Here is the opinion in Cowlitz Tribal Gaming Authority v. Clark County Sheriff’s Office:
It took me a while to read this whole opinion and there are a lot of issues. But to start, I’d note that unlike some arguments in another unnamed federal ICWA case (Brackeen, it’s Brackeen), this case is yet another every day example where a state has to prove the best interests of the child standard and the ICWA standard–the ICWA standard didn’t supplant BIOC.
That said, there is some unnecessary Michigan trash talking in this case as the Court happily finds active efforts is more than reasonable efforts, but unhappily choses to adopt a “futility doctrine” for the active efforts finding. The futility “doctrine” for active efforts is a judicially created standard to excuse the state from providing active efforts to the parent.
Here are the materials:
79733-6 – Samish Indian Nation, Appellant v. Department of Licensing, Respondent
Another court finds that a temporary guardianship where the parent cannot have the child returned upon demand meets the definition of a foster care placement under ICWA. Unfortunately the court decided not to publish the decision.
The ICWA Appellate Project filed an amicus brief in this case with the Center of Indigenous Research and Justice on behalf of minor mom.
Today I received a call that went something approximately like this:
Caller: “So with [25 U.S.C.] 1920 …”
Me: “Right, 1922, go on.”
Caller: “Um, ok, so with 1920 . . .”
Me: “I think you mean 1922?”
Caller: “I think I mean 1920?”
Reader, she absolutely meant 25 U.S.C. 1920, and also had the patience to hang in there with me and tell me about the following case:
Here is an opinion from the Washington Court of Appeals decided in January and published in April that I completely missed and is also the only and first case I’ve encountered in five years of reading (nearly) every ICWA case where the court used 25 U.S.C. 1920:
¶30 Both ICWA and WICWA have provisions for the appropriate remedy when an Indian child is improperly removed by the State from his or her home or the State improperly maintains custody. Under ICWA,
[w]here any petitioner in an Indian child custody proceeding before a State court has improperly removed the child from custody of the parent or Indian custodian or has improperly retained custody after a visit or other temporary relinquishment of custody, the court shall decline jurisdiction over such petition and shall forthwith return the child to his parent or Indian custodian unless returning the child to his parent or custodian would subject the child to a substantial and immediate danger or threat of such danger.
25 U.S.C. § 1920. Similarly, under WICWA,
[i]f a petitioner in a child custody proceeding under this chapter has improperly removed the child from the custody of the parent or Indian custodian or has improperly retained custody after a visit or other temporary relinquishment of custody, the court shall decline jurisdiction over the petition and shall immediately return the child to the child’s parent or Indian custodian unless returning the child to the parent or Indian custodian would subject the child to substantial and immediate danger or threat of such danger.
¶31 Here, the Department has improperly maintained A.L.C’s placement in out-of-home care because the Department has failed to provide active efforts to prevent the breakup of the Indian family. The appropriate remedy is the remedy prescribed by statute. Thus, we remand to the juvenile court to either immediately return A.L.C. or make the statutorily required finding that returning A.L.C. will subject her to substantial and immediate danger or threat of such danger.
ICWA and WICWA require a court conducting a 72-hour shelter care hearing to inquire whether the child is or may be an Indian child. A court substantially complies with that requirement if prior to the hearing the Department has begun a good faith investigation into the child’s Indian status, the parties elicit the relevant evidence during the hearing, and the court considers that evidence before ruling on shelter care.
Ok, sounds good.
The reason-to-know standard turns on evidence that the child is a tribal member, or the child is eligible for tribal membership and a biological parent is a tribal member. If there is a reason to know a child is or may be an Indian child, then ICWA and WICWA require the court to treat the child as an Indian child pending a conclusive membership determination by a tribe. A parent’s mere assertion of Indian heritage absent other evidence is not enough to establish a reason to know a child is or may be an Indian child. Because the Department’s good faith investigation before the shelter care hearing did not reveal evidence that a parent or a child was a tribal member, the court did not err in concluding that there was no reason to know the children were Indian children based on the evidence available at the time of the shelter care hearing, Of course, the Department has an obligation to continue its investigation before proceeding to a dependency or termination hearing.
Oohkay. Then what did the investigation reveal?
The investigation revealed that the mother was eligible in the Central Council of Tlingit and Haida, where her mother is enrolled, the Klawock Cooperative Association, and that father was potentially eligible at Umatilla. This was not just the parent’s assertion (which frankly, given the specificity, should be enough*)–this included the testimony of the social worker who called Central Council. It turns out what this Court means by reason to know is actual evidence of membership:
Because the Department’s good faith investigation before the shelter care hearing did not reveal evidence that a parent or a child was a tribal member,
The children were removed on June 27. The first hearing (shelter care) took place on July 2-3. At that point, the state social worker had called Central Council and knew grandma was enrolled, but not mom. She then testified that “to her knowledge”, dad was not enrolled, but there is nothing in the opinion on how she would know that. The social worker then testifies it was possible the children were eligible for enrollment. But then, the court’s shelter care order states there is “not a reason to know” the children are Indian children. When Central Council intervenes in the case on July 30, the Court then decided there was reason to know (well, yes, because then we all know).
Everyone knows (ahem) that three-five days is not enough time for a full notice as required by the law (by mail, return receipt requested). Those of us who do this work ALSO know it may take a tribe longer than that to determine membership. The purpose of the Regs (to treat potential/reason to know Indian children as Indian children until determined otherwise) was to ensure those children were treated as Indian children until membership is all sorted out. The Washington Court of Appeals manages to do the opposite–equating “reason to know” with just plain old “know”. Why does this all matter? The legal standard applied at the shelter care hearing:
Specifically, the information before the court at the shelter care hearing as a
result of the Department’s good faith investigation did not establish a reason to know Z.G. and M.G. were Indian children. Because there was no reason to know,
the normal serious threat of substantial harm standard applied at the shelter care hearing.
Unless a Tribe responds the parent is absolutely a member at that first phone call from the state (not even legally required notice), or the parent happens to have legal evidence of membership on him or her, Washington will claim there is no reason to know, and apply a lower burden of proof than the emergency standard required by ICWA under 1922.
*I decided not to rant about why the parent’s testimony isn’t enough/why parents in court aren’t listened to, but imagine I did.