New Mexico Notice and Time Frame Case from Court of Appeals [ICWA]

Children, Youth & Families Department v. Tanisha G. and Isaac G.

This is an interesting and remarkable case, and a way to deal with continued notice violations and delay by an agency. Here are the highlights of this disturbing case of agency overreach:

CYFD took Child, then age four, into custody on January 26, 2018, after the 12 Bernalillo County Sheriffs Office executed a warrant for Father’s arrest, leaving no caregiver in the home to care for Child.


Parents were served with the petition on February 6, 2018. By that time, Father  had been released from custody and the charges against him dropped; his arrest was apparently the product of mistaken identity.


In the ensuing seventy-seven days, the parties appeared for three hearings: a status conference on February 27, 2018, and two adjudicatory hearings that had been set for April 2, 2018, and April 24, 2018, respectively. The district court declined to 14 commence the adjudication on either April 2 or April 24, however, because although CYFD had mailed ICWA notices to several tribal entities on February 8, 2018, and the tribal entities had received those notices shortly thereafter, CYFD had not filed proof of service to establish receipt in the record.

On April 25, 2018, Parents filed separate motions to dismiss, arguing that 19 CYFD had failed to commence the adjudication within sixty days as required by the Abuse and Neglect Act.


The district court heard the motions to dismiss on the morning of May 24, 6 2018, at which time CYFD orally moved for an extension of time to commence the adjudicatory hearing. The district court denied CYFD’s request, noting that the court and parties had attempted multiple times to commence the adjudication, that CYFD’s failure to comply with ICWA’s notice requirements had precluded the court from timely adjudicating the matter, that the court had reminded CYFD that the time limits were running, and that CYFD had failed to file a motion to extend the time limits when the parties were last in court.  The district court granted the Parents’ motions to dismiss the petition with prejudice.

Hours later, Father filed an emergency motion for contempt of court, stating that arrangements had been made for Child to be reunited with Parents at 11: 15 a.m., but CYFD refused to return Child. The district court conducted an emergency hearing at 3:00 p.m., during which CYFD stated that it intended to file a motion to reconsider or, alternatively, to stay the judgment. The district court admonished CYFD for keeping Child without jurisdiction and ordered reunification before 5:00 p.m. that day, which occurred. CYFD appeals the district court’s dismissal order.

The Court of Appeals upholds the lower courts dismissal and ADDS THIS:

Finally, we briefly address CYFD’s assertion that the district court “was … inexplicably dismissive of [CYFD]’s concerns for Child’s welfare, which is not only an abuse of discretion, but demonstrates a conscious disregard by the [district] court of its statutory duty to ensure that ‘a child’s health and safety shall be the paramount concern.'” Contrary to CYFD’s characterization, however, we note that the district court heard from Father’s attorney that the conditions in the home had been remedied. The guardian ad litem (GAL) reiterated that Parents’ attorneys had suggested that the home was now clean and safe for Child. The GAL stated that Child and Parents share a strong bond and that Child was suffering from anxiety due to his separation from Parents. The GAL believed it was safe to return Child to  Parents. Moreover, the criminal allegations against Father, which had brought Child into CYFD’s custody in the first place, were a product of mistaken identity and had been dismissed months earlier. Based upon this testimony, we disagree with CYFD’s characterization that the district court disregarded Child’s health and safety.

Colorado Court of Appeals ICWA Notice Case


The 2016 Guidelines recommend that if only the tribal ancestral group is indicated, then the Department should notify each of the tribes in that ancestral group to identify whether the parent or child is a member of any such tribe. 2016 Guidelines at 18. Thus, because ICWA’s intent is to provide notice to tribes so that the tribes themselves can decide whether children are tribal members, see B.H., 138 P.3d at 303-04, when a parent is unable to provide detailed information on potential tribal affiliations, the Department should provide notice to all identified tribes and the tribes that have been historically affiliated with those identified tribes, see Tribal Agents by Affiliation,

Hopi Sue Navajo over Access to Sacred Sites

Saying the Navajo Nation is ignoring its obligations, the Hopi Tribe wants a federal judge to order that its members  be allowed onto Navajo lands for religious purposes.

The lawsuit filed in U.S. District Court here claims the Navajos agreed in 2006 to permit Hopi religious practitioners to engage in certain practices in designated areas of the Navajo Nation. That includes the “sacred gathering of golden eagles.”

Attorney Timothy Macdonald said those sites even are set out on a map.

But Macdonald, in the lawsuit made available Tuesday, said the Navajo Nation is preventing Hopi tribal members from going on to some of those sites because they are on specific “allotments.” Those are parcels of land held by the federal government for individual Navajos.

It even got to the point where a member of the Hopi Tribe was arrested last year, he said.

A bid to have the dispute resolved by a special Joint Commission went nowhere, Macdonald said, when the panel concluded it lacks jurisdiction over individual allotments.

So Macdonald now wants U.S. District Court Judge Paul Rosenblatt to block the Navajo Nation from taking any action to keep Hopi religious practitioners from the specified areas. And if Rosenblatt won’t do that, Macdonald wants him to rule that the Joint Commission can make a decision.

Harrison Tsosie, the Navajo Nation attorney general, said Tuesday he is still studying the case but said the allotments are “off limits” to Hopi religious practitioners. He also said those areas were not part of the 2006 agreement and that the sites in question are not on the map.

Hopi Tribe v. Navajo Nation – Complaint 07-05-13 copy.

Link to the news article here.


Wall Street Journal article on protections for Mount Taylor in NM

The article describes struggles between the Acoma Pueblo, Pueblo of Laguna, Zuni, and Navajo and ranchers regarding whether Mt. Taylor should be protected from mining because of its sacred character.

Navajo Group Petitions Human Rights Commission in Effort to Halt Uranium Mining

This story was filed in May in the NYTimes (here’s the link), with televised news coverage on KRQE News (link here).

An excerpt from the NYTimes coverage:

In a last attempt to deep-six a controversial project to mine uranium near two Navajo communities in northwestern New Mexico, a Navajo environmental group is taking its fight to the global stage.

Tomorrow, Eastern Navajo Diné Against Uranium Mining, with the help of the New Mexico Environmental Law Center, will submit a petition to the Inter-American Commission on Human Rights arguing that the Nuclear Regulatory Commission’s decision to grant Hydro Resources Inc., a license to mine uranium ore near Churchrock and Crown Point, N.M., is a violation of international laws.

The groups contend the mines, first permitted by NRC in 1999, could contaminate drinking water for 15,000 Navajo residents in and around the two communities, which lie just outside the Navajo Nation. In 2005, the Navajo’s tribal government passed a law prohibiting uranium mining within its borders.

“By its acts and omissions that have contaminated and will continue to contaminate natural resources in the Dine communities of Crownpoint and Church Rock, the State has violated Petitioners’ human rights and breached its obligations under the American Declaration of the Rights and Duties of Man,” the petition reads.

“We’re very hopeful,” said Eric Jantz, an attorney with the New Mexico Environmental Law Center who is filing the petition on behalf of ENDAUM. “I think we have very solid claims. It’s always been our client’s position that clean water is a human right.”

ICT Article on Indian Language Textbooks

From ICT:

SANTA FE, N.M. – Long-talked-about efforts to infuse Native culture and language learning in the public education system have resulted in action in New Mexico.

A textbook co-authored by Evangeline Parsons Yazzie, a Navajo professor at Northern Arizona University in Flagstaff, has been selected by the state’s education department as a high-quality resource that will soon be made available to all school districts in the state.

State officials believe that New Mexico is the first state to adopt a Navajo textbook for use in the American public education system.

So far, officials from 10 districts have already signed on to have teachers in their systems use the book and its companion teaching guide. BIA schools are also eligible to review the text and decide whether to use it starting in the 2009-10 school year.

”It’s just wonderful that an Indian language is being honored in this way,” Yazzie said. ”It’s so important that American Indians learn about their people, their language and their culture from their own people, rather than just reading about it in a textbook that’s written by a non-Indian.”

Yazzie’s book, ”Dine’ Bizaad Binahoo’ahh,” or ”Rediscovering the Navajo Language,” is filled with cultural and language lesson plans that are suitable for all ages of students, according to the author. It is illustrated with many historical and contemporary pictures of people who have lived on the Navajo reservation. It’s also accompanied by a CD with the voices of Yazzie and her brother, Berlyn Yazzie, a former educator on the Navajo Nation.

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Mike ex rel. Mike v. Office of Navajo Hopi Relocation (D. Ariz.)

This case involved a request for relocation assistance in the context of the Navajo Hopi relocation process. The Office declined to provide assistance, but the tribal member won in court.

Here are the materials:

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