ICWA

California Court of Appeals Warns State Agency on Failure to Comply with ICWA Notice Requirement

Matthew L.M. Fletcher

Here is the partially published opinion in Justin L. v. Superior Court, decided by the 2nd District of the California Court of Appeal. In the published portion, the court notes:

We are growing weary of appeals in which the only error is the Department’s failure to comply with ICWA. (See In re I.G. (2005) 133 Cal.App.4th 1246, 1254-1255 [14 published opinions in 2002 through 2005, and 72 unpublished cases statewide in 2005 alone reversing in whole or in part for noncompliance with ICWA].) Remand for the limited purpose of the ICWA compliance is all too common. ( Ibid.) ICWA’s requirements are not new. Yet the prevalence of inadequate notice remains disturbingly high. This case presents a particularly egregious example of the practice of flouting ICWA. The Department concedes it sent no notices, notwithstanding the juvenile court’s specific order that it do so. And, we have been given no indication that the Department has attempted to mitigate the damage it caused in failing to attend to ICWA’s dictates by sending notices while this proceeding was pending. ( In re Elizabeth W. (2004) 120 Cal.App.4th 900, 908.) “Noncompliance with ICWA has been a continuing problem in juvenile dependency proceedings conducted in this state, and, by not adhering to this legal requirement, we do a disservice to those vulnerable minors whose welfare we are statutorily mandated to protect.” ( In re I.G., supra, at pp. 1254-1255.) Delays caused by the Department’s failure to assure compliance with the law are contrary to the stated purpose of the dependency laws, to promptly resolve cases ( In re Marilyn H. (1993) 5 Cal.4th 295, 307, 309) and to provide dependent children with protection, safety and stability. ( Id. at p. 307; Welf. & Inst.Code, § 202.)

North Dakota Supreme Court Refuses to Apply ICWA

Kate Fort

In this disturbing opinion, the court found that the child was not an Indian child under ICWA, even though both the Oglala Sioux Tribe and the child’s mother demonstrated the child is eligible for membership in the Oglala Sioux Tribe

In re Adoption of C.D.

NM Ct App ICWA Decision: Cherino v. Cherino

Matthew L.M. Fletcher

Here’s the opinion, reversing a trial court decision transferring a simple Indian child custody case to the Isleta Pueblo tribal court.

From KVIA:

Custody dispute doesn’t belong in tribal court, appeals court says

Associated Press – December 19, 2007 7:05 PM ET

SANTA FE (AP) – Custody disputes involving Indian children and their biological parents may not be transferred from state court to tribal court.

Continue reading →

Nebraska COA Orders Trial Court to Comply with ICWA

Matthew L.M. Fletcher

The case, In re Lawrence H., is here.

From the court’s intro:

Ida H. and Jose O. appeal the order of the separate juvenile court of Douglas County that terminated their parental rights to their son Lawrence H., also known as Faren H. (Faren). Because we conclude that the juvenile court erred in deferring its ruling on the motion to transfer of the Omaha Tribe of Nebraska (Omaha Tribe), we reverse the juvenile court’s denial of the motion to transfer, vacate and dismiss the order terminating parental rights, and remand with directions to transfer the matter to tribal court.

Colorado Supreme Court ICWA Case — In the Matter of J.C.T.

Matthew L.M. Fletcher

From Jill Tompkins:

Today the American Indian Law Clinic won its appeal in the  Colorado Supreme Court in a case concerning a contested guardianship of an American Indian child, In the Matter of J.C.T..  The Court reversed the decision of the Court of Appeals and upheld the rulings of the Denver Probate  Court finding that it was an appropriate exercise of the Probate Court’s authority to consider the potential of a prospective guardian to be an adoptive parent.  This decision will allow the boy to finally be adopted after being under various guardianships for 10 years. Ann Rhodes, ’07, did an outstanding job of briefing the case on the boy’s tribe’s behalf  (I argued it).   Maggie Wetmore, ’05 was the student attorney who handled the complex trial-level work.

Here’s a link to the opinion.

Congrats to Jill and her students!

Iowa Supreme Court Strikes Down Portion of Iowa ICWA

Matthew L.M. Fletcher

In In the Interest of A.W. the Iowa Supreme Court held that the Iowa ICWA‘s definition of “Indian child” violated the Equal Protection Clause. The definition included Indian children who were not eligible for membership in any tribe (“‘Indian child’ or ‘child’ means an unmarried Indian person who is under eighteen years of age or a child who is under eighteen years of age that an Indian tribe identifies as a child of the tribe’s community.“, Iowa Code 223B.3.6), or what the Court referred to as “ethnic Indians.” In doing so, the Court held that the trial court order allowing the intervention of the Winnebago Tribe of Nebraska was invalid.

A video of the oral argument before the Iowa Supreme Court can be viewed here.

Barbara Atwood (Arizona) on ICWA

Matthew L.M. Fletcher

Barbara Atwood has just posted, “The Voice of the Indian Child: Enhancing the Indian Child Welfare Act through Children’s Participation” on SSRN.

From the abstract:

This essay explores the promise and challenge of giving more prominence to the child’s voice in ICWA proceedings in state courts. I identify legal sources of the child’s right of participation in statutory provisions, constitutional law, the UN Convention on the Rights of the Child, and tribal law. The Essay also explores the considerable challenges facing representatives for children who are the subect of ICWA proceedings. Using selected cases for illustration, I argue that incorporating children’s views in the ICWA calculus would move ICWA litigation toward a culture of respect for the dignity of each child and would enrich the decision-making of state court judges.

Patrice Kunesh on ICWA: “Borders Beyond Borders”

Matthew L.M. Fletcher

Patrice Kunesh (South Dakota Law) has posted “Borders Beyond Borders: Protecting Essential Tribal Relations Off Reservation Under the Indian Child Welfare Act” on her BEPRESS Selected Works site.

Patrice presented her paper at the 3rd Annual Indigenous Law Conference, “Facing the Future: The Indian Child Welfare Act at 30.”

Abstract:

2008 is the thirty year anniversary of the enactment of the Indian Child Welfare Act (ICWA), one of the most dynamic pieces of legislation in federal Indian affairs that irrevocably changed the jurisdictional prerogatives of states and tribes. ICWA’s tribal wardship provision is remarkably constructive because it vests tribes with exclusive jurisdiction over Indian children who are wards of the tribal court–irrespective of the child’s domicile. This jurisdictional scheme, a rough mixture of territorial and personal criteria, defies the normative notions of state court jurisdiction over family relations. And the cross-hatching of state and tribal interests in off-reservation child welfare matters has engendered serious tension and questions about the precise contours of tribal sovereignty and the boundary line between state and tribal power.

This article investigates the transformation point between tribal and state jurisdiction over Indian child welfare matters. From an examination of the historical development of tribal wardship decisions and ICWA’s legislative history, material unexamined in this context in other scholarship, I posit that tribes, as unique political entities in our federal system of government, possess inherent attributes of sovereignty to regulate their internal social relations. ICWA is premised on the dual nature of tribal sovereignty, and allows, if not encourages, tribes to redefine their relationship to state governments by recognizing that the power to adjudicate internal matters, including child custody matters, derives from a source independent of the land. Thus, there are no real boundaries to protecting these essential tribal relations where the exercise of tribal authority is vital to the maintenance of tribal integrity and self-determination.

WaPo: Aurene Martin on ICWA

Matthew L.M. Fletcher

Whose Best Interest?
Monday, October 15, 2007; A14

Regarding the Oct. 9 editorial “A Tribal Question”:

The Indian Child Welfare Act (ICWA) provides protections to Native American children to prevent their unnecessary removal from their families, but it does not prevent them from receiving the help necessary to protect their best interests.

The ICWA was passed in 1978 in response to the staggering number of children being removed from their homes, the vast majority of whom were placed out of their communities and lost their connection to their tribes.

Unfortunately, most attorneys and courts don’t learn about the ICWA until it is too late. Once confronted with its requirements, they find that they have failed to meet its standards.

Most tribes understand this and are willing to work with authorities to make sure that the children involved receive the best care possible. Although tribes would like to place children within their communities, they first prefer that children are placed with family members.

Given the facts that the editorial reported, I find it hard to believe that any court would find that it is in the best interest of those children to be returned to their parents.

AURENE M. MARTIN

Washington

The “Guide” to the Indian Child Welfare Act

Matthew L.M. Fletcher

From the Native American Rights Fund. Check it out. You can access the Guide here as well.