North Carolina Supreme Court

DSS and the guardian ad litem for Carrie (GAL) disagree, arguing that respondent
conflates the existence of or possibility of a distant relation with an Indian with
reason to know that a child is an Indian child.

States and courts are really struggling with how much information from a parent gives the court reason to know there is an Indian child in the case–I think this is especially since the regulations now make clear that if you do have reason to know, you must treat the child as an Indian child until demonstrated otherwise. At the same time, there is real issue with lack of nuance on this issue–when a trial court takes the facts from a case like In re Z.J.G. and treats them the exact same way as the facts in this case, which is essentially what happened, then states really have to go send notice for both, which is what the WA Supreme Court held. You don’t do the reverse, which is what the North Carolina Supreme Court has done in this case.

Now, I got an email from California recently and there is a lot of discussion there about the state’s laws there distinguishing between “reason to believe” and “reason to know.” There are a LOT of bumps with implementation, but they are essentially requiring a level, or duty, of inquiry and further inquiry from their state workers to ensure they aren’t missing ICWA cases.

I’d love to get into why is the GAL arguing against the application of ICWA or ensuring the child has the information she may need to be a tribal citizen, but I do have to do some other things today . . . https://turtletalk.blog/2013/11/25/fletcher-fort-indian-children-and-their-guardians-ad-litem/

Reported N.C. ICWA Notice Case

October 1, 2021Kate Fort

528a20-1 Download

There’s not much groundbreaking about this ICWA notice case, but this information did catch my eye. A letter from the BIA apparently stated:

The Bureau of Indian Affairs specified in relevant part as follows:

a. The BIA acknowledges that you have notified the family’s identified Tribe(s) Tuscarora, Tonawanda, Mohawk, Seneca, Oneida, EBCI, Cayugo, Onondaga, and Keetoowah based on your inquiry with the family according to 25 U.S.C. § 1912.
b. You have identified that Onondaga and Keetoowah have not responded. At this point, you have done due diligence and completed your ICWA responsibilities.

Do people regularly get letters where the BIA states the agency has “completed [its] ICWA responsibilities?” I haven’t seen this entered as evidence in other cases, so I’m curious. According to the record, this came from the BIA regional office in Tennessee.

Reason to Know Decision from NC Supreme Court [ICWA]

August 21, 2020Kate Fort

Opinion by Justice Beasley, putting the burden on the court to ensure inquiry and notice are done properly:

Here, the record shows that the trial court had reason to know that an Indian child might be involved. In eight separate filings, DSS indicated in its court reports that respondent-father indicated that he had Cherokee Indian heritage. Respondent-father also raised his Indian heritage during a Child and Family Team Meeting, and his comments were included in a report filed by DSS with the trial court. Although the trial court had reason to know that an Indian child might be involved in these proceedings, the trial court failed to readdress its initial finding that the Act did not apply and failed to ensure that any Cherokee tribes were actually notified.