Justice Montoya-Lewis does it again, soundly rejecting the futility doctrine when it comes to providing active efforts to parents, and providing a treatise on what active efforts are and why ICWA requires them. Trying to pull out one quote is nearly impossible–just go read from page 16 to the end. And her last paragraph may become on one of the most quoted in ICWA caselaw:
The history of the United States and its relationship with Native tribes, communities, and families tell a story of promises made and broken. We rely on the commitment made by Congress and the Washington State Legislature to decline to remove Native children from their families and communities unless absolutely necessary and to actively work toward reunification in those limited instances when the high standard for removal has been met. Today, we hold our state child welfare system and our courts to those promises. We reverse the dependency court’s finding that the Department provided active efforts and remand to the trial court with instructions to order the Department to provide active efforts in accordance with this ruling. We also order the dependency court to not proceed to hear the termination petitions until the Department has provided active efforts.
In addition, the Washington team assembled a number of amicus briefs (including the MSU Indian Law Clinic) on this case. A special shout out to Tara Urs for being so on top of these cases every time.
It is a long opinion with a lot of history, and information. Friend of the blog Sandy White Hawk is featured extensively. There are important law review articles and social science articles cited.
Importantly for future cases, the Court held “We hold that a court has a ‘reason to know” that a child is an Indian child when any participant in the proceeding indicates that the child has tribal heritage.”
I write on behalf of the Confederated Tribes and Bands of the Yakama Nation to endorse Justice Raquel Montoya-Lewis for the Washington State Supreme Court. As the first Native to serve as a State Supreme Court Justice, Justice Montoya-Lewis brings a background and perspective to the bench that has been sorely lacking throughout Washington’s statehood.
Justice Montoya-Lewis’s experience as a Judge for the Lummi Nation, Nooksack Tribe, and Upper Skagit Tribe have afforded her an in-depth understanding of both tribal law and federal Indian law, which is essential to understanding the limitations of Washington State law plays in Indian Country. This experience makes Justice Montoya-Lewis uniquely qualified to recognize and uphold the Treaty and other inherent rights of the 29 sovereign Native Nations whose peoples have always lived in the lands now called Washington State.
Justice Montoya-Lewis clearly has the legal mind and acumen needed for the job, but more importantly she has the heart and compassion that our society needs from state judges. On July 10, 2020, Justice Montoya-Lewis read aloud the Supreme Court’s decision to vacate its 1916 conviction of an enrolled Yakama Member, atwai Alec Towessnute, for exercising his Treaty-reserved fishing rights on the Yakima River. Speaking truth to our experience as Native Peoples, Justice Montoya-Lewis correctly observed that injustices like the Towessnute conviction “continue to perpetrate injustice by their very existence.”
Justice Montoya-Lewis’s perspective has long been absent from the Washington State Supreme Court. We urge all enrolled Yakama Members, and all Washington State citizens, to support her candidacy to retain her seat on the Washington State Supreme Court.
ICWA was thereafter applied to the case, but the damage was done — the children were placed in foster care without the normal protections the law would have offered them. Now, the Central Council of Tlingit and Haida Indian Tribes of Alaska are challenging the decision in the Washington State Supreme Court. If the court’s decision is upheld, advocates say the case could significantly weaken the use of ICWA in Washington by raising the bar for what qualifies as a “reason to know” that a child is “Indian” in the eyes of the law.
Kathryn Fort, director of Michigan State’s Indian Law Clinic, who is arguing on behalf of the tribes in the case involving Greer and Graham, says that it shouldn’t be so difficult. The burden of checking in with a tribe is low, she says, but the outcome has immense implications for the family, children and tribe.