Indian Child Welfare Act

Lorie Graham on Reparations

Matthew L.M. Fletcher

Lorie Graham just published her paper, “Reparations, Self-Determination, and the Seventh Generation” (SSRN link), with the Harvard Human Rights Journal. From the intro:

Indigenous teachings on law and family help define our responsibility toward future generations and how the decisions that we make today can impact the wellbeing of each generation to come. This message is particularly relevant in this time of climate change, warfare, and lack of respect for basic human rights. So too is it an important message as we reflect upon the thirtieth anniversary of the Indian Child Welfare Act of 1978 (“ICWA”) and look to the future. We are just over one generation removed from this landmark legislation–legislation that I will argue in this article constitutes partial reparations for human rights violations committed against Native peoples and their children. According to the Haudenosaunee’s Great Law of Peace, we have six more generations to consider before we can truly understand the full impact of this law.

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Erika K. v. Brett D. — Cal. Court of Appeals — Constitutionality of ICWA

Matthew L.M. Fletcher1 Comment

The California court of appeals (1st district) reversed a lower court ruling holding that ICWA was unconstitutional as applied to the facts in the case. Here is the opinion.

An excerpt:

Mother next argues that the family court erred in concluding that Cecelia’s placement with Nicole was constitutionally insulated from the ICWA. We agree that the family court acted prematurely in finding the ICWA unconstitutional as applied to Cecelia’s custody decision. Prudent judicial restraint requires courts to avoid the unnecessary decision of constitutional issues. (E.g., Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1357.) Without determining that the ICWA actually required Cecelia’s return to Mother, the family court concluded that the ICWA could not constitutionally require such a return. Under the doctrine of judicial restraint, the family court should not have proceeded to consider the constitutional question unless it had first concluded, after applying the various substantive provisions of the ICWA, that a constitutional issue actually existed. Such restraint is particularly important in these circumstances because the constitutional right invoked by the court is by no means well established. Accordingly, we must remand the matter to the family court for application of the substantive provisions of the ICWA. In doing so, we do not mean to suggest any view as to the proper outcome of this matter under the ICWA.

Slip op. at 11-12.

In re: Alice M. — California Court of Appeals — ICWA

Matthew L.M. Fletcher

The Sixth District of the California Court of Appeals reversed (for a second time) the termination of parental rights for failure to comply with the notice requirements of the Indian Child Welfare Act.

Here is the opinion.

Law Stories Series: “Truck Stop”

Matthew L.M. Fletcher

My contribution to the UMKC Law Review‘s “Law Stories” series — “Truck Stop” — is available for download on SSRN. Here is the description:

Every American Indian person – repeat, every American Indian person – is related to or knows someone or is someone who has been adopted out of or removed from their reservation family. A significant percentage of each recent generation of American Indian people has grown up among strangers, either adopted by non-reservation families or force-fed through a state foster care system. This is, of course, one of the fundamental issues Congress hoped to address when it enacted the Indian Child Welfare Act in 1978. This fictional narrative is my take on what it means for an Indian person to lose their family – and to regain it much, much later.

ICWA Case on Alleging Tribal Membership

Matthew L.M. Fletcher

The Massachusetts appellate court issued a decision in a case captioned In re Sabrina. The case is available on Westlaw at 2008 WL 597447. It is unpublished.
Here is a telling paragraph:

We have, however, a more fundamental reason why we are not prepared to have this case reopened on the issue, and that is the flimsiness of the factual showing regarding the father’s possible Native American ancestry. The only evidence on the subject is contained in an affidavit submitted by the father’s appellate counsel. The only relevant assertions are that “[i]n taking a history from [the father], I (the attorney) determined that [the father] is a Cherokee Native American, entitled to membership in said tribe through his paternal ancestors.” No other evidence, by the father or otherwise, was provided. We are thus left with an unsupported “determination” by counsel, plainly based on information provided by the father (which is not disclosed), and lacking any indication that counsel has the kind of expert credentials required to make such a judgment. We are not prepared to order the reopening of the record on such a showing.

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Kansas Court of Appeals Applies ICWA

Matthew L.M. Fletcher

The case is In re M.B.

An excerpt:

The district court found that the Cherokee Nation had the opportunity to participate in all court proceedings once the court received notice of the children’s Indian heritage, and that any possible error in giving notice to the Cherokee Nation had been remedied with the intervention of the tribe. The Cherokee Nation was certainly aware that it could have petitioned the district court to invalidate the termination of parental rights. See 25 U.S.C. § 1914. However, the Cherokee Nation did not request the district court to do so. Furthermore, the Cherokee Nation has not challenged any of the district court’s rulings by participating in this appeal.

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Iowa Supreme Court Orders Transfer of Indian Child Case to Sac and Fox Tribal Court

Matthew L.M. Fletcher

Here is the opinion In the Interest of N.V.

And a news article about the decision from the Des Moines Register. An excerpt:

The Iowa Supreme Court said Friday the custody of two children whose parents had been in jail may be transferred to the tribal court of the Sac and Fox Tribe.

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Fort on ICWA and Michigan Tribal-State Court Comity

Matthew L.M. Fletcher

“A Review of the Indian Child Welfare Act, M.C.R. 2.615, and Tribal Court Jurisdiction in Michigan Family Law Cases,” by Kathyrn Fort.

From the Michigan Child Welfare Law Journal [scroll to page 11].

NM Ct App ICWA Decision: Cherino v. Cherino

Matthew L.M. Fletcher

Here’s the opinion, reversing a trial court decision transferring a simple Indian child custody case to the Isleta Pueblo tribal court.

From KVIA:

Custody dispute doesn’t belong in tribal court, appeals court says

Associated Press – December 19, 2007 7:05 PM ET

SANTA FE (AP) – Custody disputes involving Indian children and their biological parents may not be transferred from state court to tribal court.

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Nebraska COA Orders Trial Court to Comply with ICWA

Matthew L.M. Fletcher

The case, In re Lawrence H., is here.

From the court’s intro:

Ida H. and Jose O. appeal the order of the separate juvenile court of Douglas County that terminated their parental rights to their son Lawrence H., also known as Faren H. (Faren). Because we conclude that the juvenile court erred in deferring its ruling on the motion to transfer of the Omaha Tribe of Nebraska (Omaha Tribe), we reverse the juvenile court’s denial of the motion to transfer, vacate and dismiss the order terminating parental rights, and remand with directions to transfer the matter to tribal court.