An example of what a mess happens when an agency proceeds on termination of parental rights before establishing tribal membership. And an answer to the question what happens to all those cases remanded for notice.
Here is the information on the June 3 tribal consultation on the Adoption and Foster Care Analysis and Reporting System. Comments are due June 18.
In affidavits supporting the TIA and TLC petitions, Child Protection Specialists (CPS) noted they had no reason to believe that any of the children were subject to the Indian Child Welfare Act (ICWA). However, at a May 2016 show cause hearing, the District Court was notified that ICWA possibly applied to K.J. considering K.J.’s father received benefits from the Arapahoe Tribe. The benefits signaled potential for K.J. to meet the “Indian child” designation of ICWA. Yet, further correspondence with the Arapahoe Tribe conclusively determined that ICWA was inapplicable to K.J. The District Court granted the Department authority to investigate and work with the parents and children.
In October 2016, the Department again filed petitions for adjudication as YINC and TLC for all three children. CPS Mariesa Wallis submitted three identical affidavits in support which included the statement: “To the best of my knowledge and belie[f] the child is an Indian Child subject to [ICWA].” Wallis’ affidavit did not reference specific tribes or details concerning possible tribal affiliations. The petition and accompanying affidavits are the sole documents in the record suggesting J.J.C. or R.G. were Indian children.
Emphasis added. The Court found that ICWA did not apply (actually, that there was no reason to believe the child was an Indian children, which . . . seems like the wrong finding). Assuming, however, the communication with the Tribe was accurate, it is correct for the trial court to follow that determination rather than the state social worker’s affidavit.
In this case, as early as 2014, the State, through the Department, had reason to believe and, as asserted in its various petition averments and request for the District Court to proceed under ICWA, did believe that L.D. was an Indian child by affiliation with the Chippewa Cree Tribe. Though it gave due notice to the Tribe of the pendency of the initial foster care and subsequent parental rights termination proceedings, there is no evidence that the Department ever formally sought or received a conclusive tribal determination that L.D. was or was not eligible for tribal enrollment. Instead, the Department passively relied on the inaction of the Tribe and the assertions or beliefs of the parents that L.D. was not eligible for tribal membership. However otherwise reasonable, this passive reliance was insufficient to satisfy the Department’s ICWA burden to actively investigate further and ultimately make formal inquiry with the Tribe for a conclusive determination of L.D.’s membership eligibility.
Also, with briefing (a rarity in ICWA cases)!
In In the Interest of A.W. the Iowa Supreme Court held that the Iowa ICWA‘s definition of “Indian child” violated the Equal Protection Clause. The definition included Indian children who were not eligible for membership in any tribe (“‘Indian child’ or ‘child’ means an unmarried Indian person who is under eighteen years of age or a child who is under eighteen years of age that an Indian tribe identifies as a child of the tribe’s community.“, Iowa Code 223B.3.6), or what the Court referred to as “ethnic Indians.” In doing so, the Court held that the trial court order allowing the intervention of the Winnebago Tribe of Nebraska was invalid.
A video of the oral argument before the Iowa Supreme Court can be viewed here.
From Interlochen Public Radio:
Keeping the history of Holy Childhood
HARBOR SPRINGS 2007-09-28
A Michigan historic site in Harbor Springs is expected to be demolished next month despite a last-minute effort to save the building. It was built in 1913 to house an Indian Boarding School run by the Catholic Church.
The church owns the building, but members of tribes all over Michigan, and even beyond, have some claim to its history.
Plans for the new building have been in the works for years. But this summer the impending demolition dug up old wounds for some former students, and while some welcomed the wrecking ball, others felt the building’s demise would also erase the building’s history.
IPR’s Linda Stephan visited Harbor Springs, and filed this report.