Indian Child Welfare Act – Page 15

Kate discusses Oglala Sioux Tribe v. Van Hunnik, the South Dakota class action alleging massive due process violations involving Indian children. Well worth the read.

Federal Judge Orders South Dakota Judges to Comply with Subpoenas in ICWA Class Action

May 1, 2014Matthew L.M. Fletcher1 Comment

Here are the newest materials in Oglala Sioux Tribe v. Van Hunnik (D.S.D.):

We posted the motion to compel and the order to show case here.

87-1 Plaintiffs Exhibits

88 Judge Davis Response

89 Non-Party State Judges Response

90 Plaintiffs Reply

95 DCT Order Granting Motion to Compel

Prior posts here (denial of motions to dismiss), and complaint here.

Nebraska COA ICWA Matter — Trial Court Reversed where State Agency Failed to Allege ICWA

April 24, 2014Matthew L.M. Fletcher1 Comment

Here is the unpublished opinion in In re Avery S.:

In re Avery S

An excerpt:

Therefore, we conclude that at the time the State filed its petition and motion for temporary custody in this case, it was aware that Katherine’s other children were members of the Tribe or at least that ICWA was applicable to their case. Accordingly, the State knew or should have known that ICWA applied in the case involving Avery and Izabel. Thus, based on the facts of this case, the State was required to set forth allegations under ICWA in the petition and motion for temporary custody. Based on the State’s failure to do so, the juvenile court erred in entering an order detaining the children and should have dismissed the petition.

Federal Court Orders S.D. Judges to Show Cause Why Will They Not Comply with Federal Orders in ICWA Class Action

March 20, 2014March 20, 2014Matthew L.M. Fletcher1 Comment

Here are the new materials in Oglala Sioux Tribe v. Van Hunnik (D. S.D.):

85 Motion to Compel

86 DCT Order

H/T here.

Prior posts on this matter are here (denial of motion to dismiss), and here (complaint).

Kristen Carpenter and Lorie Graham on Human Rights and Adoptive Couple v. Baby Girl

February 27, 2014Matthew L.M. Fletcher

Kristen Carpenter and Lorie Graham have posted a very compelling and powerful paper about the Supreme Court’s decision in Adoptive Couple v. Baby Girl. It is required reading for anyone interested in the case, and is destined to be the definitive paper on the international human rights aspects of the case.

The article is titled Human Rights to Culture, Family, and Self-Determination: The Case of Adoptive Couple v. Baby Girl. Here is the abstract:

The well-being of indigenous children is a subject of major concern for indigenous peoples and human rights advocates alike. In 2013, the U.S. Supreme Court decided in Adoptive Couple v. Baby Girl that the Indian Child Welfare Act did not prevent the adoption of a Cherokee child by a non-Indian couple. This occurred over the objections of her Cherokee biological father, extended family, and Tribal Nation. After the decision, Baby Girl’s father and the adoptive couple contested the matter in a number of proceedings, none of which considered the child’s best interests as an Indian child. The tribally-appointed attorney for Baby Girl, as well as the National Indian Child Welfare Association and National Congress for American Indians, began examining additional venues for advocacy. Believing that the human rights of Baby Girl, much like those of other similarly situated indigenous children, were being violated in contravention of the United Nations Declaration on Indigenous Peoples Rights, and other instruments of international law, they asked us to bring the matter to the attention of the United Nations Special Rapporteur for Indigenous Peoples Rights (“UNSR”). We prepared a “statement of information” to alert the UNSR of the human rights violations occurring in the case. With the permission of the attorneys and organizations involved, this chapter introduces the Baby Girl case, contextualizes the claims in international human rights law, and then reproduces the statement of information, and portions of the UNSR’s subsequent public statement. It concludes with an update on the Baby Girl case and broader discussion about the potential for using international law and legal forums to protect the human rights of indigenous children.