This and other comprehensive state ICWA laws are kept here.
If your state doesn’t have a comprehensive state ICWA law, you should get one. For a lot of different reasons, they are vital to maintaining ICWA’s protections for Native families.
I’ve been watching the qualified expert witness decisions coming in that are finally starting to wrestle with both the Regulations and the Guidelines, and I think they are narrowing in on conflicting requirements that will likely make it increasingly difficult to find a QEW.
First, the purpose of the QEW is for the state to find a witness (hopefully in collaboration with the Indian child’s tribe) that agrees a child needs to go into foster care or agree with a termination of parental rights. This is an attempt to address state bias, obviously, in the removal of Native children. The law only requires the testimony of the QEW support the findings, and doesn’t specifically require magic language from the QEW. The Regulations are fairly thin on the requirements of a QEW but there are two major elements:
“A qualified expert witness must be qualified to testify regarding whether the child’s continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child and should be qualified to testify as to the prevailing social and cultural standards of the Indian child’s Tribe.” 25 C.F.R. 23.122
This decision from New Mexico finds the QEW was qualified on the social and cultural standards, but was not on the serious emotional or physical damage to the child. There is a similar decision on this from Alaska, and really problematic language in the Guidelines that is leading to the focus on the specialized expertise of the witness regarding the ability to testify about continued custody and a de-emphasis on the social and cultural standards of the Tribe. I personally have mixed feelings about this, but I would advise practitioners to read this opinion especially as to laying the foundation for the testimony of the QEW. And I’d also reiterate my usual advice that Tribes can always introduce their OWN witness to address cultural tribal issues.
Indian Child Welfare Act
- A State ICWA law that mirrors and expands upon the federal version and that will be drafted with the Administrative Office of the Courts and with New Mexico Tribes and Pueblos
- Processes and procedures to promote traditional interventions as first-line interventions and services, developed with the input of New Mexico’s Tribes and Pueblos
- Federal funding for traditional and culturally responsive treatments, interventions, and supports, including non-medicalized interventions
- A plan to increase recruitment and retention of Native resource families
- A policy to provide or ensure provision of direct assistance for traditional ceremonies, including arranging for all preparation and providing payment if needed, if Native Children want to participate
In Mendoza v. Isleta Resort and Casino, the New Mexico Supreme Court heard the case of a party who wished to circumvent tribal procedures for a worker’s compensation claim. Ultimately, the New Mexico Supreme Court’s holding is a big win for tribal sovereignty, as it requires an express waiver of sovereignty before permitting a state action to commence over a dispute arising on tribal property. Read more here and listen to the oral arguments here.
The Pathways to the Legal Profession conference aims to increase the number of competitive Native law school applicants nationwide by providing mentors necessary skills and resources to identify, advise, and support the next generation of Indigenous attorneys.
Please note that this conference is designed for advisors. If you are interested in becoming a law student, learn about the Native American Pipeline to Law Initiative.
You are welcome to contact Rodina Cave Parnall at 505-277-5462 with any questions.
AMERICAN INDIAN LAW CENTER, INC.
The Indian Law Section of the New Mexico State Bar is hosting its annual CLE on Thursday, November 7, 2019. Please see the agenda for more information.
The University of New Mexico School of Law recently announced that it is in search of a Visiting Professor to teach in its Southwest Indian Law Clinic during the Fall 2019 semester. Applications close on July 12, 2019. Please see more details, including how to apply, here.
The 2019 Indian Law Section Bar Scholarship application is now available. Applications are due on March 31, 2019. Applications are available here.
The Tribal Law Journal is hosting its 20th Anniversary Symposium on Honoring Indigenous Dispute Resolution. Speakers include Rep. Deb Haaland and the Honorable Robert Yazzie. There will also be a screening of Tribal Justice, with film panelists the Honorable Abby Abinanti and the Hoborable Claudette White. This program has been approved for 3.0 general and 1.0 ethics CLE credits.
The Symposium will be held at the University of New Mexico School of Law on March 29, 2019. Please see the announcement for more details.