Indian Child Welfare Act

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The case is In the Matter of Mayberry (unpublished opinion) and the proper notice went out to the Grand Traverse Band, the Muscogee (Creek) Nation, and the BIA.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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Kansas Supreme Court Overrules In re Baby Boy L. & Rejects Existing Indian Family Exception

Matthew L.M. Fletcher

In In re A.J.S., the Kansas Supreme Court overruled In re Baby Boy L., the first case to adopt the existing Indian family doctrine. Here is the court’s syllabus (thanks to Aliza for the tip):

1. The threshold question of whether the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. (2000), applies to a termination of parental rights or adoption proceeding in Kansas raises a question of statutory interpretation or construction, i.e., a question of law over which an appellate court exercises unlimited review. The related question of whether common-law precedent set by In re Adoption of Baby Boy L., 231 Kan. 199, 643 P.2d 168 (1982), should stand is a question for the Kansas Supreme Court.

2. The Indian Child Welfare Act, 25 U.S.C. § 1901 et seq., applies to Kansas proceedings to terminate the parental rights of an Indian child’s unmarried natural father, who is Indian, and to allow the child’s adoption by the unmarried natural mother’s family, who is non-Indian. The existing Indian family doctrine, first adopted in In re Adoption of Baby Boy L., 231 Kan. 199, 643 P.2d 168 (1982), is abandoned.

3. In a state child custody proceeding governed by the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq., an affected tribe is permitted to intervene.

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Alaska Supreme Court Decision on Indian Custodianships

Matthew L.M. Fletcher

Here is the opinion in Ted W. v. State of Alaska. An excerpt:

This appeal arises from the superior court’s decision to allow a mother to revoke the Indian custodian status for her child’s father, whose own parental rights to the child had already been terminated. The father’s status as the child’s Indian custodian under the Indian Child Welfare Act was based solely on the mother’s temporary transfer of physical care and custody of the child to the father after termination of his parental rights. After the Office of Children’s Services (OCS) removed the child from the father and became the child’s temporary legal custodian, the mother joined in OCS’s motion to terminate the father’s status as the child’s Indian custodian. The superior court correctly reasoned that because the Indian custodianship was created solely by the mother’s temporary placement of the child with the father, that custodianship could be revoked by the mother who acted in concert with OCS as the child’s legal custodian. We therefore affirm the superior court’s decision.

ICWA Notice Case Out of Texas

Matthew L.M. Fletcher

Here is the opinion in In re R.R., Jr. The Texas Court of Appeals (Fort Worth) remanded this case back to the trial court for purposes of providing proper notice to the tribes and/or the Secretary in accordance with ICWA. Apparently, a non-certified, non-registered letter addressed to “Mr. David Anderson, Assistant Secretary For Indian Affairs” is insufficient.

ICWA Notice Case in Cal. Court of Appeal

Matthew L.M. Fletcher

The California Court of Appeals (2nd District) affirmed the termination of parental rights over a parent’s claim that the child was either Cherokee or Choctaw and the state had not provided sufficient notice to those tribes. Here is the opinion — In re K.M.

Two Recent ICWA Articles

Matthew L.M. Fletcher

Here are two relatively recent law review articles on the Indian Child Welfare Act. First, Prof. Solangel Madonado published “Race, Culture, and Adoption: Lessons from Mississippi Band of Choctaw Indians v. Holyfield” in the Columbia Journal of Gender & Law. Prof. Maldonado is also the author of a chapter on Holyfield in Family Law Stories, from West. Here is an excerpt:

While the idea of allowing individuals to choose their racial, ethnic, or cultural identity based on their activities rather than biology has a certain appeal, it is difficult to imagine a court telling a person of African American descent that she is not really African American simply because she does not live in an African American neighborhood, have African American friends, or show interest in political issues that concern the African American community. Although political pundits and private citizens have suggested that Justice Clarence Thomas is “not really Black,” it is quite another thing for lawmakers to imply the same. Instead, we allow individuals to self-identify regarding race and ethnicity, regardless of their contact with the relevant community.

And another:

The willingness of Congress in enacting ICWA and the Court in Holyfield to consider social prejudices might also signal that antidiscrimination norms are much weaker in cases involving tribal Indians. The Supreme Court has held that, while societal biases might cause children emotional harm, the law cannot consider these biases when determining children’s best interests. However, ICWA’s drafters and the Holyfield court might have unwittingly given effect to such biases when they considered white communities’ rejection of Native American children and the potential psychological harm as a reason to keep them in Indian communities.

Another paper, by Daniel Albanil Adlong, called “The Terminator Terminates Terminators: Governor Schwarzeneggar’s Signature, SB 678, and How California Attempts to Abolish the Existing Indian Family Exception and Why Other States Should Follow“, published in the Appalachian Journal of Law, also discusses ICWA. Here is an excerpt:

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Washington Court of Appeals Sets Evidentiary Burden for Indian Grandparents

Matthew L.M. Fletcher

Here is the Washington Court of Appeals (Div. 1) decision in In re Custody of C.C.M. An excerpt:

The Mecums also claim both that ICWA requires C.C.M. to be placed according to her “best interests,” and that the standards set forth in ICWA, rather than state law, govern this dispute. The Mecums contend that because Mr. Mecum is C.C.M.’s Indian custodian, he has an equal right to custody of C.C.M. under ICWA as does Pomiak. We disagree. …

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However, ICWA itself provides a solution to this problem. The Act mandates that when either a state or a federal law affords greater protection for either a parent or a custodian, the more protective law shall apply. 25 U.S.C. § 1921. Here, Washington law accords a clear preference for parental custody. Accordingly, we hold that state law, not ICWA, supplies the substantive legal standards governing this nonparental custody dispute between an Indian custodian and a parent. In addition, because a parent’s interests in the custody and care of his or her children at stake in a nonparental custody action under chapter 26.10 RCW are equivalent to those implicated in termination and dependency proceedings, we hold that the Mecums must make their case by clear and convincing evidence.

Nebraska Court of Appeals — State Must Plead Active Efforts Prior to Termination

Matthew L.M. Fletcher

Here is the Nebraska Court of Appeals decision in In re Shayla H. From the court’s syllabus:

Indian Child Welfare Act: Pleadings. The Indian Child Welfare Act’s requirement of “active efforts” is separate and distinct from the “reasonable efforts” provision of Neb. Rev. Stat. § 43-292(6) (Reissue 2008) and therefore requires the State to plead active efforts by the State to prevent the breakup of the family.

SBM Indian Law Section Amicus Brief in In re Lee Filed Today

Matthew L.M. Fletcher2 Comments

Here is the brief, submitted at the invitation of the Michigan Supreme Court, and co-authored by the MSU Indigenous Law and Policy Center and Michigan Indian Legal Services.

icwa-lee-brief-feb-24-final