Difficult Case out of California [ICWA]


The question of whether Mom could have her child back with his siblings came down to his best interest–which kept him in the guardianship, despite the mom’s sobriety, job, handling a child with cancer, and raising a number of children. The Tribe, fearful of losing contact with the child entirely if they picked a side in the case, supported the mom but also ended up not weighing in on the final decision, instead asking the court to order whoever had the child keep him in contact with the Tribe. But this conclusion from the court is simply heartbreaking. It is not clear the child is related to the guardians, and as such the court equates a biological parent to non-relative foster care in a troublesome way:

We recognize this case was a difficult one for the juvenile court, not least because it was forced to choose between two families, both of whom love minor very much and both of whom may have been able to provide a stable, loving home where he remains connected to his siblings, other relatives, and his tribe. We can only express our hope, as did the juvenile court, that these families can find a way to remain connected in the interest of allowing minor to be loved and cared for by as many people as possible. It is also a difficult case because mother demonstrated her commitment to regaining custody by complying with her case plan, maintaining her sobriety and full employment, and garnering the support of the Department and the Tribe to have minor returned to her care. *** On this record, we perceive no abuse of discretion in the juvenile court’s determination that mother failed to meet her burden to demonstrate return to mother’s custody would be in minor’s best interest.

And no, I don’t entirely understand why the court isn’t using much higher ICWA standards here.

Friday Job Announcements

Job vacancies are posted on Friday. Some announcements might still appear throughout the week. If you would like your Indian law job posted on Turtle Talk, please email indigenous@law.msu.edu.

Havasupai Tribe

Appellate Judge. Would preside over appeal cases for the Havasupai Court of Appeals. Interested applicants should provide a letter of interest and a current resume to Joan Davis at rjdavis@rothsteinlaw.com.

Swinomish Indian Tribal Community

Staff Attorney. Provide legal advice, document drafting and collaboration with a wide range of Tribal policy committees, departments and entities, with work that may include contract preparation, drafting ordinances and policies, treaty hunting and fishing rights and management, environmental protection and habitat restoration, Indian gaming, housing and utilities, health care and/or social welfare programs, employment benefits or taxation.

Qualified applicants must be licensed, or have the ability to become licensed, to practice in Washington. We are seeking an energetic attorney with excellent written, oral, research and analytical skills, strong interpersonal communication and negotiation skills, and an ability to work hard and thrive in an interdisciplinary and cross-cultural environment; bring flexibility to a fast-paced and dynamic work setting; enjoy and excel at creative problem solving; have demonstrated a commitment to working with Native or other minority communities and/or restorative justice; and a commitment to reside on or near the Swinomish Reservation.

Qualified applicants must have experience or demonstrated expertise in one or more of the following: drafting and negotiating contracts; drafting statutes, policies and procedures; litigation, preferably in Federal Court; representing public or private entities; gaming regulation or operations; and Indian law, including protection of treaty rights, as well as expertise in several of the substantive fields of law listed above. Compensation DOE.

For application and complete job description please provide your contact information to Wendy Otto, 11404 Moorage Way, LaConner, WA 98257; (fax) 3601466-5309; email wotto@swinomish.nsn.us Applications will be accepted until suitable candidate is found. Applicants must pass a background check and a drug test.

Karuk Tribe

Assistant General Counsel, Yreka, CA.  will work to provide legal services, representation, and advice on legal, legislative, and governance issues confronting the tribal government, its entities, and enterprises. Applications available at all Tribal Offices or on the Internet at http://www.karuk.us.

Ak-Chin Indian Community

Assistant Prosecutor. Previously posted here. Now open until filled.

Southcentral Foundation

General Counsel, Business and Intergovernmental Affairs, Anchorage, AK. provides legal advice and assistance on a variety of matters including: tribal self-governance and ISDEAA; tribal relations; business affairs; business transactions; and intergovernmental relations. This position will also assist the General Counsel, Health Care and Corporate Governance, as necessary or required. Salary DOE with excellent benefits including an employer matched 401K plan, generous paid leave 3.6 – 6.5 weeks per year, 12 paid holidays, employee medical, dental, vision, hearing and more.

Applicants must be an actively licensed member of the Alaska Bar in good standing with at least 5 years of related experience. Imagine working for an entire people, instead of a business. Southcentral Foundation can give you that job satisfaction.  Come join our innovative, award winning healthcare organization expanding the frontier of healthcare.

Determination of Application of ICWA from Oregon Court of Appeals

We are getting a lot of questions about when the standards of ICWA apply if a child or parent is enrolled after the initiation of the child welfare case. Here’s a not particularly helpful or clear decision out of the Oregon Court of Appeals:

Parents’ position depends on a selective understanding of the record before the juvenile court. Specifically, as noted, testimony at the August 22, 2014, hearing established that the “Karuk Tribe” notation for mother in DHS’s database had been entered, as a preliminary matter, in 2004, but that, in response to subsequent, contemporaneous inquiries from DHS, the tribe had explicitly denied that mother or her children met the requirements for tribal membership. See 278 Or App at 431-32. That negative response—a response within DHS’s constructive knowledge in 2011—negated the 2004 preliminary notation. Further, the record established that, while that notation automatically “popped up,” there was no evidence that it had ever been renewed or supplemented based on any subsequent information. Similarly, parents’ reliance on mother’s reference to having a tribal membership card does not engage with the complete context that, at the same time mother made that remark in February 2011, she was adamantly refusing to complete ICWA-related forms provided by DHS. Indeed, mother did not obtain a tribal membership card until May 2012—and, even then, did not so inform DHS.15 Given the totality of the circumstances, the juvenile court did not err in denying parents’ motions to dismiss. See State ex rel Juv. Dept. v. Tucker, 76 Or App 673, 677, 10 P2d 793 (1985), rev den, 300 Or 605 (1986) (affirming juvenile court’s denial of petition to “invalidate” foster care placement based on purported ICWA noncompliance; record did not establish that, as of the time the child was placed, ICWA applied, and subsequent determination that the child was an Indian child did not render ICWA retroactively applicable to prior actions of the juvenile court).

California COA Appeals Decides ICWA Notice Case, Reversing and Remanding for Proper Notice to Karuk Tribe

Here is the opinion in In re Guardianship of D.W.

An excerpt:

The record in the present case discloses that from the outset of these proceedings until respondent was appointed the minor‟s guardian, appellant consistently informed the court that the minor had Indian ancestry, and that his father was an enrolled member of the Yurok or Karuk tribes. “Because „biological descendance‟ is often a prerequisite for tribal membership . . . [a relative‟s] suggestion that [the child] „might‟ be an Indian child [is] enough” to satisfy the minimal showing required to trigger the statutory notice provisions. (Antoinette S., supra, 104 Cal.App.4th at p. 1408, fn. omitted.) In carrying out its obligation under the ICWA to provide notice, the court incorrectly assigned appellant, the party objecting to the guardianship, the responsibility of providing notice to the possible Indian tribes.

Materials in Trinity River Flow Suit

Here are the materials in San Luis & Delta-Mendota Water Authority v. Jewell (E.D. Cal.):

DCT Order Lifting TRO and Denying Preliminary Injunction

Water Districts Motion

Fisheries Opposition

Hoopa Opposition

Interior Opposition

Leshy Memorandum

Water Districts Reply

News coverage here.

Ninth Circuit Briefing in City of Yreka’s Effort to Block Karuk Trust Acquisition for Medical Center

Here are the materials (so far) in City of Yreka v. Salazar:

City of Yreka Opening Brief

Interior Dept Brief

Lower court materials here.