Utah’s eight sovereign tribes push for support on HB40, a bill that would codify the federal Indian Child Welfare Act of 1978, or ICWA, into Utah law.
Read the full article at the Salt Lake Tribune website.
Davis said the potential reversal of ICWA at the federal level adds urgency to her mission to pass a similar state law in North Dakota. The Democratic legislator said all five tribes that share geography with North Dakota were consulted during the drafting of House Bill 1536.
Read the full article at InForum.
The Supreme Court of Montana has ruled that the Indian Child Welfare Act applies to third party custody arrangements in which a Native American parent allows the courts to place their child in the care of a family member. The ruling overturns previous case law in the state that had said ICWA did not apply in these types of custody agreements made privately among family members without child welfare involvement.
Read the full article at The Imprint.
“There are some anomalies and gaps in the federal [law] that could be strengthened on the state side. And to have a task force to look at those and identify those and to determine if we do indeed want to adopt those on the state side is still a worthy discussion,” Larsen said.
Read the full article at Wyoming Public Radio.
The department’s investigation found that Alaska’s system of care is heavily reliant on institutions and that key community-based services and supports needed to serve children with behavioral health disabilities in family homes, such as home-based family treatment, crisis services and therapeutic treatment home services, are often unavailable. As a result, many children with behavioral health disabilities, including a substantial number of Alaska Native children, are forced to endure unnecessary and unduly long admissions to psychiatric hospitals and psychiatric residential treatment facilities both within Alaska and in states across the country.
Read the full report at the Justice Department’s website.
“As the only federally recognized tribe in the State of Mississippi, our 11,000 plus members are descendants of those members who chose to remain here in Mississippi to preserve our cultural heritage on our ancestral homelands,” the tribe said in a statement. “Today, just as in the past, the preservation and security of our tribe, and our tribal children and families are of utmost importance.”
Read the full article at Mississippi Today.
Read the full decision at the National Indian Law Library website.
Read the full decision at the National Indian Law Library website.
Janine Jackson interviewed Crushing Colonialism’s Jen Deerinwater about efforts to overturn the Indian Child Welfare Act for the December 9, 2022, episode of CounterSpin.
Read the transcript or listen to the interview at FAIR.org.
The State of American Indian and Alaska Native Children and Families Report is a six-part series of data briefs that presents current data on American Indian and Alaska Native (AI/AN) child and family well-being. Each data brief covers an aspect of well-being data, including economic indicators, adverse childhood experiences (ACEs), child welfare system involvement, mortality rates and causes, and behavioral health and substance use. These data briefs are followed by a set of proposed questions for future directions in policy, practice, and research. This report is funded by the San Manuel Band of Mission Indians.
Read the full report at the NICWA website.
The Supreme Court will decide a case that affects Native children and their adoptive families. Although both sides claim to have children’s best interest at heart, removing kids from Native communities has a troubled history in America.
Read the full article at Harper’s Bazaar.
On the heels of oral arguments before the United States Supreme Court on the Indian Child Welfare Act (ICWA), an organization comprised of a coalition of California tribes on Nov. 21 announced its creation of a think tank to advance and defend protections for Native children.
The California ICWA Institute—a new project under The California Tribal Families Coalition— will bring together tribal leaders and policymakers to craft legal and political strategies in defense of Native American youth and tribal sovereignty under attack.
Read the full article at Native News Online.
Citizen Potawatomi Nation’s FireLodge Children & Family Services welcomed DeAnna Voeks as its new foster care and adoption specialist in June 2022. She knew from her first day that working for the Tribe and FireLodge would be different than any of her previous jobs — in a good way.
Read the full article at Potawatomi.org.
If the law is stricken, Utah legislators talked Tuesday about plans to enact a nearly identical version statewide that would codify the same preference for continuing to place Native kids with Native foster parents. The Native American Legislative Liaison Committee voted unanimously in support of running that bill for the upcoming session that starts in January.
Read the full article at The Salt Lake Tribune.
Indigenous affairs reporter Miles Brady talked with Koston Lathoris, a Las Vegas lawyer and citizen of the Southern Paiute tribe, about the case.
Listen to the full story at Nevada Public Radio.
Each side presented their oral arguments Wednesday to the U.S. Supreme Court for the most serious challenge to the Indian Child Welfare Act in recent memory. The decision in Haaland v. Brackeen will be a major force in the future of ICWA and the scope of tribal sovereignty. Today on Native America Calling, Shawn Spruce analyzes the legal debate from a Native perspective with Matthew Fletcher (Grand Traverse Band of Ottawa and Chippewa Indians), law professor at the University of Michigan Law School and author of the Turtle Talk blog; independent journalist Suzette Brewer (citizen of the Cherokee Nation); and Dr. Sarah Kastelic (Alutiiq), director of the National Indian Child Welfare Association.
Listen to the conversation at Native America Calling.
The Supreme Court appeared likely Wednesday to leave in place most of a federal law that gives preference to Native American families in foster care and adoption proceedings of Native children.
Read the full article at Indian Country Today.
And because Native children represent about 55% of all children in state custody, Chen says overturning ICWA would have huge implications for Alaska. At the same time, Native people only make up a little over 20% of the population, so there’s a disparity, she says, and a feeling that the state hasn’t done enough to implement ICWA to begin with.
Listen to the full story at Alaska Public Media.
The law, known as ICWA, includes many other provisions that impact Native families across Indian Country. What ICWA will look like following the Supreme Court’s decision depends on how the justices rule. Amicus curiae briefs filed in the case cover arguments made for and against the law.
Read the full article at Native News Online.
The U.S. Supreme Court’s conservative majority seemed conflicted Wednesday, as the justices heard arguments challenging the Indian Child Welfare Act, known by the acronym “ICWA.”
Listen to the full story at NPR.
Read the full decision at the National Indian Law Library website.
The Court is hearing a case that challenges the legality of the Indian Child Welfare Act, which prioritizes the placement of Native American children in foster care or adoption with relatives, other tribal members, or in other Native homes.
Read the full article at Time.
Brackeen v. Haaland attacks a 44-year-old law enacted to halt cultural genocide.
Read the full article at Vox.
The Indian Child Welfare Act was passed to redress years of mass separations of Native families. This month, the court hears a case that could overturn it
Read the full article at The Guardian.
Every Native child deserves the deep sense of safety that comes with being cared for in a home that shares their culture.
Read the full article at romper.
In the sprawling federal lawsuit Haaland v. Brackeen, a handful of white foster parents, among other plaintiffs, are asking the Supreme Court to overturn a law called the Indian Child Welfare Act. ICWA was created in 1978 to prevent family separation in Native communities. When the law passed, about a third of Native children had been removed from their families. But in the lawsuit, far more than the future of Native children is at stake.
Read the full article at The Atlantic.
The Indian Child Welfare Act set out to fix generations of harm to Native kids. The Supreme Court could soon toss it aside.
Read the full article at the Mother Jones website.
There’s a central question at the core of every child welfare case: What is the best interest of the child? When it comes to Native adoptions, the fate of the law that set the standard for four decades now rests with the Supreme Court.
Read the full article at the Christian Science Monitor website.
The U.S. Supreme Court hears arguments Wednesday in a case that pits several prospective adoptive parents and the state of Texas against the Indian Child Welfare Act — a federal law aimed at preventing Native American children from being separated from their extended families and their tribes.
Listen to the full story at the NPR website.
On Wednesday, the Supreme Court will hear arguments in Brackeen v. Haaland, a case engineered to hobble the federal government’s power to protect Native communities from exploitation. The plaintiffs are asking the justices to invalidate the 44-year-old Indian Child Welfare Act, which prioritizes the placement of Native children in custody proceedings with Native families. But they’re also contesting a constitutional foundation of Indian law itself. Allying with Republican legal groups and lawmakers, the plaintiffs want to kneecap congressional authority to regulate tribes for the benefit of their own members.
Read the full article at Slate.
The issue is whether a federal law that seeks to place Native American foster children in Native American homes is constitutional. The case could turn on whether the justices see tribes as racial groups or sovereign nations.
Read the full article at the New York Time website.
The case has enormous implications for Indian Country, its children and the ongoing existence of tribal sovereignty, said Sarah Deer, professor at the University of Kansas and chief justice for the Prairie Island Indian Community.
Read the full article at the Indian Country Today website.
The Imprint walks readers through highlights of the Brackeen v. Haaland case
Read the full article at The Imprint.
“Who could ever believe that [ICWA] would be taken away?” she said. “That’s one of the last things keeping our community together in the way that it has, so imagining a world where that doesn’t exist is just too, too painful.”
Read the full article at the KTOO website.
California’s Morongo Band of Mission Indians is one of five tribes that have intervened in the Brackeen v. Haaland case, scheduled for oral arguments Nov. 9. The tribesspoke out this week alongside leaders of the Oneida Nation of Wisconsin, the Quinault Indian Nation of Washington, the Cherokee Nation of Oklahoma and the Navajo Nation.
Read the full article at The Imprint website.
Kendra Lowden, a Citizen Potawatomi Nation member, discussed the case as well as the Indian Child Welfare Act and the impact its repeal could have on tribes and children across the country.
Listen to the full podcase at Potawatomi.org.
Read the full decision at the National Indian Law Library website.
The conference will be in person at the Peppermill Resort Spa Casino in Reno, Nevada. This year’s theme is Healing Our Spirits: Nurturing and Restoring Hope. A call for presentations is also open.
Read more and register at the NICWA website.
“We will not go back to a time when our children were stolen from our communities without cause.”
Read the full article at The Imprint.
The Biden administration proposes spending $20 billion over a decade to help some of the most vulnerable families in the country, including relatives suddenly thrust into child rearing.
Read the full article at The New York Times website.
Read the full opinion at the National Indian Law Library website.
Matthew Fletcher, Harry Burns Hutchins Collegiate Professor of Law, University of Michigan, and Rebecca Nagle, Creator and Host, “This Land” Podcast, discuss the case before the Supreme Court.
Listen at the Ideastream Public Media website.
Kendra Lowden is a Citizen Potawatomi Nation member and Curly family descendant. She works as the Senior Program Associate at the University of Denver’s Graduate School of Social Work. She is the owner of Ghost Thunder Child Welfare Consulting and previously served as the Board President of the Oklahoma Indian Child Welfare Association. Kendra discussed the case with us as well as the Indian Child Welfare Act and the impact its repeal could have on tribes and children across the country.
Listen to the podcast at the Potawatomi.org website.
The case, known as Brackeen v. Haaland, has galvanized Indian County. Tribes are concerned the Supreme Court will nullify their right to oversee foster care placements in cases involving Native children, and they fear it could lead to further erosion of their federal rights.
Read the full article at the MinnPost website.
Brackeen v. Haaland is a case centering around the Indian Child Welfare Act of 1978 (ICWA), which focuses on assimilation, tribal culture and the adoption of Native children. Across the country, tribes are watching this case unfold to see how it will impact tribal sovereignty and the relationship between tribes and the federal government.
Read the full article at SiouxlandProud.com.
On Nov. 9, the eyes of Indian Country will once again turn toward the nation’s capital, where the Supreme Court will hear a challenge to the Indian Child Welfare Act (ICWA), a law passed in 1978 that enshrines tribal governments’ right to oversee foster care placements in cases involving Native children.
Read the full article at the High Country News website.
This week, Representative Judy Chu (CA-27) and Representative Don Bacon (NE-02) introduced the bipartisan Strengthening Tribal Families Act, legislation designed to assist state and local child welfare agencies with implementing the Indian Child Welfare Act (ICWA). ICWA, which sets federal standards for abuse or neglect custody proceedings involving native children, lessens the trauma of removal by promoting placement with family and community.
Read the full article at the Indian Country Today website.
Follow H.R.8954 – Strengthening Tribal Families Act of 2022 at Congress.gov.
The proposed options could include drafting a trigger protection legislation. What that means is if the federal government does strike down ICWA, Wyoming could say ‘no, we will still follow the tenets of ICWA’. Or use the federal law as a template to draft a state law.
Read or listen to the full article at the Wyoming Public Radio website.
Read the full article at the Navajo-Hopi Observer website.
Read the full decision at the National Indian Law Library website.
Read the full decision at the National Indian Law Library website.
Read the full decision at the National Indian Law Library website.
Pascua Yaqui children taken into state custody in Arizona will continue to learn and grow up according to the tribe’s customs and traditions, and the tribe will still be able to intervene in custody proceedings such as adoptions and the termination of parental rights. The state and tribe signed a memo of understanding last week cementing that state-tribal partnership.
Read the full article in the Tucson Sentinel.
The Minneapolis-based National Native American Boarding School Healing Coalition, the First Nations Repatriation Institute, and the University of Minnesota are collaborating on a first-of-its-kind survey asking those difficult questions. Researchers have compiled close to 1,000 accounts, submitted on paper and online, for the Child Removal in Native Communities survey, which concludes September 11.
Read the full article at The Imprint.
The American Indian College Fund has announced four grants totaling $6.25 million in support of its Indigenous Early Childhood Education (IECE) program.
Read the full article at Philanthropy News Digest.
The data from the Pascua Yaqui Tribe and Pima County ICWA Courts show the success of ICWA and support the nickname ICWA has earned as the “gold standard.” There are golden nuggets of evidence found in Arizona, and it is imperative that the Supreme Court of the United States uphold ICWA as constitutional for the benefit of Indian families and tribes everywhere.
Read the full article in Arizona Attorney.
This Article describes how the statutory structure of child welfare laws enables lawyers and courts to exploit deep-seated stereotypes about American Indian people rooted in systemic racism to undermine the enforcement of the rights of Indian families and tribes. Even when Indian custodians and tribes are able to protect their rights in court, their adversaries use those same advantages on appeal to attack the constitutional validity of the law. The primary goal of this Article is to help expose those structural issues and the ethically troublesome practices of adoption attorneys as the most important Indian Child Welfare Act (ICWA) case in history, Brackeen v. Haaland, reaches the Supreme Court.
Read the full article at the Michigan Law Review website.
In an outpouring of support, 497 Tribal Nations, 62 Native organizations, 23 states and DC, 87 congresspeople, and 27 child welfare and adoption organizations, and many others signed on to 21 briefs submitted to the U.S. Supreme Court in favor of upholding ICWA. This large, bipartisan coalition of tribal leaders, policymakers, and organizations understand that the far-reaching consequences of challenging ICWA’s constitutionality in Haaland v. Brackeen will be felt for generations.
Read the full article at the Native American Rights Fund website.
Read the full decision at the National Indian Law Library website.
Read the full article at National Native Children’s Trauma Center.
The National Indian Child Welfare Association is offering the following programs:
Today, five tribes filed a brief with the U.S. Supreme Court in Brackeen v. Haaland defending the constitutionality of the Indian Child Welfare Act (ICWA).
Read the full article at Indian Country Today.
On Friday, August 5, HB 184, a bill codifying the Alaska Tribal Child Welfare Compact, automatically became State law without the Governor’s signature. The Alaska Tribal Child Welfare Compact began in 2017, under Governor Bill Walker and HSS Commissioner Valerie Nurr’araaluk Davidson, who signed the landmark State-Tribal Compact with 18 Tribal Co-Signers, representing 161 federally-recognized Tribes. The Compact was created to address and improve deep structural inequities in Alaska’s child welfare system, and has continued under the current Administration.
Read the full article at Alaska Native News.
Read the full decision at the National Indian Law Library website.
Read the full article in The Desert Sun.
For the last 44 years, a federal law called the Indian Child Welfare Act (ICWA) has sought to prevent these situations by prioritizing that Native children adoptees be placed, when possible, with Native relatives or other members within the child’s tribe.
But after months of consequential rulings by the U.S. Supreme Court’s right-wing majority, four cases teed up for hearings by the court this fall are prompting worries that ICWA, too, could be toppled or drastically altered.
Read the full article in Michigan Advance.
Legal Topics: Indian Child Welfare Act – Jurisdiction; Indian Child Welfare Act – Domicile
Read the full decision at the National Indian Law Library website.
Repairing and strengthening Indian Country’s ancestral social safety net
Indian Country Today Opinion by:
-Tara ‘Katuk’ Sweeney, Iñupiat member of the Native Village of Barrow and the Iñupiat Community of the Arctic Slope and Assistant Secretary of the Bureau of Indian Affairs, U.S. Department of the Interior
-Jeannie Hovland, Flandreau Santee Sioux Member and Commissioner of the Administration for Native Americans, U.S. Department of Health and Human Services
Read the full article at the Indian Country Today website.
Legal Topics: Indian Child Welfare Act – Expert Witnesses
Read the full decision at the National Indian Law Library website.
Declares Oregon policy regarding Indian children. Modifies Oregon child welfare laws regarding Indian children to reconcile with provisions of federal Indian Child Welfare Act.
Read more at the Oregon State Legislature’s website.
Executive Order 13930 of June 24, 2020
Read the full text at the Federal Register website.
The law protects Native children from being taken from their homes without tribal involvement. The case before the state Supreme Court could tighten those rules.
Read the full article at the Crosscut website.
Join NICWA for a webinar with state Indian child welfare professionals to hear discussions about impacts to state agency services and implementation of the Indian Child Welfare Act during the pandemic.
Panelists:
-Yvonne Barrett, Manager of Indian Child Welfare Act Program, Minnesota Department of Human Services
-Adam Becenti, Director of Tribal Affairs, Oregon Department of Human Services
-Natalie Norberg, Director of the Office of Children’s Services, Alaska Department of Health and Social Services
-Tleena Ives, Director of Tribal Relations, Washington Department of Children, Youth, and Families
Moderator: David Simmons, Government Affairs and Advocacy Director, NICWA
Time: Jun 30, 2020 11:00 AM in Pacific Time (US and Canada)
Register here.
Under the direction of Children, Youth and Families Secretary Brian Blalock, state leaders announced in October the creation of New Mexico’s first Indian Child Welfare Act court. Only the nation’s sixth, the court opened Jan. 1 in the 2nd Judicial District to enforce and adjudicate the 1978 congressional law that requires the placement of Native American foster or adopted youth with Indian families.
Read the full article at the Santa Fe New Mexican website.
CYFD, in an effort to align with the Indian Child Welfare Act (ICWA) — a congressional law that aims to keep Native American children with Native families — created an all-woman, all-Native American ICWA unit within the child protective services division. Additionally, the state’s first — and only the nation’s sixth — ICWA court officially opened on Jan. 1. According to Special Master Catherine Begaye, the presiding officer of the ICWA court who spoke at the conference, the Second Judicial District (Bernalillo County) court will adjudicate foster care, pre-adoptive and adoption placement cases for indigenous children.
Read the full article at the Carlsbad Current Argus website.
The case centers on the Indian Child Welfare Act (ICWA), which was designed to protect American Indian communities against state-led efforts to break up Native families. The challengers in the case—several Republican-led states and non-Native families seeking to adopt Native children—are attempting to invalidate ICWA’s restrictions on breaking up Native families and on non-Native families adopting Native children. In doing so, they risk undoing a set of doctrines that has facilitated tribes’ ability to govern themselves and prosecute individuals who victimize Native people.
Read the full article at The Atlantic website.
Northern Arapaho leaders and state officials are looking for ways to improve a child protective services program that the tribe says needs more money from the state to be more effective.
Gov. Mark Gordon and Northern Arapaho Tribe leaders met last week to discuss the tribe’s child protective and social services, which is funded with help from the state but managed by the tribe.
Read the full article at the Laramie Boomerang website.
The amicus brief urges the Fifth Circuit to uphold the court’s previous decision affirming the constitutionality of IWCA. The decision the Fifth Circuit issued in August reversed an unprecedented ruling from the U.S. District Court for the Northern District of Texas which wrongly struck down ICWA as unconstitutional.
Read the full press release and view the amicus brief at the United States Senate Committee on Indian Affairs website.
Get ready for round two. Oral arguments in a closely-watched Indian Child Welfare Act case will take place on January 22, 2020.
After offering a tentative date last month, 5th Circuit Court of Appeals made it official on Wednesday. The case known as Brackeen v. Bernhardt will go before an en banc panel of judges in New Orleans, Louisiana, where the first round of arguments took place earlier this year.
Read the full article at the Indianz.com website.
The legal status of the Indian Child Welfare Act is again going before the Fifth Circuit Court of Appeals. In 2018, a Texas federal court found the Act known as ICWA to be unconstitutional.
But this summer a panel of three Fifth Circuit judges reversed that finding. Now the full panel of appellate judges will hear the case, with oral arguments tentatively scheduled for the week of Jan. 20.
Listen to the full story at the South Dakota Public Broadcasting website.
Simply Smiles, Inc. is seeking Native American foster parents for the Simply Smiles Children’s Village on the Cheyenne River Sioux Tribe Reservation (South Dakota). …
Native foster parents at the Simply Smiles Children’s Village will ensure that Native children who have been removed from their homes on Cheyenne River can remain with their “kin and community,” fulfilling the letter and spirit of the Indian Child Welfare Act (ICWA).
Read the full article at the Indian Country Today website.
Attacks on the law, enacted in 1978, have inexplicably risen in the past seven years and attracted the support of a seemingly disparate array of high power ultra conservative players and organizations.
Today’s challenges to the child welfare protocols aren’t only about adoption because if the Indian Child Welfare Act is found to be unconstitutional that would undermine tribal governments. So much is at stake: The authority of tribal courts, economic nationhood, including casinos, and the control of tribal land, potentially an opening for fossil fuels and other extractive industry development.
Read the full article at the Indian Country Today website.
March 29–April 1, 2020
Denver, Colorado
Each year, NICWA hosts the largest national gathering on American Indian and Alaska Native (AI/AN) child advocacy issues. With over 1,400 attendees—and growing every year—this four-day conference has become the premiere national event addressing tribal child welfare and well-being. Keynote speakers range from federal officials at the highest level of government to youth with lived experience in child welfare systems.
NICWA provides meaningful programming to conference attendees, creating a space where participants can learn about the latest developments and best practices from experts in the field and from one another. Participants represent a cross-section of fields and interests including child welfare, mental health, and juvenile justice service providers; legal professionals; students; advocates for children; and tribal, state, and federal leaders.
Additional information available at the NICWA website.
Pima County Superior Court Judge Kathleen Quigley said having an ICWA court would allow a legal team to specialize in these cases, much like with a mental health or drug court.
“Instead of having 14 judges deal with ICWA cases, we’d have one judge who would deal with it the same way, so everybody could have an expectation of how things would proceed,” Quigley said. “And I believe the tribes are also in support of having ICWA courts, as well.”
Read the full article or listen to the story at the Arizona Public Media website.
The Yellowstone County District Court is working to improve the outcome for Native children with the Indian Child Welfare Act Court launched 18 months ago with Judge Rod Souza presiding. It is one of only six ICWA courts in the nation.
Read the full article at the Montana Standard website.
Native American tribes got a big win in August when a federal court upheld the Indian Child Welfare Act, a pivotal 1978 law that requires states to prioritize placing Native children in foster or adoptive homes with Native families over non-Native families.
But the decision by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit is now being reconsidered by the full court, which announced earlier this month that it is granting a rehearing in a case known as Brackeen v. Bernhardt.
Read the full article at The Huffington Post website.
In the 40 years since Congress enacted the Indian Child Welfare Act, the law has been criticized in legal challenges that have climbed all the way to the U.S. Supreme Court. But the ICWA, as the act is known, has always prevailed.
Now its constitutionality is being questioned again. On Thursday, the U.S. Court of Appeals for the 5th Circuit agreed to rehear a lawsuit filed by a non-Native American couple in Texas claiming the ICWA discriminates on the basis of race and infringes on states’ rights.
Read the full article at The Washington Post website.
After initially deciding the closely-watched case in favor of Indian Country, the 5th Circuit Court of Appeals announced that it will hear the dispute all over again. A larger set of judges will now scrutinize the landmark law but tribal nations remain confident that their sovereign rights and their most precious resource — their children — will win out in the end.
Read the full article at the Indianz.com website.
More than 40 years after the federal law took effect, the child welfare system continues to absorb a disproportionate number of Native American children nationally and in Utah, noted Alisa Lee, Indian child welfare program administrator for the Utah Division of Child and Family Services.
Data provided by Lee’s office shows that roughly 5% of the total 4,659 children in the Utah foster care system are Native American, though census figures indicate just 1% of the state’s population belongs to the demographic group.
Read the full article at the Deseret News website.
Emails to the adoptive family from the director of Bright Star Adoptions, an adoption firm for which Petersen served as general counsel, suggest that concerns came up about the firm’s compliance with the Indian Child Welfare Act following Petersen’s arrest.
Read the full article at the Phoenix New Times website.
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Carlisle, and boarding schools like it, are remembered as a dark chapter in the history of the ill-conceived assimilation policies designed to strip Native people of their cultures and languages by indoctrinating them with U.S. patriotism. But child removal is a longstanding practice, ultimately created to take away Native land. Although Carlisle is located in the East, it played a key role in pressuring the West’s most intransigent tribes to cede and sell land by taking their children hostage.
Read the full article at the High Country News website.
In ‘Brackeen v. Bernhardt’, decided on Aug. 9, 2019, the U.S. Court of Appeals for the Fifth Circuit held that the Indian Child Welfare Act was constitutional. We applaud the Fifth Circuit for upholding this federal law that is vital to safeguarding the welfare of Indian children.
Read the full article at the New York Law Journal website.
Nearly 200 pages of child welfare regulations are proposed for repeal by the Nebraska Department of Health and Human Services, and will be replaced by less than a dozen pages of regulations on adoption, the Indian Child Welfare Act and alternative response.
Read the full article at the Beatrice Daily Sun website.
The leaders of four American Indian tribes in North Dakota have signed a new agreement with the state over federal funding for child welfare services, including allowing tribes to license foster care parents on and off reservations.
Read the full article at the Bismark Tribune website.
As president of both the Quinault Nation and the Affiliated Tribes of Northwest Indians, Fawn Sharp is a busy person. As of late, much of her time has been dedicated to the fight for Native children and, more broadly, tribal sovereignty.
Sharp knows firsthand how difficult it is for Native parents hoping to provide a culturally inclusive household for Indigenous children to jump through the hoops of the current system. Two years ago, Sharp shared her story in a video series produced by her former employer, the National Congress of American Indians, in which she detailed the painful process of applying to adopt Native children only to see them placed outside a reservation with non-Native families.
Read the full article at The New Republic website.
Legal Topics: Indian Child Welfare Act – Notice
Read the full decision at the National Indian Law Library.
Legal Topics: Indian Child Welfare Act – Application of
Read the full decision at the National Indian Law Library website.
Legal Topics: Indian Child Welfare Act – Transfer to Tribal Court
Read the full decision at the National Indian Law Library website.
Legal Topics: Indian Child Welfare Act – Active Efforts
Read the briefs at the Turtle Talk blog and the full decision at the National Indian Law Library website.
| Find information about (Indian Child Welfare Act (ICWA) cases including the annual 2018 case update on the Turtle Talk blog. |
Legal Topics: Indian Child Welfare Act – Expert Witnesses
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: After child, a member of a Native American tribe, was removed from biological mother’s care by Department of Child Safety, mother moved to appoint child’s foster placement, who was not affiliated with child’s family or tribe or any Native American organization, as child’s permanent guardian, and tribe indicated that mother or Department would need to provide expert witness to testify regarding child’s placement, as required by Indian Child Welfare Act. The Superior Court, Maricopa County, Arthur T. Anderson, J., without hearing testimony from qualified expert witness, found good cause to place child in non-ICWA-preferred placement, and appointed child’s foster placement as her permanent guardian. Tribe appealed.
Holdings provided by Westlaw: The Court of Appeals, Howe, J., held that:
1) provision of ICWA prohibiting courts from placing children who are members of tribes into foster placement without first hearing expert testimony applied, and
2) mother’s proposed expert witness was not qualified.
Vacated and remanded.
Read the full decision at the National Indian Law Library website.
The regulations implementing the Indian Child Welfare Act provide that Indian tribes may designate an agent other than the tribal chairman for service of notice of proceedings under the Act. This notice includes the current list of designated tribal agents for service of notice. See a copy of the updated list.
Legal Topics: Indian Child Welfare Act – Notice
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: Following extensive litigation in child custody action, 2018 WY 110, 426 P.3d 830, father, an Indian tribe member who kept child on reservation, filed motion to establish jurisdiction in tribal court and motion for change of venue, seeking an order relinquishing permanent child custody jurisdiction to the tribal court. Mother, who was not a member of the tribe and who had been awarded primary custody of child, filed motion to strike. The District Court, Sheridan County, Norman E. Young, J., granted mother’s motion, and father appealed.
Holdings provided by Westlaw: The Supreme Court, Kautz, J., held that:
1) Indian Child Welfare Act (ICWA) did not apply, and
2) even assuming ICWA applied, tribal court’s emergency orders under Parental Kidnapping Prevention Act (PKPA) did not give tribal court jurisdiction to make permanent custody decisions.
Affirmed.
Read the full decision at the National Indian Law Library website.
Legal Topics: Indian Child Welfare Act – Expert Witnesses; Indian Child Welfare Act – Transfer to Tribal Court
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: Brother and sister-in-law of mother killed by child’s father petitioned for guardianship of child, but father requested that his sister, a Native American, be appointed guardian of child, who was an enrolled member of a tribe. The Circuit Court, Third Judicial Circuit, Brookings County, Gregory J. Stoltenburg, J., granted brother and sister-in-law’s petition. Father appealed.
Holdings provided by Westlaw: The Supreme Court, Zinter, J., held that:
1) trial court had jurisdiction pursuant to the Guardianship Act to transfer custody of child;
2) brother and sister-in-law were not required to provide father with each one of the procedural protections required in state-instituted abuse and neglect proceedings;
3) trial court’s requirement that father appear via interactive television at hearing did not deprive father of due process; and
4) trial court did not abuse its discretion in appointing brother and sister-in-law permanent guardians.
Affirmed.
Read the full decision at the National Indian Law Library website.
Legal Topics: Indian Child Welfare Act – Termination of Parental Rights
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: In child protection proceeding involving children deemed to be Indian children under the Indian Child Welfare Act (ICWA), parents and Indian tribe moved to transfer jurisdiction of matter to Tribal Court. The Portland District Court, Powers, J., denied the motions. Parents appealed.
Holding provided by Westlaw: The Supreme Judicial Court, Gorman, J., held that trial court had “good cause,” within meaning of ICWA, not to transfer matter to Tribal Court.
Affirmed.
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: In child protection proceedings, the County Court, Platte County, Frank J. Skorupa, J., approved a change in permanency objective for mother and each of her six minor children from reunification to guardianship. Mother appealed, and appeals were consolidated.
Holdings provided by Westlaw: The Court of Appeals held that:
1) orders issued by juvenile court approving change in permanency objective affected mother’s substantial rights and, thus, were final appealable orders;
2) changing permanency objective for mother and each of her six minor children from reunification with concurrent plan for guardianship to guardianship only was in children’s best interests; and
3) State made adequate active efforts prior to seeking change in permanency objective with respect to Indian children.
Affirmed in part and vacated in part.
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: County department of family and children’s services filed juvenile dependency petition on behalf of nine-year-old child who may have Native Alaskan ancestry. The Superior Court, Santa Clara County, No. 17JD024833, Michael L. Clark, J., found sufficient notice was sent, pursuant to the Indian Child Welfare Act (ICWA), to Athabascan Indian tribe in Alaska before declaring child dependent. The court subsequently issued restraining order protecting child from mother, and mother was later found to have violated restraining order by possessing or having access to handgun. Mother appealed to challenge the ICWA notice.
Holding provided by Westlaw: The Court of Appeal, Grover, J., held that mother’s challenge to ICWA notice was untimely.
Appeal dismissed.
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: State filed an adjudication petition alleging that mother was unable to meet child’s basic needs for care and protection, mother used inappropriate discipline, and mother’s mental-health issues put child at risk of abuse and/or neglect. The County Court, Scotts Bluff County, James M. Worden, J., entered an order placing temporary custody of child with Nebraska’s Department of Health and Human Services. State then filed motion to terminate mother’s parental rights. The County Court granted the motion. Mother appealed.
Holdings provided by Westlaw: The Court of Appeals, Welch, J., held that:
1) there was clear and convincing evidence that child had been in an out-of-home placement for 15 or more months of the most recent 22 months, as statutory ground for termination of mother’s parental rights;
2) opinion testimony from qualified expert supported finding that continued custody by mother was likely to result in serious emotional or physical damage to child;
3) evidence showed that termination of mother’s parental rights was in child’s best interests; and
4) evidence established that tribe in which child was enrolled was given proper notice of proceedings.
Affirmed.
Read the full decision at the National Indian Law Library website.
Synopsis from Westlaw: Father appealed order of 446th District Court, Ector County, terminating his parental rights to Indian child.
Holding from Westlaw: The Court of Appeals, Jim R. Wright, Senior Chief Justice, held that trial court was able to determine that Indian tribe’s representative was qualified as an expert witness. Affirmed.
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: Department of Public Health and Human Services petitioned to terminate mother’s parental rights to children. The District Court, Silver Bow County, Brad Newman, J., terminated rights. Mother appealed, arguing that District Court had possessed reason to know that children could have been eligible for tribal enrollment so as to trigger Indian Child Welfare Act’s (ICWA) tribal notice and enrollment eligibility determination requirements, yet District Court had failed to observe requirements.
Holdings provided by Westlaw: The Supreme Court, Dirk Sandefur, J., held that:
1) the District Court had possessed reason to know that children could have been eligible for tribal enrollment, triggering ICWA requirements, but
2) the District Court’s failures to comply with ICWA had been harmless.
Affirmed.
Read the full decision at the National Indian Law Library website.
Legal Topics: Indian Child Welfare Act – Notice
Read the full decision at the National Indian Law Library website.
Title: “Indian” as a political classification: Reading the tribe back into the Indian Child Welfare Act.
Author:Elder, Allison
Source:13 NW J. L. & Soc. Pol’y 410 (2018)
Synopsis provided by Westlaw: Native American father’s parental rights to child were terminated, following dispositional hearing in the Second Judicial Circuit Court, Minnehaha County, Susan M. Sabers, J., and father appealed.
Holdings provided by Westlaw: The Supreme Court, Gilbertson, C.J., held that:
1) evidence did not support father’s claim that Department of Social Services (DSS) did not make active efforts to prevent breakup of family, as prerequisite to termination of parental rights under ICWA, and
2) DSS had good cause for placing child with foster family who were not members of father’s family or Native American tribe, as exception to placement preferences under ICWA.
Affirmed.
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: After Nevada juvenile court declined to exercise further jurisdiction after initially sustaining Nevada Department of Family Services (DFS) juvenile dependency petition, California county human services agency (HSA) filed juvenile dependency petitions in California, alleging that mother and father were unable to care for and protect their infant children and repeated allegations of Nevada DFS petition relating to substance abuse,criminal conduct, abuse, and neglect. Following termination of parental rights hearing, the Superior Court, Ventura County, Nos. J071566, J071567, Ellen Gay Conroy, J., terminated mother’s and father’s parental rights and found children to be adoptable. Mother and father appealed.
Holdings provided by Westlaw: The Court of Appeal, Gilbert, P.J. heldthat:
1) California juvenile court had subject matter jurisdiction overdependency proceedings;
2) Nevada court was permitted to communicate with California court before declining jurisdiction;
3) Nevada court’s order declining jurisdiction was a valid, final judgment; but
4) HSA was required to interview children’s paternal great-grandmother regarding children’s possible Indian heritage.
Affirmed in part, reversed in part, and remanded with instructions.
Read the full decision at the National Indian Law Library website.
Synopsis from Westlaw: Department of Public Health and Human Services filed petition for termination of mother’s parental rights as to her two minor children. Following termination hearing, the District Court, Cascade County, Nos. ADN 16-175 and ADN-16-176, Gregory G. Pinski, P.J., terminated mother’s parental rights. Mother appealed.
Holdings from Westlaw: The Supreme Court, Beth Baker, J., held that:
1) trial court violated Indian Child Welfare Act (ICWA) when it terminated mother’s parental rights before having conclusive determination of children’s status in Indian tribe;
2) trial court’s oral findings and comments within written order did not implicitly establish that court agreed active efforts to prevent the breakup of Indian family were made, as required under ICWA; but
3) mother’s due process rights were not violated when Department raised issue of abandonment during closing argument.
Reversed and remanded with instructions.
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Synopsis from Westlaw: Maternal grandparents and guardians of minor child brought petition seeking to terminate parental rights and to adopt the child whose mother was member of Indian tribe. The County Court, Saunders County, Patrick R. McDermott, J., denied petition. Grandparents appealed.The Supreme Court, 295 Neb. 213887 N.W.2d 859, reversed and remanded. On remand the County Court found father had abandoned child, terminated parental rights, and granted adoption petition. Father appealed.
Holdings from Westlaw: The Supreme Court, Heavican, C.J., held that:
1) clear and convincing evidence established that maternal grandparents used active efforts to provide remedial services and rehabilitative programs designed to unite father and Indian child;
2) evidence supported finding that father had abandoned child;
3) evidence supported finding that it was in the best interest of Indian child to be adopted by maternal grandparents; and
4) vacation of adoption decree and remand was warranted based on the trialcourt’s failure to comply with statutory adoption procedures.
Affirmed in part, vacated in part, and remanded with directions.
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: Department of Health and Social Services, Office of Children’s Services, (OCS) petitioned to terminate mother’s parental rights to Indian child. The Superior Court, Third Judicial District,Anchorage, Andrew Guidi, J., terminated mother’s parental rights, and she appealed.
Holdings provided by Westlaw: The Supreme Court, Carney, J., held that:
1) evidence was sufficient to support trial court’s finding that the OCS made active but unsuccessful efforts to prevent the breakup of Indian family;
2) evidence was sufficient to support trial court’s finding that Indian mother’s continued custody would likely result in Indian child suffering serious emotional or physical harm; and;
3) trial court did not err in qualifying expert witness, or in using his testimony to support its finding that continued custody of Indian child by Indian mother was likely to result in serious emotional or physical harm to the child.
Affirmed
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Synopsis provided by Westlaw: After Department of Public Social Services (DPSS) sent Indian Child Welfare Act (ICWA) notices to the Blackfeet Tribe of Montana, the Navajo Nation, the Colorado River Indian Tribes, and the Colorado River Tribal Council, the Superior Court, Riverside County, No. RIJ1100389, Jean P. Leonard, Retired Judge, sitting by assignment, terminated mother’s parental rights. Mother appealed.
Holdings provided by Westlaw: The Court of Appeal, Fields, J., held that:
1) trial court, on remand, was required to order DPSS to send ICWA notices to all federally recognized Cherokee tribes;
2) trial court, on remand, was required to fully investigate child’s paternal lineal ancestry; and
3) substantial evidence did not show that DPSS complied with sending ICWA notices.
Reversed and remanded.
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Synopsis provided by Westlaw: A petition to terminate mother and father’s parental rights was filed. The Circuit Court, Family Division, Eaton County,No. 15-019320-NA, terminated mother and father’s parental rights. Parents appealed.
Holdings provided by Westlaw: The Court of Appeals, Murphy, P.J., held that:
1) the trial court erred in failing to apply the Michigan Indian Family Preservation Act (MIFPA) and the Indian Child Welfare Act (ICWA) standards when assessing whether to terminate father’s parental rights to Indian child;
2) the heightened standards of the ICWA and the MIFPA applied to termination of father’s parental rights to Indian child, even though father never had legal or physical custody rights as to child; and
3) clear and convincing evidence established that active efforts had been made to provide services designed to prevent the breakup of mother’s Indian family.
Affirmed in part; reversed and remanded in part.
Read the full decision at the National Indian Law Library website.
Legal Topics: Indian Child Welfare Act -Juvenile Court Jurisdiction
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Synopsis provided by Westlaw: Native American father’s parental rights to child were terminated, following dispositional hearing in the Second Judicial Circuit Court, Minnehaha County, Susan M. Sabers, J., and father appealed.
Holdings provided by Westlaw: The Supreme Court, Gilbertson, C.J., held that:
1) evidence did not support father’s claim that Department of Social Services (DSS) did not make active efforts to prevent breakup of family, as prerequisite to termination of parental rights under ICWA, and
2) DSS had good cause for placing child with foster family who were not members of father’s family or Native American tribe, as exception to placement preferences under ICWA.
Affirmed.
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: Foster and adoptive parents and states of Texas,Louisiana, and Indiana brought action against United States, United States Department of the Interior and its Secretary, Bureau of Indian Affairs (BIA)and its Director, BIA Principal Assistant Secretary for Indian Affairs,Department of Health and Human Services (HHS) and its Secretary seeking declaration that Indian Child Welfare Act (ICWA) was unconstitutional. Cherokee Nation, Oneida Nation, Quinalt Indian Nation, and Morengo Band of Mission Indians intervened as defendants. Plaintiffs moved for summary judgment.
Holdings provided by Westlaw: The District Court, Reed O’Connor, J., held that:
1) ICWA’s mandatory placement preferences violated equal protection;
2) provision of ICWA granting Indian tribes authority to reorder congressionally enacted adoption placement preferences violated non-delegation doctrine;
3) ICWA provision requiring states to apply federal standards to state-created claims commandeered the states in violation of the Tenth Amendment;
4) Bureau of Indian Affairs (BIA) exceeded its statutory authority in promulgating regulations, in violation of the Administrative Procedure Act (APA);
5) BIA regulations were not entitled to Chevron deference;and
6) prospective and adoptive parents whose adoptions were open to collateral attack under ICWA had no fundamental right to care, custody, and control of children in their care.
Motions granted in part and denied in part.
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Despite a federal appeals court vacating a previous local ruling ordering Pennington County to change the way it runs its initial hearings for Native American child removal cases, the county isn’t planning on reverting back to its old practices.
Read the article at the Rapid City Journal website.
Title: Tensions underlying the Indian Child Welfare Act: Tribal jurisdiction over traditional state court family law matters.
Author: MacLachlan, Elizabeth
Source: 2018 B.Y.U. L. Rev. 455 (2018)
The Eighth Circuit Court of Appeals in St. Paul has dismissed a lawsuit alleging that South Dakota officials violated the Indian Child Welfare Act.
Read the story at the http://listen.sdpb.org/post/aclu-will-ask-eighth-circuit-reconsider-opinion-icwa-due-process.
Legal Topics: Indian Child Welfare Act
Read the full decision at the National Indian Law Library website.
Related News: ACLU will ask Eighth Circuit to reconsider opinion on ICWA, due process (SDPB Radio) 9/18/18, ICWA: 8th Circuit overturns federal ruling (SDPB Radio ) 9/17/18
Legal Topics: Indian Child Welfare Act – Notice
Read the full decision at the National Indian Law Library website.
Title: Native American rights and adoption by non-Indian families: The manipulation and distortion of public opinion to overthrow ICWA.
Author: Bual, Harman
Source: 6 Am. Indian L. J. 271 (2018)
Title: Indian Child Welfare Act annual case law update and commentary.
Author: Fort, Kathryn; Smith, Adrian T.
Source: 6 Am. Indian L. J. 32 (2018)
Legal Topics: Indian Child Welfare Act – Constitutionality
Related News Stories: Judge upholds Indian Child Welfare Act (Arizona Daily Sun) 8/7/18.
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: In child protection proceedings, the District Court, Second Judicial District, Butte/Silver Bow County, Nos. DN-15-75-BN and DN-15-76-BN, Brad Newman, J., terminated mother’s parental rights with respect to two children. Mother appealed, and appeals were consolidated.
Holdings provided by Westlaw: The Supreme Court, Gustafson, J., held that:
1) Department of Public Health and Human Services failed to meet burden under the Indian Child Welfare Act (ICWA) to actively investigate further and make formal inquiry with tribe for conclusive determination of children’s tribal membership eligibility prior to terminating mother’s rights to children, and;
2) evidence was sufficient to support finding that mother’s condition was unlikely to change within reasonable time, as required to terminate her parental rights after children were adjudicated youth in need of care.
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: Department of Public Health and Human Services, Child and Family Services Division, filed a petition to terminate putative father’s parental rights to child, who was a member of or eligible for membership in the Fort Peck Indian Tribe. The District Court, 12th Judicial District, Hill County, No. DN-15-010, Daniel A. Boucher, J., granted the petition. Father appealed.
Holdings provided by Westlaw: The Supreme Court, Mike McGrath, C.J., held that:
1) family relationship did not exist between Indian child and putative father, and therefore, requirements of Indian Child Welfare Act (ICWA) did not apply; and
2) argument that oral pronouncement, minute entry, and order differed in the way they define the active efforts requirement was immaterial.
Affirmed
Read the full decision at the National Indian Law Library website.
Title: Why try to change me now?: The basis for the 2016 Indian Child Welfare Act Regulations.
Author: Ogle, Kasey D.
Source: 96 Neb. L. Rev. 1007 (2018).
Synopsis provided by Westlaw: Dependency proceeding was initiated regarding child born with amphetamine and methamphetamine in her system at birth. Following determination that Indian Child Welfare Act (ICWA) did not apply to child’s presumed father or biological father, the Superior Court, San Diego County, No. J519280, Kimberlee Lagotta, J., terminated mother’s parental rights to child. Mother and presumed father appealed.
Holdings provided by Westlaw: The Court of Appeal, Irion, Acting P.J., held that:
1) record demonstrated ICWA did not apply based on biological father’s initial claim of Native American heritage;
2) as an issue of apparent first impression, presumed father’s claim of Native American heritage was insufficient to trigger ICWA notice requirements; and
3) record supported finding that mother was not entitled to parent-child relationship exception to adoption to preclude termination of parental rights.
Affirmed.
Read the full decision at the National Indian Law Library website.
See the following stories: Judge upholds Indian Child Welfare Act (Arizona Daily Sun) 8/7/18,Court rejects challenge to Native American law on adoptions (Arizona Republic) 8/7/18, and Appeals court won’t rule on challenge on Indian Child Welfare Act (Indianz) 8/7/18.
Read the court decision at the National Indian Law Library website.
When social workers take a Crow, Northern Cheyenne, Assiniboine or Sioux child from their parents in Yellowstone County, 75 percent go to live somewhere with a Native connection — mostly to relatives …
Read the full article at the Billings Gazette website.
A Federal Register Notice by the Indian Affairs Bureau made on 6/04/18.
The regulations implementing the Indian Child Welfare Act provide that Indian tribes may designate an agent other than the tribal chairman for service of notice of proceedings under the Act. This notice includes the current list of designated tribal agents for service of notice. (PDF copy of notice.)
The Michigan Supreme Court ruled on Friday that the father of two American Indian children is entitled to withdraw his consent to terminate his parental rights because the adoption of his children has not yet been finalized…
Read the full article at the Detroit Free Press website.
Synopsis provided by Westlaw: In child protection proceeding, the District Court, Eighth Judicial District, Cascade County, John A. Kutzman, J., terminated mother’s parental rights. Mother appealed.
Holdings provided by Westlaw: The Supreme Court, Sandefur, J., held that:
1) Department of Health and Human Services could not passively rely on inaction of Indian tribe to satisfy burden under Indian Child Welfare Act (ICWA) to actively investigate and ultimately make formal inquiry with tribe for conclusive determination of child’s tribal membership eligibility, and
2) trial court could not rely on mother’s stipulation or acquiescence that the Indian Child Welfare Act (ICWA) did not apply to child to satisfy its threshold duty to obtain conclusive determination from Indian tribe of child’s tribal eligibility. Reversed and remanded.
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: The Department of Human Services filed petition to terminate mother’s parental rights. The District Court, Blaine County, Mark A. Moore, J., terminated mother’s rights and denied her motion for new trial that alleged that Indian Child Welfare Act (ICWA) applied to proceedings. Mother appealed.
Holding provided by Westlaw: The Court of Civil Appeals, Jane P. Wiseman, P.J., held that involvement of Indian children required application of ICWA to proceedings to terminate mother’s parental rights. Reversed and remanded.
Read the full decision at the National Indian Law Library website.
Legal Topics: Indian Child Welfare Act
Read the full decision at the National Indian Law Library website.
Legal Topics: Indian Child Welfare Act – Termination of Parental Rights
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Legal Topics: Indian Child Welfare Act – Application of
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Synopsis provided by Westlaw: Dependency proceeding was initiated by county department of public social services regarding three children. The Superior Court, Riverside County, No. SWJ1600319, Judith C. Clark, J., determined that Indian Child Welfare Act (ICWA) did not apply and subsequently terminated mother’s parental rights to children.
Holdings provided by Westlaw: The Court of Appeal, McKinster Acting P.J., held that department failed to demonstrate that it complied with investigatory requirements for determining children’s possible Indian heritage.
Conditionally reversed with directions.
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: County department of human services sought to terminate mother’s parent-child legal relationship with her child who had possible Indian heritage. The District Court, Jefferson County, No. 15JV650, Ann Gail Meinster, J., determined that Indian Child Welfare Act (ICWA) did not apply and terminated mother’s parental rights. Mother appealed.
Holding provided by Westlaw: The Court of Appeals held that trial court was required to notify Indian tribes historically affiliated with tribe mother asserted her biological brother belonged to.
Remanded with instructions.
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: Office of Children’s Services (OCS) petitioned for removal of Indian child from parents’ custody. The Superior Court, Fourth Judicial District, Bethel, No. 4SM-14-00002 CN, Dwayne W. McConnell, J., ordered child removed from her parents’ home. Parents appealed. The Supreme Court remanded for additional findings. Following remand, the Superior Court, McConnell, J., issued ordering clarifying its removal findings. Parents appealed.
Holding provided by Westlaw: The Supreme Court, Carney, J., held that information from status hearings, including unsworn statements made by OCS workers, could not be used by trial court to support its order authorizing removal of Indian child from parents’ custody.
Vacated and remanded.
Read the full decision at the National Indian Law Library website.
On March 26, 2018, the U.S. Supreme Court declined to hear this case:
Question Presented: The Indian Child Welfare Act of 1978, 25 U.S.C. 1901–1963, applies to state custody proceedings involving an Indian child. State courts of last resort are divided on the following critical question, a question that likely affects thousands of adoption proceedings each year, and on which this court granted certiorari but did not reach in Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2560 (2013): Does the Indian Child Welfare Act define “parent” in 25 U.S.C. 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent?
History: Petition was filed on 12/29/17. Petition was denied on 3/26/17.
Ruling below: In the Matter of the Adoption of B.B. 2017 WL 3821741 Supreme Court of Utah. The Supreme Court, Himonas, J., held that: 1) birth father was a parent under the Indian Child Welfare Act (ICWA) and had right to notice and to intervene in the adoption proceedings; 2) birth father had custody of child under the ICWA; 3) adoption proceedings were involuntary, not voluntary, as to birth father; and in an opinion by Lee, Associate C.J., 4) trial court’s order accepting birth mother’s consent to child’s adoption under the ICWA and terminating her parental rights was not properly presented to the Supreme Court for review; and 5) any defect in the timing of birth mother’s consent to adoption of child did not deprive trial court of subject-matter jurisdiction. Reversed and remanded.
MIAMI — The Miccosukee nation insists that it acted lawfully when its tribal court issued a child-custody order, and then sent two tribal detectives to seize newborn Ingrid Johnson from her Indian mother at a hospital.
But Indian law experts and two former Miccosukee police chiefs said they believe the tribe overstepped its authority. And while the tribe is immune from state civil lawsuits, the parents could file claims against the hospital and Miami-Dade County police for their roles in the fiasco.
Read the full article at the Valdosta Daily Times website.
Synopsis provided by Westlaw: Department of human services moved for an allocation of parental responsibilities of two children from mother to children’s aunt and uncle. The District Court, Mesa County, Valerie J. Robinson, J., entered an order allocating parental responsibilities, and did not address any applicability of the Indian Child Welfare Act (ICWA). Mother appealed.
Holdings provided by Westlaw: The Court of Appeals held that:
1) proceeding for the allocation of parental rights to children from mother to children’s aunt and uncle was a child custody proceeding within the meaning of ICWA, and
2) proceeding did not comply with ICWA notice requirements.
Remanded.
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: County Social Services filed petition to terminate mother’s and father’s parental rights to Native American children. The Juvenile Court, Grand Forks County, Northeast Central Judicial District, Jon J. Jensen, J., terminated father’s parental rights, and father appealed.
Holdings provided by Westlaw: The Supreme Court, Stacy J., Louser, District Court Judge, sitting for Jensen, J., disqualified, held that:
1) evidence supported findings that children were deprived, that deprivation would continue, and that father’s continued custody would likely result in serious emotional or physical damage to children;
2) active efforts were made to provide remedial services and rehabilitative programs designed to prevent breakup of family, as prerequisite to termination of parental rights, under Indian Child Welfare Act (ICWA);
3) under ICWA, qualified expert testimony was required on whether father’s continued custody of children was likely to result in serious emotional or physical damage to children.
Remanded
Read the full decision at the National Indian Law Library website.
Legal Topics: Indian Child Welfare Act – Placement
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Legal Topics: Indian Child Welfare Act – Intervention
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Question Presented: The Indian Child Welfare Act of 1978, 25 U.S.C. 1901–1963, applies to state custody proceedings involving an Indian child. State courts of last resort are divided on the following critical question, a question that likely affects thousands of adoption proceedings each year, and on which this court granted certiorari but did not reach in Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2560 (2013): Does the Indian Child Welfare Act define “parent” in 25 U.S.C. 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent?
History: Petition was filed on 12/29/17.
Ruling below: In the Matter of the Adoption of B.B. 2017 WL 3821741 Supreme Court of Utah. The Supreme Court, Himonas, J., held that: 1) birth father was a parent under the Indian Child Welfare Act (ICWA) and had right to notice and to intervene in the adoption proceedings; 2) birth father had custody of child under the ICWA; 3) adoption proceedings were involuntary, not voluntary, as to birth father; and in an opinion by Lee, Associate C.J., 4) trial court’s order accepting birth mother’s consent to child’s adoption under the ICWA and terminating her parental rights was not properly presented to the Supreme Court for review; and 5) any defect in the timing of birth mother’s consent to adoption of child did not deprive trial court of subject-matter jurisdiction. Reversed and remanded.
Title: Are you my father? Adopting a federal standard for acknowledging or establishing paternity in state court ICWA proceedings.
Author: Heiner, Kevin
Source: 117 Colum. L. Rev. 2151 (2017)
Contact the National Indian Law Library if you need help obtaining a copy of the article.
Legal Topics: Indian Child Welfare Act – Application
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The National Council of Juvenile and Family Court Judges (NCJFCJ) has announced the release of the Indian Child Welfare Act Judicial Benchbook to improve court practice for judges in handling Indian Child Welfare Act (ICWA) cases.
Legal Topics: Indian Child Welfare Act – Intervention
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Legal Topics: Indian Child Welfare Act – Notice
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Legal Topics: Indian Child Welfare Act – Application of
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Legal Topics: Indian Child Welfare Act – Notice
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Legal Topics: Michigan Indian Family Preservation Act
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Legal Topics: Indian Child Welfare Act – Expert Testimony
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Margaret Jacobs, professor of history and director of the Women’s and Gender Studies Program at the University of Nebraska, Lincoln, won the Bancroft Prize for her book White Mother to a Dark Race, an investigation of the U.S. and Australian policies of breaking up indigenous families and removing children to be raised in boarding schools run by whites. She has also published a second volume based on her research. A Generation Removed looks at indigenous child removal policies from just after World War II up until passage of the Indian Child Welfare Act in 1978.
ICTMN interviewed Jacobs about her work. “When I got to Australia [to begin research] it was shortly after the ‘Bringing them home’ report [1997] had come out about the stolen generation [of Australian Aborigine children]. When I went to the archives, I asked, ‘What were white women doing about indigenous children? Were they involved in this policy of the stolen generation?’”
Read the full article at the Indian Country Today website.
Legal Topics: Indian Child Welfare Act – Termination of Parental Rights
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Legal Topics: Indian Child Welfare Act – Expert Witnesses
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Legal Topics: Indian Child Welfare Act – Termination of Parental Rights
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TAHLEQUAH — The Cherokee Nation announced a new foster care paid leave policy that is the first of its kind in Indian Country, and also one of the first in the state of Oklahoma, according to a news release.
The new policy announced at the 2017 Cherokee Nation Employee Appreciation Day grants Cherokee Nation full-time employees five additional days of paid leave when a Cherokee child is placed in their Cherokee Nation Indian Child Welfare-certified home.
Read the full article at the Muskogee Phoenix website.
AKWESASNE — The St. Regis Mohawk Tribal Council and New York State Office of Temporary and Disability Assistance have signed a historic agreement to cooperate in providing child support services.
The tribe’s Child Support Enforcement Unit became the first comprehensive tribal child support unit in New York in April 2014 and is also the only federally recognized tribal child support program in the state.
Read the full article at the Press Republican website.
Title: Escaping the ICWA penalty box: In defense of equal protection for Indian children.
Author: Sandefur, Timothy
Source: 37 Child. Legal Rts. J. 1 (2017)
Title: The waning of the Indian Child Welfare Act: How mediation may help save the act and preserve its original intent.
Author: Wade, Alice
Source: 18 Cardozo J. Conflict Resol. 829 (2017)
Legal Topics: Indian Child Welfare Act – Placement
Read the full decision at the National Indian Law Library website.
Legal Topics: Indian Child Welfare Act – Transfer to Tribal Court
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Legal Topics: Indian Child Welfare Act – Unconstitutional
Related News Stories: Indian Child Welfare Act survives attack from conservative groups (Indianz) 3/21/17 (Turtle Talk material), ICWA: Goldwater case thrown out of federal court (Indian Country Today) 3/21/17
Read the full decision at the National Indian Law Library website.
Legal Topics: Indian Child Welfare Act – Application
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Legal Topics: Indian Child Welfare Act – Notice
Read the full decision at the National Indian Law Library website.
Legal Topics: Indian Child Welfare Act – Notice
Read the full decision at the National Indian Law Library website.
Related News Story: Colorado Court of Appeals: dependency and neglect court should have followed ICWA’s notice requirements (Legal Connection) 3/31/17
Legal Topics: Indian Child Welfare Act – Application
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A Federal Register Notice by the Indian Affairs Bureau made on 3/08/17.
The regulations implementing the Indian Child Welfare Act provide that Indian tribes may designate an agent other than the tribal chairman for service of notice of proceedings under the Act. This notice includes the current list of designated tribal agents for service of notice. (PDF copy of notice.)
On January 22, 1818, the House Committee on Indian Affairs reported that Indian children “will grow up in habits of morality and industry…and become useful members of society” if they are given ‘the primer…the hoe…”and the Bible. By 1879 off-reservation schools were created to separate Indian children from their families, culture, language, sacred history, and territory to “kill the Indian…and save the man.” These schools not only “educated” Indian children, they put them to work in a mandated trade craft which, coincidently, generated profits for the school system.
Read the entirety of Eric Hannel’s opinion article at the Indian Country Media Network website.
The Capacity Building Center of Tribes has just published a new 8 page ICWA Guide for Tribal Governments and Leaders.
Read the announcement here. Download the guide.
Legal Topics: Indian Child Welfare Act – Termination of Parental Rights
Read the full decision at the National Indian Law Library website.
Legal Topics: Indian Child Welfare Act – Private Severance
Read the full decision at the National Indian Law Library website.
Title: Implementing and defending the Indian Child Welfare Act through revised state requirements.
Author: Turner, Caroline M.
Source: 49 Colum. J.L. & Soc. Probs. 501-549 (2016).
Read the full decision at the National Indian Law Library website.
Synopsis from Westlaw: County child welfare agency filed dependency petition. The Superior Court, Los Angeles County, No. CK81121, Emma Castro, Commissioner, terminated parental rights. Mother appealed.
Holding from Westlaw: The Court of Appeal, Bigelow, P.J., held that agency provided adequate ICWA notice to conclude child was not a member of tribe, including copy of mother’s membership card.
Read the full copy of the decision at the National Indian Law Library website.
Synopsis from Westlaw: Cherokee Nation filed petition to transfer guardianship action regarding Indian children to Cherokee Nation District Court, to which children’s guardians objected. The District Court, Okfuskee County, Lawrence W. Parish, J., denied transfer. Cherokee Nation appealed.
Holding from Westlaw: The Court of Civil Appeals, Jane P. Wiseman, P.J., held that guardians failed to comply with notice and reunification requirements, and thus advanced stage of proceeding did not constitute good cause preventing transfer to tribal court.
Reversed and remanded with directions.
Read the full decision at the National Indian Law Library website.
Synopsis from Westlaw: County children and family services agency filed petition against mother and father to terminate their parental rights to minor children, who potentially had Indian heritage. Following hearing, the Superior Court, Mendocino County, Nos. SCUK-JVSQ-14-1702501 and SCUK-JVSQ-14-1702601, David Riemenschneider, J., found both children adoptable, that exception to adoption for sibling bond did not apply, and that Indian Child Welfare Act (ICWA) did not apply, and terminated parental rights. Mother and father appealed.
Holding from Westlaw: The Court of Appeal, Dondero, J., held that trial court failed to comply with notice requirements of ICWA and state law.
Reversed and remanded with directions.
Read a full copy of the decision at the National Indian Law Library website.
Legal Topics: Indian Child Welfare Act – Active Efforts
FAMILY DESIGN RESOURCES INC. INTRODUCES FREE ICWA SEARCH GUIDE TO HELP KEEP INDIAN FAMILIES TOGETHER Complements new federal regulations that go into effect in December
HARRISBURG, Pa. (Aug. 4, 2016) – Family Design Resources Inc. has introduced the first edition of its Indian Child Welfare Act Search Guide.
The free search guide anticipates new regulations issued by the federal Bureau of Indian Affairs that will go into effect on Dec. 8.
The 24-page search guide is designed to help children and youth agencies across the United States to comply with federal laws, regulations and guidelines when working with an Indian child or family…..
Read the full press release on the Family Design Resources website.
Download your free copy of the 24 page guide.
Question Presented: 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 state and the decision of at least one other state court of last resort – or otherwise erred in their interpretation of “good cause.”
History: Petition was filed on 10/07/2016.
Rulings Below: In re Alexandria P., Court of Appeal, Second Dist., Div. 5, California 1 Cal.App.5th 331. The Court of Appeal, Kriegler, J., held that:
1) trial court did not exceed scope of remand or disregard law of the case by considering impact on child’s cultural identity if she were to remain foster parents;
2) good cause to depart from ICWA’s placement preferences did not exist as a matter of law;
3) substantial evidence supported finding that there was no good cause to depart from ICWA’s placement preferences;
4) any error in excluding full report prepared by bonding and attachment expert was harmless;
5) trial court did not abuse its discretion in considering social worker’s report without allowing foster parents to cross-examine him; and
6) trial court did not abuse its discretion by denying foster parents’ request to present additional evidence or testimony.
Affirmed.
Read a full copy of the decision at the National Indian Law Library website.
Synopsis provided by Westlaw: State moved to terminate natural mother’s parental rights, default order was entered against mother, and Indian tribe intervened after mother became enrolled citizen of tribe. The District Court, Rogers County, Stephen R. Pazzo, J., granted tribe’s motion to transfer the case to tribal court under the Indian Child Welfare Act (ICWA). State and foster mother appealed.
Holdings provided by Westlaw: The Supreme Court, Taylor, J., held that:
1) ICWA applied to proceeding, and
2) good cause to prevent transfer was not established by clear and convincing evidence.
Affirmed.
Related News Stories: One tribe can’t stop another tribe’s casino (Courthouse News) 10/17/16, Court upholds governor’s power to allow Indian casinos (KPCC) 10/14/15
Read the full decision on the National Indian Law Library’s website.
Synopsis provided by Westlaw: County department of children and family services (DCFS) filed dependency petition on behalf of child, who was considered an Indian child under Indian Child Welfare Act (ICWA) and, after child was placed with foster family and efforts to reunify child with father failed, DCFS, father, and Indian tribe recommended that child be placed with extended family .
Holdings provided by Westlaw: The Court of Appeal, Kriegler, J., held that:
1) trial court did not exceed scope of remand or disregard law of the case by considering impact on child’s cultural identity if she were to remain foster parents;
2) good cause to depart from ICWA’s placement preferences did not exist as a matter of law;
3) substantial evidence supported finding that there was no good cause to depart from ICWA’s placement preferences;
4) any error in excluding full report prepared by bonding and attachment expert was harmless;
5) trial court did not abuse its discretion in considering social worker’s report without allowing foster parents to cross-examine him; and
6) trial court did not abuse its discretion by denying foster parents’ request to present additional evidence or testimony.
Affirmed.
Read the full decision on the National Indian Law Library website.
Synopsis provided by Westlaw: County department of health and human services filed dependency petitions as to two children. The Superior Court, Sacramento County, Nos. JD232871 and JD232872, Paul L. Seave, J., directed counsel to make reasonable efforts to enroll the children and their father in a tribe which had notified the court that they were eligible for membership, concluded it was required to treat the eligible minors as Indian children under Indian Child Welfare Act (ICWA), but made jurisdictional findings and placed the children in the custody of their maternal grandmother. Department of health and human services appealed. The Court of Appeal reversed with directions. Father petitioned for review. The Supreme Court granted review, superseding the opinion of the Court of Appeal.
Holdings provided by Westlaw: The Supreme Court, Werdegar, J., held that:
1) court rule requiring juvenile court to treat a child eligible for tribal membership as an “Indian child” is invalid, but
2) a court rule validly requires the juvenile court to pursue tribal membership for a child who is already an “Indian child.”
Affirmed in part, reversed in part, and remanded.
Read the full decision at the National Indian Law Library website.
Legal Topics: Indian Child Welfare Act – Transfer to Tribal Court
Related News Stories: Important ICWA case out of Oklahoma on application and transfer to tribal court (Turtle Talk) 9/14/16
Read the full decision at the National Indian Law Library website.
Legal Topics: Indian Child Welfare Act – Transfer to Tribal Court
Related News Stories: Gila River Indian Community weighs options after losing Indian Child Welfare Act case (Indianz) 8/15/16
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: Child dependency proceeding was commenced. The Superior Court, Los Angeles County, No. DK11636, Philip L. Soto, J., found jurisdiction over the children and removed them from parental custody, and father appealed.
Holdings provided by Westlaw: The Court of Appeal, Perluss, P.J., held that:
1) father’s failure to provide children with support, and his incarceration on burglary charges, did not allow trial court to assume jurisdiction over children;
2) statute governing removal of children from the physical custody of a parent or guardian “with whom the child resides at the time the petition was initiated” did not apply to father; and
3) on remand, juvenile court was required to reconsider its decision that the Indian Child Welfare Act (ICWA) did not apply.
Reversed and remanded.
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: County child welfare agency filed dependency petition as to two daughters. The Superior Court, Los Angeles County, No. DK02646, Zeke D. Zeidler, J., terminated parental rights and transferred care, custody, and control of the daughters to the county child welfare agency for adoptive planning and placement. Mother appealed.
Holding provided by Westlaw: The Court of Appeal, Perluss, P.J., held that county child welfare agency failed to adequately investigate mother’s Indian Child Welfare Act (ICWA) claim of Indian ancestry.
Conditionally affirmed and remanded with directions.
Read the full decision at the National Indian Law Library website.
Title: Case comment: Adoptive Couple v. Baby Girl, 133 S.Ct. 2552 (2013)
Author: Akpan, Anietie Maureen-Ann
Source: 6 Colum. J. Race & L. 1 (2016)
This Comment discusses the 2013 United States Supreme Court case of Adoptive Couple v. Baby Girl,
which involved an unwed Cherokee father’s (Petitioner) journey to regaining custody of his child, after
erroneously granting consent of the child’s adoption to a non-Indian couple. This Comment further discusses
the issues that arise within transracial adoptions, including “cultural authenticity” of adoptive parents and the
significance of providing cultural outlets for a transracial adopted child. This Comment will also address the
lack of constitutional protection for unwed fathers in family cases, specifically the “sub-class” of unwed fathers
to which the Petitioner belongs. Generally, this Comment examines the intersectionality of race relations,
racial identity and how society has become socialized to view fathers against mothers.
Read the full article.
Title: Killing the policy to save the child: Comparing the historical removal of Indigenous children in Australia to the United States and how the countries can learn from each other
Author: Pollom, Drew
Source: American Indian Law Journal Vol. 4, p. 256-296 (2016)
Title: American Indian children and U.S. policy
Author: EagleWoman, Angelique; Rice, G. William
Source: University of New Mexico Tribal Law Journal Vol. 16, p. 1-29 (2016)
Title: In the name of the child: race, gender, and economics in Adoptive Couple v. Baby Girl
Author: Berger, Bethany R
Source: 67 Fla. L. Rev. 295 (2016)
Legal Topics: Michigan Indian Family Preservation Act; Indian Child Welfare Act
Read the full decision at the National Indian Law Library website.
WASHINGTON, June 23 — The U.S. Department of Health and Human Services’ Administration for Children and Families’ Office of Planning, Research and Evaluation issued the following report:
This report details 14 tribes and tribal organizations’ implementation of service coordination efforts across Tribal TANF and child welfare services. It describes the tribes and tribal organizations, explores their journeys to strengthen tribal families, identifies project facilitators and challenges, and shares lessons learned.
Despite challenges, the tribes and tribal organizations showed that they could effectively coordinate culturally-relevant services across Tribal TANF and child welfare programs. They pooled scarce human and material resources, shared expertise, reduced duplication, expanded services, and attended to the economic needs and well-being of families.
Read the full report here.
RULES AND REGULATIONS DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
(6/14/16)
Indian Child Welfare Act Proceedings
See: 81 FR 38777
SUMMARY: This final rule adds a new subpart to the Department of the Interior’s (Department) regulations implementing the Indian Child Welfare Act (ICWA), to improve ICWA implementation. The final rule addresses requirements for State courts in ensuring implementation of ICWA in Indian child-welfare proceedings and requirements for States to maintain records under ICWA.
Related News: NICWA, NARF release new summary of regs (Summary PDF) June 2016, Interior Secretary says changes to Indian Child Welfare Act ‘close loopholes’ (OPB) 6/10/16, BIA publishes final ICWA rule (Indian Country Today) 6/8/16 (See Turtle Talk materials -01, -02, -03)
SIOUX FALLS, S.D. — President Barack Obama on Friday signed into law a measure meant to bolster protections for Native American children placed into the tribal foster care system.
The law, which comes years after serious flaws were uncovered in the child welfare system of a Native American tribe in North Dakota, requires background checks before foster care placements are made by tribal….
See the full article published on 6/3/16 in the StarTribune.
Comprehensive Child Welfare Information System
81 FR 35449, (PDF)
SUMMARY: This final rule replaces the Statewide and Tribal Automated Child Welfare Information Systems (S/TACWIS) rule with the Comprehensive Child Welfare Information System (CCWIS) rule. The rule also makes conforming amendments in rules in related requirements. This rule will assist title IV-E agencies in developing information management systems that leverage new innovations and technology in order to better serve children and families. More specifically, this final rule supports the use of cost-effective, innovative technologies to automate the collection of high-quality case management data and to promote its analysis, distribution, and use by workers, supervisors, administrators, researchers, and policy makers. Read.
Title: What is Measured is What is Done: Methods to Measure Compliance with the Indian Child Welfare Act.
Author: Williams, Jason R. et al.
Cite: 4 American Indian Law Journal 502 (2016)
Enacted more than three and a half decades ago, the Indian Child Welfare Act (ICWA or “Act”) of 1978 is one of the most important pieces of federal legislation concerning Indian children, families, and tribes. Intended to reverse years of federal and state policies and private practices aimed at the acculturation and assimilation of American Indian and Alaska Native (“Indian”) children, ICWA holds the promise of “protect[ing] and preserv[ing] . . . the continued existence and integrity of Indian tribes . . . [by] protecting Indian children who are members of or are eligible for membership in an Indian tribe” from removal and placement in non-Indian homes or institutions.
Red the full article.
Legal Topics: Indian Child Welfare Act – Expert witnesses
Read the full decision at the National Indian Law Library website.
Legal Topics: Indian Child Welfare Act – Juvenile Dependency Appeals
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: Central Council of Tlingit and Haida Indian Tribes filed action against state, seeking declaratory judgment that its tribal court system had subject matter jurisdiction over child support matters and seeking an injunction requiring the state’s child support enforcement agency to recognize tribal courts’ child support orders. The Superior Court, First Judicial District, Juneau, Philip M. Pallenberg, J., entered judgment in favor of the tribes. State appealed.
Holdings provided by Westlaw: The Supreme Court, Fabe, C.J., held that:
1)tribal courts have inherent, non-territorial subject matter jurisdiction to adjudicate parents’ child support obligations, and
2) the power to set nonmember parents’ child support obligations is within the retained powers of membership-based inherent tribal sovereignty.
Affirmed.
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: Mother’s parental rights were terminated by the Second Judicial District Court, Nez Perce County, Michelle Evans, Magistrate Judge, and she appealed.
Holdings provided by Westlaw: The Supreme Court, W. Jones, J., held that:
1) trial court’s determination that mother neglected child was supported by substantial and competent evidence;
2) Department of Health and Welfare (DHW) made reasonable efforts at reunifying mother and child;
3) trial court was compelled to take judicial notice of transcript of adjudicatory hearing upon prosecutor’s request; and
4) trial court’s overruling of mother’s objections to Indian tribe’s responses to DHW’s Indian Child Welfare Act (ICWA) notices did not warrant reversal.
Affirmed.
Read the full decision at the National Indian Law Library website.
Legal Topics: Indian Child Welfare Act – Parental Rights
Read the full decision at the National Indian Law Library website.
Legal Topics: Indian Child Welfare Act – Foster Care Supervision
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: Prospective adoptive parents filed a petition for adoption which also sought to terminate mother and father’s parental rights and an order determining that child was eligible for adoption without mother’s consent. The District Court, Cherokee County, Sandy Crosslin, J., determined child was eligible for adoption without mother’s consent. Mother appealed.
Holding provided by Westlaw: The Court of Civil Appeals, Deborah B. Barnes, J., held that:
1. mother was not prejudiced by prospective adoptive parents’ failure to comply with the notice provisions of the Oklahoma Indian Child Welfare Act (OICWA);
2. the Indian Child Welfare Act’s (ICWA) heightened burden of proof beyond a reasonable doubt did not apply to proceeding to determine whether Indian child could be adopted without mother’s consent; and
3. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) did not apply to interstate adoption jurisdiction dispute.
Affirmed as corrected.
Read the full opinion at the National Indian Law Library website.
Legal Topics: Indian Child Welfare Act – Application of
Read a full copy of the decision at the National Indian Law Library website.
Grant Posted April 29, 2016
Funding Opportunity Title: Standing Announcement for Tribal Title IV-E Plan Development Grants
Full Grant Information at Grants.Gov.
The purpose of this funding opportunity announcement (FOA) is to solicit proposals for one-time grants to tribes, tribal organizations, or tribal consortia that are seeking to develop and, within 24 months of grant receipt, submit to the Department of Health and Human Services a plan to implement a title IV-E foster care, adoption assistance, and, at tribal option, guardianship assistance program. Grant funds under this FOA may be used for the cost of developing a title IV-E plan under section 471 of the Social Security Act (the Act) to carry out a program under section 479B of the Act. The grant may be used for costs relating to the development of case planning and case review systems, foster care licensing and standards for tribal foster homes and child care facilities, quality assurance systems, court structure and procedures, data collection systems, cost allocation methodology development, financial controls and financial management processes, or any other costs attributable to meeting any other requirement necessary for approval of a title IV-E plan.
Title: Indian Children and the Federal-Tribal Trust Relationship
Author: Fletcher, Matthew L. M.; Singel, Wenona T.
Source: Michigan State University College of Law (April 2016)
PROPOSED RULES DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
(4/7/16)
Adoption and Foster Care Analysis and Reporting System
81 FR 20283, (PDF)
SUMMARY: On February 9, 2015, the Administration for Children and Families (ACF) published a Notice of Proposed Rulemaking (NPRM) to amend the Adoption and Foster Care Analysis and Reporting System (AFCARS) regulations to modify the requirements for title IV-E agencies to collect and report data to ACF on children in out-of-home care and who were adopted or in a legal guardianship with a title IV-E subsidized adoption or guardianship agreement. In this supplemental notice of proposed rulemaking (SNPRM), ACF proposes to require that state title IV-E agencies collect and report additional data elements related to the Indian Child Welfare Act of 1978 (ICWA) in the AFCARS. ACF will consider the public comments on this SNPRM as well as comments already received on the February 9, 2015 NPRM and issue one final AFCARS rule.
Synopsis from Westlaw: A petition to terminate father’s parental rights to his three Indian children was filed. The Third District Juvenile Court, Salt Lake Department, No. 1094548, Charles D. Behrens, J., terminated parental rights. Father appealed.
Holdings from Westlaw: The Court of Appeals held that evidence supported finding that the State made active efforts to prevent the breakup of father’s Indian family and to reunify father with his children.
Affirmed.
Read the full decision at the National Indian Law Library website.
A Federal Register Notice by the Indian Affairs Bureau made on 3/02/16.
The regulations implementing the Indian Child Welfare Act provide that Indian tribes may designate an agent other than the tribal chairman for service of notice of proceedings under the Act. This notice includes the current list of designated tribal agents for service of notice. (PDF copy of notice.)
Legal Topics: Indian Child Welfare Act – Designated Indian Custodian
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: Indian community moved to change child’s custody from foster home to aunt. After an evidentiary hearing, the Superior Court, Maricopa County, No. JD 510468, Shellie F. Smith, Judge Pro Tem, denied the motion.
Holdings provided by Westlaw: The Court of Appeals, Downie, J., held that:
[1] as a matter of first impression, clear and convincing standard of proof applied to determination of whether good cause existed to deviate from placement preferences set forth in Indian Child Welfare Act (ICWA), and
[2] remand was required to allow court to apply clear and convincing evidence standard.
Vacated and remanded
Read the full decision at the National Indian Law Library website.
Legal Topics: Indian Child Welfare Act – Best Interest of the Child
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: In a dependency proceeding, the Superior Court, Orange County, No. DP024561, Craig E. Arthur, J., terminated parental rights to child. Mother and father appealed. While the matter was still pending on appeal, the Superior Court issued a post judgment order finding that the county child welfare agency complied with the Indian Child Welfare Act (ICWA).
Holding provided by Westlaw: The Court of Appeal, O’Leary, P.J., held that juvenile court lacked jurisdiction to rule on the ICWA issue following its termination of parental rights.
Read the full decision at the National Indian Law Library website.
Legal Topics: Indian Child Welfare Act – Notice
Read the full decision at the National Indian Law Library website.
Synopsis from Westlaw: County child welfare agency filed dependency petition. The Superior Court, Los Angeles County, Valerie Skeba, No. DK05991, Juvenile Court Referee, issued jurisdiction findings and disposition order declaring child a dependent of the juvenile court and removing her from parents’ custody. Parents appealed.
Holdings from Westlaw: The Court of Appeal, Perluss, P.J., held that:
(1) evidence supported finding that child faced a “risk of serious physical harm or illness” from mother’s drug use;
(2) maternal grandmother’s report that she believed she had ancestry in a particular tribe triggered a duty to give Indian Child Welfare Act (ICWA) notice; and
(3) maternal great-uncle’s report that child had ancestors from particular tribes triggered a duty to give ICWA notice to those tribes.
Read the full decision on the National Indian Law Library website.
Synopsis provided by Westlaw: After Office of Children’s Services (OCS) took three minor children into emergency custody, a standing master determined that no probable cause existed and recommended that children be returned to mother’s custody. Following remand from the Supreme Court, 2014 WL 1888190, the Superior Court, Fourth Judicial District, Aniak, Douglas Blankenship, J., rejected recommendation and determined that probable cause existed. Mother appealed and Superior Court dismissed underlying case before State could file brief.
Holdings provided by Westlaw: The Supreme Court, Maassen, J., held that:
(1) public interest exception to mootness doctrine applied, and
(2) standing master’s order that children should be returned to parents was not effective until judicially reviewed.
Read the full decision on the National Indian Law Library website.
Legal Topics: Indian Child Welfare Act – Termination of Parental Rights, Drug Abuse
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: Father appealed from decision of the Juvenile Court, Cass County, East Central Judicial District, Susan J. Solheim, Judicial Referee, terminating his parental rights.
Holdings provided by Westlaw: The Supreme Court, Kapsner, J., held that:
(1) juvenile court’s finding that the conditions and causes of child’s deprivation were likely to continue was not clearly erroneous, and
(2) father, who was member of Indian tribe, did not show that child was an Indian child, such that ICWA’s heightened standards applied.
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: The Department of Health and Human Services initiated child protection proceedings with regard to mother’s child. The District Court, Portland, Powers, J., entered judgment terminating mother’s parental rights. Mother appealed.
Holdings provided by Westlaw: The Supreme Judicial Court held that:
(1) the Indian Child Welfare Act (ICWA) did not apply to child protection proceeding, and
(2) evidence was sufficient to support a finding of parental unfitness.
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: County Department of Children and Family Services filed juvenile dependency petition. After petition was sustained at jurisdictional hearing, the Department provided notice of the action to certain Indian tribes pursuant to the Indian Child Welfare Act (ICWA). Following six-month review hearing, the Superior Court, Los Angeles County, No. CK76502, Timothy Saito, J., found that the ICWA did not apply, terminated reunification services, and later terminated parental rights. Mother appealed.
Holdings provided by Westlaw: The Court of Appeal, Willhite, J., held that:
(1) case worker was required to provide follow up notice to tribes after receiving additional information regarding relatives, and
(2) failure to provide follow up notice was not harmless error.
Read the full decision at the National Indian Law Library website.
In re A.C. v. Michael C.
D066943
Court of Appeal, Fourth District, Division 1, California
Filed August 17, 2015.
Legal Topics: Indian Child Welfare Act – Termination of Parental Rights
Read the full decision at the National Indian Law Library website.
The National Indian Child Welfare Association, Native American Rights Fund, National Congress of American Indians and the ICWA Appellate Clinic at Michigan State University College of Law have published a memo covering:
See the Project Memo at the Native American Rights Fund ICWA Project page.
The Administration for Children and Families proposes to revise the Statewide and Tribal Automated Child Welfare Information System regulations. This proposed rule will remove the requirement for a single comprehensive system and allow title IV-E agencies to implement systems that support current child welfare practice. It also proposes to establish requirements around design, data quality, and data exchange standards in addition to aligning these regulations with current and emerging technology developments to support the administration of title IV-E and IV-B programs under the Social Security Act.
Comprehensive Child Welfare Information System. August 11, 2015
80 FR 48200-01, (PDF)
Exciting opportunity for ICWA Implementation from HHS now posted to HHS grants forecast website. State and Tribal ICWA Implementation Partnership Grants have been forecast. The forecast gives notice that this is an upcoming opportunity which will be announced. There is a notification feature to add yourself to get updates such as when the grant will open for the application process.
Excerpt from grant forecast description for ACF-2016-FCAST-0098 – State and Tribal Indian Child Welfare Act (ICWA) Implementation Partnership Grants
The purpose of this funding opportunity announcement is to support the creation of effective practice model partnerships between state courts and/or Court Improvement Program, state public child welfare agency and a tribe, group of tribes, or tribal consortia, including both the tribal child welfare agency and tribal court for effective implementation of the Indian Child Welfare Act (ICWA) of 1978 (Pub.L. 95-608).
Demonstration sites will be required to jointly develop protocols and practices to promote effective and timely:
– Identification of Indian children;
– Notice to tribes;
– Tribal participation as parties in hearings involving Indian children;
– Tribal intervention in dependency cases;
– Transfer of ICWA cases to tribal courts; and
– Placement of Indian children according to tribal preferences.
Partnership models must be co-created by states and tribes, jointly implemented, and designed to generate and capture clear, measurable outcomes such as:
– Compliance with identification methods;
– The number of Indian children identified;
– Length of time from removal or petition filed until identification is made;
– Number of notices sent;
– Length of time from identification until notice sent (state measure)
– Number of notices received (tribal measure)
– Length of time for tribal intervention or participation; (tribal measure)
– Number of cases in which a tribe intervenes; (joint measure)
– Number of transfers; (joint measure); and
– Number of Indian children placed according to tribal placement preferences (joint measure).
This funding opportunity is for a 36-month project period with three 12-month budget periods.
Federal Agency Contact Information:
David P. Kelly
Children’s Bureau
Administration for Children and Families U.S. Department of Health and Human Services
(202) 205-8709
david.kelly@acf.hhs.gov
Synopsis provided by Westlaw: The Department of Health and Human Services initiated child protection proceedings with regard to mother’s child. The District Court, Portland, Powers, J., entered judgment terminating mother’s parental rights. Mother appealed.
Holdings provided by Westlaw: The Supreme Judicial Court held that:
(1) the Indian Child Welfare Act (ICWA) did not apply to child protection proceeding, and
(2) evidence was sufficient to support a finding of parental unfitness.
Read the full decision at the National Indian Law Library website.
The Annie E. Casey Foundation’s 2015 Kids Count report found that nearly 22 percent of children nationwide were living in poverty in 2013, compared with 18 percent in 2008. The poverty rates, families of four living on $23,624 a year, nearly doubled among black and American Indian children, with the biggest problems in the Southwest and the South.
Read the full UPI article.
Read the full article at Indian Country Today.The announcement of A.D., et al. v. Washburn by the conservative group known as the Goldwater Institute comes with a bitter deja vu of “haven’t we heard this before?” I’ve got a few things that I can say are wrong with the pleadings filed by Goldwater on behalf of minor American Indian children, “next friend,” and potential adoptive parents. Mostly, however, I’ve got even more to say on the one-sided EPIC report they have produced to coincide with their summation that ICWA should be declared unconstitutional.
Synopsis provided by Westlaw: County health and human services agency filed dependency petition. The Superior Court, Shasta County, No. 13JVSQ2966501, Molly A. Bigelow, J., sustained jurisdictional allegations, terminated reunification services, terminated parental rights, selected a permanent plan of adoption, and found that the child was not placed within Indian Child Welfare Act (ICWA) preferences because there were no available homes within the preferences. Mother appealed.
Holding provided by Westlaw: The Court of Appeal, Duarte, J., held that mother lacked standing to challenge dependency court’s finding of good cause to deviate from ICWA in terminating parental rights.
Appeal dismissed.
Read the full decision at the National Indian Law Library website.
Legal Topics: Indian Child Welfare Act – Termination of Parental Rights
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: In child protection proceeding, the Yakima Superior Court, David A. Elofson, J., terminated father’s parental rights. Father appealed.
Holdings provided by Westlaw: The Court of Appeals, Lawrence-Berrey, J., held that:
(1) state satisfied notice requirements of Indian Child Welfare Act (ICWA) by notifying Bureau of Indian Affairs (BIA), but not “Blackfoot” tribe, of parental rights termination proceeding after father claimed Indian tribal ancestry on behalf of his child;
(2) three-month delay in Department of Social and Health Sciences’ referral of father to individual counseling, couple’s counseling, and a mental health assessment, following such recommendation from parent educator, did not make referrals untimely, in violation of statute governing steps to be taken prior to terminating parental rights;
(3) counseling and mental health assessment were not necessary services for correcting father’s identified parenting deficiency of substance abuse and, thus, Department did not fail to tailor services to father’s needs, prior to terminating his parental rights, by not offering those services concurrently with his substance abuse treatment;
(4) substantial evidence supported finding that offer of counseling services or a mental health assessment any earlier in dependency proceeding would have been futile because of father’s continued drug use, such that those services were not required prior to terminating father’s parental rights; and
(5) trial court’s error in failing to weigh statutory considerations applicable to incarcerated parents when deciding to terminate incarcerated father’s parental rights was harmless.
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: Indian mother and her husband petitioned to terminate non-Indian biological father’s parental rights to Indian son and to allow husband to adopt son. The Superior Court, Pacific County, Douglas E. Goelz, J., granted petition. Father appealed.
Holdings provided by Westlaw: The Court of Appeals, Maxa, J., held that:
(1) father could raise the “active efforts” requirement of Indian Child Welfare Act (ICWA) for the first time on appeal;
(2) termination provisions of ICWA applied to non-Indian father; and
(3) under Washington law, “active efforts” requirement applies to a parent who has had custody of an Indian child and has not expressly relinquished parental rights even if that parent at some point in time has abandoned the child.
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: After juvenile court granted state agency temporary custody of child and ordered that she be removed from mother’s care, State filed a petition for adjudication alleging that child lacked proper parental care and/or that child was in a situation dangerous to life or limb or injurious to her health or morals. In a hearing on the applicability of Indian Child Welfare Act (ICWA), the Separate Juvenile Court, Lancaster County, Toni G. Thorson, J., determined that the ICWA applied to the adjudication proceeding. Child’s guardian ad litem (GAL) appealed.
Holding provided by Westlaw: The Supreme Court, Cassel, J., held that juvenile court’s determination that the ICWA and the Nebraska Indian Child Welfare Act (NICWA) were applicable to adjudication proceedings did not a affect a substantial right.
Read the full decision at the National Indian Law Library website.
Doe and Doe v. Jesson
2015 WL 4067170
Civil No. 15–2639 (JRT/SER)
United States District Court, D. Minnesota
Signed July 2, 2015.
Legal Topics: Adoption, Indian Child Welfare Act – Notice, Tribal Enrollment
Read the full decision at the National Indian Law Library website.
Title: The Indian Child Welfare Act’s waning power after Adoptive Couple v. Baby Girl
Author: Kruck, Kathleena
Blue book cite: 109 Nw. U. L. Rev. 445 (Winter 2015)
Title: Tribal rights, South Dakota class action highlights violations of the Indian Child Welfare Act
Author: Laird, Lorelei
Blue book cite: 101-MAY A.B.A. J. 15 (May 2015)
Title: In the name of the child: race, gender, and economics in Adoptive Couple v. Baby Girl
Author: Berger, Bethany R
Cite: 67 Fla. L. Rev. 295-362 (2015)
The Turtle Talk blog has posted the legal complaint filed by the National Council for Adoption on May 27, 2015 regarding the new Bureau of Indian Affairs Indian Child Welfare Act Guidelines.
See a copy of the court filing at the Turtle Talk website.
Synopsis provided by Westlaw: The Office of Children’s Services (OCS) sought to terminate parental rights to Indian children. The Superior Court, Fourth Judicial District, Bethel, Dwayne W. McConnell, J., terminated parental rights. Parents appealed.
Holdings provided by Westlaw: The Supreme Court, Maassen, J., held that:
(1) even though the trial court erred by entering an adjudication and disposition order when the parents lacked proper notice of the hearing, the error did not violate parents’ due process rights as it did not affect the outcome of the case;
(2) evidence supported finding that children were children in need of aid (CINA);
(3) evidence supported finding that parents had failed to remedy the conduct that placed the children at substantial risk of harm;
(4) evidence supported finding that Indian children were likely to suffer serious emotional or physical harm if returned to their parents’ custody; and
(5) the trial court’s determination that termination of mother and father’s parental rights was in the best interests of their Indian children was not clearly erroneous.
Read the full decision at the National Indian Law Library website.
Legal Topics: Indian Child Welfare Act – Termination of Parental Rights
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: After mother assigned her right to recover benefits paid by state for Indian child, the state sought to impose future child support obligation on father, and to recover a judgment for support expended to mother on behalf of child. The District Court, Rolette County, Michael G. Sturdevant, J., denied purported father’s motion to dismiss child support procurement proceeding, and he appealed.
Holding provided by Westlaw: The Supreme Court, VandeWalle, C.J., held that District Court had concurrent jurisdiction with tribal court to establish father’s child support obligation with regard to Indian child.
Read the full decision at the National Indian Law Library website.
Measuring Compliance with the Indian Child Welfare Act is a research and practice brief published by: Casey Family Programs, the Center for Regional Tribal Welfare Studies at UMN, Duluth, the National Council of Juvenile and Family Court Judges, and the Minneapolis American Indian Center.
Read the full copy of this 20 page report at the Casey Family Programs website.
The United States Government Accounting Office has issued a report on challenges faced by tribes to carry out title IV-E foster care programs.
Indian tribes developing title IV-E foster care programs faced resource constraints and reported challenges adopting some program requirements. According to GAO’s interviews with tribal and Department of Health and Human Services (HHS) officials, the resource constraints faced by tribes include limited numbers of staff and staff turnover….
Read the GAO Report at the U.S. Government Accountability website.
Synopsis provided by Westlaw: State Division of Child Protection and Permanency petitioned to terminate mother’s parental rights to child with Native American ancestors. The Superior Court, Chancery Division, Family Part, Camden County, terminated parental rights. Mother appealed.
Holding provided by Westlaw: The Superior Court, Appellate Division, O’Connor, J., held that trial court was required to notify Indian tribes and Bureau of Indian Affairs (BIA) of guardianship proceeding and right to intervene.
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: County human services agency filed dependency petition. The Superior Court, Ventura County, Nos. J068715 & J069080, Bruce A. Young, J., granted petition and terminated parental rights. Parents appealed.
Holding provided by Westlaw: The Court of Appeal, Perren, J., held that noncompliance with Indian Child Welfare Act (ICWA) required reversal.
Reversed and remanded.
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: County human services agency filed dependency petition. The Superior Court, Ventura County, Nos. J068715 & J069080, Bruce A. Young, J., granted petition and terminated parental rights. Parents appealed.
Holding provided by Westlaw: The Court of Appeal, Perren, J., held that noncompliance with Indian Child Welfare Act (ICWA) required reversal. Reversed and remanded.
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: Office of Children’s Services (OCS) petitioned to terminate mother’s parental rights with regard to one Indian and two non-Indian children. Following a bench trial, the Superior Court, Third Judicial District, Anchorage, Patrick J. McKay, J., terminated mother’s parental rights with regard to the three children, and she appealed.Holdings provided by Westlaw: The Supreme Court, Maassen, J., held that:
(1) any error in allowing the OCS’s tardy amendment of its petition to terminate mother’s parental rights with regard to one Indian and two non Indian children to include allegations of mother’s mental illness, was harmless;
(2) the OCS made reasonable efforts to reunify mother with two of her non-Indian children;
(3) the OCS made active, but unsuccessful, efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family;
(4) the Superior Court’s decision to allow the testimony of the OCS’s expert on substance abuse and mental health did not constitute an abuse of discretion; and
(5) the OCS’s Indian Child Welfare Act of 1978 (ICWA)-qualified expert’s testimony
was sufficiently grounded in the facts and issues of the case to be admissible.
Read the full decision at the National Indian Law Library website.
Legal Topics: Indian Child Welfare Act – Transfer of Proceedings
Read the full decision at the National Indian Law Library website.
Synopsis: The Department of Public Health and Human Services, Child and Family Services Division, sought permanent legal custody of Indian child with right to consent to adoption. The District Court, Missoula County, Edward P. McLean, P.J., terminated both parents’ rights to the child, and granted the Department permanent legal custody with right to consent to adoption. Mother and father appealed.
Holdings: The Supreme Court, en banc, Jim Rice, J., held that:
(1) good cause existed to deny transfer of jurisdiction over custody matter involving Indian child to the tribal court;
(2) the proceeding had not advanced to a stage that rendered the Tribe’s motion for transfer of jurisdiction to the tribal court untimely as a matter of law;
(3) Indian Child Welfare Act (ICWA) section, providing that “no termination of parental rights may be ordered in the absence of testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child,” did not apply where father never had custody of the child; and
(4) the District Court did not abuse its discretion in terminating mother’s parental rights.
Read the full decision at the National Indian Law Library website. Read the case briefs at the Turtle Talk website.
Synopsis: Prospective parents petitioned to adopt Indian child over objection of biological father. The Superior Court, Third Judicial District, Palmer, Eric Smith, J., denied petition. Prospective parents appealed.
Holding: The Supreme Court, Bolger, J., held that:
(1) no serious conflict existed between state statute governing adoption and Indian Child Welfare Act (ICWA), such that ICWA would preempt statute;
(2) trial court did not clearly err in finding that father’s failure to support child was justifiable, such that his consent to adoption was still required; and
(3) interim child visitation order entered in related custody proceeding was not final judgment from which appeal could be taken.
Affirmed.
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: Mother of Native American child appealed from order of the District Court, Third Judicial District, Payette County, Brian D. Lee, Magistrate Judge, terminating mother’s parental rights.
Holding provided by Westlaw: The Supreme Court, J. Jones, J., held that substantial and competent evidence supported finding that state made active efforts to prevent the breakup of the family, as required before termination of mother’s parental rights.
Affirmed.
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: Department of Public Health and Human Services filed petition to terminate mother’s parental right to Indian child after emergency foster care placement. The Eighth Judicial District Court, Cascade County, Julie Macek, J., terminated parental rights. Mother appealed.
Holdings provided by Westlaw: The Supreme Court, Beth Baker, J., held that:
(1) mother’s stipulation to treatment plan and temporary legal custody was not a stipulation to adjudication of child as a youth in need of care;
(2) trial court’s erroneous failure to hold adjudicatory hearing was harmless;
(3) notice to inform tribe of hearing to adjudicate child as youth in need of care complied with Indian Child Welfare Act (ICWA);
(4) notice by certified mail, return receipt requested, to notify tribe of proceedings to terminate parental rights complied with ICWA;
(5) mother’s stipulation to temporary legal custody rendered unnecessary the presentation of evidence or factual findings under ICWA; and
(6) trial court incorrectly applied standard of “clear and convincing evidence” for termination of rights.
Affirmed in part, vacated in part, and remanded.
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: Prospective adoptive parents filed a petition to terminate father’s parental rights. The District Court of Natrona County, Daniel L. Forgey, J., terminated parental rights. Father appealed.
Holding provided by Westlaw: The Supreme Court, Burke, C.J., held that:
(1) evidence supported determination that the Indian Child Welfare Act (ICWA) did not apply to termination of parental rights proceeding, and
(2) evidence supported finding that father was not fit to have custody and control of child, in support of order terminating father’s parental rights.
Affirmed.
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: State Division of Child Protection and Permanency petitioned to terminate mother’s parental rights to child with Native American ancestors. The Superior Court, Chancery Division, Family Part, Camden County, terminated parental rights. Mother appealed.
Holding provided by Westlaw: The Superior Court, Appellate Division, O’Connor, J., held that trial court was required to notify Indian tribes and Bureau of Indian Affairs (BIA) of guardianship proceeding and right to intervene.
Read the full decision at the National Indian Law Library website.
Read news coverage at the Indianz.com website.
Synopsis provided by Westlaw: County human services agency filed dependency petition. The Superior Court, Ventura County, Nos. J068715 & J069080, Bruce A. Young, J., granted petition and terminated parental rights. Parents appealed.
Holding provided by Westlaw: The Court of Appeal, Perren, J., held that noncompliance with Indian Child Welfare Act (ICWA) required reversal.
Reversed and remanded.
Read the full decision at the National Indian Law Library website.
Legal Topics: Indian Child Welfare Act – Placement
Read the full decision at the National Indian Law Library website.
The Bureau of Indian Affairs has updated the Guidelines for State Courts and Services in Indian Child Custody Proceedings.
These updated guidelines provide guidance to State courts and child welfare agencies implementing the Indian Child Welfare Act’s (ICWA) provisions in light of written and
oral comments received during a review of the Bureau of Indian Affairs (BIA) Guidelines for State Courts in Indian Child Custody Proceedings published in 1979. They also reflect recommendations made by the Attorney General’s Advisory Committee on American Indian/Alaska Native Children Exposed to Violence and significant developments in jurisprudence since ICWA’s inception.
See a full copy of the updated guidelines in the Federal Register. 80 FR 10146-02, (PDF).
Interior Secretary Sally Jewell is visiting with American Indian youth to get their thoughts on how federal policy can improve their lives.
The visits Tuesday to the Salt River Pima-Maricopa Indian Community and the Gila River reservation mark the start of a Native youth listening tour…
Read the full AP article.
JUNEAU, Alaska – Alaska Supreme Court Chief Justice Dana Fabe stressed the importance of collaboration with tribal courts and the need to maintain rural access to the court system during her annual address to lawmakers…
Read the full article at the Fairbanks Daily News-Miner website.
Genocide is not too strong a term for what is now happening in South Dakota. The huge, shocking violation of legal and human rights being carried out by the state is tantamount to genocide against the Native American nations, the Lakota, Dakota and Nakota Sioux, residing within its borders. It is the abduction and kidnapping by state officials, under the cover of law, of American Indian children…
WASHINGTON – Senator John Hoeven today announced that the U.S. Senate Committee on Indian Affairs has approved the Native American Children’s Safety Act, legislation he authored to implement protections for Native American children placed by tribal courts into the tribal foster care system.
Read the full press release at Senator Hoeven’s website.
U.S. Senators Heidi Heitkamp (D-ND) and Lisa Murkowski (R-AK), recently re-introduced their comprehensive bi-partisan plan to find solutions to the complex challenges facing Native American children throughout Indian country.
Read the full article at the Indian Country Today website.
Every parent of color hopes that their children will grow up without exposure to the brutality of racism and other forms of social injustice. That is the promise we hold when we give birth to them and first grasp their tiny hands and look into their eyes as parents. Few parents of color, however, are so lucky and can chronicle example upon…
Read the full article on the InsightNews webpage.
The Cherokee Nation recently donated $15,000 to the Murrow Indian Children’s Home in Muskogee to help the nonprofit provide essential care for Native youth.
Read the full article on the Tahlequah Daily Press website.
The Sisseton Wahpeton Oyate of South Dakota filed an Indian Child Welfare Act notice in a custody case in Omaha, Nebraska. Three Indian children are in temporary foster care after a three-year-old girl was found alone on the street…
Read the article at Indianz website.
The Affordable Care Act provides funding for home-visiting programs to reduce health care disparities, despite limited evidence that existing programs can overcome implementation and evaluation challenges with at-risk populations. The authors report 36-month outcomes of the paraprofessional-delivered Family Spirit home-visiting intervention for American Indian teen mothers and children…
Read the full article at PubMed website.
Enrollment in the Citizen Potawatomi Nation is based on descendancy only. A biological parent must be an enrolled member for the applicant to be eligible to become a Tribal citizen. The application process is very simple, but it must be filled out completely and a birth certificate is needed to confirm descendency. Copies are not acceptable; the birth certificate must be state issued or be a notarized copy…
Read the full article at the Citizen Potawatomi Nation website.
Four books dealing with Native history that were supposed to be introduced during the spring semester have been taken off the elementary-school curriculum in Juneau in the wake of concerns about their accuracy and sensitivity…
Read the full article at Indian Country Today website.
President Obama’s budget request will include $1 billion for American Indian schools next year, including millions of dollars to renovate crumbling buildings and connect remote classrooms via broadband Internet…
Read the full article at the Washington Post website.
A Seattle elementary school teacher and a University of Washington researcher testified Tuesday before Congress on the federal education law known as No Child Left Behind, as lawmakers consider how to revise the framework for public…
Read the full article at the SFGate website.
It has been eight years since a Republican Majority was elected to lead the United States Senate. No matter which party is in charge, the American people want action and solutions, not dysfunction.
As Chairman of the Committee on Indian Affairs, I am committed to a results-driven agenda focusing on enhancing tribal self-determination and self-governance. I think former President Reagan said it b…
Read the full article at the Bloomberg BNA website.
It’s not by choice. The girl’s mother, Tricia Taylor, is accused of taking the child and her 7-year-old sister from Fargo last August to the Cheyenne River Indian Reservation in South Dakota. Taylor w…
Read the full story in the Grand Forks Herald.
U.S. Sen. Heidi Heitkamp, D-N.D., reintroduced a bill Thursday to address problems faced by Native American children. The bill, which has 22 supporters, would create a national Commission on Native Am…
Read the full article in the Grand Forks Herald.
Brandon Indian Residential School students in 1946. (Library and s of Canada) Canada’s residential schools for aboriginal children were places of hunger, isolation and misery. Children as young as 3…
Read the full article at the Washington Post website.
Hon. John Hoeven, R-N.D., has introduced legislation (S. 184) to amend the Indian Child Protection and Family Violence Prevention Act to “require background checks before foster…
Read the full article at Bloomberg BNA website.
The Standing Rock Sioux Tribe and the North Dakota Department of Human Services have signed an agreement to collaborate on child support services, the department announced Tuesday.
The tribe began operating a child support program in 2013 funded by a federal start-up grant. Under the…..
Read the full story at the Bismarck Tribune website.
From Casey Family Programs
Wednesday, January 21, 2015, 1:00 p.m. ET
Please save the date and join a webinar on January 21st introducing the Children’s Bureau’s new structure for delivering training and technical assistance. The Capacity Building Collaborative, a partnership of three centers, will serve Tribal and State child welfare agencies and Court Improvement Programs. JooYeun Chang, Associate Commissioner of the Children’s Bureau, and representatives from the centers will provide an update on start-up activities and information about what to expect over the coming months.
Webinar registration with call-in information is below.
https://www2.gotomeeting.com/register/907143570
If you only wish to access the audio portion of the webinar, you may call:
888-955-8947; Access Code: 9815319
For assistance accessing the meeting: rgiordano@childwelfare.gov<mailto:rgiordano@childwelfare.gov>.
“This is preservation of our identity, that’s who we are,” said Angela Peters, interim director of language revitalization for the Saginaw Chippewa tribe. “Once we revitalize our language, we revitalize our cultural teachings.”
Read the full story at the Port Huron Times-Herald website.
The chief of the Choctaw Nation of Oklahoma has confirmed ancestry of a baby born earlier this month in Columbia and given to another family for possible adoption, a prominent Choctaw and former U.S. Senate candidate Matt Silverstein said in an interview last week…
Two of the largest newspapers in the country are focusing today on justice — or lack of it — on Native American reservations in the Dakotas.
First, the Washington Post is exploring child sexual abuse on the Pine Ridge Indian reservation in South Dakota, where Charles Chipps Sr., a medicine man, has not yet stood trial on charges he sexually abused and raped girls, including his own daughters and granddaughters…
Read the full story at the Minnesota Public Radio website.
He was a world-famous medicine man, a traditional healer and spiritual leader. Followers would travel long distances to this tiny hamlet on the Great Plains to be in his presence and pray in the darkness with him in a sacred sweat lodge…
Read the full article in the Washington Post.
In June of this year, President Barack Obama and the First Lady visited the Standing Rock Sioux Indian Reservation in North Dakota. This was a historic visit. He was only the fourth sitting president…
Read the full article at the Wahpeton News website.
Tribes and race: the court’s missed opportunity in Adoptive Couple v. Baby Girl. Deluzio, Christopher, 34 Pace L. Rev. 509-561 (Spring 2014)
Part I of this article will provide an overview of the legal doctrines implicated in Adoptive Couple v. Baby Girl. First, Part I will discuss both Indian Child Welfare Act’s text and purpose and scholarly attention given to the law. Second, Part I will examine the law of putative fathers insofar as relevant to understanding ICWA’s application in Adoptive Couple. Part II provides insight into the Court’s equal protection jurisprudence with a particular emphasis on considerations of race in adoption and laws implicating Indian tribes…
Read the full article here.
The teach ICWA initiative: an action plan. González, Lizbeth, 86-APR N.Y. St. B.J. 31-32 (March/April 2014)
Indian Child Welfare Act compliance protects Native
traditions and families; noncompliance can have
far-reaching and even tragic consequences. Consider
these suggestions so you can play a greater role in
increasing ICWA compliance within your local, state and national community…
Read the full article here.
The real meaning of ICWA noncompliance. González, Lizbeth, 86-APR N.Y. St. B.J. 29-30 (March/April 2014)
During my tenure as Director of Legal Services of
the American Indian Law Alliance, then located
at the American Indian Community House in
Manhattan, I represented several expatriated Native
young adults. Their protracted attempts to reunite with their people had been remarkably unsuccessful…
Read the full article here.
Best interests of an Indian child. Herne, Peter J., 86-APR N.Y. St. B.J. 22-25 (March/April 2014)
Family law treatises summarize New York’s “Best
Interest of a Child” standard as follows:
1. Maintaining stability for the child(ren)
2. Child(ren’s) wishes
3. Home environment with each parent
4. Each parent’s past performance…..
Read the full article here.
Why applying the Indian Child Welfare Act is worth the hassle. Kane, Julie Sobotta, 57-OCT AdvocateIdaho 28 (October 2014)
After practicing for many years in the area of Indian
Law, I often heard complaints about the application of the Indian Child Welfare Act (ICWA) in child protection cases….
Read the full article here.
Adopting biology plus in federal Indian law: Adoptive Couple v. Baby Girl’s refashioning of ICWA’s framework. Fadia, Shreya A., 114 Colum. L. Rev. 2007-2044 (December 2014)
This Note argues that the Supreme Court’s decision in Adoptive Couple v. Baby Girl creates an apparent tension in federal Indian law. The Court’s characterization of the broader aims of the Indian Child Welfare Act of 1978 and of biology’s role within it appears irreconcilable with previous interpretations of the Act—including the Court’s own reading in Mississippi Band of Choctaw Indians v. Holyfield and that of lower courts that have adopted the existing-Indian-family exception. This Note looks to an area outside of federal Indian law—immigration law—to resolve this tension. Specifically, this Note suggests that the Court adopted the “biology plus” standard from its unwed-father cases as further developed in the context of the Immigration and Nationality Act of 1952. Reading Adoptive Couple as a continuation of the Court’s “biology plus” jurisprudence not only resolves the apparent tension, but also reveals new insights about the role of the Indian family in transmitting tribal membership in its cultural, social, and political sense.
Read the full article here.
Synopsis from Westlaw: Father filed emergency motion to modify custody after State initiated Child In Need of Aid (CINA) action against mother. Tribal council which had issued original custody order was permitted to intervene. The Superior Court, Third Judicial District, Anchorage, Andrew Guidi, J., awarded father primary physical custody. Council appealed.
Holding from Westlaw: The Supreme Court, Fabe, C.J., held that council lacked standing to appeal order modifying custody from which neither father nor mother appealed. Appeal dismissed.
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: The Department of Health and Human Services (DHHS) initiated dependency proceedings concerning father’s three Native American children. The Juvenile Court, Lancaster County, Linda S. Porter, J., adjudicated children as dependent, and subsequently entered dispositional order the DHHS had made reasonable efforts at reunification, but that it was in best interests of children that father have only physical custody of children and that DHHS retain legal custody. Father appealed. The Court of Appeals, 22 Neb.App. 1, 846 N.W.2d 668, affirmed in part, reversed in part, and remanded. DHHS petitioned for review.
Holding provided by Westlaw: The Supreme Court, Stephan, J., held that in dependency proceedings involving Native American children, DHHS had to make active efforts at reunification, not merely reasonable efforts, pursuant to Indian Child Welfare Act (ICWA) and Nebraska Indian Child Welfare Act (NICWA). Affirmed.
Read the full decision at the National Indian Law Library website.
Synopsis from Westlaw: In child protection case involving Indian child, the Circuit Court, Jackson County, Patricia Crain, J., entered order determining that Department of Human Services (DHS) made active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of an Indian family. Mother appealed.
Holding from Westlaw: The Court of Appeals, Ortega, P.J., held that DHS made active efforts.
Affirmed.
Read the full decision at the National Indian Law Library website.
Synopsis from Westlaw: The Office of Children’s Services (OCS) petitioned to terminate mother’s parental rights to Indian child. The Superior Court, First Judicial District, Juneau, Louis J. Menendez, J., terminated parental rights. Mother appealed.
Holdings from Westlaw: The Supreme Court, Fabe, C.J., held that:
(1) counsel’s decision to enter into a stipulation as to psychiatrist’s proposed testimony, rather than request a hearing to address the statements psychiatrist made in his affidavit, did not prejudice mother;
(2) evidence supported finding that mother failed to remedy the conduct that placed child at substantial risk of harm;
(3) evidence supported finding that the Office of Children’s Services (OCS) made active efforts to prevent the breakup of mother’s Indian family; and
(4) evidence supported finding that returning child to mother would likely result in serious harm.
Affirmed.
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: Father appealed order of the District Court, Shawnee County, Jean M. Schmidt, J., terminating his parental rights.
Holdings provided by Westlaw: The Court of Appeals, Leben, J., held that:
(1) state sufficiently proved that it had complied with requirement of Indian Child Welfare Act (ICWA);
(2) clear and convincing evidence showed that father was unfit; and
(3) termination was in child’s best interests.
Affirmed.
Read the full decision at the National Indian Law Library website.
The Washington Post reports:
A panel of Indian-country experts will recommend to Attorney General Eric H. Holder Jr. on Tuesday that tribes be allowed to criminally prosecute non-Indians who sexually or physically abuse Native American children on tribal land, saying that juveniles on reservations are living with “dire” levels of violence and poverty. See the article.
Read the full report.
The National for State Courts is providing access to an October 31, 2014 webinar and related materials on the topic of electronic notice to tribes in lieu of certified, registered mail under the Indian Child Welfare Act.
ICWA eNotice
Electronic Noticing in Indian Child Welfare Cases-Making It Happen. (October 2014). This pre-recorded webinar provides information for courts on electronic notification in cases that fall under the Indian Child Welfare Act (ICWA).
High Level Model Notice. (2014).
ICWA eMessaging Architecture. (2014).
ICWA eNotice Detailed Model. (2014).
ICWA eNotice Application User Guide. (October 2014).
Tribal Resolution in Support of Electronic Noticing. (2014).
Synopsis provided by Westlaw: Department of Social Services (DSS) filed petitions for foster care plans with the goal of adoption and to terminate parental rights of father and Indian mother. Indian tribe filed a motion to intervene and filed a motion to transfer jurisdiction to tribal court under the Indian Child Welfare Act (ICWA). The Juvenile and Domestic Relations District Court, Dinwiddie County, denied the petitions to terminate parental rights. The DDSS and the guardian ad litem appointed to represent the children appealed. The Circuit Court, Dinwiddie County, found that good cause existed not to transfer the proceeding to tribal court and terminated mother’s and father’s parental rights, and parents appealed. The Court of Appeals reversed the judgment of the trial court on the motion to transfer, vacated the order terminating the parental rights of the mother and father, and remanded, and appeal was taken.
Holding provided by Westlaw: The Supreme Court held that case would be remanded to determine whether to transfer termination action involving Indian child to tribal court in light of Thompson, which rejected “best interests of child test” in favor of the more limited test involving an immediate serious emotional or physical harm.
Affirmed.
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: County Health and Human Services Agency filed dependency petition alleging children were at risk. Following contested dispositional hearing, parents filed motion to modify bypass order and sought reunification services.The Superior Court, El Dorado County, Nos. SDP20130007 & SDP20130008, Dylan M. Sullivan, Court Commissioner, denied the motion, terminated parental rights, and selected adoption as the children’s permanent plan. Parents appealed.
Holding provided by Westlaw: The Court of Appeal, Nicholson, Acting P.J., held that:
(1) preponderance of the evidence burden of proof applied to parents’ petitions for modification;
(2) error in applying heightened clear and convincing evidence standard of proof was not harmless;
(3) court was required to consider whether Indian Child Welfare Act (ICWA) applied; and
(4) beneficial parental relationship exception did not apply.
Reversed and remanded.
Read the full decision at the National Indian Law Library website.
Synopsis: (from the opinion) “This consolidated child welfare dispute involves three dockets. In Docket No. 315510, respondent-mother, M. McCarrick, appeals of right the trial court’s March 13, 2013 order removing her three minor children from her home. In Docket No. 317403, McCarrick appeals of right the trial court’s June 28, 2013 order removing her minor daughter from her father’s care and custody. The child’s father is not participating in these appeals. In Docket No. 318475, McCarrick appeals by delayed leave granted FN1 the trial court’s orders removing the children from her care.”
Holding: (from the opinion) “Because the trial court failed to comply with the Indian Child Welfare Act (ICWA) and the Michigan Indian Family Preservation Act (the Family Preservation Act), we conditionally reverse and remand for further proceedings.”
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: In child dependency proceedings, parents appealed judgment of the Circuit Court, Douglas County, William A. Marshall, J., changing the permanency plan for their child from reunification to adoption.
Holding provided by Westlaw: The Court of Appeals, Ortega, P.J., held that:
(1) permanency hearing was not a key juncture in which due process prohibited admission of exhibits under relaxed standards for competency of evidence;
(2) agency provided active efforts to parents under Indian Child Welfare Act (ICWA);
(3) father and mother failed to make sufficient progress to allow child to return home safely; and
(4) change in plan from reunification to adoption was not a “foster care placement” under ICWA. Affirmed.
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: Department of Public Health and Human Services filed petition to terminate parental rights of mother and Indian father to Indian child. Notice was given to father’s tribe, and tribe intervened. The petition was dismissed and then refiled. Mother voluntarily relinquished her parental rights. The Eighth Judicial District Court, County of Cascade, Dirk M. Sandefur, J., entered order terminating father’s parental rights, and he appealed.
Holding provided by Westlaw: The Supreme Court, Beth Baker, J., held that:
(1) evidence did not show that Department strictly complied with requirements for notice to tribe under Indian Child Welfare Act (ICWA);
(2) Department’s failure to strictly comply with notice requirements was harmless error;
(3) Department made active efforts to provide remedial services and rehabilitative programs designed to prevent breakup of Indian family, as prerequisite to termination of father’s parental rights;
(4) district court adequately found that continued custody of child by father was likely to result in serious emotional or physical damage to child; and
(5) termination of parental rights was not by summary judgment.
Affirmed.
Read the full decision on the National Indian Law Library website.
Synopsis provided by Westlaw: County department of children and family services (DCFS) filed dependency petition. The Superior Court, No. CK98476, Los Angeles County, Jacqueline Lewis, Referee, sustained jurisdictional allegations and removed child from adoptive mother’s care. Mother appealed.
Holding provided by Westlaw: The Court of Appeal, Kitching, J., held that:
(1) child’s sister had been abused or neglected by adoptive mother;
(2) child had been “subjected to an act or acts of cruelty” by mother; and
(3) there was a substantial risk to the emotional and physical well-being of child.
Affirmed.
Read the full decision on the National Indian Law Library website.
Justice Department (DOJ); Office of Justice Programs (OJP); Coordinating Council on Juvenile Justice and Delinquency Prevention (F.R. Page 56405) – Meeting
(Webcast of meeting also available.)
TIME: 10:30 a.m.
EVENT: Justice Department (DOJ); Office of Justice Programs (OJP); Coordinating Council on Juvenile Justice and Delinquency Prevention (F.R. Page 56405) holds a meeting of the Coordinating Council on Juvenile Justice and Delinquency Prevention, and the Advisory Committee of the Attorney General’sTask Force on American Indian and Alaska Native (AIAN) Children Exposed to Violence, to review and release the findings and recommendations of their report to the Attorney General and members of the Coordinating Council.
DATE: November 18, 2014
LOCATION: Justice Department, Office of Justice Programs, 810 7th Street NW, Third Floor Main Conference Room, Washington, D.C.
CONTACT: Kathi Grasso, 202-616-7567, Kathi.Grasso@usdoj.gov [Note: Registration required by November 12 at http://www.juvenilecouncil.gov ]
Synopsis provided by Westlaw: Children and Family Services (CFS) filed a dependency petition alleging that child, age four, came within the jurisdiction of the juvenile court. Indian tribe responded indicating that child was eligible for membership and that tribe was intervening. The Superior Court, San Bernardino County, No. J239345, Cheryl C. Kersey, J., found that child was adoptable and terminated parental rights, and also found, inter alia, that CFS had complied “with the noticing requirements” of the Indian Child Welfare Act (ICWA). Mother appealed.
Holding provided by Westlaw: The Court of Appeal, Ramirez, P.J., held that mother failed to show a reasonable probability that compliance with the procedural requirements of tribal customary adoption (TCA) would have resulted in an outcome more favorable to her. Affirmed.
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: State filed petition to have child adjudicated as lacking proper parental care. Parents, one of whom was member of Indian tribe, entered no contest admission to petition, and child was allowed to remain at home under supervision. Guardian ad litem (GAL) subsequently moved to remove child from home. Following a hearing, the County Court, Buffalo County, Graten D. Beavers, J., ordered the child to be placed in foster care and declared a provision of the Nebraska Indian Child Welfare Act (ICWA) unconstitutional. Parents appealed.
Holdings provided by Westlaw: The Court of Appeals Moore, J., held that:
(1) there was not clear and convincing expert evidence that serious emotional damage would result if child, who became subject of original adjudication petition because of excessive school absences, were not removed from parents’ home, as
required for foster care placement under Nebraska Indian Child Welfare Act (ICWA); (2) juvenile court’s sua sponte determination, that provision of Nebraska Indian Child Welfare Act (ICWA) was unconstitutional as applied, was void; and
(3) in proceedings under the Nebraska ICWA for foster placement of, or termination of parental rights to, an Indian child, proof by a preponderance of the evidence is the standard for satisfying the court of active efforts to prevent the breakup of Indian family.
Reversed and remanded.
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: The Office of Children’s Services (OCS) filed a petition to terminate mother’s parental rights to child. The Superior Court, Third Judicial District, Palmer, Eric Smith, J., terminated parental rights. Mother appealed.
Holding provided by Westlaw: The Supreme Court, Bolger, J., held that:
(1) evidence supported finding that child was a child in need of aid (CINA);
(2) evidence supported finding that mother suffered from a mental illness that placed child at risk of harm;
(3) evidence supported finding that child would likely suffer serious emotional or physical damage if mother’s custody of child were to continue; and
(4) trial judge was not required to appoint another judge to hear mother’s requests for substitution of counsel.
Affirmed.
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: County department of children and family services (DCFS) filed dependency petition. The Superior Court, Los Angeles County, No. CK58667, Amy M. Pellman, J., sustained jurisdictional allegations, terminated father’s reunification services and scheduled a hearing for termination of parental rights, granted de facto parent status to foster parents, found that foster parents had not demonstrated good cause to depart from Indian Child Welfare Act (ICWA) placement preferences, and ordered a gradual transition for the child to move from the foster parents’ home to pre-adoptive placement in child’s paternal step-grandfather’s niece’s home. Foster parents appealed.
Holding provided by Westlaw: The Court of Appeal, Kriegler, J., held that:
(1) foster parents lacked standing to challenge constitutionality of ICWA placement preferences;
(2) child’s tribe’s consent to foster care placement with a family outside of foster care placement preferences identified in ICWA did not waive ICWA adoption placement preferences;
(3) clear and convincing standard of proof applies to determinations of good cause to depart from ICWA placement preferences;
(4) departure from ICWA placement preferences requires significant risk of serious harm to child, not certainty of serious harm;
(5) trial court was required to consider the bond between child and her foster family in determining whether to depart from ICWA placement preferences; and
(6) trial court was required to consider best interest of child in determining whether to depart from ICWA placement preferences.
Reversed and remanded with directions.
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: In termination of parental rights proceedings involving Indian child, the 392nd Judicial District Court, Henderson County, terminated mother’s parental rights to child. Mother appealed.
Holding provided by Westlaw: The Court of Appeals, James T. Worthen, C.J., held that:
(1) trial court’s failure to strictly comply with notice requirements of Indian Child Welfare Act (ICWA) did not invalidate termination order, as Indian tribe had actual notice and participated in proceedings;
(2) state family code was not preempted by ICWA;
(3) termination under ICWA was tried by consent;
(4) trial court did not abuse its discretion in submitting broad-form question to jury;
(5) burden of proof required to “satisfy the court” that active efforts were made and “proved unsuccessful” is evidence beyond a reasonable doubt; and
(6) evidence supported termination of mother’s parental rights.
Affirmed.
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: The Office of Children’s Services (OCS) filed a petition to adjudicate Indian child as a child in need of aid. The Superior Court, Fourth Judicial District, Bethel, Charles W. Ray, Jr., J., adjudicated child as a child in need of aid and ordered her to be returned to her parents’ home. The OCS appealed.
Holding provided by Westlaw: The Supreme Court, Maassen, J., held that the Indian Child Welfare Act’s (ICWA) requirement that any decision to place an Indian child with someone other than the child’s parent or Indian custodian must be “supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child” did not require the expert to have expertise in Alaskan Native culture, and thus social workers could qualify as experts.
Reversed and remanded.
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: State petitioned to terminate parental rights of father, a member of an Indian tribe, of one child and to terminate his legal relationship with other child, both of whom were born during marriage to mother. The 9th Judicial Circuit Court, McDonough County, Patricia A. Walton, J., terminated parental rights and legal relatonship. Father appealed.
Holding provided by Westlaw: The Appellate Court, McDade, J., held that:
1) circuit court did not have jurisdiction to allow State to supplement appellate record to demonstrate its compliance with the Indian Child Welfare Act (ICWA);
2) Appellate Court would allow State to supplement record in interests of justice;
3) record lacking submissions from State to tribe did not establish compliance with notice requirements of ICWA;
4) required notice did not apply to child who was later determined not to be father’s biological child;
5) court exceeded its statutory authority in terminating parental rights to nonbiological child;
6) court’s error in exceeding its authority was not harmless; and 7 there was no conflict of interest in counsel’s joint representation of father and mother.
Reversed and remanded.
Read the full decision on the National Indian Law Library website.
Synopsis Provided by Westlaw: After Indian child was found to be child in need of aid (CINA) and parents’ parental rights were terminated, Indian tribe sought to enforce Indian Child Welfare Act’s (ICWA) placement preferences, and child’s non-Indian foster parents petitioned for adoption. The Superior Court, Third Judicial District, Anchorage, Frank A. Pfiffner, J., granted foster parents’ adoption petition. Tribe appealed.
Holding Provided by Westlaw: The Supreme Court, Stowers, J., held that:
(1) ICWA’s preferences did not apply, and
(2) tribe’s disclosure of grandmother’s contact information did not amount to formal adoption request.
Affirmed.
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: Department of Children and Family Services filed a petition alleging that mother’s and father’s illicit drug use placed child at risk of harm. After terminating parents’ reunification services and setting a hearing on the termination of parental rights, the Superior Court, Los Angeles County, No. CK91018, Jacqueline H. Lewis, J., entered order terminating mother’s and father’s parental rights. Mother appealed.
Holding providing by Westlaw: The Court of Appeal, Kitching, J., held that mother forfeited her right to raise a challenge to the juvenile court’s finding that the Indian Child Welfare Act (ICWA) did not apply. Affirmed.
Read the full decision at the National Indian Law Library website.
Protecting Native mothers and their children: a feminist lawyering approach. Joanna Woolman, Volume 40, William Mitchell Law Review, page 943-989. (2014).
A mother killing her child is a shocking event. In the United States, our child protection system seeks to prevent this type of horror, along with countless other acts that harm children. Despite having a system designed to protect children from harm, hundreds of children are killed by their mothers each year.2 Each death
represents a failure of our systems and communities, and
individuals within both, to protect children….
Read the full article here.
The Passamaquoddy Tribe has been awarded the first of what could be several federal grants totaling millions of dollars aimed at coordinating and bolstering services to at-risk children.
The $800,000 grant from the Center for Mental Health Services, part of the Mental Health and Substance Abuse Services Administration of the U.S. Department of Health and Human Services, was announced by Sens. Susan Collins and Angus King in a joint news release last week.
Read more at the Bangor Daily News website.
The American Civil Liberties Union (ACLU) has included South Dakota’s persistent and alleged illegal seizure of Lakota children in a report it is scheduled to present to the United Nations in Geneva, Switzerland in August.
Read the full story at the Indian Country Today website.
Alaska SCT Rules that State Courts Must Give Full Faith and Credit to Tribal Courts in ICWA Cases.
Visit the Turtle Talk blog post for information about the Simmonds v. Parks case.
Here is text from the 2014 Advisory Committee regarding ICWA from the Turtle Talk blog.
“With respect to [Rule 34.03] subdivision 1(j) and (l), in cases where the application of the Indian Child Welfare Act (ICWA) is unclear, such as when it is not yet known whether the child is or is not an Indian child, it is advisable to proceed pursuant to the requirements of the ICWA unless or until a determination is otherwise made in order to fulfill the Congressional purposes of the ICWA, to ensure that the child’s Indian tribe is involved, and to avoid invalidation of the action pursuant to 25 U.S.C. § 1914 and Rule 46.03.”
Read the complete copy of the Order Promulgating Amendments to the Rules of Juvenile Procedure and the Rules of Adoption Procedure.
Synopsis provided by Westlaw: After unmarried mother who was member of Indian tribe filed custody petition in tribal court, father filed custody petition in circuit court. The Circuit Court, Miami–Dade County, entered order determining that it had jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Mother filed petition for writ of prohibition.
Holding providing by Westlaw: The District Court of Appeal, Suarez, J., held that tribal court did not substantially comply with jurisdictional standards of the UCCJEA. Writ denied.
Read the full decision at the National Indian Law Library website.
Synopsis provided by Westlaw: The Department of Health and Human Services (DHHS) initiated dependency proceedings concerning father’s three children. The Juvenile Court, Lancaster County, Linda S. Porter, J., entered dispositional order ordering a change of family therapist, declined to return legal custody of the children to father, and made specific ordered related only to father. Father appealed.
Holdings provided by Westlaw: The Court of Appeals, Moore, J., held that:
(1) the Indian Child Welfare Act’s (ICWA) active efforts standard, rather than the Nebraska Indian Child Welfare Act’s (NICWA) reasonable efforts standard, applied to dependency proceeding, and
(2) the rehabilitation plan provision that precluded father from using any unapproved form of physical discipline and ensuring the children always had adult supervision was reasonable.
Affirmed in part, reversed in part, and remanded.
Read the decision at the National Indian Law Library website.
Text from the court opinion:
“Respondent mother argues on appeal that the trial court erred when it failed to determine, on the record, the Native American heritage of the minor child and erred by not complying with the terms of the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq., after the court was put on notice at the preliminary hearing of the child’s Native American roots.”
Read a copy of the full decision at the National Indian Law Library website.
Synopsis from Westlaw: County department of health and human services filed dependency petitions as to two children. The Superior Court, Sacramento County, Nos. JD232871 & JD232872, Paul L. Seave, J., directed counsel to make reasonable efforts to enroll the children and their father in a tribe which had notified the court that they were eligible for membership, concluded it was required to treat the eligible minors as Indian children under Indian Child Welfare Act (ICWA), but made jurisdictional findings and placed the children in the custody of their maternal grandmother.
Holding from Westlaw: The Court of Appeal, Butz, J., held that court rules extending ICWA protections to children merely eligible for tribal membership are invalid.
Reversed with directions.
Read the entire court decision at the National Indian Law Library website.
PHOENIX, May 29 — Arizona Democratic legislators issued the following news release:
Rep. Albert Hale, D-St. Michaels (District 7), worked with Sen. Carlyle Begay, D-Ganado (District 7), and Rep. John Kavanagh, R-Fountain Hills (District 23), to ensure language requiring compliance with the federal Indian Child Welfare Act was added to recently passed legislation that will create and fund a new state child safety department.
Read the full article at HighBeam Research.
A 1938 law sweeps American Indian and Alaska Native youth into the federal criminal justice system when they commit anything beyond misdemeanor crimes. Although American Indians comprise little more than 1 percent of the nation’s population, one 10-year study found that at any given time 43-to-60 percent of juveniles held in federal custody were American Indian, a wildly disproportionate number…
Read the rest of this story at the Rocky Mountain News PBS website.
Synopsis from Westlaw: Mother’s and father’s parental rights were terminated by District Court of Burleigh County, South Central Judicial District, Sonna M. Anderson, J., and they both appealed.
Holding from Westlaw: The Supreme Court, Sandstrom, J., held that:
(1) judicial referee’s fact findings were subject to Supreme Court review for clear error;
(2) children remained deprived due to mother’s actions, at time of hearing on petition to terminate parental rights;
(3) children had been in foster care for more than 450 out of previous 660 nights, as grounds for termination of mother’s parental rights;
(4) social services made reasonable efforts to reunify children with both mother and father;
(5) admission of reports of suspected child abuse or neglect was not abuse of discretion; and
(6) tribe director’s determination that Indian Child Welfare Act (ICWA) did not apply was binding on trial court. Affirmed.
View the decision at the National Indian Law Library website.
Synopsis provided by Westlaw: Department of Health and Social Services, Office of Children’s Services (OCS), took emergency custody of three children and petitioned to terminate mother’s parental rights. The Superior Court, Fourth Judicial District, Fairbanks, Douglas Blankenship, J., denied mother’s motion to join grandmother, and grandmother’s motion to intervene as the children’s Indian custodian. Grandmother appealed.
Holdings provided by Westlaw: The Supreme Court, Stowers, J., held that:
(1) actions of mother and father acted to terminate grandmother’s Indian custodianship of the children;
(2) once parents informed the OCS that they did not want children placed with grandparents, OCS had no duty to provide grandmother with notice under the Indian Child Welfare Act of the Pendency of a child in need of aid (CINA) proceeding;
(3) any error by the OCS in failing to inquire into grandmother’s Indian custodian status, or to provide grandmother with notice of her rights under the Indian Child Welfare Act was harmless; and
(4) mother’s act of revoking maternal grandparent’s status as Indian custodian revoked, at least as far as the relationship between the OCS and grandmother was concerned, any indicia of custody that grandmother may have acquired through powers of attorney.
Affirmed.
View the decision at the National Indian Law Library website.
Synopsis provided by Westlaw: Department of Public Health and Human Services filed petition for legal guardianship, seeking to award guardianship of Indian child, who had been adjudicated a youth in need of care, to foster parents. The District Court, 20th Judicial District, Lake County, Deborah Kim Christopher, J., granted petition. Child’s father appealed.
Holdings provided by Westlaw: The Supreme Court, Jim Rice, J., held that:
(1) state’s failure to provide notice that was required by Indian Child Welfare Act (ICWA) to father and father’s tribe at outset of proceedings did not warrant overturning guardianship order;
(2) ICWA’s provision requiring state to make active efforts to provide remedial services and rehabilitative programs designed to prevent breakup of Indian family did not provide basis to overturn award of guardianship; and
(3) for purposes of ICWA’s provision governing foster care placement and requiring expert testimony regarding continued custody, there was no custody to “continue.” Affirmed.
View the decision at the National Indian Law Library website.
Protecting the rights of indigenous and multicultural children and preserving their cultures in fostering and adoption. Mark Anderson. Volume 52 Family Court Review, page 6. (2014)
Article excerpt: This article examines transracial/cultural placement of children for fostering and adoption as discussed within the context of expert evidence in applications for permanent placement. Transracial/cultural placement raises the issues of attachment and identity. The undesirability of the child being raised apart from the natural biological family’s culture and ethnicity, the undesirability of disrupting secure attachments, and the significance of birth parents’ parenting capacity are placed in stark contrast…..
Read the full article here.
ICWA Facts and Fiction is a new publication of the National Council of Juvenile and Family Court Judges (NCJFCJ). Visit the NCJFCJ website for a copy of this resource published in December, 2013. See also other related NCJFCJ publications.
The Tribal Judicial Leadership Group, coordinated by the NCJFCJ and Casey Family Programs, and comprised of tribal and state court judges, identified the need to dispel common misconceptions and misunderstandings around the Indian Child Welfare Act (ICWA). Included in this document are common misunderstandings, facts, recommended practices, and statutory references surrounding application, notice, membership, intervention, transfer, active efforts, best interests, qualified expert witnesses, and placement. This structure is meant to allow users to jump to issues of particular concern in their jurisdictions, but can also be reviewed as a whole. The goal of this publication is to improve compliance with ICWA and assist judges in fulfilling its mandates.
The 2014 FBA Indian Law Conference includes this panel:
Thursday, April 10, 2014 – Morning Session
PANEL 1. BABY VERONICA – TEXTING PATERNITY AWAY AND BRINGING ICWA INTO 21ST CENTURY
Natalie Landreth, Senior Attorney, Native American Rights Fund (Moderator)
Learn more about this conference at the Federal Bar website.
There appears to be a lot of interest in a new kind of court in Washtenaw County. More than 80 lawyers, mediators, and probation officers packed Judge Timothy Connors’ courtroom on Friday. They were there for a six-hour education session on the Native American philosophy that guides the new peacemaking court….
Read the full story at the Michigan Radio Newsroom website.
Several prominent Native American groups on Monday called for the Justice Department to investigate the treatment of Indian children in public child-welfare systems and private adoptions. In a letter presented to government officials in…
Read more at the New York Times website and see the National Indian Child Welfare Association press release.
Synopsis provided by Westlaw: “Department of Human Services moved to appoint Indian child’s current foster parent as child’s legal guardian. The Circuit Court, Klamath County, Cameron F. Wogan, J., granted motion. Mother appealed.” View the decision at the National Indian Law Library website.
Excerpt from the opinion: “Yolanda W., formerly known as Yolanda O., appeals from the decision of the separate juvenile court of Lancaster County, which denied her motion to transfer the termination of parental rights proceeding in this juvenile case to tribal court. Because we find that the State failed to establish good cause to deny the transfer, we conclude that the juvenile court abused its discretion in denying the motion to transfer.” View the decision at the National Indian Law Library website.
Synopsis provided by Westlaw: “After tribal court awarded custody of Native American child to his Native American maternal grandmother, State brought action against child’s non-Indian father, seeking an adjudication of paternity, an award of future child support, and an order requiring father to reimburse State for public assistance provided to child’s grandmother. The District Court, Sioux County, South Central Judicial District, Sonna M. Anderson, J., entered judgment establishing paternity and ordering father to reimburse State for past support paid on behalf of child and to pay future child support to grandmother. Father appealed.” View the decision at the National Indian Law Library website.
Indian Child Welfare Act — Termination of Parental Rights —Adoptive Couple v. Baby Girl 127 Harvard Law Review 368 (November 2013)
In the decades leading up to 1978, large numbers of Indian families were broken up through forced adoption or foster-care placement of Indian children, usually in non-Indian homes.1 To stem this “wholesale removal of Indian children,”2 Congress enacted the Indian Child Welfare Act of 19783 (ICWA), which sets rigorous standards to govern state court custody proceedings involving Indian children. Last Term, in Adoptive Couple v. Baby Girl,4 the Supreme Court held that provisions of the ICWA heightening requirements for termination of an Indian’s parental rights did not apply where the parent had never known or had custody of his child.5 More than a mere inquiry into Indian exceptionalism, the case tests the contours of parental rights, asking whether natural parents or custodial families should most warrant judicial protection. In so doing, Adoptive Couple both sustains the Court’s consistent if fragile protection of affective parenthood and suggests the interminability of the debate over biology versus care.
Read the full Harvard Law Review article.
From the website: “The State of Alaska Department of Health & Social Services (DHSS), Office of Children’s Services (OCS) strongly supports the Indian Child Welfare (ICWA) and continues to build federal ICWA mandates into all levels of OCS Child Welfare. We continue to develop postive collaborative and communicative partnerships with all Native organizations and Alaska Native Tribal organizations.” See the website at: http://dhss.alaska.gov/ocs/Pages/icwa/default.aspx.
From the press release: The U.S. Department of Justice announced the opening of a comprehensive grant solicitation for funding to support public safety, victim services, and crime prevention by American Indian and Alaska Native governments. The department’s FY 2014 Coordinated Tribal Assistance Solicitation (CTAS) is available at www.justice.gov/tribal/open-sol.html .
“Over the past four years, more than $437 million in much-needed assistance has been provided to American Indian and Alaska Native communities through the Coordinated Tribal Assistance Solicitation,” said Associate Attorney General Tony West. “These resources are helping to strengthen justice, hope, and healing in tribal communities and are supporting efforts to intervene in the lives of at-risk youth, prevent violence against women, improve community policing, and explore alternatives to incarceration.”
Read the full press release to learn what youth and children programs are available for funding.
On Friday the Cherokee Nation came out swinging in their response to the motion filed weeks ago in Nowata, Oklahoma county court in Adoptive Couple v. Baby Girl, in which Matt and Melanie Capobianco are seeking approximately $1`million in attorneys’ fees and costs.
Summary from the Federal Register: This is an announcement of the first hearing of the Advisory Committee of the Attorney General’s Task Force on American Indian/Alaska Native Children Exposed to Violence (hereafter referred to as the AIAN Advisory Committee). The AIAN Advisory Committee is chartered to provide the Attorney General with valuable advice in the areas of American Indian/Alaska Native children‘s exposure to violence for the purpose of addressing the epidemic levels of exposure to violence faced by tribal youth. Based on the testimony at four public hearings, on comprehensive research, and on extensive input from experts, advocates, and impacted families and tribal communities nationwide, the AIAN Advisory Committee will issue a final report to the Attorney General presenting its findings and comprehensive policy recommendations in the fall of 2014. Read the Federal Register for complete information on this hearing.
See related story in this blog.
A special Justice Department task force will hold a series of public meetings around the country to study the scope and impact that exposure to violence has on Native American and Alaska Native children, the Justice Department said.
Read more at the New York Times website.
Task Force Advisory Committee to Hold First Public Hearing in Bismarck, North Dakota in December 2013. Advisory Committee Will Be Co-Chaired by Former U.S. Senator Byron Dorgan and Iroquois Composer and Singer Joanne Shenandoah.
Read the full article at Indian Country Today.
In Jones v. Lummi, a federal judge in the state of Washington ruled on an issue relating to tribal jurisdiction.
Here is some text from his 10/22/13 opinion: “More than 20 days have now passed since the court issued its September 30, 2013, order, and neither Mr. Jones nor Defendants have filed a timely response to the court’s order to show cause. Because neither party has responded or challenged the analysis contained within the court’s September 30, 2013, order, the court concludes, consistent with that order, that Lummi Tribal Court has jurisdiction to issue the domestic violence protection order at issue that placed the custody of M.J. temporarily with her mother, Jackie Rose Jones, under the VAWA. Accordingly, the court enters summary judgment in favor of Defendants and dismisses this action in its entirety.”
Read more about this case at the Turtle Talk Blog.
Holding provided by Westlaw: “The Supreme Court, Brian Morris, J., held that evidence supported finding that the Department made active efforts to reunify child with her parents.
Affirmed.”
Read the case at the National Indian Law Library website.
A North Carolina state Court of Appeals has ruled that the tribe, not the state, has exclusive jurisdiction over child welfare issues arising on tribal land. In the matter of E.G.M. November 5, 2013 (North Carolina)
Read more about this case on the Turtle Talk Blog.
From a 10/30/13 press release:
HEITKAMP INTRODUCES FIRST BILL AS U.S. SENATOR; AIMS TO IMPROVE THE LIVES OF NATIVE AMERICAN CHILDREN
Summary of the Bill and Quotes from North Dakota Tribal Leaders Below
WASHINGTON, D.C. – U.S. Senator Heidi Heitkamp today introduced her first bill since joining the U.S. Senate, a comprehensive plan to find solutions to the complex challenges facing Native American children in North Dakota and throughout Indian Country.
Heitkamp’s bipartisan bill would create a national Commission on Native American Children to conduct an intensive study into issues facing Native children – such as high rates of poverty, staggering unemployment, child abuse, domestic violence, crime, substance abuse, and few economic opportunities – and make recommendations on how to make sure Native children are better taken care of and given the opportunities to thrive. Republican Senator Lisa Murkowski of Alaska joined Heitkamp in introducing the legislation.
“We have all heard stories or seen first-hand the struggles that too many Native children and their families face from extreme poverty to child abuse to suicide. Since I’ve been in public office, I’ve worked to address many of these challenges, and I’m proud my first bill as a U.S. Senator will take a serious look at finding solutions to better protect Native children and give them the opportunities they deserve,” said Heitkamp, a member of the Senate Committee on Indian Affairs. “Tragically, for children in our nation’s tribal communities, the barriers to success are high and they are the most at-risk population in the country, facing serious disparities in safety, health, and education.
“We need to strive for a day when Native children no longer live in third-world conditions; when they don’t face the threat of abuse on a daily basis; when they receive the good health care and education to help them grow and succeed. However, we don’t just have a moral obligation to fix this, we have treaty and trust responsibilities to do so. The federal government pledged long ago to protect Native families and children. We haven’t lived up to that promise. But we can change that.”
The Alyce Spotted Bear and Walter Soboleff Commission on Native Children, named for the former Chairwoman of Mandan, Hidatsa & Arikara Nation in North Dakota, and Alaska Native Elder and statesman, respectively, is already being praised by a cross-section of individuals from North Dakota and around the country. All five North Dakota tribes have endorsed the bill (quotes from tribal leaders about the bill are below).
Background:
Conditions for young people in Indian Country are tragic. For example:
• 37 percent of Native children live in poverty;
• Suicide rates for Native children ages 15-24 years old are 2.5 times the national average;
• High school graduation rate for Native students is around 50 percent, compared to more than 75 percent for white students; and
• While the overall rate of child mortality in the U.S. has decreased since 2000, the rate for Native children has increased 15 percent.
Tribal governments face numerous obstacles in responding to the needs of Native children. Existing program rules and the volume of resources required to access grant opportunities stymie efforts of tribes to tackle these issues. At the same time, federal agencies lack clear guidance about the direction that should be taken to best address the needs of Native children in order to fulfill our trust responsibility to tribal nations.
To help reverse these impacts, the Commission on Native Children would conduct a comprehensive study on the programs, grants, and supports available for Native children, both at government agencies and on the ground in Native communities, with the goal of developing a sustainable system that delivers wrap-around services to Native children. Then, the 11 member Commission would issue a report to address a series of challenges currently facing Native children. A Native Children Subcommittee would also provide advice to the Commission. The Commission’s report would address how to achieve:
• Better Use of Existing Resources – The Commission will identify ways to streamline current federal, state, and local programs to be more effective and give tribes greater flexibility to devise programs for their communities in the spirit of self-determination and allow government agencies to redirect resources to the areas of most need.
• Increased Coordination – The Commission will seek to improve coordination of existing programs benefitting Native children. The federal government houses programs across numerous different agencies, yet these programs too often do not work together.
• Measurable Outcomes – The Commission will recommend measures to determine the wellbeing of Native children, and use these measurements to propose short-term, mid-term, and long-term national policy goals.
• Stronger Data – The Commission will seek to develop better data collection methods. Too often Native children are left out of the conversation because existing data collection, reporting, and analysis practices exclude them.
• Stronger Private Sector Partnerships – The Commission will seek to identify obstacles to public-private partnerships in Native communities.
• Implementation of Best Practices – The Commission will identify and highlight successful models that can be adopted in Native communities.
For a summary of the bill, click here. For quotations from the five Native American tribes in North Dakota, as well as Senator Byron Dorgan, strongly supporting the bill, click here.
WASHINGTON, Oct. 22 — The U.S. Department of the Interior published the following notice in the Federal Register from the Indian Affairs Bureau: Request for Nominees to Serve on the Bureau of Indian Education Advisory Board for Exceptional Children
Nomination applications must be received on or before November 15, 2013.
Read the notice at the U.S. Government Printing Office website.
Synopsis provided by Westlaw: “The Department of Health and Social Services filed a petition alleging Indian child was a child in need of aid. The Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Randy M. Olsen, J., adjudicated child as a child in need of aid. Father appealed.” Read the decision at the National Indian Law Library website.
Synopsis provided by Westlaw: “The Office of Children’s Services (OCS) filed a petition to terminate mother’s parental rights to child. The Superior Court, Third Judicial District, Anchorage, Peter A. Michalski, J., terminated parental rights. Mother appealed. The Supreme Court remanded. On remand the Superior Court found, by clear and convincing evidence, that OCS made active efforts to reunify mother and child, and affirmed order terminating parental rights. Mother appealed.” View the decision at the National Indian Law Library website.
Synopsis provided by Westlaw: “In child dependency proceeding involving incarcerated father, the Superior Court, Fourth Judicial District, Fairbanks, Michael P. McConahy, J., terminated parental rights. Father appealed.” Read the case at the National Indian Law Library website.
Synopsis provided by Westlaw: “County Department of Family Services filed petition to terminate parental rights of both parents of Indian child. The Circuit Court, Fairfax County, Randy I. Bellows, J., held that the guardian ad litem and foster parents had not established good cause to retain jurisdiction and ordered the case transferred to tribal court, but granted a stay pending appeal. Guardian ad litem and foster parents appealed, and parents appealed order granting stay.” Read the case at the National Indian Law Library website.
Here is text from the opinion: R.N. (mother) and E.T. (father) appeal from the order terminating their parental rights to daughters D.N. and A.T. The parents argue there is a lack of compliance with the notice requirements of the Indian Child Welfare Act, 25 U.S.C. section 1901 et seq. (ICWA). We affirm. Substantial evidence supports the juvenile court’s determination that notice was proper and ICWA did not apply to this case. In the published portion of this opinion, we conclude, among other things, that this court cannot override the Choctaw Nation’s determination that the children are not eligible for membership. Read the court opinion on the National Indian Law Library’s website.
This case affirms the termination of parental rights under Oregon law and the Indian Child Welfare Act. The factual bases for terminating parental rights must be established beyond a reasonable doubt. Read the opinion at the National Indian Law Library website.
Opinion from Indian Country Today: U.S. doesn’t respect or understand native culture. 8/13/13.
Custody battle continues despite ruling by justices (NY Times) 8/13/13
SC Family seeks deal in Cherokee custody case (HeraldOnline.com) 8/14/13
Cherokee father enters courthouse without child (Miami Herald) 8/16/13
Watch: Native American adoption case gets complicated (ABC News) 8/17/13
Rally planned for Cherokee girl in custody dispute (NewsOn6.com) 8/19/13
Tulsa protesters react to Baby Veronica case (KJRH.com) 8/19/13
The Department of Justice announces a pilot project for tribal jurisdiction over crimes of Domestic Violence, Friday, June 14, 2013, 78 FR 35961-01, (PDF), 2013 WL 2643596
Related News: VAWA Pilot Project Notice in Federal Register, plus supporting materials (Turtletalk) 6/14/13.
SUMMARY: This notice proposes procedures for an Indian tribe to request designation as a participating tribe under section 204 of the Indian Civil Rights Act of 1968, as amended, on an accelerated basis, pursuant to the voluntary pilot project described in section 908(b)(2) of the Violence Against Women Reauthorization Act of 2013 (“the Pilot Project”), and also proposes procedures for the Attorney General to act on such a request. This notice also invites public comment on the proposed procedures and solicits preliminary expressions of interest from tribes that may wish to participate in the Pilot Project. DATES: Preliminary expressions of interest from tribes are due on or before July 15, 2013. Comments on the proposed procedures are due on or before September 12, 2013. ADDRESSES: Mr. Tracy Toulou, Director, Office of Tribal Justice, Department of Justice, 950 Pennsylvania Avenue NW., Room 2310, Washington, DC 20530, email OTJ@usdoj.gov.
The Alaska Office of Children’s Services (OCS) was successful in terminating parental rights for the parents of four Indian children. Despite attempts by the parents, and active efforts to prevent the breakup of the family by OCS, evidence supported finding that the children would be endangered and would likely suffer emotional and physical harm if they remained with the parents. Read the case at the National Indian Law Library.
Read the press release.
Read the complaint filed in the U.S. District Court in South Carolina.
From the press release…The litigation was filed on behalf of Veronica, by Angel Smith, an attorney appointed as counsel for the child by the courts of the Cherokee Nation, in U.S. District Court in South Carolina, and asks the Court to determine whether Veronica has a constitutionally protected right to a meaningful hearing in the state courts to determine what is in her best interests. Furthermore, the litigation asserts that Veronica, as an “Indian child” under the Indian Child Welfare Act, has a federally protected right to have the state courts fully consider and appropriately weigh her best interests as an Indian child. Daniel E. Martin, Jr., the judge for the family court system of South Carolina, is named as the defendant in the suit.
A family court in Charleston, S.C., plans to have a hearing Wednesday (7/31) to decide how – not if – to transfer custody of Baby Veronica back to her adoptive parents. Read about this in Tulsa World.
A new lawsuit was filed by Baby Veronica’s mother which claims part of the Indian Child Welfare Act to be unconstitutional.Read the news story from July 26 and complaint filed on July 24.
See an additional article on this new case filing at Indian Country Today.
The Court of Civil Appeals of Oklahoma ruled against awarding attorney fees and costs to a father whose parental rights were terminated.
See the National Indian Law Library website for the opinion.
The Montana Supreme Court ruled that the state Department of Health and Human Services made sufficiently active efforts to reunify children with mother, as prerequisite to termination of mother’s parental rights, under Indian Child Welfare Act (ICWA). Read the opinion on the National Indian Law Library website.
This decision follows the U.S. Supreme Court decision from May, 2013. The South Carolina Supreme Court held that the Indian Child Welfare Act’s (ICWA) placement preferences did not apply, and father’s consent to adoption was not required.
Read the opinion on the National Indian Law Library website.
On July 14, 2011 the National Association for Court Management (NACM) passed a resolution resolution demonstrating their commitment to ICWA.
Excerpt from the resolution – “…NACM is committed to engaging tribal court managers as full partners in fulfilling the mission of NACM and in meeting the needs of all children and families served by the state and tribal courts…”
A split decision on ‘Baby Veronica’ court battle (Tulsa World) 6/26/13.
Supreme Court Strikes a Hard Blow to Tribal Sovereignty in Adoption Case (Common Dreams) 6/26/13.
Supreme Court says Native American child doesn’t have to be given to biological father (Washington Post) 6/25/13.
Justices Rule in Favor of Adoption of Indian Child (NY Times) 6/25/13.
U.S. Supreme Court issues decision in Adoptive Couple v. Baby Girl (NARF Blog) 6/25/13.
Court: Child isn’t required to go to Indian father. (Anchorage Daily News) 6/25/13.
Cherokee Chief: Baby girl should remain with biological father (Indianz.com) 6/25/13.
Supreme Court Rules 5-4 In Favor of Capobiancos in Baby Veronica Case (Indian Country Today) 6/25/13.
Collection of Reactions on Baby Girl Case (Turtle Talk Blog) 6/25/13.
Find the opinion here. Commentary will be published soon on the blog.
The syllabus from the ruling:
“The Indian Child Welfare Act of 1978 (ICWA), which establishes federal standards for state-court child custody proceedings involving Indian children, was enacted to address “the consequences . . . of abusive child welfare practices that [separated] Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes,” Mississippi Band of Choctaw Indians v. Holyfield, 490 U. S. 30, 32. As relevant here, the ICWA bars involuntary termination of a parent’s rights in the absence of a heightened showing that serious harm to the Indian child is likely to result from the parent’s “continued custody” of the child, 25 U. S. C. §1912(f);conditions involuntary termination of parental rights with respect toan Indian child on a showing that remedial efforts have been made toprevent the “breakup of the Indian family,” §1912(d); and provides placement preferences for the adoption of Indian children to membersof the child’s extended family, other members of the Indian child’s tribe, and other Indian families, §1915(a). While Birth Mother was pregnant with Biological Father’s child, their relationship ended and Biological Father (a member of the Cherokee Nation) agreed to relinquish his parental rights. Birth Mother put Baby Girl up for adoption through a private adoptionagency and selected Adoptive Couple, non-Indians living in South Carolina. For the duration of the pregnancy and the first four months after Baby Girl’s birth, Biological Father provided no financial assistance to Birth Mother or Baby Girl. About four months after Baby Girl’s birth, Adoptive Couple served Biological Father with notice of the pending adoption. In the adoption proceedings, Biological Father sought custody and stated that he did not consent to the adoption.
Following a trial, which took place when Baby Girl was two years old, the South Carolina Family Court denied Adoptive Couple’sadoption petition and awarded custody to Biological Father. At the age of 27 months, Baby Girl was handed over to Biological Father, whom she had never met. The State Supreme Court affirmed, concluding that the ICWA applied because the child custody proceeding related to an Indian child; that Biological Father was a “parent” under the ICWA; that §§1912(d) and (f) barred the termination of his parental rights; and that had his rights been terminated, §1915(a)’sadoption-placement preferences would have applied.
Held:
1. Assuming for the sake of argument that Biological Father is a“parent” under the ICWA, neither §1912(f) nor §1912(d) bars the termination of his parental rights. Pp. 6–14.
(a) Section 1912(f) conditions the involuntary termination of parental
rights on a heightened showing regarding the merits of the parent’s “continued custody of the child.” The adjective “continued” plainly refers to a pre-existing state under ordinary dictionary definitions.
The phrase “continued custody” thus refers to custody that a parent already has (or at least had at some point in the past). As a result, §1912(f) does not apply where the Indian parent never had custody of the Indian child. This reading comports with the statutory text, which demonstrates that the ICWA was designed primarily to counteract the unwarranted removal of Indian children from Indian families. See §1901(4). But the ICWA’s primary goal is not implicated
when an Indian child’s adoption is voluntarily and lawfully initiated
by a non-Indian parent with sole custodial rights. Nonbinding guidelines issued by the Bureau of Indian Affairs (BIA) demonstrate that the BIA envisioned that §1912(f)’s standard would apply only to termination of a custodial parent’s rights. Under this reading, Biological
Father should not have been able to invoke §1912(f) in this case because he had never had legal or physical custody of Baby Girl as of the time of the adoption proceedings. Pp. 7–11. (b) Section §1912(d) conditions an involuntary termination of parental rights with respect to an Indian child on a showing “that active efforts have been made to provide remedial services . . . designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.” Consistent with this text, §1912(d) applies only when an Indian family’s “breakup” would be precipitated by terminating parental rights. The term “breakup” refers in this context to“[t]he discontinuance of a relationship,” American Heritage Dictionary 235 (3d ed. 1992), or “an ending as an effective entity,” Webster’s Third New International Dictionary 273 (1961). But when an Indian parent abandons an Indian child prior to birth and that child hasnever been in the Indian parent’s legal or physical custody, there is Cite as: 570 U. S. ____ (2013) no “relationship” to be “discontinu[ed]” and no “effective entity” to be“end[ed]” by terminating the Indian parent’s rights. In such a situation,
the “breakup of the Indian family” has long since occurred, and§1912(d) is inapplicable. This interpretation is consistent with the explicit congressional purpose of setting certain “standards for the removal of Indian children from their families,” §1902, and with BIA Guidelines. Section 1912(d)’s proximity to §§1912(e) and (f), which both condition the outcome of proceedings on the merits of an Indian child’s “continued custody” with his parent, strongly suggests that the phrase “breakup of the Indian family” should be read in harmony with the “continued custody” requirement. Pp. 11–14.
2. Section 1915(a)’s adoption-placement preferences are inapplicable in cases where no alternative party has formally sought to adopt the child. No party other than Adoptive Couple sought to adopt Baby Girl in the Family Court or the South Carolina Supreme Court. Biological Father is not covered by §1915(a) because he did not seek toadopt Baby Girl; instead, he argued that his parental rights should not be terminated in the first place. And custody was never sought by Baby Girl’s paternal grandparents, other members of the Cherokee Nation, or other Indian families. Pp. 14–16. 398 S. C. 625, 731 S. E. 2d 550, reversed and remanded.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and BREYER, JJ., joined. THOMAS, J., and BREYER, J., filed concurring opinions. SCALIA, J., filed a dissenting opinion. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG and KAGAN, JJ., joined, and in which SCALIA, J., joined in part.”
Since 2011, the NCJFCJ has published Disproportionality Rates for Children of Color in Foster Care Technical Assistance Bulletins, which identify the disproportionality rates for all state and select Model Courts across the Country.
See: Disproportionality Rates for Children of Color in Foster Care Technical Assistance Bulletin. This Bulletin, released May 2013, utilizes the most current (2011) Adoption and Foster Care Reporting System (AFCARS) data and 2011 census data estimates to calculate current disproportionality indexes for every state and select Model Courts across the country.
The Superior Court in Sacramento County ruled on termination of parental rights and placement under the Indian Child Welfare Act. Read the case on the National Indian Law Library website.
This case relates to claims relating to following tribal customary adoption procedures. Read the case at the National Indian Law Library website.
The court ruled that the notice provided to the Indian tribe was insufficient under Indian Child Welfare Act. Read the opinion at the National Indian Law Library website.
On May 9, the Colorado Court of Appeals held that substantial evidence supported juvenile court’s findings of good cause to deny transfer of jurisdiction to tribal court and supported the juvenile court’s holding that the Department of Health and Human Services met the “active efforts” standard required by the Indian Child Welfare Act. Read more about the case at the National Indian Law Library website.
In April, a grassroots movement led by Lakota grandmothers toured the country to build support for a formal complaint of genocide against the United States government and its constituent states. Though temporarily overturned, the recent conviction of Efrain Rios Montt for genocide against indigenous Guatemalans should give US officials, particularly members of the Supreme Court, pause before dismissing the UN petition as a feeble symbolic gesture.
Read more at the RINF website.
The decisions of the South Dakota Supreme Court contain many cases involving the federal law known as the Indian Child Welfare Act.They are always a sad story…
Read more at the Black Hills Pioneer website.
Research cases and law relating to ICWA in South Dakota at the Practical Guide to the Indian Child Welfare Act website.
The South Dakota Department of Social Services is seeking the dismissal of an Indian Child Welfare Act lawsuit filed by the Oglala Sioux Tribe and the Rosebud Sioux Tribe.The lawsuit accuses the state of violating ICWA by removing Indian children from their homes without due process to their families or to tribes…
Read more at the Indianz.com website.
Bryan Samuels, the Commissioner of the Administration on Children, Youth and Families (ACYF) wrote a letter to tribal leaders and state child welfare directors in April 2013 regarding the importance on ongoing consultation and coordination around the delivery of child welfare services.
Read the letter and attachments at https://icwa.narf.org/documents/20130429_Samuels-letter.pdf.
On May 7, the U.S. Congress introduced a resolution “Recognizing National Foster Care Month as an opportunity to raise awareness about the challenges of children in the foster-care system, and encouraging Congress to implement policy to improve the lives of children in the foster-care system.” See H.Res. 203.
The Michigan Law Review just published an opinion piece: Adoptive Couple v. Baby Girl: Two-and-a-Half Ways To Destroy Indian Law.
Article excerpt: “In December 2011, Judge Malphrus of the South Carolina family court ordered Matt and Melanie Capobianco to relinquish custody of Veronica, their two-year-old, adopted daughter, to her biological father, Dusten Brown. A federal statute known as the Indian Child Welfare Act (“ICWA”) mandated Veronica’s return. However, the court’s decision to return Veronica pursuant to this law incited national outrage and strident calls for the Act’s repeal….”
Read the article on the Michigan Law Review website.
See other related articles on the Turtle Talk blog.
Cornell University, Legal Information Institute has published a preview of the Adoptive Couple v. Baby Girl (“Baby Veronica”) case. The oral argument is scheduled for Tuesday, April 16.
On February 15, 2013, the Court of Appeals of Oklahoma ruled on the Indian Child Welfare Act’s preference for adoptive placement provision. See In re D.L. and K.L.
Q&A With Cherokee Counsel for Baby Veronica Case:
Read the article published on 4/11/13 in Indian Country Today.
CATOOSA – Members of the National Indian Child Welfare Association on Monday asked for a federal law to be left intact as the U.S. Supreme Court prepares to take up a Nowata family’s case next week.
Read the entire article published in Tulsa World on 4/09/13.
U.S. Supreme Court hears “Baby Veronica” case next week.
16 months ago, a South Carolina court ordered the adoptive parents of a child known to many as “Baby Veronica” to give her to her biological father who lives in Bartlesville.
Since then, this case has been tied up in the courts.. read more.
1) Tribal Supreme Court Project press release summary published by NARF and NCAI.
2) Turtle Talk blog guide.
AUGUSTA, Maine — Attorney General Janet Mills announced Thursday that she has signed on to a case in the U.S. Supreme Court, urging the full enforcement of the 1978 Indian Child Welfare Act.
The Indian Child Welfare Act spells out federal standards meant to ensure that the rights of Native American children, their parents and their tribes are fully respected in child custody proceedings, according to a press release from Mills.
Read the entire article. See briefs filed in Adoptive Couple v. Baby Girl at the NARF Tribal Supreme Court Project.
