Indian Child Welfare Act – Page 34

Forthcoming Book on ICWA by Barbara Atwood

January 15, 2010Matthew L.M. Fletcher4 Comments

Barbara Atwood, a prominent commentator on the Indian Child Welfare Act, soon will be publishing her book, “Children, Tribes, and States: Adoption and Custody Conflicts over American Indian Children” with Carolina Academic Press. She has posted the first chapter of the book on SSRN.

Here is the abstract:

This Introduction to Children, Tribes, and States: Adoption and Custody Conflicts over American Indian Children (Carolina Academic Press forthcoming 2010) provides an overview of the book but begins with the story of my representation of a Northern Cheyenne woman in a child custody dispute two decades ago – a professional experience that fueled my longstanding interest in child welfare and custody law affecting American Indian and Alaska Native children. The book examines the policies driving the Indian Child Welfare Act of 1978 against the backdrop of current ICWA controversies in state courts. In addition, it explores tribal-state competition in inter-parental custody disputes involving Indian children, a contentious arena that falls outside the purview of ICWA and implicates federal, state, and tribal jurisdictional premises. The book emphasizes the emotional and political costs of jurisdictional battles in both ICWA and non-ICWA cases. I propose jurisdictional guidelines for state and tribal courts that build on respect for one another’s legitimacy and competence. At the same time, I develop analytical frameworks to address Native children’s individualized identities, perspectives, and needs.

California Appellate Court Decides ICWA Notice Case

January 15, 2010Matthew 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

January 14, 2010Matthew 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

January 3, 2010Matthew 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

December 26, 2009December 25, 2009Matthew 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

December 18, 2009Matthew 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

November 27, 2009Matthew 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

November 20, 2009Matthew 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

November 10, 2009Matthew 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.