The evidence that mother transferred custody of the minors to the paternal grandmother as an Indian custodian was equivocal and compromised. Although maternal grandmother took N.J. to the emergency room, she gave conflicting information regarding whether she had custody of the children. For example, while she told police that she provided care for the minors, mother had custody of them. Likewise, she told doctors that mother had custody of N.J. and that N.J. lived with mother. Indeed, maternal grandmother’s inconsistent and equivocal answers regarding who had custody of the minors was one reason that they were placed in protective custody.
Additional facts undercut any claim that maternal grandmother was an Indian custodian. L.J. was found with father at maternal grandmother’s house the day N.J. was admitted to the hospital. While the Citizen Potawatomi Nation had a specific procedure for establishing an Indian custodian, maternal grandmother did not avail herself of this procedure to establish herself as the minors’ Indian custodian. While the tribe was represented at the hearing on maternal grandmother’s request to be recognized as an Indian custodian, the tribe did not claim she was the minors’ custodian and did not object to the trial court’s ruling denying the request and reinstating the orders terminating parental rights. Finally, we find it telling that an alleged Indian custodian of the minors did not visit or request contact with the minors since October 1, 2012, five days after they were placed in protective custody.
ICWA
Unpublished Active Efforts Case Out of California
Here. Whether the state has the obligation to assist in enrolling dad and child at in the Chickasaw Nation as an active efforts requirement. The California Rules of Court include that in their definition of active efforts:
We note that the California Supreme Court is currently reviewing the validity of California Rules of Court, rules 5.482(c) and 5.484(c) in In re Abbigail A. (2014) 226 Cal.App.4th 1450, review granted September 10, 2014, S220187. However, briefing and decision of the issue in this court and further potential review in the Supreme Court would significantly delay this matter, while stipulated reversal with directions will benefit R.P.’s interests more expeditiously. (In re Rashad H., supra, 78 Cal.App.4th at p. 380.)Reversal is therefore appropriate given DPSS’s and the juvenile court’s failure to make active efforts to secure tribal membership for R.P. Although only mother appealed, the parental rights termination order must be reversed as to both mother and father. (In re Mary G. (2007) 151 Cal.App.4th 184, 208.)
Tribal Nation Comments on the Proposed ICWA Regulations
An updated list–I know there are still some missing that were submitted, so please send them on if you’d like to be added (Fort@law.msu.edu)
Prairie Band Potawatomi Nation
Grand Traverse Band of Ottawa and Chippewa Indians
Swinomish Indian Tribal Community
Habematolel Pomo of Upper Lake
Mashantucket Pequot Tribal Nation
Pueblo of Pojoaque Tribal Court
Southern Ute Indian Tribe
Stillaguamish Tribe of Indians
Omaha Tribe of Nebraska
Tulalip Tribes
Central Council Tlingit and Haida Indian Tribes of Alaska
Cedarville Rancheria of Northern Paiute Indians
Colorado River Indian Tribes
Lac du Flambeau Band of Lake Superior Chippewa Indians
Confederated Salish and Kootenai Tribes of the Flathead Nation
Wyandotte Nation
Fond du Lac Band of Lake Superior Chipppewa
Yakutat Tlingit Tribe
Sac and Fox Nation
Big Sandy Rancheria
Gila River Indian Community
Elem Indian Colony
Port Gamble S’klallam Tribe
Native Village of Port Heiden
Beaver Village Council
Lower Elwha Klallam Tribe
Confederated Tribes of the Umatilla Indian Reservation
Pokagon Band of Potawatomi
Samish Indian Nation
Confederated Trbies of Siletz Indians
White Earth Nation
Sault Ste. Marie Tribe of Chippewa Indians
Ho-Chunk Nation
Ho-Chunk Nation, Tribal Attorney
Temecula Band of Luiseno Mission Indians
Nottawaseppi Huron Band of the Potawatomi
Standing Rock Sioux Tribe
The Shoshone-Bannock TribesNative Council of Port Heiden
Puyallup Tribe of Indians
Cherokee Nation of Oklahoma
Cherokee Nation Principal Chief Proclamation
Cherokee Nation Tribal Council Resolution
Letter from AAG, Chrissi Ross Nimmo
Letter from ICW ED, Nikki Baker Limore
Comanche Nation Social Services
Nez Perce Tribe Social Services Department
Quinault Indian Nation, Office of the Attorney General
Lac Vieux Desert Band of Lake Superior Chippewa Indians, Office of the Prosecutor
Oklahoma Indian Child Welfare Association
Alaska Native Health Board
United South and Eastern Tribes
Unpublished California ICWA Inquiry Case Requires Reversal of Orders
Here. Out of Ventura County.
Although mother and the maternal grandmother advised HSA of Olivia’s Choctaw ancestry, no further inquiry was made. Had HSA asked, it would have learned that the maternal great-grandmother, Roberta Mae J., is alive, is an enrolled member of the Choctaw Nation, and was born on the Kiowa Reservation in Lawton, Oklahoma.
***
After the writ petition was filed, mother’s counsel submitted certificates and enrollment applications to the Choctaw Nation tribe. On May 5, 2015, we granted mother’s request to take additional evidence that Choctaw Nation issued membership cards to mother and Olivia on April 15, 2015. The tribe’s determination that Olivia is a member of Choctaw Nation is conclusive. (§ 224.3, subd. (e)(1); In re Jack C.III (2011) 192 Cal.App.4th 967, 980; Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 255.) HSA’s failure to comply with the ICWA notice requirements before the six month review hearing requires that we reverse the February 2, 2015 order terminating reunification services, the order granting Olivia’s caretakers de facto parent status, and the order for a section 366.26 hearing.
Response to Motions to Reconsider in Oglala Sioux v. Van Hunnik
Article on Yesterday’s Public Hearing on Proposed ICWA Regulations
Here, via NICWA.
“That’s been the plan from the beginning,” Bradley Goodsky told a mostly sympathetic audience at Mystic Lake Casino on Wednesday. “It’s like [child protection] has a crystal ball and we’re doomed to fail.”
Goodsky was one of the speakers to address federal administrators who are considering making it more difficult for social workers to put Indian children in foster care. The Bureau of Indian Affairs is proposing new rules that it says will strengthen the Indian Child Welfare Act, the 1978 law passed by Congress to stop the “often unwarranted” breakup of Indian families.
The act provides guidelines to child protection agencies and juvenile courts that set a high standard for placing Indian children into foster care, and it gives tribes a say in those cases. The proposed changes would raise that bar even higher, by requiring that child protection and the courts first determine if a child is Indian, and then only remove that child from a home where there is “present or impending risk of serious bodily injury or death.”Kevin Washburn, the U.S. Interior Department assistant secretary who leads the BIA, is touring the country with other agency officials to hear from tribes and the public about the proposals.
“Guidelines are great,” Washburn told the group at the casino in Prior Lake. “We need things that are legally enforceable.”
Do you have your written comments in yet? They are due May 19.
Eleventh Circuit Holds that Navajo Attorney Assigned to ICWA Matter in Florida Covered by Federal Tort Claims Act
Here is the opinion in Colbert v. United States.
Briefs:
ICWA Qualified Expert Witness (primarily) Case Out of Alaska
Here.
Footnote 7 discusses the old and new Guidelines with regards to QEWs, though the court relied primarily on the old Guidelines (the professional person who is an expert professional). The specific qualifications of the QEW in this case is discussed at pages 17-20.
Court held no due process violations and that termination was affirmed.
ICWA Notice Case out of Alabama
Here.
Moreover, the record indicates that the tribe [Stockbridge-Munsee] received the inquiry form from DHR on November 7, 2014, less than a week before the juvenile court conducted the November 13, 2014, termination hearing. Section 1912(a) dictates that no termination of parental rights proceeding pertaining to an Indian child may be conducted until at least 10 days after an Indian tribe has received the noticed required in that section.
***
Therefore, we reverse the juvenile court’s judgment insofar as it terminated the mother’s parental rights to the child, and we remand the cause for the juvenile court to comply with the provisions of the ICWA . . .
Minnesota American Indian Bar Association 2015 Indian Law Conference
Friday, May 15, 2015
8:30 AM – 5:00 PM (Central Time)
Grand Casino Hinckley
Hinckley, MN 55037
Here for additional information.
Special Guest Speakers:
Judge Leo I. Brisbois
United States District Court; District of Minnesota; Duluth
Sheila D. Corbine
Fredericks Peebles & Morgan LLP; Mandan, North Dakota
Suzan Shown Harjo
President, Morning Star Institute; Washington, D.C.
Judge Anne K. McKeig
Fourth Judicial District; Minneapolis
Katherian D. Roe
Office of the Federal Defender; District of Minnesota; Minneapolis
Jeanette Wolfley
University of New Mexico School of Law; Albuquerque, New Mexico
And a special luncheon presentation by
Karen R. Diver
Chairwoman, Fond du Lac Band of Lake Superior Chippewa
Cloquet, Minnesota
Topics:
- Case Law Update
- The Use of Indian Names, Symbols and Mascots in Sports: The Washington Football Team Controversy and the Role of Trademark Rights
- M&A Transactions for Indian Tribes
- Criminal Law, Public Safety and Due Process in Minnesota’s Native Communities
- Tribes and Public Policy: From Development to Implementation
- Tribes and Water in Minnesota
- The Indian Child Welfare Act: Reconfigured 2015
- Complex Civil Jurisdiction Issues in Tribal Court: The Teague Factors and Beyond
- Exploited Youth and the Safe Harbor Law
- Spotting and Dealing with Ethical Conflicts in Indian Country
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