Indian Child Welfare Act

Utah Federal Court Invalidates Adoption of Cherokee Child for Violation of ICWA

Matthew L.M. Fletcher

Here is the unpublished, so far, opinion in the Matter of C.D.K. (D. Utah): In re CDK DCT Order

An excerpt:

The Court notes with some frustration that Petitioner or Intervenor could have greatly simplified the present inquiry by providing, at any point, documentary evidence that J.G.’s and E.G.’s mothers were original enrollees, listed as members of the Cherokee Nation on the Dawes Rolls. However, there is indirect evidence that J.G. and E.G. were both full-blooded Cherokee, indicating that their mothers would have been eligible for enrollment at the time that the Dawes Rolls were being compiled. The Court, therefore, finds that no reasonable factfinder could conclude that C.D.K. is anything other than a direct descendant of an original enrollee of the Cherokee Nation and that C.D.K. was a member of the Cherokee Nation, pursuant to the Membership Act, at the time of the Relinquishment Hearing. Therefore, C.D.K. was an Indian Child and the procedural requirements of the ICWA are applicable to the Relinquishment Hearing. Because the parties agree that the procedural requirements of the ICWA were not fully complied with, the adoption of C.D.K. by Respondents must be invalidated, pursuant to 25 U.S.C. § 1914.

Parents’ Counsel Bears Responsibility for ICWA Notice Compliance

Matthew L.M. Fletcher

Here is the opinion in In re S.B., from the California Court of Appeals, 2d District.

An excerpt:

An attorney practicing dependency law in the juvenile court should be sufficiently familiar with ICWA notice requirements to point out a flaw in notice if the record shows that there is one-especially when specifically asked to do so. One court has observed that “trial counsel for a parent in dependency proceedings rarely brings ICWA notice deficiencies to the attention of the juvenile court. That job, it seems, is routinely left to appellate counsel for the parent.” ( In re Justin S. (2007) 150 Cal.App.4th 1426, 1436.) That practice ignores the importance to a child’s well-being in achieving permanence as soon as possible. The court in Justin S. “implore [d] counsel for the Department, and certainly counsel for the minor, to make more robust efforts, early on in dependency proceedings,” to insist on adherence to the ICWA notice requirements. ( Ibid.)

We agree, and add that counsel for the parents bear a responsibility to raise prompt objection in the juvenile court to any deficiency in notice so that it can be corrected in a timely fashion. This will best serve the interests of the dependent children, the Indian tribes, and the efficient administration of justice.

Colorado Court of Appeals Decides ICWA Notice Case

Matthew L.M. Fletcher

The Colorado Court of Appeals vacated a judgment that terminated parental rights of an Indian family for violation of ICWA’s notice provisions. See opinion here in People in the Interest of N.D.C.

An excerpt:

P.R.D. (mother) appeals from the judgment terminating her parent-child legal relationship with her daughter, N.D.C. She asserts the judgment should be reversed because (1) the Denver Department of Human Services (the department) did not send notice to her tribe, the Oglala Sioux (the tribe), in compliance with the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901 to 1963 (2001); and (2) the juvenile court did not comply with several substantive provisions of the ICWA. We conclude (1) the department erred by not filing the notices or the return receipt cards with the court and such errors were not harmless because there was no evidence in the record that the tribe knew mother was an enrolled tribal member or had lived on the reservation; and (2) the subsequent notices sent by the department did not comply with the ICWA.

Fort and Fletcher on the Indian Child Welfare Act

Matthew L.M. Fletcher1 Comment

Kathryn E. Fort has posted her paper, “The Cherokee Conundrum: California Courts and the Indian Child Welfare Act,” on SSRN. Here is the abstract:

This article was prepared for presentation at the American Indian Identity Conference held at Michigan State University, October 16-17, 2008. After classifying a year of Indian Child Welfare Act (ICWA) cases in state courts, it became apparent that California had both the highest number of ICWA cases and that most of these cases were because of noncompliance with the notice provision of ICWA. In addition, it became clear that the majority of California cases involved parents claiming Cherokee affiliation. This article concludes there could be many reasons for this, including an informal exercise of the Existing Indian Family doctrine at the social worker level.

And Matthew Fletcher posted “The Indian Child Welfare Act: A Survey of the Legislative History” on SSRN. Here is the abstract:

This paper is prepared for the University of Michigan Law School Native American Law Students Association’s annual Indian Law Day, April 10, 2009. The materials in this paper derive from an early draft of an amicus brief filed by the American Indian Law Section of the State Bar of Michigan in the Michigan Supreme Court case, In re Lee. The paper focuses on the legislative history of the Indian Child Welfare Act, with particular emphasis on Michigan.

California Court of Appeals Publishes ICWA Notice Case

Matthew L.M. Fletcher

The case is In re Jeremiah G. An excerpt:

We publish this opinion to emphasize, again, what we thought that our court made clear in In re O.K. (2003) 106 Cal.App.4th 152. In a juvenile dependency proceeding, a claim that a parent, and thus the child, “may” have Native American heritage is insufficient to trigger ICWA notice requirements if the claim is not accompanied by other information that would reasonably suggest the minor has Indian ancestry. Here, the assertion that there was a “possibility” the great-grandfather of the minor’s father “was Indian,” without more, was too vague and speculative to require ICWA notice to the Bureau of Indian Affairs. ( Id. at p. 157.) This is particularly so in this case because the minor’s father, who made the assertion, later retracted it, telling the juvenile court that he “didn’t actually have [Indian ancestry].” Thus, mother’s appellate claim of ICWA error lacks merit.

Michigan Indian Law Day — Ann Arbor — April 10

Matthew L.M. Fletcher

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Indigenous Law and Policy Center Occasional Papers — Updated

Matthew L.M. Fletcher

We’ve posted several recent papers. Here is the website for all of our papers dating back to 2006.

2009-01
Advising – and Suing – Tribal Officials: On the Scope of Tribal Official Immunity by Matthew L.M. Fletcher and Kathryn E. Fort
2009-02
The Ethics of Pushing the Envelope in Indian Law Cases by Matthew L.M. Fletcher
2009-03
Supreme Court Reversal of Carcieri: Implications for Reaffirmed Michigan Indian Tribes by Novaline D. Wilson
2009-04
The Origins of the Indian Child Welfare Act: A Survey of the Legislative History by Matthew L.M Fletcher

Montana Supreme Court Declines to Address Constitutional Challenges to ICWA

Matthew L.M. Fletcher

The case is In re M.B. You can located the court’s opinion and the two appellate briefs on the Montana Supreme Court’s website here and searching for docket number 08-0443.

The question involved the adoptive placement rules of ICWA, in relation to children who were members of a state recognized tribe, the Little Shell Tribe of Chippewa Indians. The losing potential adoptive family did not raise the constitutional challenges until the appeal.

Michigan Court of Appeals Decides ICWA Notice Case

Matthew L.M. Fletcher

The case is In the Matter of Mayberry (unpublished opinion) and the proper notice went out to the Grand Traverse Band, the Muscogee (Creek) Nation, and the BIA. See how easy that was, California?

In this case, the trial court record shows that notice was given to the Grand Traverse Band of Ottawa and Chippewa Indians, the Muscogee (Creek) Nation, and the Midwest Bureau of Indian Affairs, requesting written verification of the tribal status of the minor child. Responses to these notices were received from the tribes. The Grand Traverse Band of Ottawa and Chippewa Indians noted that the minor child was a non-member and ineligible for Ottawa-Chippewa Indian status. The Muscogee (Creek) Nation stated that the tribal records were examined and the minor child was not considered an Indian child in relationship to the Muscogee (Creek) Nation as defined in the ICWA. These determinations were conclusive. See In re Fried, supra at 540, In re TM, supra 191-192, and 44 Fed Reg 67584 (1979).

U-M Indian Law Day — April 10, 2009 — ICWA

Matthew L.M. Fletcher3 Comments

The University of Michigan NALSA will host its annual Indian Law Day on April 10, 2009 at 12:30 PM. The subject is the Indian Child Welfare Act. Here is the agenda:

Introduction to ICWA basics:  Colette Routel

Introduction to current ICWA issues (National Perspective).  Keynote  speaker, Mark Tilden — Staff Attorney, Native American Rights Fund (author of ICWA Resource Guide)

Tribal Panel (addressing current ICWA issues from the perspective of  Indian tribes).  Speakers:  Matthew Fletcher, GTB member and Professor at Michigan State Law School; Allie Maldonado, LTBB member and in-house counsel for her tribe.

State Panel (addressing current ICWA issues from the perspective of  the state courts).  Speakers:  Judge Laura Baird, Chief Judge, Ingham County; Judge Elizabeth Gleicher, Judge, Michigan Court of Appeals.
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