Indian Child Welfare Act

California Appellate Court Decides ICWA Notice Case

Matthew L.M. Fletcher

Here is the opinion in In re I.W. An excerpt:

As we have mentioned, this case began in 2006 and the section 366 .26 hearing occurred in August 2008. Between those times, mother had provided information about her Indian ancestry to the Department and the Department had sent notices and received negative responses from the Cherokee and Blackfeet tribes. At a hearing about ICWA compliance in December 2008, however, mother revealed for the first time that she had a maternal aunt who was a member of the Choctaw tribe and living in Oklahoma. The Department then sent ICWA-030 notices to the Choctaw tribes in Oklahoma, Louisiana, and Mississippi and resent notices to the Cherokee and Blackfeet tribes. At a hearing in February 2009, the Department reported to the juvenile court as follows: “Attached to an addendum for today’s hearing are letters from the Blackfeet tribe in Browning, Montana, indicating that the Act does not apply to any of the children; a letter from the Jena band of Choctaw Indians in Jena, Louisiana, indicating that the Act does not apply to any of the children; and three letters from the Eastern Band of Cherokee Indians, the Cherokee Boys Club in Cherokee, North Carolina. There is one for each child indicating that the Act does not apply as far as that child is concerned. [¶] Otherwise, attached to the prior addendums and reports are the return receipts for all the tribes that were noticed as well as the letters, tribal responses from other tribes that were previously submitted.”

Montana Supreme Court Decides ICWA Notice Case

Matthew L.M. Fletcher

The court held in In re J.J.L. that the trial court properly concluded that, in the adjudication of a child of a Turtle Mountain Band of Chippewa Indians who was not eligible for membership, ICWA does not apply.

Here are the materials:

In re J.J.L. Opinion

Appellant Brief — JJL

Appellee Brief — JJL

Texas Court Decides ICWA Notice Case

Matthew L.M. Fletcher

Here is the opinion in In re J.J.C., where the court conditionally affirmed a trial court decision provided adequate notice is provided to relevant Indian tribes.

An excerpt:

We find that the trial court did have reason to believe that A.M.C. and J.J.C. were Indian children and that the trial court erred in failing to ensure that proper notice was given to the appropriate individuals and agencies. We abate this cause to the trial court as stated above. If, after notice and a hearing, the trial court determines that A.M.C. and J.J.C are not Indian children, then the termination order will be affirmed. If, after notice and a hearing, the trial court determines that A.M.C. and J.J .C are Indian children, then the termination judgment of the trial court will be reversed and the trial court must conduct a new trial applying the requirements and standards of the ICWA.

Nevada Supreme Court Adopts Existing Indian Family Exception to ICWA

Matthew L.M. Fletcher

Here is the opinion in In re N.J. This is a disturbing development, especially since the Nevada Supreme Court made no effort whatsoever to engage the very real controversy whether the EIF “exception” is consistent with both the text of the ICWA and Congressional intent.

An excerpt:

We hold that the EIF doctrine should be used on a case-by-case basis to avoid results that are counter to the ICWA’s policy goal of protecting the best interest of a Native American child.  In the present case, we recognize that N.J.’s interest is protected by the ICWA because her putative father is a member of the Ely Shoshone Tribe.  Her father, however, is not contesting the termination, nor is the tribe.  The termination will not result in the breakup of a Native American family.  Indeed, the only person contesting the termination is the non-Native American parent, Dawn.  In addition, the foster family that is taking care of N.J. plans on adopting N.J. and is committed to educating her about her heritage.  Those factors lead us to conclude that in this circumstance, the application of the EIF doctrine is appropriate because, while it is an exception to the ICWA, in such scenarios it serves to advance the ICWA’s goal to protect the best interests of Native American children.  Because we conclude that the EIF doctrine is applicable, we need not reach the issue of whether DCFS made active efforts, pursuant to the ICWA, see 25 U.S.C. § 1912(d), to reunite Dawn and N.J., as application of the EIF doctrine negates the necessity of that inquiry.

ICWA Applies to Juvenile Proceedings Involving Foster Care in California

Matthew L.M. Fletcher

Here is the California Court of Appeals (3rd Dist.) opinion in R.R. v. Superior Court. An excerpt:

We disagree with the juvenile court’s conclusion. While ICWA may not by its own terms apply to a juvenile delinquency case in which the case plan anticipates foster care placement, the California Legislature has expressly made the inquiry and notice requirements of ICWA applicable in such cases, and impliedly made the remaining ICWA requirements applicable in such cases as well. Because ICWA sets the minimum standards for the protection of Indian children with respect to their tribal relationships, California law imposing a higher standard is not inconsistent with the purpose of the federal law, and is not preempted.

Iowa Court of Appeals Strikes Down Portion of Iowa ICWA

Matthew L.M. Fletcher

Here is the opinion in In re J.L.

An excerpt:

We find that Iowa Code section 232B.5(10) and (13) that prevents a child subject to the proceedings from objecting to a motion to transfer is unconstitutional. Additionally, we find that Iowa Code section 232B.5(13) defining good cause to deny a motion to transfer is unconstitutional. Therefore, we reverse and remand for a hearing on the transfer motion, during which the children shall be allowed to object and the children shall be allowed to introduce evidence of their best interests.

Federal Court Holds that Younger Abstention Doctrine Applies in ICWA Cases

Matthew L.M. Fletcher1 Comment

Here are the materials in Yancey v. Thomas (W.D. Okla.):

Thomas Motion to Dismiss

Yancey Opposition

Yancey v Thomas DCT Opinion

Arkansas Court of Appeals Decides ICWA Notice Case

Matthew L.M. Fletcher

The court held that the trial court was correct in refusing to comply with the ICWA notice requirement when the father claimed Western Cherokee Nation of Arkansas and Missouri heritage.

Here is the opinion in Heard-Masterson v. Arkansas Dept. of Human Services.

Online Materials for Michigan State Bar American Indian Law Section Meeting

Matthew L.M. Fletcher

Here are material to supplement today’s MSB American Indian Law Section program on the Indian Child Welfare Act:

Agenda

In re J.L. opinion (Mich. S. Ct.)

American Indian Law Section amicus brief in In re J.L.

Michigan Court Improvement Program — ICWA Resource Guide

Facing the Future: The Indian Child Welfare Act at 30 (MSU Press)

ILPC Occasional Paper 2009-04 The Origins of the Indian Child Welfare Act: A Survey of the Legislative History (or here)

ILPC Occasional Paper 2009-05 The Indian Child Welfare Act: A Case Update (August 2008-August 2009) (or here)

California Appellate Court Rejects ICWA Claims on Indian Grandmother

Matthew L.M. Fletcher

Here is the opinion in In re G.L. (Cal. App. Dist. 4), where the court holds:

Michael L. appeals a judgment declaring his minor daughter, G.L., a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivisions (a) and (b), and removing G.L. from parental custody. Michael, an enrolled member of the Viejas Band of Mission Indians (Viejas tribe), contends the jurisdictional findings and dispositional order must be reversed because the court and the San Diego County Health and Human Services Agency (Agency) did not comply with the notice provisions of the Indian Child Welfare Act of 1978 (25 U.S.C., § 1901 et seq.) (ICWA) affecting the rights of the paternal grandmother, Mary W., who was G.L.’s Indian custodian. Michael further contends the court erred by declining to place G.L. with Mary under ICWA’s placement preferences.

We conclude ICWA’s notice requirements for an Indian custodian were not violated, and to the limited extent Mary’s rights as G.L.’s Indian custodian were implicated, any error was harmless. We further conclude substantial evidence supports the court’s finding that good cause existed to deviate from ICWA’s statutory placement preferences. Accordingly, we affirm the judgment.