Indian Child Welfare Act

Ninth Circuit Dismisses Fred v. Washoe Tribe Appeal

Matthew L.M. Fletcher

Here is the unpublished opinion.

Briefs:

Washoe Tribe Opening Brief

Fred Brief

From the opinion:

This is an interlocutory appeal asserting jurisdiction in this court under the collateral order doctrine. The underlying claims relate to the Washoe Tribe’s decision to take custody of the plaintiff’s grandchildren due to allegations of abuse by the grandchildren’s mother (the plaintiff’s daughter). After pursuing tribal  remedies, the grandmother, Ms. Fred, filed suit against the Tribe in federal district court. The district court dismissed for failure to state a claim with leave to amend. The Tribe appeals the district court’s dismissal in its favor because the dismissal was without prejudice, arguing that the complaint should have been dismissed with prejudice for three reasons: 1) failure to exhaust tribal court remedies; 2) tribal sovereign immunity; and 3) lack of subject matter jurisdiction.

Prior posts on this case here and here.

ICWA Educational Resource Video – “Bringing our Children Home: An Introduction to the Indian Child Welfare Act”

Matthew L.M. Fletcher

From the State of Mississippi judicial site:

The video trailer referenced is the culmination of the ongoing collaboration between the Mississippi Courts, Child Welfare Agency, the Mississippi Band of Choctaw Indians, and various National Resource Centers which specifically focus their expertise on educating non tribal entities on the Indian Child Welfare Act (ICWA) and other issues related to Native American values. The video trailer was developed by the Mississippi Administrative Office of Courts/Court Improvement Program in consultation with the National Resource Center on Legal and Judicial Issues and the National Resource Center for Tribes as an ICWA educational resource for judges, courts, child welfare, and judicial educators. The full length video will be available later this year. The video is being produced by Mad Genius, Inc., Ridgeland, Mississippi.

Nebraska COA Remands ICW Case for Failure to Notify Rosebud Sioux Tribe

Matthew L.M. Fletcher

Here is the opinion in In re Nery V. From the opinion:

The county court for Hall County, sitting as a juvenile court, terminated the parental rights of Mario V., Sr. (Mario Sr.), and Ida V. to their minor children. Mario Sr. appeals in case  No. A-12-629, and Ida appeals in case No. A-12-662. We initially determine that the  relinquishments that Ida executed some 3 years before these proceedings are valid and that her attempted revocation of such is of no force and effect. But, because there is no evidence that the Rosebud Sioux Tribe was given proper notice of these termination of parental rights proceedings as required by the Nebraska Indian Child Welfare Act (NICWA), we find that the termination proceedings conducted were invalid and thus that the order of termination in both cases must be vacated. We therefore remand the causes to the juvenile court for further proceedings consistent with our opinion.

Minnesota Legislature Passes Bill to “Fix” the Minnesota SCT Decision In re R.S.

Matthew L.M. Fletcher

Minnesota Legislature Passes Bill to “Fix” the Minn. SCT Decision In re R.S.

HF 252, which was introduced by Rep. Susan Allen, overcame its final hurdle in the Minnesota Legislature by passing the House by a wide margin on May 10th. It passed the Senate with an equally wide margin the previous week and was signed into law on May 16th.

HF 252 reverses the affects of the Minn. SCT’s decision In the Matter of the Welfare of the Child of R.S. and L.S., wherein the Court denied a transfer of jurisdiction to a tribal court in a proceeding at the pre-adoptive stage. HF 252 amends Minnesota Statute 260.771, Subd. 3 to allow for transfers of jurisdiction at all four stages of a child custody proceeding: involuntary foster care placements; termination of parental rights; pre-adoptive; and adoption proceedings. HF 252 is a tremendous accomplishment for the 11 tribes and bands in Minnesota as well as a brave and courageous action by Rep. Allen.

Our prior post on this legislation is here.

Montana SCT Reverses Termination of Parental Rights because of ICWA Procedural Violations

Matthew L.M. Fletcher1 Comment

Here is the Montana Supreme Court’s ruling in In re K.B.:

Opinion

Excerpt:

Mother appeared with counsel at the termination hearing and contested the termination of her parental rights, suggesting instead that the State be granted a long-term guardianship of the children. The Tribe did not appear. Mother’s attorney informed the court:

I don’t think alcoholism is a reason to terminate under the Indian Child Welfare Act. My client has been making visits. My client is employed. And my client has been going to group care, in regard to an alcohol issue. The Indian Child Welfare Act does not encourage  termination regarding alcoholism. . . .

Because counsel could not support his client’s position with a specific citation to ICWA, the court responded that it could not consider counsel’s objection: “I’m saying, for the record, to the Montana Supreme Court and to you, frankly, I can’t consider an objection on legal authority that’s not cited to the Court.”

And the briefs:

Appellant

Appellee

Reply

 

Montana SCT Decides ICWA Active Efforts Case

Matthew L.M. Fletcher

Here is the opinion in In re D.S.B.

The briefs:

Appellant brief

Appellee brief

Reply brief

Oglala Sioux Tribe Seeks Class Certification in ICWA Suit against South Dakota Judges

Matthew L.M. Fletcher3 Comments

Here is the brief:

OST Motion for Class Certification

OST Reply re Class Certification

Complaint is here.

MSNBC: Contextualizing the Indian Child Welfare Act

Matthew L.M. Fletcher

Here.

Featuring NCAI Executive Director, Jacqueline Pata.

Arkansas COA Decides ICWA Case — ICWA as Best Practices

Matthew L.M. Fletcher

Here is the opinion:

Stevens v Ark Dept of Human Services

An excerpt:

Even though the child’s father had not produced the ordered evidence of eligibility for Choctaw membership, the trial court utilized the higher evidentiary standard of proof beyond a reasonable doubt, which is required under the Indian Child Welfare Act, 25 U.S.C. §§ 1901 to 1963 (2010). The trial court found that DHS had used reasonable and active efforts to rehabilitate Kayla and prevent the dissolution of an Indian family; that DHS had complied with ICWA requirements; and that DHS had demonstrated the likeliness of serious emotional harm if returned to the parent. In addition, the trial court found that J.S. was adoptable and that termination was in her best interest.

Law Review Articles Relevant to the Baby Veronica Case

Matthew L.M. Fletcher1 Comment

We thought it would be helpful to make available a few useful law review articles that parse through the issues raised in the Baby Veronica case.

Indian Child Welfare Act: generally and legislative history

B.J. Jones, The Indian Child Welfare Act: In Search of a Federal Forum to Vindicate the Rights of Indian Tribes and Children against the Vagaries of State Courts, 73 N.D. L. Rev. 395 (1997) (PDF)

Patrice Kunesh-Hartman, The Indian Child Welfare Act of 1978: Protecting Essential Tribal Interests, 60 U. Colo. L. Rev. 131 (1989) (PDF)

Existing Indian Family Exception

Barbara Atwood, Flashpoints Under the Indian Child Welfare Act: Toward a New Understanding of State Court Resistance, 51 Emory L.J. 587 (2002) (PDF)

Christine Metteer, The Existing Indian Family Exception: An Impediment to the Trust Responsibility to Preserve Tribal Existence and Culture as Manifested in the Indian Child Welfare Act, 30 Loy. L. A. L. Rev. 647 (1997) (PDF)

ICWA Constitutionality

Matthew L.M. Fletcher, ICWA and the Commerce Clause, in The Indian Child Welfare Act at 30: Facing to the Future (2009) (PDF)