Previous coverage and case documents here.
After the California Court of Appeals upheld Alexandria’s placement with her family in Utah, the foster parents appealed to the California Supreme Court. The California Supreme Court decided against review. Though there is no written opinion from that decision, the foster parents can petition the Supreme Court for cert at this point.
The questions presented are:
(1) Whether ICWA applies where the child has not been removed from an Indian family or community.
(2) Whether ICWA’s adoptive placement preferences, 25 U.S.C. § 1915(a), require removal from a foster placement made under 1915(b), for the purpose of triggering the Adoptive placement preferences contained in 1915(a).
(3) Whether the state courts erred in holding that “good cause” to depart from ICWA’s placement preferences must be proved by “clear and convincing evidence”–contrary to the text and structure of the statute and the decision of at least one other state court of last resort–or otherwise erred in their interpretation of “good cause.”
The likelihood of the Court granting this petition is relatively slim. However, the attorney representing the foster parents is the same attorney who represented the birth mother in Adoptive Couple v. Baby Girl. Indian Country should expect no less of an onslaught of media from this case than what happened in that one. The foster parents in this case have used the exact same media strategy. This article in the October ABA Journal Magazine leaves no doubt. None of this should be a surprise to those following the cases filed in the past year, but Indian Country is going to have to find the support for the type of media strategy Choctaw Nation will need to counter the attacks that will come.
There is an alternative summary of the facts that is rooted in the lower court decisions (and reflects the reality that all of the parties except this couple agreed that this little girl’s current placement with her relatives is in her best interests) here.
Question Presented: Whether the court of appeals’ ruling that equitable considerations bar the Onondaga Nation’s claim for a declaratory judgment for violations of the Trade and Intercourse Act, three federal treaties, and the United States Constitution contravenes the fundamental right to a remedy, international legal norms, principles of federal equity and this Court’s decisions in County of Oneida v. Oneida Indian Nation of New York State, 470 U.S. 266 (1985) and City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005).
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.