Indian Child’s Tribe Determination out of Alaska Supreme Court

Here is the decision. sp7628

The facts of this case were a little unusual, where a foster family attempted to have a child in their care made a member of one tribe when he was already a citizen of another. The holdings, however, are  useful both for clarity in the regulations for the determination of an Indian child’s tribe, and for keeping state courts out of tribal citizenship decisions.

Court decisions reflect the same rule of deference to the tribe’s exercise of control over its own membership. The U.S. Supreme Court has long recognized tribes’ “inherent power to determine tribal membership.” In John v. Baker we recognized that “the Supreme Court has articulated a core set of [tribes’] sovereign powers that remain intact [unless federal law provides otherwise]; in particular, internal functions involving tribal membership and domestic affairs lie within a tribe’s retained inherent sovereign powers.” We have also “long recognized that sovereign powers exist unless divested,” and “ ‘the principle that Indian tribes are sovereign, self-governing entities’ governs ‘all cases where essential tribal relations or rights of Indians are involved.’ ”

Chignik Lagoon’s argument would require state courts to independently interpret tribal constitutions and other sources of law and substitute their own judgment on questions of tribal membership. This argument is directly contrary to the directive of 25 C.F.R. § 23.108.

The Indian Law Clinic at MSU College of Law provided research and technical assistance to the Village of Wales in this case.

Oral Argument in Colorado Supreme Court Case [ICWA]


Colorado Gazette article on the case here.

Write up by MSU on the case here

When the Logan County, Colorado Department of Human Services removed two infant twin girls from the custody of their mother, the mother told the department that their father might have Chickasaw heritage. The department sent notice to the Chickasaw Nation, which responded that the children were eligible for citizenship and sent the necessary tribal citizenship forms to the department.

The Chickasaw Nation never got those forms back.

To all appearances, the agency simply ignored the notice from the Chickasaw Nation, and the Nation received no communication from the State. The State filed to terminate the mother’s parental rights and only at that point did Logan County disclose to the juvenile court that the children were eligible for enrollment in the Chickasaw Nation.

Colorado Court of Appeals Case re. Membership v. Enrollment [ICWA]

I get this question a lot and have had many discussions about it recently, so I know there are some specific attorneys out there who will be interested in this case:

“As a matter of first impression in Colorado, a division of the court of appeals holds that a child’s membership in a tribe, even absent eligibility for enrollment, is sufficient for a child to be an Indian child under the Indian Child Welfare Act.”

Unpublished Active Efforts Case Out of California

Here. Whether the state has the obligation to assist in enrolling dad and child at in the Chickasaw Nation as an active efforts requirement. The California Rules of Court include that in their definition of active efforts:

We note that the California Supreme Court is currently reviewing the validity of California Rules of Court, rules 5.482(c) and 5.484(c) in In re Abbigail A. (2014) 226 Cal.App.4th 1450, review granted September 10, 2014, S220187. However, briefing and decision of the issue in this court and further potential review in the Supreme Court would significantly delay this matter, while stipulated reversal with directions will benefit R.P.’s interests more expeditiously. (In re Rashad H., supra, 78 Cal.App.4th at p. 380.)
Reversal is therefore appropriate given DPSS’s and the juvenile court’s failure to make active efforts to secure tribal membership for R.P. Although only mother appealed, the parental rights termination order must be reversed as to both mother and father. (In re Mary G. (2007) 151 Cal.App.4th 184, 208.)

Cherokee Trial Court Holds Hearing on Freedmen Case

From the Cherokee Phoenix (via Pechanga):

TAHLEQUAH, Okla. – The Cherokee Nation District Court held a July 17 hearing for the case of Raymond Nash v. CN Registrar as attorneys for both parties presented arguments for their motions for summary judgment.

A summary judgment is a decision based on statements and evidence presented for the record without a trial. It is used when there is no dispute regarding facts and one party is entitled to judgment as a matter of law.

The Nash case is a class action lawsuit involving 386 Freedmen descendents claiming they were illegally removed from the CN citizenship rolls by a voter-approved constitutional amendment in March 2007.

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On Judge Kozinski’s Dissent in U.S. v. Cruz

United States v. Cruz (our post here, with briefs) has been getting a fair bit of attention these days in the news (LA Times; How Appealing here and here; Indianz collects articles), probably because Judge Kozinski dissented so strongly.

It is very interesting to see the Ninth Circuit struggle over who is an Indian for purposes of federal criminal jurisdiction, esp. given how Indian tribes struggle over it. But, unfortunately, cases like this will give United States Attorney’s Offices with Indian Country jurisdiction all the more reason to decline to prosecute Indian Country crimes.

The majority’s opinion, in sort of a backwards way, is heading in the right direction. Eventually, I suspect, the federal courts will abandon the common law free-for-all and adopt a bright-line rule based on tribal citizenship, a standard more in line with the political status test used in Morton v. Mancari.

Right now, in the Ninth Circuit, the test is, according to the Cruz majority:

The Bruce test requires that the Government prove two things: that the defendant has a sufficient “degree of Indian blood,” and has “tribal or federal government recognition as an Indian.” Id. at 1223, 1224 (quoting United States v. Keys, 103 F.3d 758, 761 (9th Cir. 1996)).

The first part, “sufficient degree of Indian blood” apparently can be something less than 25 percent (in Cruz, it was about 22 percent). Some tribes have minimal Indian blood quantum requirements, resorting to lineal descendancy (e.g., Cherokee Nation of Oklahoma, Sault Ste. Marie Tribe of Chippewa Indians).

It’s the second part where the Cruz majority and Judge Kozinski parted. Judge Kozinski’s dissent is a defense of the second prong (but more so a dramatic attack on the majority’s reasoning). He’s right in many respects. Cruz should be considered an Indian and definitely is, at least by his tribal community. But just because his community subjectively views him as one their own, that’s sufficient to invoke the awesome power of the federal criminal laws? The majority wants something more. And what the majority should do — and perhaps the Ninth Circuit will eventually do — is adopt a bright-line rule on what “tribal or federal government recognition as an Indian means.”

In other words, citizenship in a federally recognized tribe should be the rule. It’s simple and easy, and objective. It’s consistent with the political status test of Mancari, and seems less like an arbitrary application of a race-based law. Plus, if A.U.S.A.’s only have to provide evidence that a criminal defendant is a tribal citizen, there is less effort expended in proving the factual predicates to federal criminal jurisdiction.

Ironically, Judge Kozinski’s dissent defending the broader application of the Bruce test is both a defense of a balancing test he decries, and a defense of a race-based standard. It’s ironic because Judge Kozinski once predicted the end of race-based rules in federal Indian law in Williams v. Babbitt, in which he wrote for a majority that struck down laws designed to protect the Alaskan Native reindeer industry on the grounds that they were race-based.

One might argue that there’s a pretty good reason for the definition of Indian to include persons who aren’t members of federally recognized members of Indian tribes, but who are plainly Indian. I’d like to be persuaded that there are good reasons.

Anishinaabek Leader on the Canadian Indian Act

From the North Bay Nugget:

Message from Grand Council Chief John Beaucage–

Prior to contact, the Anishinaabe lived in peace and harmony with each other, living off the bounty of our Mother Earth. We acknowledged each other- our distinct bands and traditional territories. We respected our boundaries — not borders — out of respect for our neighbours. We harvested only what was needed, always mindful of sacred law and ensuring our food sources — the plants, animals, birds and fish — would remain abundant for seven generations into the future.

We governed ourselves according to that same sacred law. The Creator gave us the Clan System as a means to govern our day-to-day affairs, set priorities, and look after the needs of the community as a whole.

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