The recent Supreme Court decision, Adoptive Couple v. Baby Girl, focused on the application of the Indian Child Welfare Act (ICWA) to adoptions. A key fact not mentioned by the Court in its decision was the role of the biological father’s military service in the case. From the adoption attorneys who took advantage of the timing of his deployment to Iraq, to the placement of the child with the adoptive couple during his deployment, the biological father had an uphill battle to gain custody of his own child when he returned from deployment. In addition, the particular limitations of an active duty service member regarding travel and pay were disregarded entirely by both the Court and the media covering the case.
Presenter:
Kathryn E. Fort, Staff Attorney, Indigenous Law and Policy Center, Michigan State University College of Law (view bio here)
Now it’s getting tight. We’re down to the last 16.
Category 1 — Indian nations
#1 Alaska Native tribes v. #12 Oneida Tribe of Wisconsin
Alaska Native tribes once again won handily, earning 86 percent of the votes over the Omaha Tribe. The Wisconsin Oneidas continue to surprise, knocking off the Cayugas and their impressive Second Circuit tax victory with two-thirds of the vote.
Interesting matchup here, with two contenders that had a big year facing off against state and local governments.
#7 Gun Lake Tribe v.#3 Bay Mills Indian Community
Enrollment numbers don’t matter! The Gun Lakers earn 61 percent of the vote and take out the Sault Tribe and its vast membership. It can’t be that there’s no internet in the UP, right?
Well, the internet worked for Bay Mills, winning by one vote over LCO and the Wisconsin treaty tribes. Bay Mills makes a living winning by one vote.
So another ‘Nish matchup. Will Gun Lake be able to get past another Upper Peninsula Chippewa community?
Category 2 — Laws, Doctrines, and the Like
#1 Indian Child Welfare Act v. #5 Intra-tribal disputes
In the battle for Indian civil rights, nonvoters prevailed over voters, and ICWA moves on with 57 percent of the vote. Maybe that TT post on South Dakota came a day too late.
Well, intra-tribal disputes took down Indian gaming, with 58 percent of the vote. I hope that won’t be true in real life.
#2 Tribal sovereign immunity v. #3 VAWA
With 72 percent of the vote, it turns out sovereignty does predate knowledge of sovereignty. Cool, I guess.
VAWA and the hopes it encourages for tribal governance in the future (as well as its 67 percent vote tally) easily defeated tribal court exhaustion, which wilted with fatigue near the end.
#1 Indian Child Welfare Act v. #9 Indian country voting rights
The litigation and public policy juggernaut that is ICWA defeated federal Indian preemption(the previous generation’s juggernaut) with 64 percent of the vote. Indian country voting rights prevailed over Rule 19 with 62 percent of the vote. Where my Rule 19 peeps?
This one is an old-fashioned clash of civil rights.
#4 Indian gaming v. #5 Intra-tribal disputes
Indian gaming beat out internet gaming, barely, with only 90 percent of the vote. In a battle of bad news, intra-tribal disputes knocked out human trafficking with 2/3 of the vote.
Great match-up here. Can we have one without the other? Well, looking back at the ICRA cases of the 1970s, I’d say we don’t need much to generate intra-tribal disputes, heh heh.
#2 Tribal sovereign immunity v. #7 American Indian education
Sovereign immunity beat out alternative energy with 92 percent of the vote. Did it use a sword or a shield? Education, we all need, won with 63 percent; climate change, we don’t need it, was a no-show.
Which came first, immunity or the knowledge that sovereigns are immune? Bill Wood knows, I bet.
#3 VAWA v. #6 Tribal court exhaustion
VAWA took three-quarters of the vote from criminal sentencing. Can’t sentence without convicting first, right?Tribal court exhaustion won almost as easily, with 72 percent of the vote over the new general welfare legislation. Ironically, tribal court exhaustion is all about adjudicating even without jurisdiction. Now I’m confused.
You might see a lot of Michigan here (here’s another), and that’s thanks to MIFPA.
v.
#16 Federal Indian law preemption
The Chehalis/Great Wolf Lodge matter from 2013 helped bring federal Indian law preemption back from the dead. The State of Washington was still feeling the consequences this year. The real impact may be in the BIA leasing regulations.
# 8 Rule 19
My favorite FRCP. Lots of Rule 19 action again this year, including a close call at the Supreme Court, which denied cert in the Buena Vista matter. Other cases involved Jamul Indian Village, payday lending cases, and Skokomish.
Marcia Coyle reported on what happened after the Supreme Court held that the tribal court had exclusive jurisdiction over the twins. Here is that article:
This summer the Justice Department intervened for the first time in its history in a federal district court case in South Dakota, concluding that the state has violated the rights of Native American parents.
Two of the state’s largest tribes argued that the state has removed children in hearings where parents were rarely allowed to speak and often lasted less than 60 seconds. The children were then placed indefinitely in largely white foster homes.
Stephen Pevar, a senior staff attorney at the American Civil Liberties Union, which brought the suit along with the Oglala Sioux and Rosebud Sioux tribes, called the hearings “kangaroo courts.”
“There was nothing — nothing — that any of the parents did or could have done,” Pevar said. “It was a predetermined outcome in every one of these cases.”
The superior court awarded Wheeler primary physical custody. Neither Wheeler nor Myre has appealed the superior court’s decision, but the tribal council appeals, arguing that the superior court lacked modification jurisdiction. The narrow question before us in this appeal is thus whether the tribal council has standing to appeal the superior court’s modification decision in light of the parents’ election not to appeal that decision. We conclude that under this circumstance, the tribal council does not have standing, and we therefore dismiss the appeal.
Father is correct that the Act requires that a party seeking to terminate the parental rights of a child that may be Native American must follow specific procedures for notifying the child’s potential tribe about a termination-of-parental-rights hearing. See 25 U.S.C. § 1912(a) (2012). Though the best way for a court to ensure compliance with the Act is for the State to file the notices it has sent and the return receipts it has received with the district court before a termination hearing, the State’s failure to do so here doesn’t require reversal. The State filed the required notice and receipts after the hearing in this case, and those filings prove that the district court complied with the Act.
Loa Porter (Department of Children and Families, State of Wisconsin), Patina Park Zink, Angela R. Gebhardt (University of Nebraska at Lincoln – Center on Children, Families, and the Law), Mark Ells (University of Nebraska-Lincoln), and Michelle I. Graef, Ph.D. (University of Nebraska at Lincoln – Center on Children, Families, and the Law) have posted “Best Outcomes for Indian Children” on SSRN. It was previously published in Child Welfare.
Here is the abstract:
The Wisconsin Department of Children and Families and the Midwest Child Welfare Implementation Center are collaborating with Wisconsin’s tribes and county child welfare agencies to improve outcomes for Indian children by systemically implementing the Wisconsin Indian Child Welfare Act (WICWA). This groundbreaking collaboration will increase practitioners’ understanding of the requirements of WICWA and the need for those requirements, enhance communication and coordination between all stakeholders responsible for the welfare of Indian children in Wisconsin; it is designed to effect the systemic integration of the philosophical underpinnings of WICWA.
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