Michigan Bar Journal Article on the Michigan Indian Family Preservation Act

Norika L. Kida Betti and Cameron Ann Fraser have published “Michigan Indian Family Preservation Act at Seven Years” in the November 2019 issue of the Michigan Bar Journal.

Fifth Circuit: ICWA is Constitutional on All Counts

Here.

The Fifth Circuit overturned the Northern District of Texas today with strong language supporting ICWA. The Court found that the plaintiffs did have standing, but found against them on all other counts. There is a dissent forthcoming from Judge Owens.

Equal Protection:

We begin by determining whether ICWA’s definition of “Indian child” is a race-based or political classification and, consequently, which level of scrutiny applies. The district court concluded that ICWA’s “Indian Child” definition was a race-based classification. We conclude that this was error.

We disagree with the district court’s reasoning and conclude that Mancari controls here. As to the district court’s first distinction, Mancari’s holding does not rise or fall with the geographical location of the Indians receiving “special treatment.”

Anti-Commandeering:

We examine the constitutionality of the challenged provisions of ICWA below and conclude that they preempt conflicting state law and do not violate the anticommandeering doctrine.

Non-Delegation:

We find this argument unpersuasive. It is well established that tribes have “sovereignty over both their members and their territory.” See Mazurie, 419 U.S. at 557 (emphasis added)”

For a tribe to exercise its authority to determine tribal membership and to regulate domestic relations among its members, it must necessarily be able to regulate all Indian children, irrespective of their location.

Authority to Issue Regulations

Here, section 1952’s text is substantially similar to the language in Mourning, and the Final Rule’s binding standards for Indian child custody proceedings are reasonably related to ICWA’s purpose of establishing minimum federal standards in child custody proceedings involving Indian children. See 25 U.S.C. § 1902. Thus, the Final Rule is a reasonable exercise of the broad authority granted to the BIA by Congress in ICWA section 1952.

Conclusion:

For these reasons, we conclude that Plaintiffs had standing to bring all claims and that ICWA and the Final Rule are constitutional because they are based on a political classification that is rationally related to the fulfillment of Congress’s unique obligation toward Indians; ICWA preempts conflicting state laws and does not violate the Tenth Amendment anticommandeering doctrine; and ICWA and the Final Rule do not violate the nondelegation doctrine. We also conclude that the Final Rule implementing the ICWA is valid because the ICWA is constitutional, the BIA did not exceed its authority when it issued the Final Rule, and the agency’s interpretation of ICWA section 1915 is reasonable.

American Indian Children and The Law

American Indian Children and the Law by Kathryn “Kate” E. Fort, Director of the Indian Law Clinic at Michigan State University College of Law, is now available. Click here to order.

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“Introduction: This casebook is the result of years of discussions with Native lawyers, law students, families, tribal leaders, and professors. Because Native children and families continue to be the subject of constant litigation and federal policy changes, this book changed dramatically in the years as it was being written. The actions of federal and state governments against Native children — removing them from their families, culture, language, and communities — has had far ranging implications for generations of families. This casebook discusses the consequences of those actions and the tribal responses to them.”

Fletcher: “Indian Children and the Fifth Amendment”

Forthcoming in the Montana Law Review’s Browning Symposium issue, available at SSRN here.

An excerpt:

Many of my first memories revolve around my grandmother Laura Mamagona’s apartment in Grand Rapids, Michigan. She shared the apartment with my uncle Crockett, who was a college student. Her apartment was the upstairs room of an old house on the side of a hill on College Street. My memories are mostly of domestic activities. Cooking. Sweeping. Sitting around. Playing with trains. Leafing through Crockett’s Sports Illustrated magazine collection. Laura worked the night shift at the veteran’s hospital across from Riverside Park. Early on weekday mornings, June, my mother, would drop me off at Laura’s place in her VW bug, the first car I remember. I had my own crib at Laura’s, one I can remember escaping pretty easily. Often, Laura would sleep most of the morning while I puttered around the house. Sometimes, Crockett would be there. Family lore tells that once, June dropped me off earlier than usual and Laura had worked a little late, so I was probably there alone for a short while. I heard the story so often growing up that I can seemingly remember that day, too. This was in the mid-1970s, before Congress enacted the Indian Child Welfare Act.

Recently, my wife Wenona Singel discovered documents about Laura’s childhood home life in the National Archives in Chicago. Wenona was there to research family boarding school histories. Laura’s name as a young woman, Laura Stevens, was listed alongside several of her brothers and sisters as former students at Mount Pleasant Indian Industrial Boarding School. They were all born with the Pokagon surname, but Laura’s dad, Peter Stevens, changed their names, thinking it would help the family blend in with white America. Laura never attended the boarding school, and instead spent those years in quarantine in a hospital in Kalamazoo. We think she tested positive for tuberculosis at the boarding school intake and was diverted to quarantine. While Laura was there in the hospital during several of her early teen years, her biological mother walked on. Laura had younger brothers and sisters in her family home in Allegan County, Michigan. So, Peter—who was single then—drove to Kalamazoo and took Laura home. As a young woman, but the oldest sibling left in the house, Laura was forced to replace her mom. The archive documents contain reports by social workers who visited the house, we think, on somewhat random occasions. They were spot checks, of sorts, by the State of Michigan, to see how this Indian family with no mother in the home was coming along. The social workers detailed every aspect of the Stevens’ home in the reports. They noted how many Bibles were in the house and where they were placed. They noted how many portraits of Jesus Christ there were and the location each was hung. They reported Laura’s younger siblings were all dressed for company and quietly studying. They focused especially on teenaged Laura. There she was, sweeping the kitchen. There she was, cooking dinner. There she was, folding clothes. The social workers were impressed. Well, they were barely impressed. Laura was, after all, still an Indian. Reading the reports, one can’t help but think that young Laura Stevens was the only thing stopping the State from taking Peter Stevens’s kids away from him. Imagine if she had been out shopping on the day of the spot visit. The little Stevens kids would have been home alone, dishes in the sink and dirty clothes on the floor. Laura might have come home from shopping, and then later Peter from work, to find a home stripped of its children. However, this never came to be. Perhaps out of sheer luck, Laura was always home when the social workers showed up.

And:

The Fifth Amendment of the United States Constitution is a truly fateful provision for Indian people. On occasion, Wenona and I teach at the Pre-Law Summer Institute (PLSI) for American Indians. It’s an eight week program that serves a little bit like a summer boot camp for Indian people who are planning to matriculate to law schools in the fall. Wenona teaches Property and I teach Indian Law. Compared with the regular law school survey-the-field course in Federal Indian Law, the short class I teach at PLSI is even more truncated. I can only assign a cross-section of the “greatest hits” of Indian law Supreme Court decisions because I don’t have time to conduct a full survey. I also try to assign cases where tribal interests prevailed. It turns out tribal interests and Indian people prevail more than not when the Fifth Amendment is in play. However, there are cases where tribal interests painfully and dramatically suffer under the Supreme Court’s interpretation of the Fifth Amendment.

Oglala Sioux Tribe v. Fleming Cert Petition

Here:

cert petition

Questions presented:

1. Whether the Eighth Circuit erred in holding, in conflict with decisions of this Court and three other courts of appeals, that the possibility of filing a separate mandamus action was in and of itself “sufficient” to provide an “adequate opportunity” requiring Younger abstention, where plaintiffs had no opportunity to challenge the constitutionality of the preliminary hearing procedure in the course of the state’s abuse and neglect proceedings?
2. Whether the court of appeals erred in holding, in conflict with three courts of appeals, that the “extraordinary circumstances” exception to Younger abstention applies only to flagrantly and patently unconstitutional statutes, but not to flagrantly and patently unconstitutional policies, and in concluding that separating children from their parents for sixty days with no notice or opportunity to be heard inflicted no irreparable harm?

Lower court materials here.

Reasonably Speaking Podcast — “American Indian Law: When Two Sovereigns Collide”

Here:

In this episode, renowned experts on American Indian law and policy, Matthew Fletcher and Wenona Singel, discuss the nuanced and highly complex field of American Indian Law. Matthew and Wenona begin by exploring the history of tribal sovereignty, and discuss the rights of American Indians as both tribal citizens and U.S. citizens.  We then explore jurisdiction across border lines, particularly in a criminal context. Matthew and Wenona discuss the history of violence against native women, and why, until recently, prosecution has been so difficult. The history of and current U.S. court challenges to the Indian Child Welfare Act are also examined.