Assuming the efforts listed in the opinion are accurate, here is a case detailing what we think most ICWA experts would agree are active efforts. It is true, however, that the court denied transfer to tribal court due to essentially a forum non convenes (concern about subpoenaing witnesses, which is strange).
Here.
Here.
The network and the ombudsman, Edward Schumacher-Matos, who is paid to critique NPR’s news coverage, have split sharply over his findings.
The series, which appeared in October 2011 on All Things Considered and was published on NPR.org, alleged that the state of South Dakota took Native American children and separated them from their families and tribes at an alarming rate. The series won national awards and helped inspire federal and state reviews of such policies.
***
Kelly McBride, a senior ethics scholar at The Poynter Institute, a journalism training center in St. Petersburg, Fla., and past ombudsman for ESPN, says Schumacher-Matos wanted NPR to produce a different story — one about the full crisis besetting Native American families — rather than simply critique the story it broadcast.
“In a way, it sets up an unfair challenge to NPR,” McBride says. “Because, if he wants to do a column about why they chose this story instead of that story, then he should do that column. But he essentially does both in this very long report.”
McBride argues that it’s hard to tell whether the weight of the ombudsman’s critique is warranted by the mistakes admittedly committed by NPR in this case. She faults both NPR and Schumacher-Matos for being less than clear about the source of their data.
NPR continues to stand by the stories:
In this instance, however, we find his unprecedented effort to “re-report” parts of the story to be deeply flawed. Despite the report’s sweeping claims, the only source that figures in any significant way in the ombudsman’s account is a state official whose department activities were the subject of the series. Additionally, the ombudsman’s interaction with state officials over the past 22 months has impeded NPR’s ability to engage those officials in follow-up reporting. Overall, the process surrounding the ombudsman’s inquiry was unorthodox, the sourcing selective, the fact-gathering uneven, and many of the conclusions, in our judgment, subjective or without foundation. For that reason, we’ve concluded there is little to be gained from a point-by-point response to his claims.
Here is the report. The NPR editors are correct that there is little to be gained from a point-by-point response. In a very quick scan of the first page, the line “There is some debate over whether ICWA applies to tribal judges, which I review in Chapter 6. Whether it does or not, ignoring the tribal judges is unjustifiable under NPR’s standards of completeness and fairness.” indicates to us that the Ombudsman is uninformed as to the application of ICWA, at the very least. Whether ICWA applies to tribal judges is not up for a debate. His further comments in Chapter 6 are distressing in their inaccuracy:
We have discussed how ignoring the tribal judges is journalistically wrong. It may be legally mistaken, too, under an ICWA framing. The American Bar Association’s Indian Child Welfare Act Handbook, by B.J. Jones, Mark Tilden and Kelly Gaines-Stoner, says of the law:
The beginning point for any analysis of the Indian Child Welfare Act in an understanding of what type of proceeding the act is intended to cover. The Act applies only to child custody proceedings in state courts. (My ital. p. 27, 2nd Edition).
And here is what the respected advocacy group, the National Indian Child Welfare Association, a source used in the series, says on its website:
ICWA does not apply to divorce proceedings, intra-family disputes, juvenile delinquency proceedings, or cases under tribal court jurisdiction.
I am not expert enough to take a position on the law, but clearly there is at least enough serious difference that if the tribal courts are to be lumped in with state ones on legal grounds, the story has to say why. It did not. Rather, its framing of its interpretation of ICWA was presented as a given.
It is too bad the Ombudsman didn’t just end after “I am not expert enough.” His misreading of these two sources is disturbing. A further scan of Chapter 6 indicates the Ombudsman is confused about the legal status of tribes and tribal sovereignty. We can only speculate about the timing of the release of this six chapter report during the larger national story happening right now about ICWA.
Here.
Intergovernmental Personnel Act (IPA) full-time contract position based in Washington DC to work on ICWA issues in partnership with the Dept. of the Interior and Administration for Children and Families (ACF).
Job Summary:
This full-time contract position supports national efforts, through the federal executive branch, to address well-being needs of children, youth and families, in particular, increase understanding of the needs and opportunities related to improving outcomes for Native American children and families impacted by child abuse and neglect. The placement will ultimately benefit Casey Family Programs, ACYF, and the BIA by advancing their respective missions to enhance the well-being of vulnerable families involved in child welfare.
Baby Veronica’s biological father, stepmother and paternal grandparents have filed court papers in Oklahoma to adopt the 3-year-old girl, a move that dissenting U.S. Supreme Court justices warned could happen and will likely complicate the custody dispute.
Cherokee Nation of Oklahoma (video)
NICWA Initial Statement (pdf)
NICWA Legal Analysis (pdf) (Includes an excellent point about state laws, and one we’ve been considering here as well)
Minnesota Public Radio (with Colette Routel)
NPR (with Marcia Zug and Mary Jo Hunter)
Will add more as they come up.
Opinion here. Written by Justice Alito.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and BREYER, JJ., joined. THOMAS, J., and BREY- ER, J., filed concurring opinions. SCALIA, J., filed a dissenting opinion. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG and KA- GAN, JJ., joined, and in which SCALIA, J., joined in part.
***
This case is about a little girl (Baby Girl) who is classi- fied as an Indian because she is 1.2% (3/256) Cherokee. Because Baby Girl is classified in this way, the South Carolina Supreme Court held that certain provisions of the federal Indian Child Welfare Act of 1978 required her to be taken, at the age of 27 months, from the only parents she had ever known and handed over to her biological father, who had attempted to relinquish his parental rights and who had no prior contact with the child. The provisions of the federal statute at issue here do not demand this result.
Contrary to the State Supreme Court’s ruling, we hold that 25 U. S. C. §1912(f )—which bars involuntary termination of a parent’s rights in the absence of a heightened showing that serious harm to the Indian child is likely to result from the parent’s “continued custody” of the child— does not apply when, as here, the relevant parent never had custody of the child. We further hold that §1912(d)— which conditions involuntary termination of parental rights with respect to an Indian child on a showing that remedial efforts have been made to prevent the “breakup of the Indian family”—is inapplicable when, as here, the parent abandoned the Indian child before birth and never had custody of the child. Finally, we clarify that §1915(a), which provides placement preferences for the adoption of Indian children, does not bar a non-Indian family like Adoptive Couple from adopting an Indian child when no other eligible candidates have sought to adopt the child. We accordingly reverse the South Carolina Supreme Court’s judgment and remand for further proceedings.
Previous coverage here.
Commentary to follow.
Michigan’s practice of automatically proceeding as if the child is NOT an Indian child unless told otherwise by a tribe will eventually cause problems.
In re Vanostran(pdf)
For our current purpose, what is important
from this Court’s prior decision is that we ultimately conditionally reversed the trial court order terminating respondents’ parental rights to SKV and remanded the case to the trial court only for “resolution of the ICWA-notice issue.” Id.at page 4. On remand, the trial court held several administrative review hearings. The trial court submitted an order dated March 8, 2013, indicating that at the review hearing held on January 23, 2013, the Department of Human Services complied with the statutory notice requirements tothe four Native American Indian tribes mentioned as a possible connection to the biological father of SKV who was later adopted by respondent father. As of February 19, 2013, one of the tribes had responded that there was no evidence to support that SKV was a descendent of that tribe. The order further stated that on February 14, 2013, another of the tribes responded that SKV was neither registered nor eligible to registeras a member of that tribe. The other tribes had not responded. As a result, the trial court ordered that none of the Native American Indian tribes identified as having a possible connection to SKV have responded that the child is eligible for membership in their tribe and/or that they wish to intervene in this matter. The trial court thus ordered, “The Court having previously made findings that there was clear and convincing evidence of statutory grounds to terminate the parental rights of [respondents], and that it was in the best interest of the minor child to terminate their parental rights, reinstates the Order Following hearing to terminate Parental Rights of the parents to [SKV].”
Wyoming Supreme Court decision.
Multiple ICWA issues, including applying ICWA to permanent guardianships, the shift from a temporary guardianship to a full or “plenary” guardianship, the requirements of a qualified expert witness, the ability of guardians to provide active efforts, and even a little existing Indian family doctrine in the qualifying of the expert witness.
From tonight’s All Things Considered: here.
This week, officials from the Crow Creek Sioux Nation and seven other tribes in the state sent an extensive report to Congress accusing South Dakota of systematically violating the federal Indian Child Welfare Act. The federal law says that, with some exceptions, if the state removes a Native American child, the state must place that child with relatives, tribal members or other Native Americans.
The report, which the officials wrote with the help of the nonprofit Lakota People’s Law Project, concludes that in many instances the state does not have the authority to remove native children from tribal land. When the state does have that authority, through a tribal court order or tribal council agreement, the report says the state is failing to place the majority of those children according to the law.
Information here (pdf).
Okemos Conference Center 2187 University Park Dr. Okemos, MI 48864
9:15-10:00 a.m.
Registration
10:00-11:00 a.m.
Healing From History: A Historical Context of ICWA and MIFPA Legislation
Hon. Allie Greenleaf Maldonado, Chief Judge, Little Traverse Bay Band of Odawa Indians
11:00 a.m.-Noon
Putting the “Act” Into Action: Exploring ICWA and MIFPA Compliance Through Interactive Case Scenarios
Annette D. Nickel, Prosecutor/Presenting Officer, Pokagon Band of Potawatomi Indians
Noon-1:00 p.m.
Lunch
1:00-2:00 p.m.
Case Scenarios, Cont’d.
2:00-2:15 p.m.
Break
2:15-3:00 p.m.
Lessons Learned: An Open Dialogue About Implementation, Practice, and Frequently Asked Questions
3:00-4:00 p.m.
Legislation and Collaboration: Building Blocks to Healthy Tribal – State Relationships
Hon. Timothy P. Connors, Judge, Washtenaw County Circuit Court
Turtle Talk 
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