Indian Child Welfare Act

Fletcher Paper on States and American Indian Citizenship Rights (+ ICWA)

Matthew L.M. Fletcher

Here is “States and Their American Indian Citizens,” recently published in the American Indian Law Review.

An excerpt:

This article is intended to provide a theoretical framework for tribal advocates seeking to approach state and local governments to discuss cooperation with Indian nations, with a special emphasis on Indian child welfare. While the federal government has a special trust relationship with Indians and Indian nations, Indian people are also citizens and residents of the states in which they live. Thus, states have obligations to Indians as well.

This article posits the fairly controversial and novel position that states have obligations to guarantee equal protection to all citizens, including American Indians (and non-Indians) residing in Indian country. In other words, states have an affirmative obligation to ensure that reservation residents, Indian and non-Indian, receive the same services from states that off-reservation residents receive.

Final Version of Fletcher & Singel’s “Indian Children and the Federal-Tribal Trust Relationship” Now Available

Matthew L.M. Fletcher1 Comment

Fletcher and Singel will publish “Indian Children and the Federal-Tribal Trust Relationship” in the Nebraska Law Review.

A Right-Wing Think Tank Is Trying to Bring Down the Indian Child Welfare Act. Why? | The Nation

Matthew L.M. Fletcher

Here.

Possibly the critical portion of this article is the last paragraph, which confirms that Goldwater has absolutely no interest whatsoever in helping Indian children:

At Goldwater’s offices in Phoenix, Sandefur insisted that his case is about nothing more than the welfare of Indian children. “It was a white Congress in Washington, DC, that passed a law saying, ‘The best interest of all Indians is as follows.’ Isn’t that why we have the problems we have?” When asked if Goldwater is working with any Native American members of Congress to reform ICWA or improve the circumstances of Native children, Sandefur said no—he hadn’t heard anything about that.

Stephen Pevar: “In South Dakota, Officials Defied a Federal Judge and Took Indian Kids Away From Their Parents in Rigged Proceedings”

Matthew L.M. Fletcher

Here, from ACLU’s Speak Freely blog.

Letter to Editor re: ABA J. Article on Alexandria P./R.P. Case

Matthew L.M. Fletcher

Here:

“Children of the Tribe”, October, sadly reports without question the Pages’ version of Lexi’s transfer to a kinship placement supported by her own attorney, the state of California and the Choctaw Nation. Worse, the article uncritically highlights the media event created by the foster parents and their counsel (and disappointingly includes photographs). The affair violated Lexi’s privacy rights, which is why state social workers attempted to block cellphone video, and may have also violated their attorney’s duties under the ABA Model Rules of Professional Conduct: 3.4 (fairness to opposing parties), 3.6 (trial publicity) and 4.4 (respect for rights of third persons). Hopefully, readers will not learn from this article that the best way to fight a child’s placement with her family is by creating an unethical media circus.

The article misstates the law as well. Lexi would be with her Utah relatives with or without the Indian Child Welfare Act. California law weighs placement heavily in favor of relatives, not foster families, in these cases. However, only in California could a foster family appeal the placement of their ward under its unique “de facto parent” doctrine. In addition, the Multiethnic Placement Act, enacted by Congress in 1994, explicitly excludes ICWA cases from its application. Finally, the article devolves from reportage into racial politics, asserting that this tragedy only transpired because of Lexi’s racial heritage. Lexi herself is a citizen of the Choctaw Nation. The Choctaw Nation’s citizenship requirement, like that of the United States, requires a political connection between the individual and the nation, not mere ancestry. The only reason there was a media-fueled tragedy is because counsel for the foster family pointed at the act and the Choctaw Nation to incite race-based animosity when the facts and the law were not in their favor.

Matthew L.M. Fletcher
East Lansing,

 

Oglala Sioux Moves for Summary Judgment against South Dakota Dept. of Social Services for Inadequate Training and Supervision

Matthew L.M. Fletcher

Here is the pleading in Oglala Sioux Tribe v. Fleming (D.S.D.):

BRIEF IN SUPPORT OF PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST THE DSS DEFENDANTS RE: INADEQUATE TRAINING AND SUPERVISION

PLAINTIFFS’ STATEMENTS OF UNCONTESTED FACTS RE: PARTIAL SUMMARY JUDGMENT AGAINST DSS FOR INADEQUATE TRAINING AND SUPERVISION

Parent’s Attorney Misunderstands ICWA; Arkansas COA Goes Along With It

Matthew L.M. Fletcher2 Comments

Here is the opinion in King v. Arkansas Dept. of Human Services (Ark. Ct. App.):

King v Ark DHS Opinion

Maybe it’s a little thing, maybe not, but the court allowed an attorney to withdraw from representation, in part, on this representation:

The remaining adverse ruling was the denial of Hailey’s motion for a continuance, which was based on her assertion D.K. is an Indian child within the meaning of the Indian Child Welfare Act, entitling the Kiowa Tribe to notice of the proceedings. As explained in counsel’s brief, an Indian child is defined as “any unmarried person who is under age eighteen [8]  and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe[.]” (Emphasis added.) 25 U.S.C. section 1903(4). Counsel further explains D.K.’s paternal grandmother, who was an enrolled member of the Kiowa tribe, testified that D.K.’s father, her son, was not eligible for membership in the Kiowa tribe because she was the last generation to satisfy the tribal requirement of at least one-quarter blood. Thus, her son could not be a member of the tribe. She further explained that her son was not enrolled in the Cherokee tribe either, even though he was allowed to receive medical treatment through the Cherokee Nation because she is a registered Indian and is his mother. As noted by counsel, “even if the father were eligible to be enrolled as a Cherokee, that fact is not relevant because the statute requires that he actually be enrolled in order for D.K. to be considered an Indian child.” We agree. D.K. is not an Indian child under the Act; consequently, it did not apply. Therefore, the trial court did not err in denying the motion for continuance because notice to an Indian tribe was not required.

Unfortunate, because the first step for parents’ counsel (and the child’s attorney most especially) should be to figure out whether an unenrolled parent is eligible for membership, get that parent enrolled, and get the tribe involved. Perhaps parent’s counsel is overworked and didn’t have the time or resources to make the effort, but did take the effort to file a notice of appeal. Deeply unfortunate, and likely endemic to the state system. The court of appeals could have done good work here and remanded to require counsel to perform diligently.

Kristen Carpenter on ICWA in Cato Unbound

Matthew L.M. Fletcher

Here is “One River, Two Canoes: Peace and Respect in Indian Child Welfare.”

Kristen’s first post in this series is here.

Third Fletcher Commentary on ICWA in Cato Unbound

Matthew L.M. Fletcher3 Comments

Here is “A History Lesson“:

An excerpt:

Reformers are still trying to save Indian children by taking them away from Indian families and tribes. Mr. Sandefur would rather force Indian children into state court systems by undoing ICWA, perhaps because they can be more easily plucked from state systems by the private adoption market. There have even been calls to greatly expand the number of Indian children in foster care. Literally no ethical person seeks to put more children in foster care. Studies show what should be inherently understood—plucking children out of a community they know and putting them in stranger foster care is actively harmful to kids (there’s a reason Casey Family Programs is putting a billion dollars into reducing the number of kids in foster care). Eighty percent of child welfare removals are due to neglect. Our children do deserve better: better services, better wrap around care, a better understanding of the mental health issues and chemical dependency that plagues their parents. They don’t deserve to be taken from everything familiar—their neighborhood, schools, and extended family—because of system failures in our society.

Imagine a child welfare proceeding where the judge meets with the parties for two hours before the hearing to engage in problem solving and to brainstorm creative ideas to best serve the child, followed by a formal hearing that may last two or more hours. Compare that to a state court hearing that lasts mere minutes, and where there are systematic financial pressures for “permanency,” in other words, to place children in foster care, terminate parental rights quickly, and adopt them out. It’s not even a comparison.

Prior entries here and here.

Fletcher: “The Next Justice’s Impact On The Indian Child Welfare Act” (law360.com)

Matthew L.M. Fletcher1 Comment

The Next Justice’s Impact On The Indian Child Welfare Act

Matthew L.M. Fletcher

Justice Antonin Scalia’s death impacts Indian country in dramatic ways. Last term, the most critical tribal court jurisdiction appeal to hit the Supreme Court of the United States in decades was affirmed by a 4-4 tie in favor of tribal jurisdiction. The court declined certiorari in a pair of tribal labor relations cases where there was a gaping circuit split, possibly because the justices foresaw yet another 4-4 tie. The next justice may be the deciding vote in cases that bring the same questions, but bigger cases involving the Indian Child Welfare Act(ICWA) are in the pipeline.

ICWA is invoked in literally hundreds of child welfare cases throughout the country every year. ICWA applies whenever an Indian child is removed from home by state agencies, and further applies when an Indian parent’s rights to a child might be terminated. ICWA requires state courts with jurisdiction over Indian children to notify relevant tribes and allow them to intervene as a party, and in some matters transfer jurisdiction to tribal court. ICWA more quietly establishes robust due process protections for Indian parents and Indian children, protections that Casey Family Programs and 16 other child welfare advocacy groups call the “gold standard” in child welfare statutes. Given that many state child welfare systems are bureaucratic nightmares where families can be lost, this is an important statement.

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