reason to know

Minnesota Court of Appeals on Reason to Know: How to Write an Opinion On This [ICWA]

Kate Fort

OPa220311-051622

All the Courts of Appeals facing the question of reason to know should just go read this one (I’m looking at you, Colorado).

In this case the court ordered another investigation to ensure the children were not Indian children, and this bothered the state So Much that it asked for a writ of prohibition to avoid the order. The Court is pretty clear that the lower court has the power to order an investigation and dismisses the state’s argument that the lower court didn’t have “reason to know” in one succinct paragraph.

Finally, we reject the county’s assertion that the district court erroneously replaced the reason–to–know standard with a lower standard: that the children “might” be Indian children. “[R]eason to know” is “[i]nformation from which a person of ordinary intelligence . . . would infer that the fact in question exists or that there is a substantial enough chance of its existence that, if the person exercises reasonable care, the person can assume the fact exists.” Black’s Law Dictionary 1520 (11th ed. 2019). The word “might” means “to express possibility.” Random House Dictionary of the English Language Unabridged 1219 (2d ed. 1987). There is significant overlap between when a court “has reason to know” that a child is an Indian child and when there is a “possibility” that a child is an Indian child. On this record, we cannot say that the district court applied an incorrect standard. Moreover, as noted, even if a court has something less than a reason to know that a child is an Indian child, the court may nevertheless “choose to require additional investigation into whether there is a “reason to know” the child is an Indian child.” ICWA Guidelines, supra, at 11

Colorado’s Recent Struggles with Notice Standard [ICWA]

Kate Fort

21ca0381-pd

21CA0659-PD

21CA0764-PD

Colorado has long had a very low bar to trigger the reason to know provision of ICWA. The B.H. case from 2006 has long been a model for other states that involve the question of what information does a court need to trigger the “reason to know” requirement of 25 U.S.C. 1912(a). And here, in a recent CO Court of Appeals case, is what the current debate over how the regulations have changed the standards boils down to:

But an assertion of possible Indian heritage alone does not fall within a “reason to know” factor that would permit a participant or the court to assume the child is an “Indian child” under section 19-1-126(1)(a)(II). Thus, this type of an assertion does not require formal notice to a tribe or tribes to determine whether the child is an “Indian child.”

In re A-J.A.B., 2022 COA 31, P58

The state law referenced is the Colorado adoption of 25 C.F.R. 23.107(c), the regulations that are supposed to guide courts regarding the “reason to know” standard. However, this is a fundamentally different standard than that articulated by B.H.:

Because membership is peculiarly within the province of each Indian tribe, sufficiently reliable information of virtually any criteria upon which membership might be based must be considered adequate to trigger the notice provisions of the Act.

138 P.3d 299, 304

The court of appeals states that state law has changed enough that B.H.’s reasoning was done under a different standard than the one in effect today (ICWA, of course, has not changed).

Much like the discussion in the In re Z.J.G. case, we are again debating the points of the six factors the regulations articulate as giving a court reason to know, and how they (according to the CO Courts of Appeals) narrow the reason to know standard, rather than guide it.

We agree with the E.M. division that information about the child’s heritage does not constitute “reason to know” that the child is an Indian child under section 19-1-126(1)(a)(II)(A). Information about a possible affiliation with two tribal ancestral groups does not satisfy one of the six reason to know factors

2022 COA 31 at P71

It is honestly stunning to me (though it should not be), that the passage of federal regulations means we are all now re-litigating notice issues that had long been settled. Last week, the Colorado Court of Appeals held

We conclude that a parent’s assertion of Indian heritage, standing alone, is insufficient to trigger ICWA’s notice requirements but, rather, it invokes the petitioning party’s obligation to exercise
due diligence under section 19-1-126(3). We further conclude that the exercise of due diligence under this provision is flexible and depends on the circumstances of, and the information presented to the court in, each case. Nonetheless, the record needs to show that the petitioning party earnestly endeavored to gather additional information that would assist the court in determining whether there is reason to know that the child is an Indian child.

People in re J.L., 2022 COA 43, P3

And now, “due diligence” is an “earnest endeavor” on the part of the state when a parent tells the Court they have tribal relations. However, in both cases the court of appeals sent the case back due to the lack of “due diligence” to follow up on these statements by the parents. The Court in A-J.A.B. gives a very detailed remand instruction regarding due diligence, and what the Court will need by date certain.

To lower my blood pressure and end this post, I will remember what the Washington Supreme Court held, when faced with very similar facts and laws:

We hold that a court has a “reason to know” that a child is an Indian child when any participant in the proceeding indicates that the child has tribal heritage. We adopt this interpretation of the “reason to know” standard because it respects a tribe’s exclusive role in determining membership, comports with the canon of construction for interpreting statutes that deal with issues affecting Native people and tribes, is supported by the statutory language and implementing regulations, and serves the underlying purposes of ICWA and WICWA. Further, tribal membership eligibility varies widely from tribe to tribe, and tribes can, and do, change those requirements frequently. State courts cannot and should not attempt to determine tribal membership or eligibility. This is the province of each tribe, and we respect it.

In re Z.J.G., 471 P.3d 853, 865.

Reason to Know Decision out of Colorado Court of Appeals [ICWA]

Kate Fort
21ca0381-pdDownload

The Colorado Court of Appeals analyzed the regs on the reason to know issue, a similar argument to the In re Z.J.G. case from Washington. And as in Z.J.G., the Department is arguing for a narrower interpretation. However, the Court of Appeals reasoned:

Recall that the federal regulation and the Colorado statute implementing ICWA’s “reason to know” component distinguish between information that the child is an Indian child, 25 C.F.R. § 23.107(c)(1); § 19-1-126(1)(a)(II)(A), and information indicating that the child is an Indian child, 25 C.F.R. § 23.107(c)(2); § 19-1- 126(1)(a)(II)(B). These two provisions cannot have the same meaning because that would make one superfluous.

***

As a result, divisions of this court have repeatedly recognized that, where a district court receives information that the child’s family may have connections to specific tribes or ancestral groups, the court has “reason to know” that the child is an Indian child — even where the information itself does not establish that the child fully satisfies the definition of an Indian child

Notice Case from Montana [ICWA]

Kate Fort
In re M.T.Download

This is the year of notice and reason to know. Courts are finally wrestling with what the regulations do and do not require–and there is considerable concern about what to do if there is no response from a tribe. 

Whenever a court “knows or has reason to know” that a child is an “Indian child” under ICWA, the court is to verify the child’s status prior to conducting termination proceedings. 25 U.S.C. § 1912(a); In re L.D., 2018 MT 60, ¶ 13, 391 Mont. 33, 414 P.3d 768 (internal citations omitted). Whether a child is eligible for tribal membership is a question of fact dependent upon the child’s actual ancestry, and an Indian tribe provides the determination conclusively as a matter of law. 25 C.F.R. § 23.108(b); In re L.D., ¶ 14 (internal citations omitted); In re Adoption of Riffle, 273 Mont. 237, 242, 902 P.2d 542, 545 (1995).

¶22 It follows that a district court does not have authority to make a de novo conclusion regarding eligibility. 25 C.F.R. § 23.108(b); In re L.D., ¶ 14 (internal citations omitted). Instead, the district court must determine “(1) whether the court has reason to believe that a subject child may be an ‘Indian child’ and (2) whether an Indian tribe has conclusively determined that the child is a member or eligible for tribal membership.” In re L.D., ¶ 14 (internal citations omitted). Absent a conclusive tribal determination, a court abuses its discretion by terminating parental rights if there is “reason to believe” the child is an Indian child. In re L.D., ¶ 14 (internal citation omitted).

In this case, however, the issue was the Agency didn’t contact the Tribe at all, leading to the remand.

We hold the District Court abused its discretion in terminating Mother’s parental rights without a conclusive tribal determination of tribal membership status and enrollment eligibility in the United Keetoowah. Since the United Keetoowah is a federally recognized Cherokee tribe,3 and the Department did not contact the tribe, the District Court made a de novo determination regarding M.T. and L.T.’s United Keetoowah tribal eligibility, a determination which is in the sole province of the tribe.

ICWA Regulations, Reason to Know, and the Importance of In re Z.J.G.

Kate Fort

Now that the decision in out in In re Z.J.G., I feel like I can write about the reason this case was so important–beyond what I would consider the obvious (parent’s testimony), which I detailed in this post here.

The 2016 federal regulations for ICWA can be a double sided sword. There are portions of them that are absolutely vital and beneficial to the implementation and enforcement of ICWA. I think the most obvious one is the definition of active efforts in 25 C.F.R. 23.1, which finally gives a structure for one of the most important elements of the law. However, there are parts of the regulations that can be read in ways to counter ICWA’s protections. The reason to know section of the regulations has been one of those areas.

ICWA requires a bunch of stuff, including notice, when a court “knows or had reason to know” there is an Indian child in a child custody proceeding. 25 U.S.C. 1912(a) The regulation in contention in In re Z.J.G. was 23.107(c). That section states a court “has reason to know that a child involved in an emergency or child custody proceeding is an Indian child if:” and gives six elements. Those elements use the term “Indian child” in them–as in “any participant in the proceeding … informs the court that it has information indicating that the child is an Indian child.” 23.107(c)(2) (emphasis added). Some states, including Washington, took it upon themselves to read this regulation to mean that the child must be an “Indian child” as defined in ICWA–a member or eligible for membership and the biological child of a member–for a court to have reason to know. If this feels like circular reasoning, I’d argue that it is. Or, as Justice Montoya Lewis wrote:

However, this narrow interpretation commits the error addressed above: it assumes state agencies or participants will know and properly interpret tribal membership and eligibility rules. This interpretation diminishes the tribe’s exclusive role in determining membership and undermines the historical purpose of providing proper notification to tribes.

Decision at 30. 

And also,

While a broad interpretation serves the statute’s purposes, a narrow interpretation would undermine the protection of Indian children and tribes. The “reason to know” finding triggers the requirement of formal notification to tribes. 25 U.S.C. § 1912(a); RCW 13.38.070(1). Without formal notification, tribes are likely unaware of the child custody proceedings. Lack of notice repeats the historical harms that predicated the passage of ICWA and WICWA: Indian children are more likely to be taken and then lost in the system, often adopted when legally free, primarily to non-Native homes; tribes are denied the opportunity to make membership determinations; and tribes are unable to intervene in the case or exercise jurisdiction. 25 U.S.C. § 1911. Further, the failure to timely apply ICWA may unnecessarily deny ICWA protection to Indian children and their families, which could lead to unnecessary delays, as the court and parties may need to redo certain processes in order to comply with ICWA standards. ICWA Proceedings, 81 Fed. Reg. at 38,802; see also 25 U.S.C. § 1914 (noting that any Indian child, parent, or tribe may petition any court to invalidate a child custody action “upon a showing that such action violated any provisions of sections 1911, 1912, and 1913 of this title”). As those who practice in the area of child welfare and dependency know, if a court determines  that ICWA and WICWA should have been applied from the beginning of a case and was not, key decisions may have to be revisited because the burden of proof is higher at threshold stages of dependency cases.

Decision at 33-34.

Finally, a thing I think we forget a lot when talking about the regulations–they are the federal minimum standards. 25 C.F.R. 23.106. In Washington, for example, the state law has even more qualifying language. stating that a court has a reason to know an Indian child is involved in the case when it “knows or has reason to know a child is or may be an Indian child.” RCW 13.38.070. And while it could have done so, the Washington Supreme Court did not base its unanimous decision on just WICWA, but rather on ICWA, the regulations, and independently and alternatively on WICWA. 

Anyway, yes, I did do my first oral argument in this case, thanks to a bunch of awesome lawyers, including the two women attorneys up at CCTHITA, and we worked with the Center for Indigenous Research and Justice and Hon. Whitener (ret.) to get all the briefs filed, and was lucky to work with the very excellent parent attorney, Tara Urs (co-author of my top five favorite law review articles ever).

Also, all of this is all available publicly in all the briefing here, but I wanted to break it down into a post for those who might not read ALL of that:

98003-9 – In the Matter of the Dependency of Z.J.G. and M.E.J.G., minor children.
Hearing Date – 06/25/2020

Washington Supreme Court Finds Reason to Know in In re Greer/ZJG [ICWA]

Kate Fort

The Supreme Court reversed the Court of Appeals. Justice Montoya-Lewis wrote the unanimous opinion.

The opinion is here: 

98003-9-opinionDownload

It is a long opinion with a lot of history, and information. Friend of the blog Sandy White Hawk is featured extensively. There are important law review articles and social science articles cited.

Importantly for future cases, the Court held “We hold that a court has a ‘reason to know” that a child is an Indian child when any participant in the proceeding indicates that the child has tribal heritage.”

The Indian Law Clinic at MSU represented the Tribes in this case, along with the Center for Indigenous Research and Justice.

(To be clear I am Very Excited about this and it is a Big Deal.)

Reason to Know Decision from NC Supreme Court [ICWA]

Kate 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.

Crosscut Article on Greer Case

ilpc

Here

ICWA was thereafter applied to the case, but the damage was done — the children were placed in foster care without the normal protections the law would have offered them. Now, the Central Council of Tlingit and Haida Indian Tribes of Alaska are challenging the decision in the Washington State Supreme Court. If the court’s decision is upheld, advocates say the case could significantly weaken the use of ICWA in Washington by raising the bar for what qualifies as a “reason to know” that a child is “Indian” in the eyes of the law.

Kathryn Fort, director of Michigan State’s Indian Law Clinic, who is arguing on behalf of the tribes in the case involving Greer and Graham, says that it shouldn’t be so difficult. The burden of checking in with a tribe is low, she says, but the outcome has immense implications for the family, children and tribe.

Briefing and oral arguments here.

Notice Case out of California [ICWA]

Kate Fort

Since April, the California courts of appeal have been wrestling with California’s new law defining “reason to know” from ICWA’s section 1912 and “reason to believe” (state law standard). In addition, the department has been regularly petitioning to make cases reported rather than unreported. Since April with the In re Austin J. case, California courts have been reshaping their very low bar for notice to tribes into a much higher one, with the caveat that the California standard of “reason to believe” does require contact with tribes though not necessarily formal notice. Given California’s outsized role in notice and inquiry ICWA cases, this is a trend that bears watching, with the understanding this is based on California state law, and not the federal ICWA.

Here is In re M.W., decided on May 11. The Department petitioned for publication on May 15 and it was published on June 5. Under the reason to believe standard, the social worker,

The report documented the social worker’s contact with the 12 tribes by telephone, fax, e-mail, and/or mail, the name of the designated agent for each tribe, the dates of attempted contact with each designated agent (all between May 15 and June 4, 2019), and that each tribe was provided with the minor’s “ICWA Family Tree.” As of the date of the report, four of the tribes had confirmed the minor was not an Indian child. As of the July 10, 2019 hearing, six additional tribes had confirmed the minor was not an Indian child, and the two remaining tribes (the Navajo Nation and the White Mountain Apache Tribe) had acknowledged contact but had not yet provided a definitive response.

I am curious to know how out of state tribes are feeling this system is working, given that while California may change its ways, tribes are generally set up to receive the paperwork to confirm a family’s tribal membership, and we already know that informal phone calls to confirm or deny a child’s eligibility can be problematic. Early outreach is great, if it works to give tribes MORE information and not less.

Indian Child Case out of the Colorado Court of Appeals [ICWA]

Kate Fort

18CA2258-PD

An example of what a mess happens when an agency proceeds on termination of parental rights before establishing tribal membership. And an answer to the question what happens to all those cases remanded for notice.