Indian Child Welfare Act

Fletcher & Fort: “Indian Children and Their Guardians ad Litem”

Matthew L.M. Fletcher

Kate Fort and I published a short paper for a Boston University Law Review mini-symposium on Adoptive Couple v. Baby Girl: “Indian Children and Their Guardians ad Litem.”

An excerpt:

One of the primary goals of the Indian Child Welfare Act (ICWA) is to limit the influence or bias of state workers in decisions placing American Indian children out of their home and community.1 While this focus usually concerns state social workers, the officials who most often seek removal of a child, or the courts, the body that issues the orders and opinions, guardians ad litem (GALs) receive less attention.2 Despite this lack of attention, GALs exert a similar level of influence as state social workers. In Adoptive Couple v. Baby Girl,3 the role of the GAL was unusual but critical – the GAL, while officially appointed by the court, was handpicked by the adoptive parents.4 The role of the GAL remains understudied in the ICWA literature, though GALs continue to exert enormous influence in the courts. Unfortunately, many GALs throughout the nation subvert the national policy embodied by the ICWA by advocating against the implementation of the statute in case after case.5

There are three other papers in the symposium:

Perspective I by Professor Barbara Ann Atwood is available here, 

Perspective II by Professor James G. Dwyer is available here, and

Perspective III by Professors Naomi Cahn and June Carbone is available here.

 

Harvard Law Review Comment on Adoptive Couple v. Baby Girl

Matthew L.M. Fletcher

Here.

An excerpt:

It is this very inability to escape uncertainty, qualification, and conflict that ultimately situates Adoptive Couple in the Court’s parental rights canon and that suggests its ongoing significance. Like its predecessors, Adoptive Couple is another deeply divided and closely fought decision, which refuses to wholly deny the power of biology even as it insists upon proactive parenting and affective relationships. The conditions and disclaimers embedded in the case’s holding, taken together with the equal conviction and fervor of both opposing opinions, thus serve as proof of the interminability of such judicial debates about the family.94 Further, the Court’s very willingness to engage in a stark contest over biology versus family in a case that by no means required it — and to engage vigorously, even viciously — seems a harbinger of things to come: in an age of momentous changes in the composition of the family, alluded to both in the decision and in other decisions of the Term, questions regarding which relationships and nontraditional ties warrant judicial protection promise to appear with ever more frequency and complexity. As Adoptive Couple shows, however, the Court remains mired in the same disputes it first unleashed forty years earlier, still grappling with the fundamental tension between nature and nurture. Yet this irresolution and ongoing struggle may well be a cause for comfort rather than concern, a sign that the essential questions about the most essential ties and  relationships remain open for investigation and reinvestigation.

Andrew Cohen on the Redskins Nickname Controversy and Critical Issues Facing Indian Country

Matthew L.M. Fletcher1 Comment

Here.

An excerpt:

Why didn’t anyone like Costas or Krauthammer, or any veterans group for that matter, stand up for Dusten Brown, who is still today a member of our nation’s military?  Right or wrong, why wasn’t his case or cause the subject of great national debate? Instead of talking about a football team’s name, why aren’t we talking today instead about the role of religion in the Brown case or the disturbing revisionist trend some see in these custody and adoption cases, a trend exacerbated by the Supreme Court’s ruling, that enables non-Indian couples to get around the protections of the Child Welfare Act?

The new debate over the team’s name comes at a time of great anguish for the American people and few have been hurt more by the government shutdown than Native Americans. The economic costs have been great but so have the social ones. And even before the shutdown, during the period of sequestration when many federal programs were cut or limited, American Indian interests in particular were harmed. Did you know that the Indian Health Service, which tries to ensure medical coverage for tribes, was not exempted from the effect of sequestration the way most every other large federal health program was?

When the sequestration began to hit, in March of this year, the chairwoman of the National Indian Health Board told members of a Senate committee: “Since the beginning of the year, there have been 100 suicide attempts in 110 days on Pine Ridge. We can’t take any more cuts. We just can’t.”  Why are so many talking about the nickname of a football team when so few are talking about these suicide attempts on an Indian reservation and our government’s inability to adequately fund mental health services for these people?

SCOTUSBlog Petition of the Day: Nebraska v. Elise M.

Matthew L.M. Fletcher1 Comment

Here:

The petition of the day is:

12-1278

Issue: (1) Whether the Indian Child Welfare Act, 25 U.S.C. §§ 1901-63, prohibits a state court from considering the “best interests of the child” when determining whether “good cause” exists to defy the transfer of an ongoing child welfare case; and (2) whether ICWA requires a state court to treat a motion to terminate parental rights as a “new proceeding” for the purposes of determining whether “good cause” exists to defy the transfer of an ongoing child welfare case.

Possibly a candidate for a CVSG.

Veronica Update from WaPo

Matthew L.M. Fletcher

Here (h/t How Appealing).

An excerpt:

The late justice Robert H. Jackson famously wrote of his colleagues on the high court: “We are not final because we are infallible, but we are infallible only because we are final.”

But sometimes the court is final only in the narrow question of law before it. That question decided, it sends the case back to lower courts, where sometimes the whole process starts anew.

Such is the fate of Veronica’s case. If anything, the Supreme Court’s decision has only heightened the stakes surrounding the rights of birth parents, the legal standing of adoptive parents and the sovereignty of Native American tribes.

USA / Indigenous peoples: UN expert urges respect for the rights of Cherokee child in custody dispute

Matthew L.M. Fletcher1 Comment

Here.

Response from the U.S. Mission to the UN here.

GENEVA (10 September 2013) – The United Nations Special Rapporteur on the rights of indigenous peoples, James Anaya, today called on the relevant state, federal and tribal authorities in the United States of America to take all necessary measures to ensure the wellbeing and human rights of ‘Veronica,’ an almost four year old Cherokee child at the center of a highly contentious custody dispute.

“Veronica’s human rights as a child and as member of the Cherokee Nation, an indigenous people, should be fully and adequately considered in the ongoing judicial and administrative proceedings that will determine her future upbringing,” Mr. Anaya stressed. “The individual and collective rights of all indigenous children, their families and indigenous peoples must be protected throughout the United States.”

Veronica is currently facing judicially ordered removal from her Cherokee family and community. In June of this year the US Supreme Court ruled that certain protections of the Indian Child Welfare Act did not apply to proceedings in which a non-Cherokee couple sought to adopt Veronica, given the particular circumstances of the case. The high court, however, it did not make an ultimate determination of the disposition of the adoption proceedings.

Following the Supreme Court decision, a South Carolina state court awarded custody of Veronica to the non-Cherokee couple, but it did so without a determination of whether her transfer away from her Cherokee family would be in her best interests in light of her current situation and Cherokee heritage. Although Veronica lived with the non-Cherokee couple in South Carolina for the first two years of her life, she has now resided with her father and extended indigenous family in Cherokee territory in the state of Oklahoma for nearly two years.

South Carolina authorities have attempted to force Veronica’s father to release custody of her, charging him with custodial interference for his refusal to do so. On 3 September 2013 the Oklahoma Supreme Court took up the case, granting a temporary stay of an enforcement order and allowing the father to keep Veronica pending further proceedings.

“I urge the relevant authorities, as well as all parties involved in the custody dispute, to ensure the best interests of Veronica, fully taking into account her rights to maintain her cultural identity and to maintain relations with her indigenous family and people,” said the UN Special Rapporteur.

The independent expert pointed out that these rights are guaranteed by various international instruments subscribed to or endorsed by the US, including the International Covenant on Civil and Political Rights, and the UN Declaration on the Rights of Indigenous Peoples.

In his 2012 report* on the situation of indigenous peoples in the US, the Special Rapporteur noted that the removal and separation of Indian children from indigenous environments is an issue of longstanding and ongoing concern. “While past practices of removal of Indian children from their families and communities have been partially blunted by passage of the Indian Child Welfare Act in 1978, this law continues to face barriers to its implementation,” Mr. Anaya stated.

“I encourage the United States to work with indigenous peoples, state authorities and other interested parties to investigate the current state of affairs relating to the practices of foster care and adoption of indigenous children, and to develop procedures for ensuring that the rights of these children are adequately protected,” the UN Special Rapporteur said.

The UN Human Rights Council appointed S. James Anaya as Special Rapporteur on the rights of indigenous peoples in March 2008. Mr. Anaya is a Regents Professor and the James J. Lenoir Professor of Human Rights Law and Policy at the University of Arizona (United States). As Special Rapporteur, he is independent from any government or organization and serves in his individual capacity. Learn more, log on to: http://www.ohchr.org/EN/Issues/IPeoples/SRIndigenousPeoples/Pages/SRIPeoplesIndex.aspx

(*) Check the Special Rapporteur’s 2012 report on the USA: http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session21/Pages/ListReports.aspx

See the UN Declaration on the Rights of Indigenous Peoples: http://daccess-ods.un.org/access.nsf/Get?Open&DS=A/RES/61/295&Lang=E

UN Human Rights Country Page – United States of America: http://www.ohchr.org/EN/Countries/ENACARegion/Pages/USIndex.aspx

For more information and media inquiries, please contact Maia Campbell (+ 41 22 917 9314 / mcampbell@ohchr.org) or write to indigenous@ohchr.org.

For media inquiries related to other UN independent experts:
Xabier Celaya, OHCHR Media Unit (+ 41 22 917 9383 / xcelaya@ohchr.org)

Dreveskracht Commentary on Adoptive Couple v. Baby Girl

Matthew L.M. Fletcher

Here. An excerpt:

The Supreme Court’s decision in Adoptive Couple v. Baby Girl is most certainly a blow to Indian sovereignty by way of an assault on core notions of Indian family and tribal identity.  Yet what is even more disturbing is how the “Baby Veronica” ruling so vividly highlights the Roberts Court’s deep investment in white supremacy, capitalism, patriarchy, heterosexism, and a coercive binary gender system.  Adoptive Couple is about far more than the rights of adoptive parents.  The decision should serve as a warning to all marginalized groups such as Indians, ethnic minorities, the lower class, or the LGBT community: If given the opportunity the High Court will construe legislation to serve its own institutionalized interests, in spite of the law’s intent.

California COA Decides ICWA-Related Appeal Involving Cherokee/Choctaw Freedmen Descendants

Matthew L.M. Fletcher1 Comment

The opinion in In re D.N. is here.

An excerpt:

The “by blood” requirement in the Choctaw Nation‟s Constitution, as well as others, has been interpreted as excluding the descendants of freedmen. (Allen v. Tribal Council (2006) 9 Okla. Trib. 255.) The exclusion of the descendants of former slaves of the Five Civilized Tribes is a matter of ongoing controversy. (See, e.g., Cherokee Nation v. Nash (N.D.Okla. 2010) 724 F.Supp.2d 1159.) It cannot be addressed in this dependency proceeding since membership criteria are the tribe‟s prerogative, and its determination of a child‟s eligibility for membership is conclusive for purposes of ICWA. (44 Fed.Reg. 67584, 67586 (Nov. 26, 1979); § 224.3, subd. (e)(1); In re Jack C., III (2011) 192 Cal.App.4th 967, 978.)

Baby Veronica’s Birth Mother Sues to Declare ICWA Provisions Unconstitutional

Matthew L.M. Fletcher1 Comment

Here is the complaint in Maldonado v. Holder (D. S.C.):

Maldonado v. Holder Complaint

Wonder whether Baby Veronica’s birth mother has any Article III injury, since she’s given up parental rights to her daughter. I really don’t know.

There is a second plaintiff, described in the complaint as “a Caucasian woman who resides in Minnesota and who believes she may be 1/64th Cherokee,” who has chosen non-Indian parents to adopt her child.

Still waiting on the promised civil rights complaint on behalf of Baby Veronica.

Resolutions Favoring Indian Child Welfare Act

Matthew L.M. Fletcher

Here is the resolution adopted unanimously by the National Council of Juvenile and Family Court Judges board:

NCJFCJ ICWA Resolution 2013

And here is a draft resolution up for consideration at the American Bar Association later this summer:

ICWA Resolution and Rpt Amended 7-3-13 Revised