The details of the case are recounted here.
The case is here, and captioned Empson-LaViolette v. Crago, and involves Pokagon Band Potawatomi tribal members.
Indian Child Welfare Act
Palin on Tribes
From Lloyd Miller & Heather Kendall Miller
Sarah Palin’s Record on Alaska Native and Tribal Issues
1. Palin has attacked Alaska Native Subsistence Fishing
Perhaps no issue is of greater importance to Alaska Native peoples as the right to hunt and fish according to ancient customary and traditional practices, and to carry on the subsistence way of life for future generations.
Governor Sarah Palin has consistently opposed those rights.
Once in office, Governor Palin decided to continue litigation that seeks to overturn every subsistence fishing determination the federal government has ever made in Alaska. (State of Alaska v. Norton, 3:05-cv-0158-HRH (D. Ak).) In pressing this case, Palin decided against using the Attorney General (which usually handles State litigation) and instead continued contracting with Senator Ted Stevens’ brother-in-law’s law firm (Birch, Horton, Bittner & Cherot).
The goal of Palin’s law suit is to invalidate all the subsistence fishing regulations the federal government has issued to date to protect Native fishing, and to force the courts instead to take over the role of setting subsistence regulations. Palin’s law suit seeks to diminish subsistence fishing rights in order to expand sport and commercial fishing.
In May 2007, the federal court rejected the State’s main challenge, holding that Congress in 1980 had expressly granted the U.S. Interior and Agriculture Departments the authority to regulate and protect Native and rural subsistence fishing activities in Alaska. (Decision entered May 15, 2007 (Dkt. No. 110).)
Notwithstanding this ruling, Palin continues to argue in the litigation that the federal subsistence protections are too broad, and should be narrowed to exclude vast areas from subsistence fishing, in favor of sport and commercial fishing. Palin opposes subsistence protections in marine waters, on many of the lands that Natives selected under their 1971 land claims settlement with the state and federal governments, and in many of the rivers where Alaska Natives customarily fish. (Alaska Complaint at 15-18.) Palin also opposes subsistence fishing protections on Alaska Native federal allotments that were deeded to individuals purposely to foster Native subsistence activities. All these issues are now pending before the federal district court.
California Court of Appeals Warns State Agency on Failure to Comply with ICWA Notice Requirement
Here is the partially published opinion in Justin L. v. Superior Court, decided by the 2nd District of the California Court of Appeal. In the published portion, the court notes:
We are growing weary of appeals in which the only error is the Department’s failure to comply with ICWA. (See In re I.G. (2005) 133 Cal.App.4th 1246, 1254-1255 [14 published opinions in 2002 through 2005, and 72 unpublished cases statewide in 2005 alone reversing in whole or in part for noncompliance with ICWA].) Remand for the limited purpose of the ICWA compliance is all too common. ( Ibid.) ICWA’s requirements are not new. Yet the prevalence of inadequate notice remains disturbingly high. This case presents a particularly egregious example of the practice of flouting ICWA. The Department concedes it sent no notices, notwithstanding the juvenile court’s specific order that it do so. And, we have been given no indication that the Department has attempted to mitigate the damage it caused in failing to attend to ICWA’s dictates by sending notices while this proceeding was pending. ( In re Elizabeth W. (2004) 120 Cal.App.4th 900, 908.) “Noncompliance with ICWA has been a continuing problem in juvenile dependency proceedings conducted in this state, and, by not adhering to this legal requirement, we do a disservice to those vulnerable minors whose welfare we are statutorily mandated to protect.” ( In re I.G., supra, at pp. 1254-1255.) Delays caused by the Department’s failure to assure compliance with the law are contrary to the stated purpose of the dependency laws, to promptly resolve cases ( In re Marilyn H. (1993) 5 Cal.4th 295, 307, 309) and to provide dependent children with protection, safety and stability. ( Id. at p. 307; Welf. & Inst.Code, § 202.)
Patrice Kunesh on Indian Children in South Dakota
Patrice Kunesh (South Dakota) has posted “A Call for an Assessment of the Welfare of Indian Children in South Dakota” on SSRN. The paper is published in the South Dakota Law Review. Here is the abstract:
In the midst of faltering economies and raging poverty, American Indians in South Dakota have the nation’s lowest life expectancy, as well as some of the highest infant mortality and teen death rates. Furthermore, Indians are over-represented in significant numbers in every part of South Dakota’s welfare programs and criminal justice systems. What appears to have been missing throughout all these years is some meaningful discussion among State policymakers and tribal leaders about the correlation between the pervasive negative experience of American Indians in South Dakota, a birth to grave continuum, and restrictive and unsupportive state governmental policies. Through a close examination of demographic information about American Indian populations in the nation, with a particular focus on Indian communities in South Dakota, and of three recently issued state reports concerning the gross disproportionate over-representation of Native Americans in South Dakota’s juvenile justice, adult criminal justice, and the child welfare systems, this Article calls for a serious assessment of these critical issues in light of the State’s faltering social welfare and criminal justice systems relative to American Indians and tribal communities.
In re Gaus — Michigan COA Downplays Import of Potawatomi Heritage in Best Interests of Child Analysis
Here is the unpublished opinion.
Arizona COA on Burden of Proof in Parental Termination under ICWA
The Arizona Court of Appeals followed other state courts in applying the “dual burden of proof requirement” under ICWA in Valerie M. v. Arizona Dept. of Econ. Security.
From the opinion:
Contrary to Mother’s claims, the Act does not establish, or even mention, the appropriate standard of proof to be applied in evaluating state-law termination grounds or making state-mandated best interests determinations. Rather, § 1912(f) protects the stability and integrity of Indian families by requiring that the fact-finder make an additional finding beyond a reasonable doubt before the rights of any parent or custodian of an Indian child may be terminated. See 25 U.S.C. § 1902 (declaring “that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families”). We conclude, therefore, that § 1912(f)’s reasonable-doubt standard does not preempt the state-imposed burdens of proof for establishing termination grounds and best interests findings. See Maricopa County Juv. Action No. JS-8287, 171 Ariz. 104, 112, 828 P.2d 1245, 1253 (App.1992) (stating that § 1912(f) imposes requirements “in addition to meeting the Arizona requirement that parental rights may only be terminated for a number of stated reasons”).
Two State Supreme Court Cases Decided This Week
The first, In the Interest of N.N.E., an Iowa Supreme Court case involving the Tyme Maidu Tribe in California, struck down a portion of the Iowa ICWA.
The second, Langdeau v. Langdeau, a South Dakota Supreme Court case involving an Indian Country divorce proceeding, rejected exclusive tribal court jurisdiction over the case.
Eric Davis (Mich. Law Student) on ICWA
Eric Davis, an Indian law student at Michigan, published “In Defense of the Indian Child Welfare Act in Aggravated Circumstances” in the Michigan Journal of Race & Law (13 Mich. J. Race & L 433). From the abstract:
The Indian Child Welfare Act (ICWA) affords various protections to Indian families throughout child welfare proceedings. Among them is the duty imposed upon the state to provide rehabilitative services to families prior to the outplacement of an Indian child, or termination of parental rights. An analogous provision for non-Indians in the Adoption and Safe Families Act (ASFA) excuses rehabilitative services in “aggravated circumstances” of child abuse. The ICWA contains no such exception, and that absence has been controversial.
In 2002, the Alaska Supreme Court applied ASFA’s aggravated circumstances exception to the ICWA, thereby excusing services when a father severely abused his three Native children. In 2005, the South Dakota Supreme Court addressed the same issue, but expressly refused to engraft such an exception into the ICWA. This Note defends South Dakota’s position on policy grounds. It chiefly argues that an aggravated circumstances exception would do violence to the ICWA and its family preservation goals, and further that such an exception is unnecessary to protect Native children from dangerous parents.
Alaska Supreme Court Opines on Indian Grandmothers in ICWA Case
The case is called Pam R. v. State of Alaska Dept. of Social Services. The crux of the case was whether Pam was an Indian custodian under ICWA. The court turned to tribal custom, but then appeared to not apply it:
Mary Schaeffer, an expert on Kotzebue tribal laws and customs, testified that the Tribe’s customs recognize an “Indian custodian” for purposes of ICWA when “a parent entrusts the care of his or her child to [that] person.” She testified that no specific words or written agreements are required, nor is the affirmative consent of both parents necessarily required. Based on “facts presented to her by Pam’s attorney,” Schaeffer ultimately concluded that Pam was “an Indian custodian” of the children pursuant to tribal custom: “I think if you want to put it down on paper, she is . . . an Indian custodian. From our culture, she is already one . . . we need to think about the kids. There’s got to be stability with the family.” But she also testified that Mark’s objection to Pam as the Indian custodian could not be resolved under tribal custom without bringing it before a tribal court.
We conclude from Schaeffer’s testimony that Pam qualified to be the children’s Indian custodian based on tribal custom, but because Mark objected to her designation and the tribal court had not resolved the dispute, Pam had not yet become the children’s Indian custodian through tribal custom. We therefore affirm the trial court’s finding that Pam is not the children’s Indian custodian under tribal custom, without deciding whether the court properly interpreted the depth and breadth of ICWA’s definition of “Indian custodian.”
Michigan Court of Appeals Decides ICWA Case
The case is in the Matter of Cordell Minors (here) and it is unpublished. Like most Michigan ICWA case, the Michigan COA conditionally affirmed the termination of parental rights pending compliance with the Indian Child Welfare Act. And like so many Michigan ICWA cases, the trial court failed to comply with ICWA by sending proper notice to the relevant tribe(s).
Turtle Talk 
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