2017 ICWA Appellate Cases by the Numbers

Here’s our annual contribution to the ICWA data discussion. It’s looking like we have the final 2017 data set of appealed ICWA cases. A note on the data–these are cases that are on Westlaw and/or Lexis Nexis, and ICWA (or state equivalent) was litigated. We collect the case name, the date, the court, the state, whether the case is reported (also called published) or not, the top two issues, up to three named tribes, the outcome of the case, and who appealed the case.

These are standard state court ICWA cases, and do not include any of the ongoing federal litigation or SUPREME COURT cert petitions (maybe that’s another post entirely) This is our third year writing this post (here and here). This year, THOUGH, Addie Smith and I have a plan to publish a longer version of this, hopefully on an annual basis. If you know we are missing a case based on the numbers, and it’s publicly available, *please* send it to me [fort at law.msu.edu] so we can add it. I’m also happy to answer questions at the same email.

There were 214 appealed ICWA cases this year, up 39 from last year. There were 34 reported ICWA cases this year. As always, California leads the states with 152 cases, 5 reported. Alaska is second with 6, 3 reported. Michigan has 5, 2 reported. So did our new favorite state, Texas (5/2). Kansas (4/2), Arizona (4/3), and Washington (4/0) all had four cases. Arkansas (3/0) and Utah (3/3) both had three. Montana (2/1), North Carolina (2/1), and Minnesota (2/0) had two.  Finally the following states had 1 ICWA case: Connecticut, Indiana, Iowa, Massachusetts, Nebraska, Nevada, Ohio, Oregon, South Dakota, and Missouri, Vermont, North Dakota, Illinois, and Wisconsin.

In California, the cases further breakdown to 52 in the 4th Appellate District, 46 in the 2nd, 23 in the 3rd, 10 in the 1st, 16 in the 5th, and 5 in the 6th. California has considerably more cases this year, but half the number of reported cases. The numbers by district have also shifted considerably over last year. California is the only state where we track by appellate districts at this time.

Supreme Courts in Alaska (6), Montana (2), Arizona, Nevada, Utah, South Dakota, Vermont and North Dakota all decided ICWA cases this year (of course some of these states don’t have an intermediate court of appeals).

Of the 214 total appeals, 105 were affirmed, 97 were remanded, 6 were reversed, 2 were dismissed as moot, 2 were vacated and 2 dismissed.

Top litigated issues were as follows: Notice (132), Inquiry (29), Placement Preferences (7), Active Efforts (10), Termination of Parental Rights (9), Transfer to Tribal Court (4), and QEW (4). This year 73 (more than half) of the Notice cases were remanded for proper notice.

57 different tribes were named as the first named tribe in a case. In 26 cases the tribe was unknown (parent did not know name of tribe). In 17, the tribe was unnamed (court did not record name of tribe in the opinion).

Finally, of all the cases, only three were appealed by tribes (Navajo Nation, Nenana Native Village, and Gila River Indian Community).

Op-Ed in Maclean’s About Canada’s Child Welfare Crisis

Here, by Pam Palmater. Canada’s numbers of Native children in care may be currently worse than pre-ICWA numbers in the United States (Task Force Four Report).

The increasing number of First Nations children being placed into foster care in Canada is nothing short of a crisis. Although Indigenous children make up only seven per cent of the population in Canada, they represent 48 per cent of all children in foster care. It is an astounding number until one examines these rates on a province-by-province basis. In Alberta, Manitoba and Saskatchewan, Indigenous children represent a shocking 73 per cent, 85 per cent and 87 per cent of all children in care respectively, according to the most recent Statistics Canada report. However, Manitoba reports that their numbers of Indigenous children in care are increasing and currently stands at 90 per cent, which represents one of the highest rates in the world. This isn’t much of a surprise given that one newborn is taken away from his or her mother every day in Manitoba as a matter of course—the vast majority being Indigenous. They are not the only provinces implicated as Indigenous children in Ontario are 168 per cent more likely to be taken into care than white children.