Here is the order in Belinda K. v. County of Alameda (N.D. Cal.):
DCT Order Dismissing Belinda K’s Complaint
Here is the first order.
Indian Child Welfare Act
Michigan SCT Decides In re Morris and In re Gordon; Adopts “Conditional Reversal” Rule for ICWA Notice Violations
An excerpt from Justice Cavanagh’s unanimous opinion:
While it is impossible to articulate a precise rule that will encompass every possible factual situation, in light of the interests protected by ICWA, the potentially high costs of erroneously concluding that notice need not be sent, and the relatively low burden of erring in favor of requiring notice, we think the standard for triggering the notice requirement of 25 USC 1912(a) must be a cautionary one. Therefore, we hold first that sufficiently reliable information of virtually any criteria on which tribal membership might be based suffices to trigger the notice requirement. We hold also that a parent of an Indian child cannot waive the separate and independent ICWA rights of an Indian child’s tribe and that the trial court must maintain a documentary record including, at minimum, (1) the original or a copy of each actual notice personally served or sent via registered mail pursuant to 25 USC 1912(a) and (2) the original or a legible copy of the return receipt or other proof of service showing delivery of the notice.1 Finally, we hold that the proper remedy for an ICWA-notice violation is to conditionally reverse the trial court and remand for resolution of the ICWA-notice issue.
California Appeals Court Decides ICWA Notice Case; Admonishes Alameda County Social Services Agency
Here is the opinion in In re A.G. (Cal. App. Dist. 1):
An excerpt:
Father’s sole contention is that the order terminating his parental rights as to A.G. must be reversed because the Agency did not provide notice as required under ICWA. Although the Agency strenuously contested this appeal, it does not dispute that it failed to comply with ICWA’s inquiry and notice requirements. Instead, it raises a battery of contentions that arise out of a theory that Father has “renounced” his paternal rights and worked a fraud on the family and juvenile courts. The Agency also says the appeal is barred by res judicata and, in any event, that reversal is not required because its ICWA violations were not prejudicial. These arguments are long on novelty, but short on merit. We are reluctant to impose further delay before this young child may finally gain permanence and stability in an adoptive family. Unfortunately, the Agency’s unexplained failure to follow the law leaves us with no choice. We therefore order a limited reversal and require the Agency to fulfill its ICWA-related duties, as it should have done long ago.
Kathryn Fort on Tribal-State Cooperation and the Indian Child Welfare Act
Our own Kathryn Fort has posted her new paper, “Waves of Education: Tribal-State Cooperation and the Indian Child Welfare Act,” on SSRN. It is forthcoming in the Tulsa Law Review.
Here is the abstract:
This article focuses on the relationship and agreements between tribal and state judicial systems in Michigan. In tracing that work, the article demonstrates the cyclical nature of tribal-state court relations, and the way the welfare of Indian children binds together tribal and state judicial systems, regardless of either side’s participation. Federal intervention in this area under the auspices of the Indian Child Welfare Act (“ICWA”) virtually forces tribes and states to work together. How the personnel in the tribal and state systems interact has a huge impact on the children of the tribes in Michigan.
Twice in the past twenty years representatives of the tribal and state judiciaries in Michigan have come together to negotiate agreements, create rules, and draft legislation. Once the work is done, however, how do the courts handle these kind of agreements? Part of the problem with state ICWA laws elsewhere is the courts’ unwillingness to affirm a state law that differs from ICWA. Tribes and states willing to do the work to create a state ICWA law that is tailored to state laws, while providing more than the minimum standards created by the federal ICWA, have at times been greeted with hostility in the courts. Regardless, the relationships that develop through the process of drafting these laws and agreements benefit both tribal and state systems.
Second Amended Complaint in Oglala Suit against Brewers and Whiteclay Distributors
Petitioner’s Reply Brief in Support of Cert in Nielson v. Ketchum
Cert Opposition Brief in Nielson v. Ketchum
Minn. Public Radio on Minnesota ICWA Gap Fix
Here. Our post on the bill is here.
An excerpt:
Minnesota American Indian tribes and their allies in the state Legislature are seeking to plug a gap in child custody laws opened by a state Supreme Court decision last year.
The court’s decision derailed the common practice of giving tribal courts a role during pre-adoption and adoption for off-reservation American Indian kids.
Until the late 1970s, American Indian children across the country were adopted outside their communities at very high rates. The practice had a devastating effect on tribes, as generations of youth were cut loose from their cultural identities.
“People thought they understood that children would fare better if they were raised in white middle class homes,” said Andrew Small, a lawyer and former tribal judge in the state. “When you remove a child from their home, that begins a process that sometimes is impossible to stop… a child is going to be lost to the tribe.”
In 1978, Congress passed the Indian Child Welfare Act, which was designed to allow tribes a say in child custody and adoption proceedings. Since then, Minnesota state courts dealing with custody of an American Indian child off the reservation have been able to transfer jurisdiction to tribal court, even in the later part of the proceedings, which are called adoptive or pre-adoptive stages.
But a Minnesota Supreme Court decision late last year found a gap in the Indian Child Welfare Act. The court decided that neither federal nor Minnesota statute explicitly allowed state courts, when dealing with an American Indian child living away from a reservation, to transfer jurisdiction during the later portion of custody proceedings.
News Coverage of Whiteclay Suit: “Gold Mines in Hell”
Here.
Whiteclay, Nebraska. Population 14, exists only to sell alcohol to Native Americans already reeling from its damage. / Photo by Stephanie Woodard
Additionally, the reporter, Stephanie Woodward, conducted three interviews with Indian country professionals (Diane Garreau, Frank LaMere, Danialle Rose) on Indian child welfare in the aftermath of the NPR profile from last year.
Minnesota Legislative Bill to “Fix” the Recent Minn. SCT Decision In re R.S.
Here:
The bill would reverse the Minnesota Supreme Court’s decision in In re R.S., which held that:
1. The plain language of 25 U.S.C. § 1911(b) (2006) is not ambiguous and, with respect to an Indian child not residing or domiciled within the child’s tribe’s reservation, permits transfer to tribal court of only foster care placement and termination of parental rights proceedings.
2. The provision of the 2007 Tribal/State Agreement requiring transfer of “any child placement/custody proceedings” is void to the extent that it purports to require transfer of preadoptive and adoptive placement proceedings involving an Indian child not residing or domiciled on the reservation of the child’s tribe.
3. With respect to an Indian child not residing or domiciled on the child’s tribe’s reservation, Rule 48 of the Minnesota Rules of Juvenile Protection Procedure, providing for transfer of “the juvenile protection matter” to the tribal court of an Indian child’s tribe, is limited to foster care placement and termination of parental rights proceedings.
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