ICWA Pro Hac Vice Rule Open for Comments in Washington

This is so exciting! Kristi Healing, (in-house at Stillaguamish) submitted this pro hac rule change proposal.

Here is the proposed rule in PDF form: WA_Proposed_APR8

Submit comments in support, please!

Unless otherwise noted, all comments should be submitted to the Clerk of the Supreme Court by either U.S. mail or Internet e-mail. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, WA 98504-0929, or supreme@courts.wa.gov. Comments submitted by e-mail may not exceed 1500 words.

Our state by state pro hac page is here. I’m also aware of efforts in two other states that are not yet public for comment.

Termination of Parental Rights Decision out of Wisconsin

Here

The Wisconsin Court of Appeals affirmed a termination of parental rights decision under ICWA and WICWA using Adoptive Couple v. Baby Girl (finding abandonment/lack of continued custody by non-Indian father).

Washington Supreme Court Explicitly Rejects Existing Indian Family Exception

Here

In only the third Washington Supreme Court case to directly interpret ICWA and the first to interpret WICWA, the Court holds In re Crews (the case that established EIF in Washington) is overturned.

Under our above interpretation of ICWA and WICWA, if a case (1) meets the definition of a “child custody proceeding” and (2) involves an Indian child, both acts shall apply. ICWA and WICWA recognize only two exceptions to coverage–delinquency
proceedings and custody disputes following divorce where one parent retains custody of the Indian child. Our interpretation therefore overrules Crews to the extent that it embraced the existing Indian family exception because it recognizes no additional exceptions to coverage outside of the two expressly stated in ICWA and WICWA.

ICWA and WICWA also apply based on the child’s membership, not the parent’s:

For these reasons, we hold that whether the parent whose rights are being terminated is non-Indian is immaterial to a finding that ICWA and WICWA apply. If the child at issue is an Indian child and that child is involved in a child custody proceeding, ICWA and WICWA shall apply.

Craig Dorsay represented the tribal amicus brief (including oral arguments), and NARF and Indian Law Clinic at MSU Law provided strategy and research support in this case. Previous coverage here.

Two Recent State Supreme Court Oral ICWA Arguments

Here is the argument for In re B.B. case in the Utah Supreme Court, where the unmarried Native father appealed the trial court’s decision denying him intervention in a voluntary adoption case, primarily based on Utah’s definition of paternity. Father is asking the state to interpret “acknowledge and establish” under ICWA broadly. The Utah Court of Appeals sent it on directly to the Supreme Court with no decision.

Here is the argument for In re T.A.W. in the Washington Supreme Court, addressing the issue of applying WICWA to step-parent adoption proceedings, particularly the requirement of active efforts. Here is the decision being appealed.

Washington ICWA Passes

WASHINGTON INDIAN CHILD WELFARE ACT PASSED

After a multi-year tribal effort to make this Act a reality, Governor Chris Gregoire has signed the Washington State Indian Child Welfare Act (WICWA) into law. AAIA has worked closely with Washington state tribes on Indian child welfare issues for many years and we believe this is an important step forward in the ongoing efforts to promote the safety and well-being of Indian children and families.

WICWA has two main purposes. First, it codifies in Washington law the main provisions of the federal Indian Child Welfare Act (ICWA). This helps to make sure that state courts, attorneys and others involved with the state legal system incorporate ICWA protections for Indian children, families and tribes into their everyday practice. AAIA has long been involved in Indian child welfare advocacy. Studies and efforts by the AAIA were the catalyst for the enactment of the ICWA in 1978.

Second, WICWA clarifies how the federal law should be implemented and expands upon its protections. Among the most meaningful additions are provisions which define important legal terms, such as “active efforts,” “best interests,” and “qualified expert witnesses,” modify the placement preferences and improve procedures for identifying Indian children, including recognizing tribal decisions on membership as conclusive.

AAIA provided technical legal assistance to Washington tribal leaders and attorneys drafting and advocating for WICWA. WICWA builds upon previous tribal efforts to implement ICWA in Washington State which AAIA has assisted, including negotiation of a landmark tribal-state Indian child welfare agreement with the state, incorporation of provisions in the agreement into state practices and procedures, and legislation requiring the state to recognize tribally-licensed foster homes.

WICWA will help to advance the central goals of ICWA – namely to keep Indian families together and to ensure placement with extended family or tribal members whenever possible.