In addition, due to tremendous tribal leadership, the state of Wyoming adopted the entire federal ICWA into state law, creating the Wyoming Indian Child Welfare Act. This act was signed into law by the governor yesterday.
I’m getting a lot of calls and emails about state ICWA laws in light of the pending Brackeen case. A good state ICWA law that is specific to the state practices (see Oregon ICWA law or MIFPA as an example) can take months to complete, especially to ensure participation by all stakeholders, including tribal, parental, and state interests. Until Brackeen is released, it is very difficult to preemptively legislate, or legislate in a way that protects ICWA from the Court’s ruling. However, for states that have no state ICWA laws, if there is the political will to follow the Wyoming lead of incorporating the entire federal law into state law, this would be beneficial if the Court rules that ICWA violates commandeering concerns (ie. states can’t be forced to follow ICWA because it is federal law commandeering their agencies).
But it is important to remember that the Court can rule in a myriad of ways, there is no way to predict the outcome, and it is entirely possible that states will have to revisit their state laws in light of the decision–even those that replicate ICWA. I particularly like the Wyoming model of also passing a law creating *and funding* a taskforce to develop a state specific ICWA as well.
Finally, here is a link to the testimony that took place yesterday in the Minnesota Senate.
This bill is supported by the ICWA Law Center, one of the only organizations that provides direct, trial level legal services to Native families, and they do it very well. They are currently holding a fundraiser with Heart Berry:
And listen, I’m not responsible if you follow that link and then get sucked into buying a whole bunch of stuff from Heart Berry because it’s basically impossible not to. I don’t make the rules.
Today, Governor Tim Walz announced the appointments of Julie Allyn, Maximillia Utley, and Terri Yellowhammer as District Court Judges in Minnesota’s Fourth Judicial District. All three seats will be chambered in Minneapolis.
Ms. Yellowhammer’s appointment will fill a vacancy that occurred upon the retirement of Judge Fred Karasov.
“I am proud to appoint Ms. Yellowhammer. She is a tireless public servant, having spent her career fighting systemic inequities,” said Governor Walz. “Her experience as a tribal judge and her steadfast focus on increasing collaboration between underrepresented communities and the criminal justice system will give her a unique perspective in her new role.”
“Ms. Yellowhammer has the experience and heart that will serve the bench well,” said Lieutenant Governor Flanagan. “Her work as a tribal court judge and as an advocate for Native children and families brings a much needed perspective to the 4th judicial circuit. I’m thrilled by her appointment.”
This settles a long runningstring of cases out of the Minnesota federal courts in which the non-Indian parents of tribal member children argued there was no tribal jurisdiction over their children when they lived on the tribal reservation due to ICWA and PL 280.
Watso and Dietrich believe this provision means that “the tribe does not have jurisdiction over a child held by the state until the state court transfers jurisdiction to the tribe, which can only occur after a state court ICWA hearing.” To the contrary, § 1911(b) does not require a state court hearing. Section 1911(b) addresses the transfer of proceedings from state court to tribal court. Here, there were no state court proceedings. There was no transfer from state court to tribal court. Section 1911(b) does not apply.
PL 280 holding:
Public Law 280 does not require a state court hearing or any state court proceedings. See Walker v. Rushing, 898 F.2d 672, 675 (8th Cir. 1990) (“Nothing in the wording of Public Law 280 or its legislative history precludes concurrent tribal authority.”); Doe v. Mann, 415 F.3d 1038, 1063 n. 32 (9th Cir. 2005) (“Public Law 280 states have only concurrent jurisdiction with the tribes over child custody proceedings involving Indian children.”), citing Native Village of Venetie I.R.A. Council v. State of Alaska, 944 F.2d 548, 562, 559–62 (9th Cir. 1991) (rejecting argument that Public Law 280 vested enumerated states with exclusive jurisdiction). The SMSC Court’s jurisdiction over C.P. and C.H.’s child custody proceedings is consistent with Public Law 280.
And a succinct due process holding:
Lastly, Watso and Dietrich allege that the absence of a state court proceeding violated their due process rights, based on parents’ fundamental right “to make decisions concerning the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 66 (2000) (invalidating state law that allowed any third party to petition state courts for child visitation rights over parental objections). They allege due process rights “to object and to stop the transfer, a right to notice and a right to a meaningful court hearing.” Watso and Dietrich had sufficient notice of the tribal court proceedings. They were heard in tribal court. They have presented no evidence of a due process violation.
The Minnesota American Indian Bar Association (MAIBA) welcomes you to attend the 2019 Indian Law Conference at the Mystic Lake Conference Center on Friday May 3, 2019. MAIBA cosponsors the CLE with Minnesota CLE.
Those interested in hotel rooms may call the Mystic Lake Hotel at 800-262-7799 by April 10, 2019, to receive the special conference room rate.
Yesterday Minnesota Governor Elect, Tim Walz, appointed Dennis Olson, Jr. as the Commissioner of Minnesota Office of Higher Education. Dennis is a citizen of the Fond du Lac Band of Lake Superior Chippewa and currently serves as the Executive Director of the Minnesota Indian Affairs Council. This appointment is part of Governor Elect Walz’s effort to increase access to education for people of color and address the disparities in prison populations.
Minnesota Lt. Governor-Elect, Peggy Flanagan, is the first ever Native American woman to be elected to state wide executive office.
Both Olson and Flanagan are graduates of the University of Minnesota American Indian Studies program.
Over 15 years ago, the Minnesota Tribal Court/State Court Forum petitioned the Minnesota Supreme Court to adopt a robust rule for recognition of tribal court orders. Due in large part to public concern about the efficacy of tribal courts, the supreme court adopted a more cautious rule, one that provided limited guidance and delegated excessive discretion to district courts. The consequences were delays and inconsistencies in the recognition process.
In 2016, the Forum petitioned the supreme court to amend the rule, arguing that any concerns about today’s tribal courts are unfounded. It asked the Minnesota Supreme Court to enhance the rule and extend due deference and respect to tribal courts. The petition received overwhelming support from state court judges, local attorney associations, and the national Indian law community. In a 4-2 decision on July 2, 2018, the Minnesota Supreme Court granted the Forum’s petition with minor amendments.
Thank you to all of the state and tribal court judges of the Forum for their leadership and thanks also to Peter Rademacher (Hogen Adams PLLC) for his tireless work as scrivener of the Forum.
A group of individuals from Ojibwe nations in Minnesota known as the “1855 Treaty Authority” staged a wild rice harvesting gathering in Nisswa, Minnesota on Hole-in-the-day Lake on August 27, 2015. The location is outside of current reservation boundaries, but within the territory ceded by the 1855 Treaty with the Chippewa. The group is asserting that because the 1855 Treaty did not specifically remove hunting, fishing, and gathering rights on the ceded territory, those rights still exist for tribal members off-reservation.
The Minnesota DNR issued one-day permits to diffuse tensions, but several members of the Treaty Authority continued to rice and gillnet the following day, and were issued citations for gillnetting without a permit. The final decision to formally charge the members with gross misdemeanors and bring the case to court is still forthcoming from the Crow Wing county attorney.
In 1999, the Supreme Court upheld the Mille Lacs Band of Ojibwe’s 1837 Treaty right to hunt, fish, and gather on ceded lands after determining that the 1855 Treaty did not extinguish those usufructuary rights. The Mille Lacs case did not decide whether the 1855 Treaty itself preserved off-reservation hunting, fishing, and gathering rights for other tribes in Minnesota.
The 1855 Treaty Authority previously attempted to get this issue into federal court in 2010, but the DNR did not issue any citations at that point.
Press release from the 1855 Treaty Authority here.
It is apparent that the BIA guidelines on Indian child welfare proceedings overlap with current legislation in Minnesota, showing that efforts by the BIA and other advocates have likely been considered. The modifications to MIFPA and changes to out-of-home placement provisions are sensitive to tribal involvement, and the importance of heritage and culture in the lives of Indian children and families is clearly defined in the proposed purpose of MIFPA and other aspects of the new legislation. The bills fill gaps previously left unclear or undefined.
While the bills show much progress for Indian child welfare in Minnesota, there is one thing to consider. In terms of court placement of an Indian child outside of the placement preferences, both bills allow social services agencies to provide testimony that they have performed diligent efforts to follow the ICWA placement preferences. What is unclear is how the courts plan to measure the level of diligence and whether or not DHS would provide guidance over this.
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