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.
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