Indian Child Welfare Act

Stacy Leeds on the Tenth Circuit’s ICWA Decision re: Cherokee Nation Citizenship Act

Matthew L.M. Fletcher8 Comments

Here:

The Cherokee Nation has an automatic 240 day citizenship that attaches to any newborn who is a descendant of the Dawes Rolls.  This was enacted to ensure that newborns are Cherokee citizens subject to the Indian Child Welfare Act’s protections and presumes that the parents will make a decision whether the enroll the child as a Cherokee citizen during their infancy.  I would like to see our Nation go one step further and simply have natural born citizenship laws like other sovereigns throughout the globe, but that’s an aside.  The decision from the the Tenth Circuit is here.  The federal court does not like the idea of this “temporary citizenship” for inclusion in protections of a federal statute.

My question for tribal legal reform:  why have people “enroll” a child as a citizen in the first place?  Why not have Cherokee Nation laws that automatically extend citizenship to children who are eligible for citizenship and if someone chooses to disavow their citizenship, go thru the administrative process to renounce citizenship?  When tribes requires someone to “enroll” as members/citizens of the Nation, it contributes to the idea the tribal citizenship is inferior to other citizenship.  I envision this sequence:  Citizenship by birth, followed by a Cherokee Nation Birth Certificate and/Cherokee Nation ID card for documentation purposes, followed by a Cherokee Nation driver’s license to operate a vehicle.

 

Tenth Circuit Issues Important Decision re: ICWA and Cherokee Nation Temporary Citizenship

Matthew L.M. Fletcher3 Comments

Here are the materials in Nielson v. Ketchum:

CA10 opinion

Ketchum Appellant Brief

Nielson Appellee Brief

Cherokee Nation Appellee Brief

Ketchum Reply

The summary of the case from the opinion:

This case concerns the application of the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-1963, which, among other things, imposes a period of ten days before a parent can consent to the termination of her parenting rights over an “Indian child.”  The day after giving birth to C.D.K., Petitioner-Appellee Britney Jane Little Dove Nielson appeared in state court in Utah to relinquish her parenting rights and consent to the adoption of her son by Respondents-Appellants Sunny and Joshua Ketchum.  The court determined that although Nielson’s mother was a registered member of the Cherokee Nation, Nielson was not, and consequently the court approved the adoption without applying the procedural safeguards of the ICWA.

Later, Nielson filed suit in federal district court, claiming that C.D.K. was an Indian child at the time of the adoption and hence the ICWA’s ten-day waiting period should have applied.  Even though she was not herself a member of the Cherokee Nation, Nielson pointed to a law passed by the Cherokee Nation establishing automatic temporary Cherokee citizenship for any newborn who is the direct descendant of a Cherokee listed on the Dawes Commission Rolls.  The district court agreed that this act established tribal citizenship for C.D.K., and it invalidated Nielson’s relinquishment of parental rights, leaving the matter of custody of C.D.K. for the Utah state courts.  We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and reverse on the grounds that C.D.K. was not a member of the Cherokee Nation for ICWA purposes at the time of the adoption.

Iowa Appellate Court Affirms Termination of Parental Rights of Indian Parent

Matthew L.M. Fletcher

Here is the unpublished opinion in In re J.A.P.

 

Penn. Superior Court Affirms Transfer of Indian Child Welfare Case to Oglala Tribal Court

Matthew L.M. Fletcher1 Comment

Here is the opinion: C.L. v Z.M.F.H

Alaska Supreme Court Recognizes Inherent Authority of Native Village of Tanana’s Tribal Court in ICWA Matters

Matthew L.M. Fletcher

Here is the opinion in Alaska v. Native Village of Tanana.

And the materials:

Alaska Opening Brief

Tanana Brief

Alaska Reply Brief

South Dakota Supreme Court Decides ICWA Case — When Good Cause Exists to Deviate From Placement Preferences

Matthew L.M. Fletcher1 Comment

Here is the opinion in In re D.W.

The Court’s first holding:

The “clear and convincing” standard appears to be the better-reasoned approach.  It is consistent with both the congressional intent in adopting ICWA and this Court’s precedent.  Therefore, we conclude that deviations from the ICWA placement preferences require a showing of good cause by clear and convincing evidence.

And the second:

Aside from Girlfriend, neither DSS nor the Tribe located another viable placement option within the ICWA preferences.  DSS explored placement options for over three and a half years, during which time Child was without a permanent home environment.  The circuit court was within its discretion to determine that a diligent search had been performed and that a suitable ICWApreferred placement could not be found.  See BIA Guidelines, 44 Fed. Reg. 67584, ¶ F.3.  The court’s findings of fact support its conclusion that at least one of the factors indicating good cause to deviate from the ICWA placement preferences existed in this case.  Therefore, the circuit court did not abuse its discretion in finding by clear and convincing evidence that good cause existed to place Child outside the ICWA placement preferences.

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New Mexico Supreme Court Holds ICWA Trumps State Abuse and Neglect Law

Matthew L.M. Fletcher

Here is the opinion in In the Matter of Esther V.

An excerpt:

In this case, the district court entered an order finding that Marlene C. (Mother)neglected her month-old baby (Child) and gave legal custody to the Children, Youth andFamilies Department (CYFD).  Mother appealed, arguing that the district court failed tomake the factual findings required by § 1912(d) and (e) of ICWA at the adjudicatoryhearing.  State ex rel. Children, Youth & Families Dep’t v. Marlene C., 2009-NMCA-058,¶¶ 1, 10, 14, 146 N.M. 588, 212 P.3d 1142.  The Court of Appeals reversed the adjudicationof neglect, holding that CYFD failed to prove the § 1912(e) requirement by clear andconvincing evidence as required by the statute.  Id. ¶¶ 18, 20.  The Court of Appeals did notdecide whether the findings required by § 1912(d) and (e) must always be made at theadjudicatory hearing.  See id. ¶ 14.  We hold that, in a contested adjudication to which ICWAapplies, the district court must always make the findings of fact required under § 1912(d) and(e) of ICWA at the adjudication stage, founded either on evidence of record or admissions supported by a factual basis.  We therefore reverse the district court’s adjudication of neglectand remand to that court for further hearing.

 

California Appellate Court Orders ICWA Case Transferred to Bois Forte Chippewa

Matthew L.M. Fletcher

Here is the opinion in In re Jack C., reversing the trial court.

An excerpt:

In In re Jack C., III, D057034, the order terminating parental rights is reversed, and the matter is remanded to the trial court with directions to transfer jurisdiction to the Bois Forte Band of the Minnesota Chippewa, subject to the Band’s right of declination.  If the Band declines jurisdiction, the juvenile court shall then reinstate the order terminating parental rights.  (Cf. In re Francisco W. (2006) 139 Cal.App.4th 695, 706 [limited reversal disposition in defective ICWA notice appeals is in keeping with the public policy of our child dependency scheme, which favors prompt resolution of cases].)

Alaska Supreme Court Reverses Trial Court Determination that ICWA Does Not Apply

Matthew L.M. Fletcher2 Comments

Here is the opinion in Bruce L. v. W.E.

An excerpt:

A biological father appeals from the termination of his parental rights and an adoption decree, arguing it was error for the trial court to (1) fail to apply certain protections available to him under the Indian Child Welfare Act (ICWA) and (2) find his consent to the adoption unnecessary under state law. We vacate the trial court’s determination that the child is not an Indian child under ICWA because it is not explained in the court’s written decision why, after the parties to the proceeding took the position that the child is an Indian child and that this was an ICWA adoption, the trial court sua sponte found and relied on a proof deficiency without giving the father notice and opportunity to address it. We also reverse the trial court’s determinations that (1) the father’s efforts to obtain custody through the courts were not justifiable cause for his failure to meaningfully communicate with the child during the first year of the child’s life, and (2) the evidence in the record of the father’s indigence did not meet his burden of production regarding justifiable cause for his failure to support the child during that year. We therefore vacate the termination of the father’s parental rights and the adoption decree and remand for further proceedings on the child’s status as an Indian child, possible ICWA protections available to the father, and whether the father unjustifiably failed to support the child during the first year of the child’s life.

Washington Appellate Court Rejects Equal Protection Challenge to ICWA

Matthew L.M. Fletcher

Here is the opinion in Beach v. Johnson.

An excerpt:

Moreover, ICWA does not deny Angel equal protection or substantive due process.  A child has no fundamental constitutional right to a stable and permanent home.  In re N.B., 199 P.3d 16, 23 (Colo. App. 2007); In re Baby Boy C., 805 N.Y.S.2d 313, 27 A.D.3d 34, 50-51 (2005); In re A.B., 2003 ND 98, 663 N.W.2d 625, 635-36.  And “[t]he United States Supreme Court has consistently rejected claims that laws that treat Indians as a distinct class violate equal protection.” In re Angus, 60 Or. App. 546, 554, 655 P.2d 208 (1982).  Indians are granted preferences under ICWA, not because of their race, but because of their membership in quasi-sovereign tribal entities.  Id. at 555.  ICWA does not violate due process.  N.B., 199 P.3d at 23; Baby Boy C., 27 A.D.3d at 51; A.B., 663 N.W.2d at 636. Nor does it violate equal protection because ICWA is rationally related to Congress’s obligation to protect and advance the Indian family and tribal relations. Id.at 555-56.