nor KI were members, although the lower court record does not contain the original notification sent to that tribe. Additionally, the record contains responses from the Saginaw Chippewa Indian Tribe of Michigan indicating that neither RI nor KI were members or eligible for membership, although the lower court record again does not contain the original notifications sent to that tribe. Finally, the record contains copies of both the notifications to, and a response from, the Nottawaseppi Huron Band of Potawatomi Indians; membership in that tribe was also denied. In addition to the above record evidence, DHS reports indicate that notifications were sent to a plethora of other tribes, and that membership in those tribes was denied.

Complaint in National Council for Adoption v. Jewell–Litigation Challenging the 2015 ICWA Guidelines

Kate Fort2 Comments

Here.

Plaintiffs argue the 2015 Guidelines violate the APA, due process of birth parents and children, equal protection of birth parents and children, the 10th amendment, and manage a quick sideswipe at ICWA itself on page 38 (exceeds Congress’s authority under the Indian Commerce Clause).

Organizations and Law Professors Comment on Proposed ICWA Regulations

Kate Fort3 Comments

Here is a selection of a few of the major groups in support of the proposed ICWA regulations (as available from Regulations.gov or sent directly to us at fort [at] law [dot] msu [dot] edu):

American Bar Association
Association on American Indian Affairs
ACLU
California Indian Legal Services
Casey Family Programs, with additional signatories including NNABA and TLPI
Children’s Defense Fund
The Donaldson Adoption Institute
ICWA Law Center
Michigan Tribal-State Judicial Forum
Michigan Indian Legal Services
NABA-Arizona
National Indian Child Welfare Association
National American Indian Court Judges Association
National Council of Juvenile and Family Court Judges
NCAI
NARF AK
Letter from:
Advocates for Children and Youth
Children’s Defense Fund
Children and Family Futures
Child Welfare League of America
Foster Family-Based Treatment Association
Generations United
National Children’s Alliance
National Crittenton Foundation
National Foster Parent Association
Nebraska Appleseed
Nebraska Families Collaborative
New Mexico Child Advocacy Networks
North American Council on Adoptable Children

Law Professors Comment. Signed by 21 clinicians, professors, and deans representing more than 15 law schools.

Times have certainly changed since the original Guidelines were issued. Administrative law and the power of the federal government have shifted considerably in the past forty years. In addition, there was no way the federal government could foresee the dramatically different applications of ICWA across the fifty states. These new regulations are necessary because without them the application of the law is arbitrary, with Indian children treated differently depending on which state’s courtroom they are in. Having disparate interpretations of ICWA was certainly not the intent of Congress in passing a federal law, and conflicts with the rationale of the Supreme Court’s decision in Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 45-46 (1989) (describing the need for uniformity in defining ‘‘domicile’’ under ICWA). These regulations will provide a stronger measure of consistency in the implementation of ICWA and prevent the application of different minimum standards across the United States, contrary to Congress’ intent.

One of our second year law students at MSU Law, Whitney Gravelle, was a huge help in researching issues related to administrative authority and getting a first draft going.

 

State Comments to Proposed ICWA Regulations

Kate Fort

Alaska
Judicial Council of California
Minnesota
Washington