notice

Michigan Court of Appeals Opinion on MIFPA and ICWA Notice

Kate Fort1 Comment

The Michigan COA interpreted In re Morris to require a conditional reversal when the parent asserted that his grandmothers were Native and:

It is unclear from the record exactly how or why the caseworker came to the conclusion, reflected in the case service plans, that the minor child is not an Indian child for purposes of 25 USC 1912(a); some elaboration would have been appropriate given the father’s assertion. There is no indication that an inquiry or investigation was made specifically with respect to the father’s claim made at the preliminary hearing, nor an explanation in regard to why the father’s claim was being discounted, assuming it was evaluated or pondered in the first place, such that the ICWA notice requirement was not triggered. Of special concern to us is that the initial case service plan, in its summarization of the trial court’s preliminary hearing order, made no mention of the court’s command that the caseworker “make necessary inquiry and/or notification as to possible Native American Indian heritage.” Furthermore, there is no clear confirmation by the court itself that its initial concerns of whether the child is an Indian child were alleviated. Moreover, the father’s assertion concerning the Native American heritage of the minor child’s paternal great-grandparents fits within the parameters of the examples given by the Morris Court, quoted above, that would trigger the need to serve notice. Morris, 491 Mich at 108 n 18. Finally, petitioner itself concedes that conditional reversal is necessary in order to determine whether the minor child is an Indian child under the law.

Opinion here.

Court Conditionally Reverses TPR to Comply with ICWA Notice Provisions, Unpublished Case, California

Victoria Sweet1 Comment

Link to PDF: b247833.pdf .

It is also available at 2014 WL 848098 and online at the California courts website.

Conditional Reversal on Notice Case from Michigan COA

Kate Fort

Here.

We acknowledge that there was an effort to comply with the notice requirements. On October 14, 2011, petitioner sent a notification for each child, identifying the children’s tribal affiliation as Sault Ste. Marie Tribe of Chippewa and/or Blackfoot, to respondents, the Sault Ste. Marie Tribe of Chippewa, and the Midwest Bureau of Indian Affairs in Fort Snelling, Minnesota. The notices state that they were sent by registered mail, return receipt requested. However, there is no return receipt in the record before us.

Michigan COA Unpublished Decision on ICWA Notice

Kate Fort1 Comment

Here.

Here, respondent-father indicated to the referee that his great-grandmother was a member of the “Blackfoot” tribe. Although petitioner argues that there is no such tribe as “Blackfoot,” the BIA’s list of federally recognized Indian tribes includes “the Blackfeet Tribe of the Blackfeet Indian Reservation of Montana.” See http://www.ncsl.org/research/state-tribal-institute/list-of- federal-and-state-recognized-tribes.aspx (last visited December 30, 2013).    Respondent-father points out that the name “Blackfoot” was used by the federal government in the Treaty with the Blackfeet of 1855, which recognized the existence of a Blackfoot Tribe and Blackfoot Nation. See Treaty with the Blackfeet, 11 Stat 657 (October 17, 1855). Thus, mindful of our Supreme Court’s statement that “[i]f there must be error in determining whether tribal notice is required, let it be on the side of caution[,]” Morris, 491 Mich at 108, we hold that respondent-father provided sufficient indicia of Indian heritage to the trial court to require tribal notice. If the identity of the tribe is uncertain, 25 USC § 1912(a) allows notice to be given to the Secretary of the Interior. Here, the record does not indicate that any notice was given.

***

We therefore conditionally reverse the trial court’s termination of respondent-father’s parental rights, and remand to the trial court for resolution of the notice issue. On remand, the trial court shall ensure that notice is properly made to the appropriate entities. If the children are not Indian children or the properly noticed tribes or government entities do not respond within the allotted time, the trial court’s termination of respondent-father’s parental rights is reinstated. If, however, the trial court concludes that the ICWA does apply to the proceedings, the trial court’s termination of respondent-father’s parental rights to his four children must be vacated and proceedings begun anew in compliance with the procedural and substantive requirements of the ICWA.

A Particularly Troubling Unpublished Notice Case from California

Kate Fort

More than the usual troubling CA notice cases, that is. Particularly the part about not having to do *any* notice, regardless of the court’s confusion about the history and location of the Pascua Yaqui Tribe.

Here.

The social worker reported Audrey said her father, Luis H., has some Yaqui Indian heritage, but she had not spoken with him and did not have sufficient information to fill out the form. When the social worker telephoned Luis, he said his mother was born in Sonora, Mexico,and  mother’s father was Yaqui. He said he did not know if any family member was registered with a tribe, but reported no family member practiced any tribal customs.

***

At the contested jurisdictional/dispositional hearing on July 30, Audrey again indicated her only potential Indian heritage was from the Yaqui Tribe in Mexico. County Counsel said as a precautionary measure the Agency would provide ICWA notice to the Yaqui Tribe in the United States and, on August 1, it sent notice to the Pascua Yaqui Tribe in Arizona. The court, however, found ICWA notice was not required because there was no reason to believe Mason is an Indian child in that Audrey had indicated her only potential Indian heritage is through the Mexican Yaqui Tribe, and the Mexican Yaqui Tribe is not a federally recognized tribe governed by ICWA.

In re Z.A.: Stackbridge or Stockbridge

Kate Fort

Here.

California Court of Appeals, 4th district, 2nd division, remands for DPPS to notify the proper tribe:

Here, DPSS was informed at the earliest point in the proceedings that the biological grandmother was an enrolled member of a tribe and that mother, herself, was an enrolled member of an Indian tribe. DPSS was therefore aware that an Indian child might be the subject of the involuntary custody proceeding. The problem arose when mother completed the ICWA 020 form, in which she listed the possible tribe to which she belonged as the “Stackbridge” tribe. Without conducting any inquiry on her own, the social worker accepted information from an unnamed noticing clerk indicating that the “Stackbridge” tribe did not exist, and did not send any notice to that tribe.

Without difficulty, we found the tribe. The Department of Interior’s list of “Indian Entities Recognized and Eligible to Receive Services From the Bureau of Indian Affairs” (otherwise known as the list of Federally Recognized Tribes) includes the “Stockbridge Munsee Community, Wisconsin.” (77 Fed.Reg. 47868, 47871 [No. 155, 2012].) The Stockbridge–Munsee Community of Wisconsin reveals that the tribe descended from a group of Mohican Indians who joined the Oneida Indians in New York in 1785, and, together, both tribes were relocated to Wisconsin. (Stockbridge–Munsee Band of Mohican Indians, http:// witribes.wi.gov/docview.asp?docid=19080 & locid=57 [as of Aug. 31, 2013], p. 2.)

Michigan COA Decision on In re Morris

Kate Fort

The Michigan Court of Appeals heard the ICWA notice case that the Michigan Supreme Court originally remanded back to Wayne County for notice. That case, In re Morris, details what is required of Michigan courts when notifying tribes of a potential ICWA case.

The decision is here. There is finally extensive detail on what DHS did or did not put in the notice to the three Cherokee tribes, something the Supreme Court demanded in Michigan ICWA cases.

Since respondent could not obtain any additional information regarding his relatives, it would be unreasonable to expect petitioner to find it. Imposing this burden on petitioner would also encourage parents, who can best research their own ancestry, to delay the proceedings by providing limited information. Because it would often take a long time to uncover ancestry details, a requirement that ICWA tribal notices include every detail of a child’s ancestry    would    undermine    ICWA ’ s    10-day    provision,    which    prevents    unreasonable    delays.    It would also jeopardize concepts of permanency and finality. The trial court did not err by finding that there was compliance with the ICWA’s notification requirements.

Ann Tweedy on Unjustifiable Expectations

Matthew L.M. Fletcher

Highly recommended!!!!

Ann Tweedy has posted her paper, “Unjustifiable Expectations,” on SSRN. Here is the abstract:

When the Supreme Court decides whether a tribe has jurisdiction over non-members on its reservation or addresses the related issue of reservation diminishment, it sometimes refers implicitly or explicitly to the non-Indians’ justifiable expectations, and Philip Frickey has argued that a concern with non-Indians’ justifiable expectations drives Court decisions about tribal jurisdiction even when the Court does not express that concern directly. The non-Indians’ assumed expectations arise from the fact that, when Congress opened up reservations to non-Indians during the allotment era, its assumption, and presumably that of non-Indians who purchased lands on reservations during that period, was that the reservations would disappear due to the federal government’s assimilationist policies, along with the tribes who governed them. To refute the idea that such non-Indian expectations were justifiable, I examine historical newspaper articles and other historical sources regarding the opening up of reservations to non-Indian purchasers, specifically focusing on articles relating to cessions by the Sioux Nation and especially the Cheyenne River Sioux Tribe. Such sources suggest that non-Indian purchasers were on notice, in at least some cases, of a potential violation of tribal rights in the opening of portions of reservations to non-Indian settlement. Based on my argument that “justifiability” encompasses both reasonableness and a notion of justice, this information is used to show that the non-Indian purchasers’ presumed expectations about the disappearance of reservations were not justifiable because the purchasers had notice in many cases that lands were unjustly being taken from the Sioux Nation and other tribes. If, as I will argue, non-Indian expectations of tribal disappearance were unjustifiable, such expectations should not be given weight in determinations of tribal jurisdiction today.