Indian Child Welfare Act

Gilmore v. Salazar: Effort by Indian Trust Land Owner to Force Federal Environmental Jurisdiction Fails

Matthew L.M. Fletcher1 Comment

Here is the opinion in Gilmore v. Salazar (N.D. Okla.): Gilmore v. Salazar.

An excerpt:

Plaintiffs James E. Gilmore, Tammy S. Gilmore Springer, and Joanna K. Stand are members of the Quapaw Tribe of Oklahoma (the Tribe) and have an undivided percentage interest in the Sooner and/or Ottawa Chat Piles (the Chat Piles) located in northeastern Oklahoma. Chat was created as a byproduct of the mining process. Mining companies removed ore from the ground and stripped any valuable metals from the ore, and the remainder, chat, was stored on the surface in the form of chat piles. See Quapaw Tribe of Oklahoma v. Blue Tee Corp., 2008 U.S. Dist. LEXIS 51476, 2008 WL 2704482, *1 (N.D. Okla. July 7, 2008). Plaintiffs allege that the Chat Piles are subject to regulation by the United States government, because the Chat Piles are located, in whole or in part, on restricted Tribal land and the property is held in trust for the benefit of Tribal members. Dkt. # 2, at 4-5. However, the Estate of Joseph E. Mountford (the Estate) claims to hold title to approximately two-thirds of the Sooner Chat Pile, and Bingham Sand & Gravel Company, Inc. (Bingham) claims that it has title to at least three-fourths of the Ottawa Chat Pile. Id. at 5. The interests held by the Estate and Bingham are considered fee, or non-Indian, interests in the Chat Piles.

Baffling Utah Supreme Court Opinion Deserves a Second Look

Matthew L.M. Fletcher

Here is the Utah Supreme Court’s opinion in the Adoption of A.B. and D.T.

An excerpt:

In this case, the Nation’s original notice of appeal was defective. Even though it was filed within fifteen days of the adoption order and signed by the Nation’s counsel, the notice of appeal did not contain the Nation’s signature. And the Nation did not acquire the additional fifteen days to correct the deficiency because the Nation’s counsel did not file a certification of diligent search.

emphasis added

Another Pechanga Membership Challenge Dismissed

Matthew L.M. Fletcher

Here is the opinion in Liska v. Macarro (S.D. Cal.): DCT Order Dismissing Liska Complaint.

A quote:

On October 14, 2008, Petitioner, proceeding pro se, filed the original petition, captioned “Complaint [for] Writ of Habeas Corpus.” (Doc. No. 1.) Petitioner alleged he is a descendant of the Pechanga Band of Mission Indians (the “Tribe”), but not an enrolled member of the Tribe. The Tribe currently has in place a moratorium on enrolling new members. The petition named as respondents Tribe members Mark Macarro, Mark Calac, Mar Luker, John Magee, Andrew Masiiel, Donna Baron, and Butch Murphy. Petitioner alleged Respondents illegally banished Petitioner from the Tribe without a hearing or due process, in violation of the American Indian Civil Rights Act of 1968 (“ICRA”), 25 U.S.C. §§ 1301, 1302, and 1303. According to Petitioner, he is entitled to be recognized as a member of the Tribe, share in the Tribe’s trust proceeds, and enter the reservation to visit his father’s grave.

Here is the more developed case.

Judicial Symposium for Michigan-Wisconsin-Minnesota Tribal-State-Federal Judges

Matthew L.M. Fletcher

The conference is Oct. 12-13, 2010, at the Grand Traverse Resort just outside of Traverse City, Michigan. Come see the colors!!!!

Here is the flyer: Flyer and Agenda.

The speakers include Walter Echo-Hawk, Hon. Korey Wahwassuck, and Hon. David Rausch.

And on the evening of October 11, Walter will be reading from his book at Horizon Books.

ICT Article on Michigan Bid to Codify ICWA

Matthew L.M. Fletcher

From ICT:

SAULT STE. MARIE, Mich. – The Indian Child Welfare Act is a federal law that can at times be confusing to those it was designed to help – tribes, tribal children, their families and the state and tribal court systems.

Making ICWA easier to use and understand is the goal of a group of dedicated people – a special committee formed by the Michigan Supreme Court. This committee is charged with helping Indian children and families in child welfare cases, and with educating judges and child welfare practitioners about ICWA.

Congress enacted ICWA in 1978 to help prevent the disruption of Indian families and tribes due to state and federal child welfare practices.

In 2008, a special committee was formed by the Michigan Supreme Court to help Michigan judges and child welfare practitioners learn more about ICWA and understand the need for states to comply with the act and how it can be better implemented within Michigan.

In 2009, the State Court Administrative Office, the administrative agency of the Michigan Supreme Court, published a court resource guide. This guide is designed to provide Michigan trial courts with best practice tips to apply when using ICWA. During work on the court resource guide it was determined further research was needed and a subcommittee was formed that recommended changes to Michigan’s court rules to help with the recognition and implementation of ICWA. On Jan. 27, the Michigan Supreme Court approved those changes, which became effective May 1.

A second subcommittee, the Tribal Court Relations Committee, was formed as part of the Court Improvement Program Statewide Task Force and continues to meet on proposed state legislation that was drafted to reflect the federal statute with the goal of making judges and child welfare workers more aware of ICWA at both the tribal and state levels. A special session to review the proposed ICWA statute is being held Sept. 30 in Lansing. This meeting is by invitation only to the ICWA committee that authored the Court Resource Guide.

Additionally, in 2010 the Michigan Supreme Court has been sponsoring ICWA training and dialogue for state court judges, tribal representatives, attorneys, court staff and Department of Human Services workers as a step toward implementing the “best interests” considerations for Indian children, families and tribes.

Planning is also underway for the Walking on Common Ground: Michigan Regional Conference, Oct. 12 – 13 at the Grand Traverse Resort in Acme, Mich., for tribal, federal and state justice communities throughout Michigan, Minnesota and Wisconsin. Walking on Common Ground promotes collaboration, education and the sharing of resources to build a more positive future for tribal children and families involved in the child welfare system.

Continue reading →

OSG Brief in Hogan v. Kaltag Tribal Council — OSG Supports Tribe

Matthew L.M. Fletcher5 Comments

Huge brief, here: Hogan 09-960 (SG Response).

Earlier materials here.

Michigan COA Affirms Termination of Parental Rights Where Error Harmless

Matthew L.M. Fletcher1 Comment

Here is the unpublished opinion in In re Planck.

Question here is whether the trial court failed to comply with ICWA because the parent didn’t notify the Luce County Circuit Court or some other reason, or whether the trial court just didn’t know about ICWA. Chicken and egg problem, nullified by the harmless error ruling.

Oregon DHS v. Three Affiliated tribes (MHA Nation): ICWA Case in Oregon Court of Appeals

Matthew L.M. Fletcher

Here.

An excerpt:

The Three Affiliated Tribes of Fort Berthold Reservation (the tribes) appeal a judgment in which the trial court concluded that “good cause” under the Indian Child Welfare Act (ICWA) existed to designate the adoptive placement for two Indian children as the home of their current foster parents rather than the home designated by the tribes. On appeal, the legal issue is whether “good cause” exists to depart from ICWA’s placement preferences. 25 USC § 1915(a). As we will explain, we are bound by the trial court’s findings of fact if there is any evidence in the record to support them, but independently assess whether those findings are sufficient to support the trial court’s legal conclusion that “good cause” exists under the circumstances of this case. Applying that standard, we affirm

ICWA Cases To Be Assigned to One Judge in Washtenaw County (Judge Connors!)

Matthew L.M. Fletcher

Here is the order: 2007-06J Case Assignments LAO 2007.

California COA Holds that ICWA Notice to Tribe Not Required Where “Reasonable Probability” is that Child is Not Indian

Matthew L.M. Fletcher

Here is the opinion in In re Skyler H.:

An excerpt:

While the standard for ICWA notice is low, it is not without reasonable limits. This case raises the issue whether a child’s specific but attenuated Indian heritage invokes ICWA notice requirements under section 224.3, subdivision (b), which describes circumstances that may provide reason to know the child is an Indian child. We hold the trial court has discretion to consider the totality of the information presented concerning the child’s family circumstances to determine whether it meets the threshold required for ICWA notice-“the court knows or has reason to know the child is an Indian child.” (§ 224.2.) We further hold ICWA notice is not required unless the totality of the family’s circumstances indicate there is a low but reasonable probability the child is an Indian child. Here, we conclude the case need not be remanded for ICWA notice because the family’s specific but attenuated Indian heritage does not provide reason to know the child is an Indian child.