As I read stories about an unmarked grave in Canada where the remains of 215 Indigenous children were found last month, I was sick to my stomach. But the deaths of Indigenous children at the hands of government were not limited to that side of the border. Many Americans may be alarmed to learn that the United States also has a history of taking Native children from their families in an effort to eradicate our culture and erase us as a people. It is a history that we must learn from if our country is to heal from this tragic era.
Oregon lawmakers have voted to codify provisions of the federal Indian Child Welfare Act into state law in an effort to honor tribal customs and sent the bill to the desk of Democratic Gov. Kate Brown.
The NCAI, which passed two different resolutions in the past decade on the issue, is calling for transparency and accountability for historical and generational trauma caused by boarding schools that was a program of the federal government that operated on the mantra to “Kill the Indian, Save the man.”
Online ICWA Course Increase the depth of your understanding of ICWA by taking our Online ICWA Course. The course takes approximately 4 hours, includes 4.5 CEUs through the National Association of Social Workers, and can be completed in multiple sittings.
S.1868 – A bill to amend the Child Abuse Prevention and Treatment Act to require that equitable distribution of assistance include equitable distribution to Indian Tribes and Tribal organizations, to increase amounts reserved for allotment to Indian Tribes and Tribal organizations under certain circumstances, and to reserve amounts for migrant programs under certain circumstances, and to provide for a Government Accountability Office report on child abuse and neglect in American Indian Tribal communities.
The Indian Child Welfare Act became law in 1978 with a goal of keeping Native children with their families and tribes. As Blackfeet citizen and Salish descendant Brooke Pepion Swaney found out, the law was overlooked when Kendra was adopted by the Mylnechuk family. Brooke’s first feature-length documentary, “Daughter of a Lost Bird,” premieres at the prestigious Human Rights Watch Festival in New York, and everywhere online.
These foster youth say the state of Alaska pocketed thousands of dollars that belonged to them. Nationwide, government agencies take money owed to foster children with disabilities or a deceased parent, The Marshall Project and NPR found. And most kids never know it’s gone.
The Indian Child Welfare Act (ICWA or the Act) is a federal statute that protects Indian children by keeping them connected to their families and culture. The Act’s provisions include support for family reunification, kinship care preferences, cultural competency considerations and community involvement. These provisions parallel national child welfare policies. Nevertheless, the Act is relentlessly attacked as a law that singles out Indian children for unique and harmful treatment. This is untrue but, ironically, it will be true if challenges to the ICWA are successful. To prevent this from occurring, the defense of the Act needs to change. For too long, this defense has focused on justifying the Act’s alleged different treatment of Indian children. Now, it is time to refute this charge and demonstrate this difference is illusory.
I am an Ojibwe autistic parent of autistic children, and a disability advocate. My children and I are statistically insignificant, and we routinely endure systemic erasure. Most Native autistic people do not get an accurate diagnosis or the support they need at any age. Native communities desperately need access to accurate information about autism and culturally responsive care.
H.R.1566 – To amend the Child Abuse Prevention and Treatment Act to require that equitable distribution of assistance include equitable distribution to Indian tribes and tribal organizations and to increase amounts reserved for allotment to Indian tribes and tribal organizations under certain circumstances, and to provide for a Government Accountability Office report on child abuse and neglect in American Indian tribal communities.
Today, the Yurok Tribe, Bear River Band of the Rohnerville Rancheria, the Wiyot Tribe and the Trinidad Rancheria announced their support of the California Attorney General’s effort to pursue a court order requiring the Humboldt County Department of Health and Human Services Child Welfare Services Division and the Humboldt County Sheriff’s Office to fully and transparently implement the terms of a 2018 court ruling regarding the agencies’ mismanagement of child abuse and neglect cases.
A recent, unanimous opinion of the Washington State Supreme Court authored by Justice Raquel Montoya-Lewis, the first Native American justice to serve on the court, gives critical life to the rights granted under the act by giving expansive meaning to the “reason to know” standard that invokes its protections.
Unlawful rollback of data collection requirements is “riddled with errors,” ignores critical need to understand challenges facing American Indian and Alaska Native children, LGBTQ+ foster youth.
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
Declares Oregon policy regarding Indian children. Modifies Oregon child welfare laws regarding Indian children to reconcile with provisions of federal Indian Child Welfare Act.
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.
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)
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.”
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.
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.
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.
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.
Today, the United States Court of Appeals for the Fifth Circuit issued an order directing a challenge to the Indian Child Welfare Act (ICWA) to be reheard en banc — before the entire Fifth Circuit. As previously reported, a three-judge panel of the Fifth Circuit had held ICWA Constitutional in August, finding it was not a race-based statute that would violate the Equal Protection Clause.
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.
The Supreme Court didn’t give a reason it declined to hear the case that began in 2013, when the Oglala and Rosebud Sioux Tribes and three parents in Pennington County brought a class action lawsuit against state Department of Social Services and Pennington County officials. The American Civil Liberties Union, representing the tribes and parents, alleged that Native American parents weren’t receiving fair preliminary hearings when their children were removed from the home, including that parents couldn’t have an attorney present and couldn’t see documents given to the court by DSS.
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.
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.
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.
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.
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.
In the 21st century, we are still fighting to protect indigenous children whether it is north or south of the Mexican border. The 5th Circuit Court of Appeals decision to uphold the Indian Child Welfare Act was a critical step to keep our families, communities and identities intact. Now, some legal protections need to be enacted for the indigenous children being stolen at the Mexico border.
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.
Now 18, Carlisle was placed into the foster care system as an infant and adopted when she was a child, but one box checked on her foster care and adoptive records identify her as African-American. There’s no mention of her Native roots, meaning the state doesn’t legally recognize her status. She’s spent the last two years ping-ponging between county and state officials to add her Native American heritage to her records, to no avail.
During her testimony, Representative Smith described her disillusion with some social workers who only look at potential foster and adoptive parents from a European standard; in doing so, Smith stated that they dismiss and diminish cultural norms that are in place to provide positive reinforcements for Native children. Having heard stories of other parents of color involved in the child welfare system, I have noticed that they have had similar interactions. What was most enlightening was the fact that tribal governments and their cultural kinship ties are protected by the Indian Child Welfare Act (ICWA).
Now the [Indian Child Welfare Act] is facing its most serious challenge yet. In a case that has implications far beyond the adoptions of American Indian children, three non-Native families and three Republican state attorneys general have sued the federal government saying that the ICWA relies on racial classifications that violate the equal protection clause of the U.S. Constitution.
In October, a federal judge in Texas agreed, striking down the Indian Child Welfare Act for the first time in its 41-year history. The government, joined by five tribes and supported by many more, appealed the case to the Fifth Circuit Court of Appeals, but advocates of the law are worried that if the court upholds the earlier decision, it could call into question all other federal Indian laws.
The battle is at once profoundly personal for each family involved and simultaneously so broad that many believe it could reshape U.S.-Indian relations for generations to come. It is about reckoning with the nation’s brutal past and protecting the possibility of its future.
The Indian Child Welfare Act was established to ensure that children benefit from Native families remaining together. Our families should not ever fear the removal of their children from their tribes and their culture. It is in the best interest of Indian children to keep their connections to their culture, communities and extended families. It’s troubling that anyone would suggest otherwise.
A LAW KEY to preventing state welfare agencies from separating Indigenous children from their families is at risk of being overturned thanks to the yearslong effort of a network of libertarian and right-wing organizations.
In the 1970s, between a quarter and a third of Indigenous children across the United States had been removed from their homes. Social services often cited neglect or deprivation — euphemisms for poverty — as grounds for placing children in the custody of non-Native families and institutions, offering birth parents little opportunity for redress. Congress passed the Indian Child Welfare Act in 1978 in order to reform a system designed to destroy Indigenous people.
Zachary, or A.L.M. as he is called in legal papers, has a Navajo birth mother, a Cherokee birth father and adoptive parents, Jennifer and Chad Brackeen, neither of whom is Native American. The Brackeens are challenging a federal law governing Native American children in state foster care: It requires that priority to adopt them be given to Native families, to reinforce the children’s tribal identity.
The U.S. Supreme Court has denied review of an Arizona case challenging a law that gives preference to American Indians in adoptions of Native children. The order last week leaves in place a lower court ruling that dismissed a complaint from a Phoenix-based, right-leaning think tank.
Please join the Bay Mills Indian Community for this multi-disciplinary, tuition-free training geared toward child welfare and domestic violence advocates to implement effective service and advocacy strategies in cases involving child welfare, domestic violence, or both. Minnesota CLEs are available for this training.
This training will be in Brimley, Michigan on August 1-2, 2019. For more information, please visit the training website.
Text: Save the Date! Judicial Skills Training: Child Welfare Best Practices (8/21-23/19). Casey Family Programs, Seattle, WA. Travel and Lodging Scholarships Available. Application to be released June 2019.
The crazy thing is that the Indian Child Welfare Act is forty years old, and it’s still one of the least well-understood pieces of federal legislation, even by judges, in the country.
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.
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.
The Arizona Court of Appeals ordered a new hearing Thursday over the guardianship of a 6-year-old child who is subject to the Indian Child Welfare Act.
The Navajo Nation appealed the case, The Navajo Nation v. Department of Child Safety et al., in October 2018 after the juvenile court failed to hear the testimony of a qualified expert witness as required by the ICWA in the child’s guardianship case.
But a week ago, citing a “crisis” in child welfare, Brown called for creation of the advisory board and other steps to give her more direct control of the agency with an aim of getting it to improve and to do so quickly. She issued an executive order to put her wishes into effect.
The new oversight board will meet at least every other week to decide what the child welfare agency should do. Brown also will install an on-site crisis management team to ensure Pakseresht and Child Welfare Director Marilyn Jones implement the board’s recommendations. The governor will also embed one of her senior advisers at the child welfare agency to oversee the work, her order says.
Read more about the panel, which includes National Indian Child Welfare Association Executive Director Sarah Kastelic, at The Oregonian website.
The South Dakota Supreme Court has ruled that a local judge erred when he transferred a child abuse and neglect case from state court to tribal court without considering testimony from the child’s doctor.
On April 23, 2019, ACF’s Office of Child Care (OCC) announced the availability of funds and requested applications for: * American Indian and Native Hawaiian Nonprofit Organization Child Care Grant * Native Hawaiian Nonprofit Organization Child Care Grant
Each of these competitive funding opportunity announcements (FOA) provides grant funding for a private, nonprofit organization to provide child care services through funding from Child Care and Development Fund (CCDF) formula grants. Eligible applicants may apply for funding under both FOAs, but they would only receive one award. If an American Indian organization is already receiving funding under a CCDF formula grant directly with OCC, the grantee will not be eligible to receive such funding for the same service area under this funding opportunity. Projects will be funded for up to $1 million per year overthree years. Optional letters of intent are due by May 8, 2019, and applications are due by June 24, 2019.
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.
The US Department of Health and Human Services, Administration for Children and Families, announced a funding opportunity for the establishment of a national child welfare capacity building center for tribes. The estimated funding available was $3,770,700. Funding opportunity number HHS-2019-ACF-ACYF-CZ-1557 (CFDA 93.648, 93.652, 93.658). Posted on April 19 with an application closing date of June 18.
California lawmakers are considering a proposal to make it easier for Native American tribes to make their arguments in child custody cases. Technically, the proposed legislation, AB 686, would let lawyers or other representatives of Native American tribes appear by phone or electronically in cases involving the possible removal of Native American children from their families and tribes.
So far, 325 tribes and states, including Montana, Idaho, Utah and Colorado, have joined forces to preserve a law that gives Native families preference in adoption of Native children.
The National Native American Boarding School Healing Coalition, First Nations Repatriation Institute, and the University of Minnesota are pleased to announce the launch of our study: Child Removal in Native Communities. This is an anonymous survey about American Indian and Alaskan Native experiences and impacts of child removal to #BreakTheSilence and #BeginTheHealing.
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If you are a boarding school survivor, have boarding school history in your family, or have you ever been adopted or placed in foster care, we need your help! You can take the survey now at: z.umn.edu/child-removal-study
Another way that ICWA differs from conventional child welfare laws is that it mandates “active efforts” to keep children with their families or tribe. In most regular child protection cases, social-service workers are obligated to provide “reasonable efforts” to help parents and children reunify, such as offering lists of treatment facilities, therapists, affordable-housing agencies or other resources that could help parents get their lives back on track. “Active efforts,” by contrast, require social-service agencies to do more, such as supplying bus tokens, phone cards and rides to get to those services, says White Hawk. In addition to providing attorneys for qualifying ICWA family cases, the law center also employs “Indian advocates” and “parent mentors,” individuals who meet with families, help them to get appointments and find housing, and go with them to court to explain how the process works. It’s more-intensive support, but advocates say that it is what their clients need. “Our families are coming to us in crisis most of the time,” Smith told me. “So having those connections and helping them walk through what that process can be like, and giving them hope along the way, makes all the difference.” Those sorts of active efforts, she adds, should be used for all families, regardless of background.
Despite these challenges, Native American adoptees continue to lead a resilient fight both inside and outside the child welfare system to address disparities, often by providing support systems and advocates beyond what county or state governments offer families. And Native-led organizations hold the government accountable, ensuring that agencies and courts properly uphold ICWA and honor tribal sovereignty.
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.
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.
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.
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.
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.
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.
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.
On Tuesday, President Donald Trump announced the formation of the Presidential Task Force on Protecting Native American Children in the Indian Health Service System. A senior administration official hosted a White House conference call, and released statements to the media which outlined that President Trump has “charged the task force with investigating the institutional and systemic breakdown that failed to prevent a predatory pediatrician from sexually assaulting children while acting in his capacity as a doctor in the Indian Health Service.”
1978 law giving preference to Native American families in foster care and adoption proceedings involving American Indian children is an unconstitutional race-based intrusion on state powers that has caused families to be “literally torn apart,” an attorney told a federal appeals court March 13. But supporters of the decades-old law say it’s needed to protect and preserve Native American culture and families. In court, lawyers for Indian tribes argued that the law’s definition of an Indian child is based not on race, but on tribal political affiliations.
Colorado is out of compliance with the Indian Child Welfare Act, which requires courts make an effort to place Native American children in state custody with tribal or Native homes. House Bill 1232, co-sponsored by Rep. Marc Catlin, R-Montrose, offers minor fixes to Colorado laws for administering ICWA.
“This proposed law writes into Colorado law what federal law already requires,” said Judge Brett Woods, who presides over the Denver Juvenile Court.
A case before a federal appeals court could upend an historic adoption law meant to combat centuries of brutal discrimination against American Indians and keep their children with families and tribal communities. For the first time, a few states have sued to overturn the federal Indian Child Welfare Act, which Congress enacted in 1978 as an antidote to entrenched policies of uprooting Native children and assimilating them into mainstream white culture. Now, in a country roiled by debates over race and racial identity, there’s a chance the 41-year-old law could be overturned by the U.S. 5th Circuit Court of Appeals, considered the country’s most conservative court. (The law applies to federally recognized tribes.)
With the fate of the Indian Child Welfare Act in the hands of a federal appeals courts, tribes and some states have come together to defend the law, which Congress enacted in 1978 to address the high rates of Indian children being taken from their families and their communities.
I felt compelled to write today after reading a recent commentary by the Louisiana solicitor general criticizing the Indian Child Welfare Act (ICWA). It is absurd and illogical to compare the placement of an Indian child with a tribal family to sending a child off to live in a foreign country.
Non-Indians think they know better than Indians what is best for Native American children, said lawyers for the Navajo Nation in arguments before a federal appeals court. It’s a bold argument, but goes to the heart of the case in Brackeen v. Bernhardt. Under the Indian Child Welfare Act, Indian tribes have priority over non-Indians in Native American adoptions. Last year in Texas, a trial judge struck down the Act. Now the tribes are defending ICWA in the U.S. Fifth Circuit Court of Appeals.
A case before a federal appeals court this week could upend an historic adoption law meant to combat centuries of brutal discrimination against American Indians and keep their children with families and tribal communities. For the first time, a few states have sued to overturn the federal Indian Child Welfare Act, which Congress enacted in 1978 as an antidote to entrenched policies of uprooting Native children and assimilating them into mainstream white culture. Now, in a country roiled by debates over race and racial identity, there’s a chance the 41-year-old law could be overturned by the U.S. 5th Circuit Court of Appeals, considered the country’s most conservative court. (The law applies to federally recognized tribes.) Overturning the law, its proponents say, could significantly increase the number of American Indian children adopted into non-Native families.
February 5, 2019 Yesterday, Utah Attorney General Sean D. Reyes met with the leadership of the Navajo Nation, reported on the proceedings of the ICWA lawsuit, and signed an Inter-Governmental Agreement (between DCFS & Navajo Nation) with Governor Gary R. Herbert.
The Agreement is the result of a two-year process working with the Navajo Nation on the principles of the Indian Child Welfare Act (ICWA). It states the intent to support the fundamentals of ICWA, to adhere to the tribal processes concerning families and children, and to ensure that when a Navajo child is unable to return home, they will be placed with a Navajo family.
The Indian Child Welfare Act is under attack and tribes are pushing back after conservative and Christian groups joined a closely-watched battle over the landmark federal law.
U.S. Senators Amy Klobuchar, Chairman of the Senate Committee on Indian Affairs, John Hoeven, vice chairman of the Senate Committee on Indian Affairs, Tom Udall and Jerry Moran reintroduced the bipartisan Tribal Adoption Parity Act legislation that would bring parity to tribal government for the adoption tax credit.
The Native American Training Institute will host the 18th annual North Dakota Indian Child Welfare and Wellness Conference, Feb. 12-14, at the 4 Bears Casino and Lodge, west of New Town.
A Dec. 17 report on All Things Considered about the Indian Child Welfare Act prompted harsh criticism from the Native American Journalists Association, which called it “inaccurate and imprecise.” A meeting between NAJA leaders and NPR editors resulted in a clarification being posted on the online version of the piece, but NAJA members continued to have concerns about the reporting.
Read the full article from the NPR ombudsperson at the NPR website.
NAJA Agrees with NPR ombudsman assessment of flawed ICWA story
The Native American Journalists Association supports the assessment of National Public Radio’s Ombudsman Elizabeth Jensen regarding the story “Native American Adoption Law Challenged As Racially Biased.”
There were 206 appealed ICWA cases this year, down 7 from last year. However, there were 50 reported cases this year, which is nearly 20 more than last year. As always, California leads the states with 125 cases, 9 were reported. Alaska is second with 11, 3 reported. Montana had 10, including 7 reported, which is up considerably from last year. Colorado had 8, 7 reported, as did Michigan with 2 reported. Arkansas had 6, with 5 reported, and Arizona, Ohio, and Texas all had four (1, 3, 1 reported, respectively). Illinois had three (finally) though reported none of them, and Indiana, Iowa, Missouri, New Jersey, Oklahoma, South Dakota and Washington all had two (only Missouri, Oklahoma, and South Dakota reported their cases). Finally the following states had 1 appellate ICWA case: Connecticut, Idaho, Kansas, Minnesota, Nebraska, Nevada, North Carolina, Wisconsin, North Dakota.
(Portland, Ore., January 18, 2019)—On Wednesday, January 16, 2019, 325 tribal nations, 57 Native organizations, 21 states, 31 child welfare organizations, Indian and constitutional law scholars, and seven members of Congress joined the United States and four intervenor tribes in filing briefs to urge the United States Court of Appeals for the Fifth Circuit to uphold the Indian Child Welfare Act (ICWA), the long-standing federal law protecting the well-being of Native children by upholding family integrity and stability.
“The Indian Child Welfare Act (ICWA) is child welfare best practice. Thirty-one leading child welfare organizations stated that ICWA serves the best interest of Native children and families with their declaration that ICWA is the ‘gold standard’ of child welfare policy,” said Sarah Kastelic, executive director of the National Indian Child Welfare Association. “As experts in research, education, advocacy, and providing services related to child welfare, adoption, and court-system reform, these organizations know that ICWA ensures all children and families receive the protections they deserve and that all children fare better when placed with family.”
“The National Congress of American Indians is moved by the overwhelming support to uphold the Indian Child Welfare Act, which protects the best interests of American Indian and Alaska Native children. Tribal nations know, firsthand, the positive impact, the certainty, and stability that ICWA provides to our children in state-based child welfare systems,” said Jefferson Keel, president of the National Congress of American Indians. “Bottom line, ICWA works and the FifthCircuit Court of Appeals should overturn the erroneous district court decision and support American Indian and Alaska Native children and families because it’s the right thing to do.”
“The State of Texas and other Plaintiffs, supported by the Goldwater Institute, bring this litigation against the Indian Child Welfare Act (ICWA) stating that it seeks to protect the equal rights of American Indian children,” said Shannon Keller O’Loughlin, executive director of the Association on American Indian Affairs, “but ICWA is equal rights and human rights legislation. Statistics show that state systems continue to remove Indian children from their families at greater rates than white children, even though incidents of neglect or abuse are similar. Current studies that have researched systemic bias in the child welfare system have found that Indian families were two times more likely to be investigated and four times more likely to have their children removed and placed in foster care than their white counterparts. ICWA was meant to provide protections against this systemic bias and reduce the overrepresentation of Indian children into these systems.”
“The Native American Rights Fund, along with our co-counsel at Dentons, is honored to represent the 325 tribal nations and 57 Native organizations that are signatories to the Tribal Amicus Brief,” said Erin Dougherty Lynch, senior staff attorney at the Native American Rights Fund. “The district court’s interpretation of the Indian Child Welfare Act (ICWA) has never been adopted by any other court, makes no practical sense, is directly contrary to ICWA’s policy and purpose, and finds no support in centuries of established federal Indian law. Indian Country is united in its support for ICWA, and we are confident the Fifth Circuit Court of Appeals will overturn the district court’s decision.”
An author recounts how 1960s policies ripped apart families and communities, including her own.
An essay from author Susan Harness about her memoir, Bitterroot: A Salish Memoir of Transracial Adoption. Read the full article at the High Country News website.
The Indian Child Welfare Act requires that Native American children be placed in Native American foster or adoptive homes, where possible, to maintain their heritage and identity. The law is being challenged with increasing regularity in courts and by special-interest groups who contend it prioritizes race over a child’s best interest. In October, U.S. District Judge Reed O’Connor in Texas declared key parts of the act unconstitutional, the first time any court has struck down the law. That decision has been appealed to the 5th U.S. Circuit Court of Appeals by the federal government and by multiple tribes, including the Navajo and Cherokee nations. But Tamera Shanker, an attorney who represents the ICWA unit of the Navajo Nation Office of Child and Family Services, believes the question will ultimately end up before the Supreme Court.
A 5-0 decision by the South Dakota Supreme Court says a man who admitted to killing his wife and is serving a life sentence in prison did not have his rights under a federal Indian adoption law violated when a Brookings judge awarded custody of his child to the slain mother’s brother and sister-in-law.
[Dec. 13, 2018]WASHINGTON – Today, U.S. Senators Tom Udall, vice chairman of the Senate Committee on Indian Affairs, and Martin Heinrich praised the Senate passage of a bicameral resolution commemorating the 40th anniversary of the Indian Child Welfare Act (ICWA), and recognizing its importance to promoting the stability and security of Tribal communities and families.
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.
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.
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.
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.
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
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.
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.
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.
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.
The United States will join four tribes defending the Indian Child Welfare Act against a district court ruling in Texas.
The Department of Justice, with the Department of Interior and Health and Human Services, and their officials, filed a notice of appeal on Nov. 30 to the U.S. Court of Appeals for the Fifth Circuit, according to a joint statement from the National Indian Child Welfare Association, the National Congress of American Indians, the Native American Rights Fund, and the Association on American Indian Affairs.
The 18th Annual North Dakota Indian Child Welfare & Wellness Conference will be held February 12-14, 2019 at the 4 Bears Casino and Lodge. It is hosted by the Native American Training Institute. This year’s theme is “Families First: Keeping the ICWA Vision Alive”‘
A state circuit judge didn’t violate the federal Indian Child Welfare Act when she terminated a father’s right to his four-year-old son, the South Dakota Supreme Court has ruled.
“Dawnland” is premiering on the PBS series Independent Lens, as part of November Native American Heritage Month programming.
The investigation by the Maine Wabanaki-State Child Welfare Truth and Reconciliation Commission represented a groundbreaking moment in the history of tribal-state relations and its goal was to uncover and acknowledge the truth about what happened to Wabanaki children and families involved with the Maine welfare system.
From 2013 to 2015, Native and non-Native commissioners travelled across Maine, gathering testimony about the impacts of the state’s child welfare practices on families in Maliseet, Micmac, Passamaquoddy and Penobscot tribal communities, which together comprise the Wabanaki people.
Read related article, “Dawnland Documentary Shows How the U.S. Government Took Indigenous Children From Their Homes — and Placed Them With White Families,” at the Teen Vogue website.
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.
Treppa: Why the ICWA is critical to the health of native children and tribal communities
SHERRY TREPPA POSTED ON WEDNESDAY, 24 OCTOBER 2018
A Texas judge’s recent decision to strike down the Indian Child Welfare Act, or ICWA, sets a dangerous precedent that unravels federal policy carefully designed to correct centuries of tragic injustices committed against Indian people.
It not only threatens the wellbeing of Native children and their families, but also tribal sovereignty. Further, the ruling could undo many of the collaborative relationships our tribes have forged with local governments and states that already acknowledge the benefits of preserving Native families.
Preserving the Culture and Traditions of Indian Children and Families
October 23, 2018
In passing the Indian Child Welfare Act (ICWA) in 1978, the clear intent of Congress was to protect the best interest of Indian children and to promote the stability and security of Indian tribes and families. Oversight and enforcement authority regarding the provisions of ICWA was left to judges presiding over child custody cases.
Joint Statement on Indian Child Welfare Case Brackeen v. Zinke Ruling
In a decision published by the United States District Court for the Northern District of Texas, the Indian Child Welfare Act (ICWA) was declared unconstitutional, jeopardizing the landmark legislation protecting tribal children.
This egregious decision ignores the direct federal government-to-government relationship and decades upon decades of precedent that have upheld tribal sovereignty and the rights of Indian children and families. Through 40 years of implementation, ICWA’s goal is to promote family stability and integrity. It continues to be the gold standard in child welfare policy.
A federal appeals court has delivered a major blow to tribes and parents who have been seeking stronger enforcement of the Indian Child Welfare Act in South Dakota.The Oglala Sioux Tribe, the Rosebud Sioux Tribe and three Indian parents went to court more than five years ago, alarmed by the large numbers of Indian children being taken from their families. They secured a historic ruling which confirmed that the state was violating ICWA by failing to provide adequate notice in child welfare proceedings.”Indian children, parents and tribes deserve better,” Judge Jeffrey L. Viken stated in his landmark March 2015 ruling.But that victory is no more. In a unanimous decision, the 8th Circuit Court of Appeals last week set aside the ruling, saying Viken went too far when he ordered the state to improve compliance with ICWA, the 1978 law that remains under attack throughout the nation.
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
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.
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
In 2016, the Obama administration finalized AFCARS rules that would for the first time require states to track information related to, among other subjects, the Indian Child Welfare Act (ICWA), the disruption of adoptions and guardianships, education stability and sexual orientation.
A federal appeals court has turned away a closely-watched conservative challenge to the Indian Child Welfare Act.The Goldwater Institute sued the federal government and the state of Arizona, arguing that ICWA is racist because it only applies to “Indian” children. But the 9th Circuit Court of Appeals declined to rule on the merits of the claim because a panel of judges noted that all of the four children involved in the case have been adopted.
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.
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.
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 …
A Grand Traverse Band Tribal Court judge soon will decide whether three children who have lived with their Traverse City foster parents since 2009 will stay with them or will be removed from the home.
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.)
A Glendive woman is suing the Bureau of Indian Affairs for $1 million over a 2015 child custody dispute that pitted state and tribal courts against each other.
Patsy Fercho, 64, fled to the Northern Cheyenne Reservation in 2015 with her two grandchildren in an attempt to avoid a Minnesota court’s order granting custody to the kids’ father.
California Attorney General Xavier Becerra, leading a bipartisan coalition of Attorneys General, filed an amicus brief late last week in Brakeen et. al. v. Zinke to defend the federal Indian Child Welfare Act (ICWA).
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…
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.
Central Council of Tlingit and Haida Indian Tribes of Alaska (Tlingit & Haida) entered into a Support Services Funding Agreement with the State of Alaska’s Department of Health & Social Services (DHSS), Office of Children’s Services (OCS) to conduct diligent relative and Indian Child Welfare Act preference searches.
The Miccosukee Tribe is defending its handling of a child welfare case that has drawn national attention.The tribe said a newborn was taken from her mother, a Miccosukee citizen, in order to protect the baby girl and her older siblings from domestic violence. The mother had previously been victimized by her non-Indian former partner, whose presence at the hospital during the birth earlier this month led the maternal grandmother to seek custody of the baby.
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.
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.
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.
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.
A 5-year-old Native American boy at the center of controversy for more than a year will remain with his Coshocton County foster family, for now.
Last week, the Ohio Court of Appeals reversed an earlier juvenile court ruling that would have sent the preschooler 2,000 miles from his home to a reservation in Arizona. The ruling stated the juvenile court should not have granted custody without first conducting a full evidentiary hearing taking into account the best interest of the child.
Since the passage of ICWA in 1978, the law has been labeled the “gold standard” for child welfare laws — and not just for Indian children. Policies created under ICWA have been adopted by some states to ensure that children are only removed from their homes as a last resort. To honor the children and preserve the memory of what life was like before ICWA, Sandy White Hawk, a Sicangu Lakota citizen from South Dakota, hosts an annual powwow called Gathering of Our Children, where she welcomes people who were adopted or fostered out to non-Native families. She’s been able to uncover and share the stories of hundreds of children from all over the country who have been reunited with their Native families.
The Goldwater Institute, however, says that it is “fighting for equal protection of Indian children.” It cites a handful of cases where “active efforts” to reunify Indian children with abusive parents — rather than immediately placing with foster families or putting them up for adoption — traumatized the children. It points to cases like one in Oregon, in which the state terminated a couple’s parental rights to their son after they failed to follow through on court-ordered counseling and therapy. The institute has not provided any other details, including whether the boy, who is referred to simply as “L,” was abused or neglected.
Two types of challenges to the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq., now feature prominently: equal protection challenges and challenges based on the “intrafamily dispute” exception to ICWA. A petition for a writ of certiorari to decide both issues is currently pending in one such case: S.S. v. Stephanie H. S.S. notwithstanding, tribal attorneys and ICWA practitioners must now be prepared to address both types of challenges in the near future.
Without comment, the justices on Tuesday denied a petition in Renteria v. Superior Court of California, Tulare County. The move, which came in an order list, ends a lawsuit which claimed ICWA was based on “race” and should be declared unconstitutional.
A lawyer representing two American Indian tribes urged a federal appeals court Tuesday to keep in place the changes a judge ordered for a South Dakota county’s system of removing children from homes in endangerment cases.
The Office of Children’s Services and tribal governments are taking the first steps to implement an agreement that transfers control of welfare services for Alaska Native children from the state to a group of 18 tribal governments and organizations.
The Department contended that mother’s signing of a written advisement of her rights, which included a question about the ICWA, served as the court’s initial inquiry. The inquiry should be made on the record. Regardless, the Court of Appeals found that the Department failed to send notice to the appropriate tribes when mother identified a reason to believe the children were Indian children.
The case was remanded with instructions for the limited purpose of directing the Department to send appropriate notice to the Kiowa Indian Tribe of Oklahoma and the Pueblo of Taos.
The Indian Child Welfare Act lawsuit filed in Rapid City’s federal court almost five years ago is going to the Eighth Circuit Court of Appeals. A three-judge panel is hearing oral arguments in St. Paul, Minn., on Tuesday, Feb. 12.
In March 2013, the Rosebud and Oglala Sioux Tribes, as well as tribal parents, brought suit against state officials in Pennington County. They claim the process for handling abuse and neglect cases routinely violates ICWA and due process rights.
State Rep. Daire Rendon has voted with the House Families, Children, and Seniors Committee to give tribal social services access to certain records that would allow them to communicate with the Michigan Department of Health and Human Services for the best interest of children in their tribe.
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.
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
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.
On December 14th, the Oklahoma Institute for Child Advocacy (OICA) hosted its first Indian Child Welfare Task Force meeting. This gathering brought together inter-tribal and state agencies with a focus on respecting the government-to-government relationship the State of Oklahoma has with each of the 38 federally recognized tribal nations headquartered in our state.
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)
The conservative Goldwater Institute is attacking the Indian Child Welfare Act again.The group has asked the U.S. Supreme Court to hear an ICWA case from California. The petition in Renteria v. Superior Court of California, Tulare County claims the 1978 law is based on “race” and should be deemed unconstitutional.
Alaska Governor Bill Walker used an appearance Thursday at the annual Alaska Federation of Natives convention in Anchorage to sign a historic compact between the State of Alaska, tribes, and tribal organizations. The compact will allow tribes and tribal organizations to provide child welfare services and programs that previously were delivered by the Alaska Office of Children’s Services.
Without comment, the U.S. Supreme Court denied a petition in S.S. v. Colorado River Indian Tribes. The action, which came in an order list on Monday morning, lets stand a decision from Arizona, where opponents of ICWA tried to undermine the landmark law by claiming it is based on “race.” The Arizona Court of Appeals rejected that contention in a January 12 decision. And the Colorado River Indian Tribes, whose attorneys participated in the case to protect two children who have been involved in a custody dispute, noted that the “race” issue has long been settled.
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.
Paxton filed a lawsuit Wednesday in federal district court arguing that the Indian Child Welfare Act (ICWA), which dates back to 1978, is unconstitutional and should be struck down. The lawsuit is on behalf of a non-Native American foster family from Texas that wants to adopt a Native American boy.
Madison, Wis. (Oct. 16, 2017) – More than 350 court, child welfare, school, tribal representatives, and legal professionals from across Wisconsin will join forces Oct. 18-20 in Elkhart Lake to find better ways to serve youth and their families involved in the child welfare and juvenile justice systems.
Research and data from states tell us that American Indian/Alaska Native (AI/AN) children are disproportionately represented (or overrepresented) in the child welfare system nationwide, especially in foster care. This means that higher percentages of AI/AN children are found in the child welfare system than in the general population. The overrepresentation of AI/AN children often starts with reports of abuse and neglect at rates proportionate to their population numbers, but grows higher at each major decision point from investigation to placement, culminating in the overrepresentation of AI/AN children in placements outside the home. One study found that, due in large part to systematic bias, where abuse has been reported AI/AN children are 2 times more likely to be investigated, 2 times more likely to have allegations of abuse substantiated, and 4 times more likely to be placed in foster care than White children.
Bonnie Littlesun is raising eight children, all but one of whom are her grandkids, and she wouldn’t have it any other way.
“They’re crazy,” she said, laughing. It was midmorning and she had a brief break while her grandbaby slept and the others were at school. The kids range in age from 13 months to 18 years old.
The North Dakota Department of Human Services’ Child Support Division recently received the 2017 Partnership Award
from the National Tribal Child Support Association for its collaboration with tribal child support programs in accessing federal offset payments that support tribal children and families. “Partnerships with other jurisdictions are vital in child support. Borders shouldn’t be barriers when it comes to supporting children and families,” said Jim Fleming, the state’s child support director
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?’”
The number of lawsuits alleging Mormon church leaders failed to protect children from sexual abuse has grown to include two more Navajos and a member of the Crow Tribe.
Thousands of American Indian children, most of whom were Navajo, participated in a now-defunct church-run foster program from the late 1940s until around 2000. The program was meant to give children educational opportunities that didn’t exist on the reservations.
The lawsuits contend certain foster families harmed children.
“So they turned to this policy of trying to close down the boarding schools and they turned toward a policy of trying to turn over the education and care of Indian children to the states,” says Jacobs.
While there were some American Indians working for the BIA in the ‘50s and some sympathy to the problems of Indian families, says Jacobs, “there were rarely any American Indian people working in the state bureaucracies. And there were rarely any people trained to have any sensitivity to American Indian societies or concerns. So this move to change the jurisdiction over Indian children to the states was a move that contributed to greater numbers of Indian children being removed from their families, fostered by white families and eventually moved into the adoption system.”
Jacobs says a close examination of the records shows that 25 percent to 35 percent of Indian children were removed from their families.
The seventh annual Indian Child Welfare Act Conference is scheduled Thursday at the Silver Star Convention Center at Choctaw.
Tribal leaders and as many as 200 attorneys, judges, social workers and other professionals who deal with Native American children in a youth court setting are expected to attend the conference.
Under the Indian Child Welfare Act, parental rights can only be severed if it is found beyond a reasonable doubt that the children are at severe risk of harm. Testimony to this fact must come from expert witnesses, and under tribal law, it must be proven that an effort was made to keep children with their biological parents.
According to Rideout, application of the Indian Child Welfare Act in custody cases such as this would be detrimental to the children involved. Rideout this week filed an appeal of CRIT’s [Colorado River Indian Tribes] decision with the U.S. Supreme Court.
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.
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.
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
In recognition of the tireless advocacy of the many child welfare workers, foster parents, volunteers and family members who care for Native children in state custody, tribal nations have been promoting National Foster Care Month to raise awareness about the need for more Native foster homes in the United States.
WASHINGTON, April 13, 2017 — Lawyers, judges, social workers and advocates will explore developments in the children’s law field during four conferences sponsored by the American Bar Association Center on Children and the Law the week of April 24. Among the topics covered will be immigration, psychotropic medications, the Indian Child Welfare Act, child sex trafficking, a national legislative agenda and shaken baby syndrome.
Cloaking its efforts in the language of civil rights, Goldwater has launched a coordinated attack against ICWA alongside evangelical and anti-Indian-sovereignty groups, adoption advocates, and conservative organizations like the Cato Institute. Since 2015, Goldwater has litigated four state or federal cases against ICWA, and filed several briefs in support of other cases. Goldwater’s stated goal is to have the US Supreme Court strike down ICWA as unconstitutional. The implications go far beyond child welfare: Many tribal members fear that if Goldwater is successful, it could undermine the legal scaffolding of Native American self-determination.
A coalition of California tribal governments, including two from the North Coast, say the state has taken a ‘monumental’ step toward addressing systematic failures to protect tribal civil rights in child custody cases.
Butte County State’s Attorney Cassie Wendt presented to the Butte County Commission during its March 21 meeting, delineating to the commission the county’s rise in Indian Child Welfare Act (ICWA) cases and the added expense the county has shouldered in recent months.
On appeal, A.T. contended that the order should be reversed because the Department did not comply with the Indian Child Welfare Act (ICWA) notice requirements. First, when there is “reason to know” the child is an Indian child, the juvenile court must ensure that the Department sends notice to any identified Indian Tribe. Second, the court must “[t]reat the child as an Indian child, unless and until it is determined on the record that the child does not meet the definition of an ‘Indian child.’” Here, the Department did not meet its obligation to provide notice of the proceedings to any of the Apache Tribes. The juvenile court did not address whether the Department used due diligence to identify and work with an Apache Tribe to verify whether L.L. was a member or was eligible for membership and did not treat L.L. as an Indian child pending the Tribes’ verification.
This past Monday morning (March 13) in a courtroom in Alameda County I witnessed three non-Native attorneys and a non-Native judge make the decision to end reunification and move towards terminating Allen Kepa’s parental rights. It was a broken day for Native American children and Native American Parents. The Honorable Judge Ursula Jones spoke about this child not considering her father as family. Heartbreaking.
March 17 – Yesterday, the federal District Court for the District of Arizona dismissed A.D. v. Washburn, a case brought by the Goldwater Institute challenging the Indian Child Welfare Act’s (ICWA) application to Native children in the Arizona foster care system. This case was an attempt by a special interest group to dismantle the law that has protected thousands of Native children and families nationwide.
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.
One might be surprised to know that the removal of Indian children from their families is still going strong, seemingly unabated. For example, in Pennington County, South Dakota, the state has removed more than 1,000 children from their Native American families since 2010. A 2013 class action lawsuit and a 2015 validation by Chief Federal District Court Judge Jeffrey L. Viken revealed that Pennington County officials were not only removing the Indian children “on grounds not based on evidence,” but holding hearings in state court within 48 hours of removal and denying parents access to legal counsel, the right to testify, or notice of why their Indian children were taken. According to the American Civil Liberties Union, the hearings lasted [from] 60 seconds up to five minutes, “and the state won 100 percent of the time.”
The National Council of Juvenile and Family Court Judges (NCJFCJ) has selected the Central Council Tlingit & Haida Indian Tribes of Alaska Child Dependency Court as one of six new courts to join their Implementation Sites Project, which helps to improve outcomes for abused and neglected children and their families.
In March 2015, Chief Federal District Court Judge Jeffrey L. Viken confirmed what our complaint had alleged: State employees were removing children from their homes and then holding hearings in state court within 48 hours, in which parents were not assigned counsel to represent them, were not given a copy of the petition accusing them of wrongdoing, and no state employee was called to testify. Moreover, the parents were not permitted to testify, call witnesses, or cross-examine any state employee. The hearings typically lasted fewer than five minutes — some were done in 60 seconds — and the state won 100 percent of the time.
The Indian Child Welfare and Wellness Conference will be held Feb. 22-24 at the Baymont Inn and Suites in Mandan.
The Native American Training Institute will host the 16th annual conference, which will cover child welfare issues, juvenile justice, cultural and tribal relations, as well as child behavioral health.
Two years ago, Tarnowski attended a training in Duluth given by the National Child Welfare Resource Center on Legal and Judicial Issues. Stories of historical trauma that have helped lead to that disparity, and also what led to the creation of the Indian Child Welfare Act, were shared, Tarnowski said, creating “a little fire in my belly.”
“I wanted to try something new,” she said.
With the help of the University of Minnesota Duluth’s Center for Regional and Tribal Child Welfare Studies, she formed a group of area public and tribal child welfare workers, from reservations ranging from Grand Portage to White Earth, to meet regularly over lunch. That group helped inform the new court. It also has helped build stronger relationships and understanding between everyone involved, said Brenda “Bree” Bussey, project director of the UMD Center for Regional and Tribal Child Welfare Studies.
With the number of American Indian children in Minnesota foster care reaching “unacceptable” levels, the state pledged Thursday to spend $400,000 over the next three years to reduce those numbers.
The announcement comes after a Star Tribune report found that Minnesota has more Indian children in foster care than any other state, including those with significantly larger Indian populations. Less than 2 percent of children in Minnesota are Indian, but they make up nearly a quarter of the state’s foster care population — a disparity that is more than double the next-highest state.
South Dakota and Pennington County officials filed an appeal Friday challenging U.S. District Court rulings that ordered changes in their handling of temporary custody hearings involving Native American children.
In a case that has national implications for how state courts are supposed to conduct 48-hour custody hearings involving Native American children a federal judge has given one county in South Dakota very specific guidelines for how to conduct themselves.
The U.S. Supreme Court declined on Monday to hear a foster family’s challenge to the adoption of their former foster daughter under the Indian Child Welfare Act.
National Indian Child Welfare Association (NICWA) has released a new online Introduction to ICWA course. It features the basics of ICWA, including the Bureau of Indian Affairs’ guidelines published December 12, 2016. The course uses an interactive platform designed to keep the learner engaged through teachings on the basics provisions of ICWA, case scenarios for application, and a comprehensive course assessment. Completion of the course results in a print-ready certificate, including 4.5 Continuing Education Units accredited by the National Association of Social Workers.
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).
The Comprehensive Child Welfare Information System (CCWIS) final rule was published in the Federal Register on June 2, 2016. The CCWIS final rule replaces the Statewide/Tribal Automated Child Welfare Information System (SACWIS/TACWIS) requirements to address changes in child welfare practice and advances in information technology that have occurred since the regulations were published in 1993.
South Dakota and Pennington County officials must make changes in their handling of temporary custody hearings involving Native American children as the result of judgments issued Thursday by the U.S. District Court.
UMD’s Center for Regional and Tribal Child Welfare Studies, which is part of the Department of Social Work, will serve as the grant’s lead organization and will work with six other organizations including courts, child welfare agencies, and tribes, to determine the most successful methods to help children and families.
“The important thing to remember is that you’re not saving these children,” Walksalong said. “You’re helping them.”
Walksalong began in October working as CASA’s Indian Child Welfare Act program coordinator. Part of her job is helping programs like the Center for Children and Families and Child and Family Services, understand the cultural background of Native American children.
From the National Indian Child Welfare Association:
The Substance Abuse and Mental Health Services Administration is accepting applications for Systems of Care grants to support mental health services and systems for children, youth, and families in tribal communities.
The purpose of this infrastructure program is to provide tribal communities with the tools and resources to implement or expand a community-based, coordinated system of care model for children’s mental health.
Applications filed now are for funding beginning in October 2017.
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.
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.
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.
Utah tribal leaders gathered in the community of Wendover, Utah to discuss issues that would affect tribes at the state and national level, such as the Indian Child Welfare Act and voting issues that includes inefficient polling sites and a lack of language interpreters to aid non-English speaking Navajo people in San Juan County, Utah.
State and federal law protect the rights of Native American children even when one of their parents is not Indian. That’s the word today from the Washington state Supreme Court.
The children have recovered from their injuries, but they now are innocent victims of a custody battle that pits their relatives in Visalia, Calif., against relatives in the Shingle Springs Band of Miwok Indians in Placerville, Calif.
The case in U.S. District Court in Sacramento is being closely watched because a federal judge has ruled that Visalia residents Efrim and Talisha Renteria, who are Sharnae Cuellar’s uncle and aunt, should have temporary custody of the three children.
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…..
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.
The University of North Dakota Department of Social Work has received a $2.4-million grant from the U.S. Department of Health and Human Services to support implementation and evaluation of the Indian Child Welfare Act (ICWA) in North Dakota over the next five years.
UND is partnering in this grant with the Children and Family Services Training Center, the North Dakota Supreme Court, the North Dakota Bureau of Indian Affairs, the North Dakota Division of Children and Family Services, the Native American Training Institute, the Spirit Lake Nation and the Standing Rock Nation. The CFSTC is housed in the UND Department of Social Work; the Center provides training for all child welfare workers across the state and will develop new training on best practices in ICWA implementation.
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
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.
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.
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.
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.
Local Native American tribes are creating their own child foster care system in response to problems statewide in implementing the Indian Child Welfare Act, put in place to ensure native children are placed in Tribal homes.
The Yurok Tribe and Tolowa Dee-ni Nation are developing a Title IV-E program that would allow them federal funding to cover foster payments and services and give them greater autonomy.
The tribes, represented by Alaska Legal Services Corp., had alleged defendants North Star Behavioral Health Center and Christy Lawton, director of the Alaska Office Children’s Services, had improperly warehoused foster children at the [psychicatric hospital] facility for indefinite periods of time.
The case has angered many within the American Indian adult adoptee community, who believe the law should be upheld and strengthened. Their protest on Friday is one of many protests across the country as the litigation moves forward.
The issuances by the Department of the Interior of non-binding guidelines in 2015 and of legislative rules in 2016 are opportunities for states to promptly examine their current practices and standards and voluntarily adopt the guidelines and regulations as enforceable state requirements. New York State is an example of a state that has evidenced support for implementation of the [Indian Child Welfare] Act, but in a number of respects its current requirements fall short of the federal recommendations and rules. This Note urges states, with jurisdictions such as New York taking a leadership role, to act now to adopt the guidelines and regulations. Doing so will conform existing state practices to best practices and federal standards and, importantly, signal a strong commitment to the Act and to the best interests of Indian children, tribes, and families.
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.
The courts in California have determined that the 1978 law applies to a Choctaw Nation girl who has been placed with relatives in Utah. But a non-Indian couple — aided by an attorney who has tried to weaken ICWA — has insisted on fighting.
The battle will continue after the California Supreme Court on Thursday refused to review the girl’s placement. The non-Indian couple quickly vowed an appeal.
WASHINGTON, Sept. 10 — The Government Accountability Office has issued a report on the Department of Health and Human Services assistance to tribes in implementing the another planned permanent livin…
The Indian Child Welfare act is a unique piece of legislation that governs the settlement of family law cases for children of Native American descent. Critics allege, however, that its definition of who counts as a Native American, as well as several other aspects of the law, can often work against children’s best interests. The ICWA can end up placing children in danger, sometimes in pursuit of no particular tribal goal at all. Critics counter that the ICWA is a needed corrective after many decades of deliberate erasure of tribal heritage, and that whatever faults the law may have, something like it is still necessary to preserve the integrity of Native American cutures.
Joining us to discuss this controversial law are Timothy Sandefur, Vice President for Litigation at the Goldwater Institute; Professor Matthew L. M. Fletcher of Michigan State University; Professor Kristen Carpenter of the University of Colorado; and Cato Institute Senior Fellow Walter Olson.
The state of South Dakota has been violating the due process rights of Indian parents and a provision of the Indian Child Welfare Act for decades ruled a federal judge last year and continues to violate them.
Justice Antonin Scalia’s death impacts Indian country in dramatic ways. Last term, the most critical tribal court jurisdiction appeal to hit the Supreme Court of the United States in decades was affirmed by a 4-4 tie in favor of tribal jurisdiction. The court declined certiorari in a pair of tribal labor relations cases where there was a gaping circuit split, possibly because the justices foresaw yet another 4-4 tie. The next justice may be the deciding vote in cases that bring the same questions, but bigger cases involving the Indian Child Welfare Act(ICWA) are in the pipeline.
Although the proceeding only involved one child, it’s being closely watched because the non-Indian foster couple is being represented by the Goldwater Institute. The conservative-leaning organization, which is based in Arizona, has launched a public relations and legal campaign aimed at undermining and even invalidating the landmark Indian Child Welfare Act.
Minnesota has more American Indian children in foster care than any other state, including those with significantly larger Indian populations, according to a Star Tribune analysis of federal and state data. Less than 2 percent of children in Minnesota are Indian, but they make up nearly a quarter of the state’s foster care population — a disparity that is more than double the next highest state.
Critics complain that ICWA is a race-based statute that improperly limits the options of Indian children based on their race. But no matter how you look at it, that’s just wrong. First, Indian status is not “racial” but rather “political” as a matter of law. The closest analogy to the Cherokee Nation is not a racial group like African Americans or Latinos, but rather a government like the state of Oklahoma, albeit a government that is unique because of its culture and history.
Gov. Bill Walker has signed into law bills intended to help foster youths and ease adoption in Alaska.
Among other elements, House Bill 200 implements portions of the Indian Child Welfare Act that ease the adoption process for tribal members adopting a child of the same tribe. The bill also allows up to four legal proceedings involved in adoption cases to be combined under the purview of one judge.
When it was first passed into federal law nearly 40 years ago, the Indian Child Welfare Act was a beacon of hope for many in the Native American community who considered the legislation a civil rights victory. But a lack of compliance from child welfare agencies has led a tribal task force in California to find that neither the federal nor state versions of the act are being properly carried out.
Dear Tribal Leader:
We would like to invite you and/or your child welfare designee to trainings on the recently published final regulations governing the Indian Child Welfare Act (ICWA). The final ICWA rule was published in the Federal Register on June 14, 2016 (see 81 Fed. Reg. 38778), and takes
effect on December 12, 2016.
As many tribes noted in their comments on the rule, training is essential to ensuring that this new rule meets its potential for strengthening implementation of ICWA and reinforcing ICWA’s protections for families and youth. This Department-hosted training will focus on providing information on the new rule’s requirements for State courts and agencies and the role of tribes in the procedural and substantive protections afforded it. …
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)
On Friday, July 8, 2016, the Court of Appeal of the State of California – Second Appellate District upheld a lower court’s decision in R.P. et al. v. J.E. et al. that used the Indian Child Welfare Act as its basis to remove a four-year-old female child from her non-Native foster family.
We have twice remanded the matter because the lower court used an incorrect standard in assessing good cause. The dependency court has now correctly applied the law governing good cause, considering the bond Alexandria has developed over time with the P.s, as well as a number of other factors related to her best interests. Those other factors include Alexandria’s relationship with her ex tended family and half-siblings; the capacity of her extended family to maintain and develop her sense of self-identity, including her cultural identity and connection to the Choctaw tribal culture; and the P.s’ relative reluctance or resistance to foster Alexandria’ s relationship with her extended family or encourage exploration of and exposure to her Choctaw cultural identity.
Because substantial evidence supports the court’s finding that the P.s did not prove by clear and convincing evidence that there was good cause to depart from the ICWA’s placement preferences, we affirm.
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.
From the National Indian Child Welfare Association (NICWA):
The National Indian Child Welfare Association is pleased to announce that we are hosting an informational webinar on the newly announced Indian Child Welfare Act (ICWA) regulations on
Thursday, June 23, 2016, at 12:30 p.m. Pacific/3:30 p.m. Eastern.
On June 8, 2016, the Bureau of Indian Affairs released the first legally-binding federal guidance on how to implement ICWA. The regulations will go into effect 180 days from the date of their release, providing time for state agencies, private agencies, and state courts to prepare for their implementation.
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.
RULES AND REGULATIONS DEPARTMENT OF HEALTH AND HUMAN SERVICES
Office of the Secretary
Administration for Children and Families
(6/2/16)
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.
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.
Imagine a foster child finally getting a permanent home, but having to leave her friends and teachers behind to make that happen. Upturning one part of a child’s life to create stability in another part happens too often with foster children. We owe it to Alaska children in foster care to make their transition back to their home or to new homes, whether temporary or permanent, as seamless and supported as possible.
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.
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.
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.
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.
A judge in South Dakota has agreed to pay $50,000 in sanctions in an Indian Child Welfare Act case. Judge Jeff Davis did not admit to “concealing” information sought by the Oglala Sioux Tribe and the Rosebud Sioux Tribe, two of the plaintiffs in the case. But he agreed to pay attorney’s fees for failing to turn over key documents that explain how the state courts handled proceedings involving Indian children.
In the United States, Native American children were torn from their tribes and families and forced to assimilate into white culture for decades. The upcoming documentary “Dawnland” explores the harm these policies created and how some of these practices still persist today.
Tester’s bill, the Tribal Youth and Community Protection Act, will reestablish the ability for tribes to arrest and prosecute any offender for drug related crimes, domestic violence against children, and crimes committed against tribal law enforcement officers.
“Tribal communities must have every tool they need to protect themselves from folks who traffic illegal drugs and harm children in Indian Country,” Tester said. “This bill gives tribes certainty and provides tribal law enforcement with the tools they need to police and prosecute every criminal in their community.”
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.
This is a critical time for Indian Child Welfare Act (ICWA), our nation’s keystone federal law protecting Indian children. As you’ve already heard this morning and will hear more about during the conference, there is a lot of exciting activity in this area, at the federal, state and tribal level. Federal engagement is at unprecedented levels. But in recent years, we’ve also seen increasing attacks on the statute and on tribal sovereignty more generally. The need for all of us to engage on these issues has never been greater.
Background from Westlaw: State filed petition to terminate the parental rights of mother and father to their purportedly Indian children. Father sought transfer of proceedings to Tribal Court. Prior to juvenile court’s ruling on motion to transfer, the state withdrew its motion to terminate parental rights. The Separate Juvenile Court, Lancaster County, Reggie L. Ryder, J., found that good cause existed to deny request to transfer jurisdiction because the proceedings were in an advanced stage. Father appealed.
Holdings from Westlaw: The Supreme Court, Wright, J. , held that:
1 because state did not meet its burden of establishing good cause to deny transfer of proceeding to tribal court, juvenile court abused its discretion in denying father’s motion to transfer;
2 determination that the foster placement or termination of parental rights proceeding involving an Indian child is at an advanced stage is no longer a valid basis for finding good cause to deny a motion to transfer jurisdiction to a tribal court; and
3 Supreme Court would decline state’s invitation to change its prior holding that the best interests of an Indian child may not be considered when determining whether good cause exists to deny transfer of a foster placement or termination of parental rights proceeding to a tribal court.
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.
In a major decision on child support, the Alaska Supreme Court stopped a Parnell administration effort against tribal rights that lingered during Gov. Bill Walker’s reign.
The court ruled unanimously Friday in a case going back to the beginning of the decade that tribes have authority over child support. The court directed the state to enforce tribal support orders like it does those issued by other states, even if one of the parents isn’t a tribal member.
The Native American Journalists Association (NAJA) is disheartened by some of the mainstream reporting on the recent adoption case involving a Choctaw Nation child and a non-Native adoptive couple in Los Angeles County.
A California couple’s fight to reunite with a 6-year-old foster child who was taken from their home last week because she is 1/64th Choctaw Native American has cast a spotlight on the Indian Child Welfare Act.
The law has been long hailed as a protective tool for Native American communities by some and criticized as misinterpreted and misguided by others.
The Native American Law Student Association (NALSA) at the University of South Dakota School of Law will hold its Indian law symposium March 30-31 entitled “The Indian Child Welfare Act: Old and New Challenges.” The free event in the law school courtroom is open to the public.
On Monday, March 21, pandemonium broke out in Santa Clarita, California, at the home of foster couple Summer and Russell Page as social workers from the Department of Children and Family Services arrived to pick up a 6-year-old girl who was being held by the couple in defiance of a court ordering her returned to relatives after a five-year custody battle.
On Friday, February 19, Viken denied South Dakota’s motion to reconsider a prior decision, holding that the state violated the ICWA and denied Native parents their constitutional rights.
When children are taken out of their homes due to neglect or abuse, they’re under the responsibility and jurisdiction of the State Office of Children’s Services.
Now, through an agreement signed Wednesday night at the Elizabeth Peratrovich Hall between the State of Alaska and Central Council of the Tlingit and Haida Indian Tribes of Alaska, the Central Council will be able to take over child welfare cases of tribal children.
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.)
Citing a “fundamental lack of competence,” a federal judge on Friday, February 19 denied South Dakota’s motion to reconsider an earlier decision, which found the state violated the Indian Child Welfare Act (ICWA) and denied Indian parents their Constitutional rights. In March 2015, Judge Jeffrey Viken issued a partial summary judgment in favor of the plaintiffs in Oglala Sioux Tribe v. Luann Van Hunnik regarding emergency removal hearings, also known as “48-hour hearings,” in Pennington County, South Dakota.
The class action case is now in its third year, having been filed in March 2013 by three Indian mothers and the Oglala and Rosebud Sioux Tribes in South Dakota to address ongoing violations in that state. According to tribal officials and advocacy groups, approximately 750 Indian children a year are swept into foster care, sometimes for months on end, with virtually no compliance with state and federal law.
For decades, Indian parents in Pennington County have been refused court-appointed counsel as stipulated in ICWA, the right to speak in their own defense, cross-examine witnesses or present evidence at the emergency hearings, many of which lasted less than 90 seconds, their suit alleged. They were also denied the right to review the secret petitions filed against them, documents which are routinely available only to the judge.
From the National Indian Child Welfare Association:
On February 12, 2016, the Children’s Bureau of the U.S. Department of Health and Human Services announced two tribal consultation calls regarding a new round of Title IV-E Foster Care program development grants. Title IV-E funds placement activities related to foster care, relative guardianship, adoption, and independent living services.
There have been fewer than expected tribes participating in the program to date. The consultations will provide interested tribes with information on the Title IV-E program and a chance to share their concerns or questions regarding Title IV-E and the development grants.
The bureau will hold tribal consultation calls to discuss this opportunity on two dates:
Tuesday, March 8, 2016 (11:00 am PT; 2:00 pm ET)
Thursday, March 10, 2016 (11:00 am PT; 2:00 pm ET)
The call-in number for both consultation calls is: 1-888-220-3087, Passcode: 8699239
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
Synopsis provided by Westlaw: In adoption proceedings in which Indian tribes intervened, claiming the child at issue was an Indian child protected by the Indian Child Welfare Act (ICWA), the 7th Judicial District Court, Bonneville County, Ralph L. Savage, Magistrate Judge, determined that child was not an Indian child, granted adoption, and granted attorney fees against tribes. Tribes appealed.
Holdings from Westlaw: The Supreme Court, W. Jones, J., held that:
1) any error in trial court’s failure to find that child was an Indian child subject to the ICWA was harmless;
2) trial court abused its discretion by compelling discovery with respect to application by child’s father for Indian tribe membership;
3) trial court abused its discretion by enjoining tribes from processing or filing any enrollment for tribal membership on behalf of child; and
4) trial court order granting attorney fees in favor of adoptive parents violated tribes’ sovereign immunity.
The Children’s Bureau conducted a review of the states’ 2015–2019 Child and Family Services Plans (CFSP) and prepared a report titled “States’ Consultation and Collaboration with Tribes and Reported Compliance with the Indian Child Welfare Act: Information from States’ and Tribes’ 2015–2019 Child and Family Services Plans.” This report was prepared in response to a request made by the Health and Human Services Secretary’s Tribal Advisory Committee (STAC) for additional data regarding state consultation with tribes and implementation of the Indian Child Welfare Act (ICWA). The report summarizes information related to state implementation of ICWA, and consultation and collaboration with tribes. The report also includes information reported in a sample of tribes’ CFSPs pertaining to ways in which states consulted and collaborated with tribes.
America’s multibillion-dollar adoption industry and its allies seek to undermine ICWA’s enforcement by filing lawsuits they hope to take to the Supreme Court. If successful, the lawsuits would deny tribes of their right — and their duty — to look after the welfare of their children.
A federal judge on Friday questioned the legality of statutes that give tribal courts the right to decide adoption and foster care placement of Native American children who have never lived on the reservation.
Rucinski & Reetz Communication unveiled last week its video titled “Missing Threads: The Story of the Wisconsin Indian Child Welfare Act.” The hour-long documentary represents nearly three years of work and “explores the connection between family, tribal culture and children, and the consequences of severing those ties,” said Susan Reetz, a partner in the communication firm.
On Thursday a federal judge in the Eastern District of Virginia dismissed a suit challenging both the constitutionality of the Indian Child Welfare Act and the new federal guidelines that were implemented last February by the Bureau of Indian Affairs, citing a lack of subject matter jurisdiction and standing in the case.
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.
U.S. Bureau of Indian Affairs officers escorted two children off an American Indian reservation in Montana where their grandmother brought them amid a custody dispute, bringing the federal government into a clash between state and tribal courts.
Tekamuk Training and Events, a wholly-owned enterprise of the Mesa Grande Band of Mission Indians, has joined forces with Columbia Law School, the Native American Rights Fund (NARF), and the National American Indian Judges Association to present the Indian Child Welfare Summit, a major national conference on the Indian Child Welfare Act (ICWA), December 7-9 in St. Paul, Minnesota.
SAULT STE. MARIE, Mich. (AP) — An organization designed to improve links between tribal, state and federal courts is focusing on American Indian child welfare and domestic violence crimes during a two-day gathering.
Two children who were disenrolled by the Pala Band of Mission Indians cannot be protected by the Indian Child Welfare Act, a California appeals court ruled on Tuesday.
The tribe formally objected in July 2009 when K.P. and Kristopher were put up for adoption. Their mother, Michelle T., is enrolled.
But sometime during the proceedings, the tribe disenrolled the children. As a result, they are no longer considered “Indian,” the court determined.
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.
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.
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.
The failure to protect children has a damaging impact on the quality of life on Indian reservations. Native youth are 2.5 times more likely to be victims of abuse or neglect than youth of other ethnicities. Children exposed to violence are more likely to abuse drugs and alcohol and suffer from depression, anxiety, and post-traumatic disorders. These issues may compound or lead to failures or difficulties in school and delinquent or criminal behavior.
The [American Bar Association] ABA is urging Congress to follow the recommendations of recent reports by the U.S. Justice Department and the Indian Law and Order Commission that call for giving American Indian and Alaska Native tribes more authority to exercise criminal jurisdiction and apply their own remedies in cases that occur on tribal lands, especially when they involve children
In court filings Friday, attorneys for the Bureau of Indian Affairs and the state Department of Child Safety federal agency acknowledged the Indian Child Welfare Act does require state courts when placing Indian children for adoption to give preference to a member of the child’s extended family. That is followed by priority by other members of the child’s tribe and, ultimately, other Indian families.
But they told U.S. District Court Judge Neil Wake that Congress had a valid reason for approving the law.
HHS’ Administration for Children and Families, Office of Family Assistance awarded $1.8 million to eight tribes and tribal organizations in Alaska, Montana, California and Washington to help strengthen vulnerable families through the tribal Temporary Assistance for Needy Families (TANF) child welfare coordination grants. The grants fund tribes to demonstrate models of effective coordination between tribal TANF programs and child welfare services for low-income tribal families at risk of child abuse or neglect.
For nearly four decades, couples wishing to adopt American Indian children out of troubled situations have faced several hurdles, including giving the child’s tribe a chance to find suitable tribal parents first.
Now some prospective adoptive parents, Indian birthparents and members of the adoption industry are challenging the laws and regulations involved.
This annual conference will include the following tracks:
Data and Research: Learn about current research in the fields of Indian child welfare, children’s mental health, and youth development. Learn how to use and share data.
Child Welfare, Foster Care, and Adoption Services: From grant writing for child welfare programs to implementing differential response and identifying best practices in family team decision making, explore topics including providing effective prevention services and planning for youth engagement.
Children’s Mental Health: Leaders in the field of children’s mental health will share experience and information on the issues that impact Indian children everywhere.
Youth and Family Involvement: Learn to engage youth and families involved with systems in an empowering, strengths-based way. Gain insight on trauma-informed methods of engaging youth and families in productive ways; learn steps to developing successful youth leaders.
Legal Affairs and Advocacy: Learn about tribal, federal, and state laws and policies and how they are implemented.
The Pala Band of Mission Indians is the first tribe in California to receive clearance to conduct LiveScan background checks for tribal foster homes under new State law (Senate Bill 1460). The tribe is also the first to apply to the Bureau of Indian Affairs’ Office of Justice Services (BIA-OJS) program, Purpose Code X, to assist tribal services agencies within federally recognized tribes that are seeking to place children in safe homes during an emergency situation, when parents are unable to provide for their welfare.
The Native Nations Institute at the University of Arizona and the National Indian Child Welfare Association have released a report detailing the second part of a study on tribal welfare codes designed to protect children and youth….
Based on the study’s findings, the team affirms that:
· To help protect children from abuse and neglect, 70 percent of the tribal codes make specific requirements for reporting suspected child abuse and neglect.
· To ensure paternal rights and responsibilities, 60 percent of tribal codes create processes for establishing or acknowledging paternity.
· Whereas the Indian Child Welfare Act acknowledges that tribes may take jurisdiction over their children, 61 percent of tribal codes assert explicit jurisdiction over tribal citizen children on and off the reservation.
Oct. 1, 2015. Keeping tribal children in their tribal communities is the solution to improving regional child welfare, according to a Tribal-State Child Welfare panel yesterday during the Association of Village Council Presidents 51st Annual Convention at the Bethel Cultural Center.
Fourteen tribes and tribal organizations received demonstration grants from the Office of Family Assistance for Coordination of Tribal TANF and Child Welfare Services to Tribal Families in 2011. The purposes of these grants were to provide innovative and contextually relevant approaches to coordinating services between welfare and child welfare systems. The grantees were expected to provide one or more of the following services: (1) improved case management; (2) supportive services and assistance to tribal children in out-of-home placements; and (3) prevention services and assistance to tribal families at risk of child abuse and neglect. This report summarizes grantees’ midterm experiences with direct services and inter-agency coordination gleaned from interviews, observations, and document reviews.
Earlier this month, the U.S. Department of Health and Human Services awarded the tribe a $300,000 grant to create an independent tribal-run family services program for enrolled Omaha members.
“We know what’s best for our children and our youth,” Omaha Tribal Council Chairman Vernon Miller said Thursday. “The federal government recognizes that.”
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.
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.
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
Race is ugly business. The business of race can be seen in the higher rates of incarceration of black Americans. It is in the higher rates black Americans and Native Americans are killed by law enforcement. It is an aspect of our existence that we created, and one that has no basis in fact. George F. Will attempts to attack the issue of racial separation by targeting the Indian Child Welfare Act (ICWA). He fails.
When we talk about “blood-stained” laws, we should talk about the history of the treatment of Native Americans: laws of genocide, sterilization, forced removal and assimilation; compulsory boarding schools; underfunding of critical health care; and a trail of broken promises.
By treating children, however attenuated or imaginary their Indian ancestry, as little trophies for tribal power, the ICWA discourages adoptions by parents who see only children, not pawns of identity politics. The Goldwater Institute hopes to establish the right of Indian children to be treated as all other children are, rather than as subordinate to tribal rights.
CASA (Court Appointed Special Advocates) of Cherokee Country is a local volunteer program that recruits and trains community volunteers to serve as advocates for abused and neglected children in juvenile deprived proceedings, an volunteers are greatly needed….CASA volunteer child advocate training will be offered to individuals age 21 or older in October. Certification will be granted upon completion of the 30-hour training course and six hours of courtroom observation.
Aug. 19, 2015 – Assistant Secretary, Indian Affairs Kevin K. Washburn today announced a new Bureau of Indian Affairs’ Office of Justice Services (BIA-OJS) program to assist federally recognized tribal social services agencies seeking to place children in safe homes.
The Bureau of Indian Affairs will help tribes conduct background investigations to ensure children are being placed in safe homes. The agency’s Office of Justice Services will be on-call 24 hours a day for tribal social services agencies. They will be able to check the names of adults before placing children in a foster or temporary home.
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:
Synopsis of recent attacks on the Indian Child Welfare Act (ICWA)
How can tribes and allies work together to help defend ICWA
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.
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
Aug. 4, 2015 – Senator Jon Tester, a former teacher and Vice Chairman of the Indian Affairs Committee, today is introducing a bill that will help recruit and retain more teachers in Indian Country to eliminate the teacher shortage that is widening the achievement gap for Native American students.
On August 4, 2015, the American Bar Association House of Delegates unanimously adopted Resolution 113, which adopts and urges prompt implementation by the Administration, Congress, and state and tribal governments of specific recommendations contained in the November 2014 report of the U.S. Attorney General’s Advisory Committee on American Indian/Alaska Native Children Exposed to Violence…
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.
The federal Administration for Children and Families has awarded a $980,514 grant to the Head Start early child education program operated by the Suquamish Tribe. Suquamish Head Start will receive $980,514 a year for five years.
September 11, 2015 (White Cloud, KS): 14th Annual Native Nations Law Symposium. The Sac and Fox Nation of Missouri in Kansas and Nebraska presents the 14th annual Native Nations Law Symposium. The symposium includes an overview on the Indian Child Welfare Act – Revised Bureau of Indian Affairs Guidelines for State Courts & Agencies. Learn more and find a registration form at the Turtle Talk blog.
This must-attend conference will address the past, present and future of the Indian Child Welfare Act of 1978, emphasizing the need for education, reform and implementation of the Act. Tribal leaders, tribal members and professionals in the legal field will benefit from this comprehensive conference.
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.
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.
“We want to spend a moment to celebrate the successful reunification of families in foster care and honor the professionals who work in this field,” Sankaran began. “This is one of many celebrations across the country but the only one in the state. We are proud as a community to put together this event and this is something we believe in.”
More than 1,000 Native American children gathered Thursday for the first-ever Tribal Youth Gathering at the White House, where first lady Michelle Obama called them precious and sacred members of society.
“Each of you was put on this Earth for a reason. Each of you has something that you’re destined to do, whether that’s raising a beautiful family, whether that’s succeeding in a profession or leading your community into a better future,” she said. “You all have a role to play and we need you.”
“At this point it is pretty clear that anti-ICWA advocates, who primarily represent adoption interests, have started a coordinated attack on ICWA,” said Kate Fort, Staff Attorney and Adjunct Professor for the Indigenous Law and Policy Center at Michigan State University College of Law. “They are looking for cases of opportunity in courts across the country by inserting themselves and trying to make the same constitutional arguments against ICWA. But this lawsuit will absolutely hurt vulnerable children and families in our state child welfare systems. Their claims that ICWA’s protections are substandard is simply not true. ICWA’s standards are considered the gold standard of child welfare practice. To say these lawsuits to dismantle ICWA are in the best interest of the child is really contrary to what is considered best practices by child welfare professionals.”
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.
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.
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.
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.
This complaint goes directly at the right of tribes to determine their tribal citizenry. From this paragraph on, the complaint bases everything on the “child’s race” or “Indian ancestry” and their “unequal treatment” under ICWA…
Goldwater Institute to File Class Action Lawsuit Against Indian Child Welfare Act
Phoenix—Tomorrow, Tuesday, July 7, the Goldwater Institute will launch a new project to reform the Indian Child Welfare Act and similar state laws that give abused and neglected Native American children fewer rights and protections than other American children. Part of this project will be a class action lawsuit.
“When an abused child is removed from his or her home and placed in foster care or made available for adoption, judges are required to make a decision about where the child will live based on the child’s best interest. Except for Native American children. Courts are bound by federal law to disregard a Native American child’s best interest and place the child in a home with other Native Americans, even if it is not in his or her best interest,” said Darcy Olsen, president of the Goldwater Institute. “We want federal and state laws to be changed to give abused and neglected Native American children the same protections that are given to all other American children: the right to be placed in a safe home based on their best interests, not based on their race.”
On July 7, the Goldwater Institute will file a federal class action lawsuit to challenge the constitutionality of core provisions of the federal Indian Child Welfare Act. The same day, the Institute will release an investigative report that documents how federal law leaves Native American children with fewer protections under the law than all other American children, and the serious consequences that have resulted from this unequal treatment. Recommendations for changes to state and federal law will also be announced.
The final report of the Maine Wabanaki‑State Truth and Reconciliation Commission (TRC) was released at a closing ceremony on June 14 in Hermon. In their letter in the final report, the five commissioners… state that to improve Native child welfare, Maine and the tribes must continue to confront underlying racism still found in state institutions and the public; the ongoing impact of historical trauma on Wabanaki people; and differing interpretations of tribal sovereignty and jurisdiction that “make encounters between the tribes and the state contentious.”
Senator Jon Tester, Vice-Chairman of the Indian Affairs Committee, today held a committee hearing on efforts to prevent youth suicide in Indian Country.
During the hearing, Tester heard from administration and tribal leaders about the lack of resources accessible to Native American youth struggling with mental health issues.
For more than a century, the governments of Canada and the United States pursued a policy of forcible removal of indigenous children from their homes and communities. The Truth and Reconciliation Commission of Canada recently released a report on these removal practices, recognizing them to be part of a policy of “cultural genocide.”
On June 14 the Maine Wabanaki-State Child Welfare Truth and Reconciliation Commission released its own official findings on the widespread removal of Wabanaki children in that state. This is not a story unique to Maine or Canada, nor is it a story of the past. These removals occurred throughout the United States and continue today. According to the Maine Wabanaki TRC, indigenous children are five times more likely than non-indigenous children to be removed from their homes. Nationally, there are similar disparities in foster care and adoption rates, leading one United Nations human rights body in 2014 to express “concern over the continued . . . removal of indigenous children through the U.S. child welfare system.”
The organizations will work together to provide early childhood training for teachers and service providers in underserved rural Native American communities…. The program will impact more than 660 Native families and their children across six tribal nations.
Congress has before it several pieces of legislation that could have major impacts on the education of American Indian, Alaska Native and Native Hawaiian children.
The bills include exemption from budget cuts, Native Language Immersion Student Achievement Act, Native American Languages Reauthorization Act, Building up Unique Indian Learning, Native Hawaiian Education Reauthorization Act, Native American Indian Education Act, and American Indian Teacher Loan Forgiveness Act. Read the full article at the Indian Country Today Media Network website.
A local Native American couple wishing to place their newborn with a non-native family has filed a federal lawsuit challenging the constitutionality of Minnesota’s adoption law, which they say could hinder their ability to make that decision.
Senator John Barrasso (R-WY), Chairman of the Senate Committee on Indian Affairs, praised the Senate’s passage of S. 184, the Native American Children’s Safety Act and S. 246, the Alyce Spotted Bear and Walter Soboleff Commission on Native Children Act.
Highlights of the Native American Child Safety Act:
The legislation:
Applies to tribal foster care placement of Native American children for the purpose of ensuring the safety and well-being of those children
Requires that all prospective foster care parents and adults living in the home undergo a background check prior to the placement of a Native American foster care child
Requires that background checks include checking for criminal activity as well as checking child abuse and neglect registries
Requires that adults who join the household after the foster care child has been placed there also undergo background checks
Requires that foster care homes undergo recertification periodically, to ensure they remain safe for foster care children
The bill sets out that the Department of Interior will work with Tribes, as well as Indian Country, to establish necessary procedures to ensure that these safety standards for foster care children are established
The bill requires the Bureau of Indian Affairs, which currently does not conduct these background checks in every case when placing Native American foster care children in foster care homes, follow these same requirements when acting on behalf of the Tribes
The United States Senate unanimously passed bipartisan legislation introduced by Senator Lisa Murkowski and Senator Heidi Heitkamp (D-ND) to create a Commission on Native American Children that would efficiently combine and coordinate the federal government’s resources and expertise to best address the complicated threats and challenges facing Alaska Natives, Native Americans and Native Hawaiians.
The same critics of ICWA that assert that ICWA far exceeds its original purpose; do not understand that ICWA is the only federal law that requires a fair process that considers the unique needs of Indian families and children, and requires consideration by state and private child welfare agencies and courts.
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.
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.
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.
A husband-wife team from two Washington, D.C., law offices filed suit Wednesday challenging strict new government guidelines for adopting Native American children in the aftermath of a landmark 2013 U.S. Supreme Court ruling.
Throughout the day, one after the other, witnesses on both sides had pulled back and forth in a tug-of-war regarding perhaps the most seminal issue confronting American Indian tribes in the 21st century: The right to raise their own children in their home communities.
The debates at the public hearings reopened old grievances and unhealed wounds at the core of an ongoing conflict over Indian children that has been raging for more than 500 years. Beginning with the Spaniards, who landed in the West Indies in the late 15th century, Indian tribes have been at war over possession of their children with one power after another—including the British, the French, the Dutch and the United States—ever since.
Chief Justice David Gilbertson issued an order this week removing Judge Jeff Davis as presiding judge of the 7th Circuit, a position the 67-year-old Davis had held since 2006.
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.
These proposed regulations will provide much needed guidance and consistency in state court proceedings involving Indian children. These regulations, supported as they are by ICWA and the great weight of federal Indian law, provide balance and clarity between competing interests, and are well within the authority of the Department of the Interior to promulgate.
U.S. Rep. John Kline, R-Minn., will be chairing a House Education and the Workforce Committee hearing Thursday to examine the federal government’s mismanagement of Native American schools, including in northern Minnesota, according to a release from his office.
[G]rants ranging from $25,000 to $150,000 per fiscal year are available for federally recognized tribes and their education departments. The grants are designed to help tribes assume control of Bureau of Indian Education (BIE)-funded schools in their communities, promote tribal education capacity, and provide academically rigorous and culturally appropriate education to Indian students on their reservations and trust lands.
They come to Pine Ridge every few years, these suicide epidemics, with varying degrees of national media attention and local soul-searching. What the news media often misses though, and what tribal members understand but rarely discuss above a whisper, is that youth suicides here are inextricably linked to a multigenerational scourge of sexual abuse, with investigations into possible abuse now open in at least two of the nine recent suicides.
The nation’s largest constituent group of adoption attorneys, law professors and judges submitted a 45-page response to the Bureau of Indian Affairs (BIA) concerning the Indian Child Welfare Act (ICWA), a federal law established in 1978. The BIA announced earlier this year its attempt to amend the federal law. The AAAA’s formal response outlines a series of concerns the organization has with the BIA’s proposed amendments. The response, submitted to the U.S. Department of Interior, points out constitutional issues, as well as concerns addressing the Department’s possible violation of its statutory authority to develop such regulations.
“The first week of hearings and consultations demonstrated a tremendous groundswell of support in Indian Country,” said Dr. Sarah Kastelic. “It’s exciting to see the momentum created by such a diverse cross section of our communities. Foster and adoptive parents, Native adoptees, foster youth, attorneys and law professors, child psychologists, families still searching for displaced relatives, and staff from state agencies all stood up to express their support for the proposed regulations. Their message is clear. Our children need these protections.”
May 13th, 2015. The Lakota People’s Law Project released a 35-page report today that reveals how private institutions and their cozy relationships with those in the highest seats of power in South Dakota are responsible for the daily violations of the Indian Child Welfare Act and the systemic human rights abuses against the Lakota population in Indian Country.
A South Dakota state judge and other defendants have filed motions requesting a federal judge reconsider his ruling in which he found state officials in Rapid City set policies that violate the federal Indian Child Act Welfare Act.
Today, the Subcommittee on Early Childhood, Elementary, and Secondary Education held a hearing to discuss the educational challenges impacting American Indian and Alaska Native (AI/AN) students and schools. The hearing entitled “Examining the Challenges Facing Native American Schools” is the first hearing exploring this topic since 2008.
There were more than a few teary eyes in the governor’s conference room on Thursday, when Gov. Bill Walker announced plans for a significant overhaul to Alaska’s adoption process for Alaska Native children.
The move comes after a high-profile Alaska Supreme Court case added potentially impossible-to-clear hurdles to the federal Indian Child Welfare Act’s provisions that Alaska Native children be adopted to extended family or tribal members.
“With the Indian Child Welfare Act, we can look at the glass as half-empty or half-full,” said Dr. Diane Hammons, assistant professor of criminal justice at NSU. “We can say we’ve made strides and come a long way, or we can say there is still a lot of work to be done. There are a lot of judges and adoption agencies and attorneys who don’t know ICWA exists.”
Read the full article about ICWA coverage at the 43rd Symposium on the American Indian (Northeastern State University, Oklahoma) at the Tahlequah Daily Press website.
Washington tribes and the country’s largest group representing Native Americans are asking for state and federal help in getting background checks when a tribe needs to place a child with a foster parent in an emergency situation.
The state’s Children’s Administration, a division of the Department of Social and Health Services, had conducted the criminal background checks for the tribes for years. But Jennifer Strus, the agency’s assistant secretary, sent a letter to the tribes in June saying that service would no longer be provided effective July 1, 2014.
On Monday, March 30 a federal judge issued a landmark decision affirming that officials in South Dakota violated numerous provisions in the Indian Child Welfare Act (ICWA) and denied Indian parents their rights under the Due Process Clause of the Constitution. Referencing widespread and systemic failure to protect the integrity of Indian families, Judge Jeffrey Viken issued a partial summary judgment in favor of the plaintiffs in Oglala Sioux Tribe v. Luann Van Hunnik on seven issues before the court regarding emergency removal hearings, also known as “48-hour hearings,” in Pennington County, South Dakota.
The federal funding [to the Turtle Mountain Indian Reservation in North Dakota] will support Early Head Start and Head Start programs as the tribe works to improve its governance, children’s health and safety and provide comprehensive early education services to improve school readiness for American Indian children, according to a news release. The funds will support the programs over the course of five years.
The USDA says the tribe will help feed children through the At-Risk Children’s Feeding Program on the campus of the Chickasaw Nation Medical Center in Ada. A child who is examined or has a routine appointment at the medical center is provided a nutritious, healthy meal if the child is hungry.
“The federal government’s unwillingness to hear from those groups who have been in the field for many years working directly with those families and children who will be negatively impacted by these guidelines is alarming,” said [American Academy of Adoption Attorneys President] Goldheim. “As a nonprofit organization comprised of child welfare experts, we are committed to the ethical practice of adoption law. It is our mission to support and advocate for the rights of families and to consider the interest of all parties, especially children. Sadly, there are entire sections of the newly published BIA guidelines that completely disregard the best interest of children.”
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….
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.
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.
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.
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.
The federal government and the state of Michigan show concern over potential separation of Indian children from their families and tribes through the Indian Child Welfare Act (ICWA) and the Michigan Indian Family Preservation Act (MIFPA), which include adoptive placement preference requirements for individuals seeking to adopt Indian children.
Those laws again came into play in a recent opinion of the Michigan Court of Appeals which reversed the adoption of an Indian child by a non-Indian family where an Indian family had filed a delayed petition to adopt the same child.
March 23, 2015, WASHINGTON, D.C. – U.S. Senator Heidi Heitkamp today reintroduced her bipartisan bill to ease the financial challenges of adopting children in tribal communities in North Dakota and across the country.
In all 50 states, parents who adopt children with special needs are able to claim the full adoption tax credit, helping to reduce the financial cost of adoption. However, if they open their homes to a child with special needs from Indian Country through tribal courts, that child cannot receive the same designation – preventing adoptive parents from claiming the full adoption tax credit. Heitkamp reintroduced the bipartisan Tribal Adoption Parity Act with Republican Senator James Inhofe from Oklahoma, to allow tribal governments to designate children as having special needs – just as states can – enabling adoptive parents to claim the full adoption tax credit.
SCOTTSDALE, Ariz., March 26, 2015 /PRNewswire-USNewswire/ — The Commission to Eliminate Child Abuse and Neglect Fatalities (CECANF) held a public meeting on tribal lands today at the Talking Stick Resort in Scottsdale, Arizona. The focus of the meeting was for Commission members to explore key issues related to addressing and preventing child abuse and neglect fatalities in Indian Country. It included presentations and discussions on the impact of growing up in the midst of multi-generational trauma and loss within native communities, jurisdictional considerations, challenges and successful strategies, data collection, best practices and effective interventions. Speakers included tribal leaders, federal agency representatives, and practitioners.
The Department of the Interior will be conducting tribal consultations and public meetings on the proposed rule through May 2015 to facilitate input and comment on the proposed rule. Meeting times and dates are listed below.
Comments can be submitted via any of the following methods:
• By e-mail to comments@bia.gov (please include “ICWA” in the subject line of the message),
• By postal service or hand-delivery to Ms. Elizabeth Appel, Office of Regulatory Affairs & Collaborative Action – Indian Affairs, U.S. Department of the Interior, 1849 C Street, N.W., MS-3642-MIB, Washington, D.C. 20240; Phone (202) 273-4680, or
• At www.regulations.gov.
Public Meetings (open to everyone)
Wednesday, April 22, 2015 — 9 a.m. – 12 p.m. — Portland, Oregon
BIA Northwest Regional Office
911 NE 11th Ave Portland, OR 97232*
Thursday, April 23, 2015 — 1-4 p.m. — Rapid City, South Dakota
Best Western Ramkota Hotel
2111 N Lacrosse St Rapid City, SD 57701
Tuesday, May 5, 2015 — 1-4 p.m. — Albuquerque, New Mexico
National Indian Programs Training Center
1011 Indian School Road, NW Suite 254 Albuquerque, NM 87104*
Thursday, May 7, 2015 — 1-4 p.m. — Prior Lake, Minnesota
Mystic Lake Casino Hotel
2400 Mystic Lake Blvd Prior Lake, MN 55372
Tuesday, May 12, 2015 — 1 p.m.-4 p.m. Eastern Time
Via teleconference
888-730-9138
Passcode: INTERIOR
Thursday, May 14, 2015 — 1-4 p.m. — Tulsa, Oklahoma
Tulsa Marriott Southern Hills
1902 East 71st Tulsa, OK 74136 Tribal Consultation Sessions
Tribal consultation sessions are for representatives of current federally recognized tribes only, to discuss the rule on a government-to-government basis with the Department. These sessions may be closed to the public.
Monday, April 20, 2015 — 3:30-5:30 p.m. — Portland, Oregon
Hilton Portland & Executive Towers
921 SW Sixth Avenue Portland, OR 97204
(at the same location as NICWA conference)
Thursday, April 23, 2015 — 9 a.m.-12 p.m. — Rapid City, South Dakota
Best Western Ramkota Hotel
2111 N Lacrosse St Rapid City, SD 57701
Tuesday, May 5, 2015 — 9 a.m.-12 p.m. — Albuquerque, New Mexico
National Indian Programs Training Center
1011 Indian School Road, NW Suite 254
[*Please RSVP for the Portland and Albuquerque meetings via consultation@bia.gov. As these are federal buildings, bring photo identification and arrive early to allow for time to get through security. No RSVP is necessary for the other locations.]
When the federal government opened foster-care assistance to Native American tribes in 2008, more than 80 expressed interest in the program.
By 2014, however, just 27 tribes had applied and only five had been approved for the federal program, their efforts hobbled by a lack of resources, inflexibility by federal bureaucrats and cultural insensitivity, according to a Government Accountability Office report.
“The state has requested an additional 30-day extension because the administration needs additional time to determine its response to the issues raised in the petition and the amicus brief,” Jacqueline Schaffer, an assistant attorney general with the Alaska Department of Law, told KNBA.
The class action lawsuit, which involves the first 48 hours after an Indian child is taken from his or her family, alleges the State of South Dakota regularly violates the Constitutional Rights of Indian parents and provision 1922 of the Indian Child Welfare Act during the “show cause” hearing. The case, OST et. al vs Van Hunnik et. al., being heard in the Federal Courthouse in Rapid City before Chief U.S. District Judge Jeffery Viken, was filed two years ago by ACLU attorneys Dana Hanna and Stephen Pevar on behalf of the Oglala and Rosebud Sioux Tribes and all Indian parents in Pennington County against the Department of Social Services, Judge Jeff Davis and the States Attorney Mark Vargo. Last week attorneys argued on the scope of judicial privilege when it comes to conversations Davis had with other judges and his staff. Plaintiffs have asked for “discovery” of those conversations.
In a speech at the 2015 National Anti-Hunger Policy Conference today about the extent of childhood hunger in America and the impact of USDA programs on reducing food insecurity, Agriculture Secretary Tom Vilsack announced more than $27 million in grants to fund innovative projects designed help end childhood hunger. The announcement was part of USDA efforts during National Nutrition Month to focus on poverty and food insecurity among children, especially in rural areas. These projects will be tested in Kentucky, Nevada, and Virginia, as well as the Chickasaw and Navajo tribal nations.
Chief U.S. District Judge Jeffrey Viken delayed a ruling on whether … 7th Circuit Judge Jeff Davis, of Rapid City, would have to turn over records of his discussions with other 7th Circuit judges…. Viken’s ultimate decision may be a key ruling in the 2-year-old lawsuit brought by the Oglala Sioux and Rosebud Sioux tribes and Native American parents against Davis, the South Dakota Department of Social Services officials and Pennington County State’s Attorney Mark Vargo.
A major development in tribal child welfare policy was announced on February 25, 2015. The Bureau of Indian Affairs announced that it had revised–effective immediately–the Guidelines for State Courts and Agencies in Indian Child Custody Proceedings for the first time since 1979. NICWA is hosting a free webinar on Friday, March 13, 2015, at 10 a.m. PDT to explain the revisions.
Since the passage of the Indian Child Welfare Act (ICWA) in 1978, there has been increasing movement to enhance state policy to support ICWA and address several of the challenges to American Indian and Alaska Native (AI/AN) children’s well-being. The efforts that have proven most successful have been initiated by tribal governments and AI/AN Indian organizations in collaboration with state governments. After providing some history on ICWA and the problem of noncompliance, this article describes specific examples of promising developments in the area of tribal-state collaboration. Through enhanced partnership, tribes and states can work together to not only address the pervasive problem of ICWA noncompliance, but also work toward strengthening other programs and policies.
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.
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.
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.
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.
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.
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.
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.
The updated guidelines, said Washburn, will provide much-needed clarity and comprehensive direction in for [sic] determining whether a child is an Indian child, identifying the child’s tribe, and notifying its parent and tribe as early as possible before determining placement. Further, they will provide clear instruction on the application of “active efforts” to prevent the breakup of the Indian family and provisions which carry the presumption that ICWA’s placement preferences are in the best interests of Indian children.
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).
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…
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.
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.
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…
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.
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…
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…
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…
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…
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…
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…
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…
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…
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…
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…
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…
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…..
The National Indian Child Welfare Association (NICWA) Board of Directors welcomed Sarah Kastelic as new executive director of the organization this week. Dr. Kastelic has served NICWA as both chief of staff and deputy director for the past four years. She assumes the role as part of a carefully designed succession and leadership transition plan. Dr. Kastelic replaces founding director Terry Cross, who now becomes a NICWA senior consultant and will continue to serve the organization.
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.
“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.”
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…
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…
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…
Today, after the public apologies and restitution over the government’s residential school system, disproportionately high rates of aboriginal child apprehensions continue across Canada.
“There are more First Nation children in care today than during the height of residential schools,” said Shawn Atleo, former National Chief of the Assembly of First Nations. “We cannot lose another generation to the mistakes of the past. First Nations are the youngest and fastest growing segment of the population. We are the future. This is about Canada’s future.”
“The Condition of Education for Members of Oregon’s Indian Tribes” was a study completed by ECONorthwest and the Chalkboard Project. The Spirit Mountain Community Fund paid for the study, which looked at students enrolled in seven of Oregon’s federally recognized tribes, including the Klamath Tribes.
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…
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…
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…
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…..
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….
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.
From kindergarten retention to high school graduation rates, education data show that American Indian and Alaskan Native students are faring the worst of all U.S. ethnic groups, according to a new White House report on Native youth.
In any child custody proceeding involving Indian children, all parties should understand there are significant legal and procedural requirements that must be met before parental rights to Indian children may be terminated. The federal government and the State of Michigan show concern over potential separation of Indian children from their families and tribes through the Indian Child Welfare Act (ICWA) and the Michigan Indian Family Preservation Act (MIFPA), which require a heightened evidentiary standard. This heightened evidentiary standard is supplemented by additional procedural requirements contained in the Michigan Court Rules.
At the conclusion of the White House Tribal Nations Conference in Washington, D.C. this month, U.S. Attorney General Eric Holder briefly outlined the plan to require more compliance with ICWA.
“This federal initiative represents a long overdue recognition by the Department of Justice that, 38 years after Indian Child Welfare Act was enacted into law, the illegal and unnecessary removal of Indian children from their families continues,” said A. Gay Kingman, executive director of the Great Plains Tribal Chairman’s Association in Rapid City.
Each year, the National Indian Child Welfare Association (NICWA) hosts the largest national gathering on American Indian and Alaska Native child advocacy issues. With over 800 attendees, this three-day conference attracts attention across North America, creating a space where participants can learn about the latest information across Indian Country in child welfare.
Pledging to fulfill a “sacred responsibility,” President Barack Obama unveiled an initiative Wednesday aimed at improving dire conditions and creating opportunities for American Indian youth, more than a third of whom live in poverty.
The removal of indigenous children from their cultures by colonial governments is recognized by the United Nations as a form of cultural genocide. The trauma is recognized, pervasive, and long term. Yet the practice continues in the United States despite federal laws designed to end it. It would seem that the routine removal of Native children from their families and culture has been, and is, part of the American culture. The intent to protect Indian children, to give them a better life (understood in this context as “a white life”), is offered in the spirit of Colonel Richard Henry Pratt—chief architect of the Indian boarding school system—whose motto was, “Kill the Indian, save the man.”
Elise wanted her granddaughter, but after nearly six years in court fighting to assert her rights under federal law, time was not on her side. The Inupiaq elder, who has eight children and 26 grandchildren, had steadfastly refused to give up on a child whom she felt needed—and deserved—to be raised by her own family in Tununak, a Yup’ik village on the westernmost edge of the American continent.
Though many points of the case are in dispute (if they were not, there would be not disagreement), in the interest of clarity and to offer our readers the state’s position as accurately as possible, we present here the unvarnished bulk of the rebuttal.
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.
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.
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.
During his remarks on December 3, 2014, Attorney General Eric Holder announced a new initiative to promote compliance with the Indian Child Welfare Act :
Under this important effort, we are working to actively identify state-court cases where the United States can file briefs opposing the unnecessary and illegal removal of Indian children from their families and their tribal communities. We are partnering with the Departments of the Interior and Health and Human Services to make sure that all the tools available to the federal government are used to promote compliance with this important law. And we will join with those departments, and with tribes and Indian child-welfare organizations across the country, to explore training for state judges and agencies; to promote tribes’ authority to make placement decisions affecting tribal children; to gather information about where the Indian Child Welfare Act is being systematically violated; and to take appropriate, targeted action to ensure that the next generation of great tribal leaders can grow up in homes that are not only safe and loving, but also suffused with the proud traditions of Indian cultures.
Around the country, juveniles on reservations are left to languish in cash-strapped facilities that cannot afford to provide the kind of rehabilitative services afforded to most young offenders in the United States. Because some reservations have no juvenile detention centers, offenders often are shipped to facilities far from their homes, compounding the isolation of incarceration.
Toward that end, the LTBB Head Start Center employs a language teacher to teach children and staff their Native language of Anishinaabemowin. Sometimes the kids are so excited that they go home and teach their parents, a practice that has resulted in the center receiving calls from parents inquiring about the meaning of common words.
In addition, each year LTTB Head Start plans a trip to the tribal government building where the children sing to the elders. Tribal ceremonies are also held and traditional holidays are observed with families and the community. Parents, elders and Head Start staff have even made traditional regalia for each child to use during pow-wows and the local parade that celebrates tribal sovereignty.
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.
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.
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.
Ensuring access to safe, good and affordable child care is crucial for helping to lift low-income parents out of poverty and build futures for their children. The child care bill signed on Wednesday by President Obama is a bipartisan step in the right direction, and it holds promise for further progress.
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.
Read the Attorney General’s Advisory Committee on American Indian and Alaska Native Children Exposed to Violence 120-page report on the Washington Post website.
The Nebraska Supreme Court ruled Friday that a lower juvenile court erred in failing to apply a federal law that seeks to prevent the removal of Native American children from their homes to a Nebraska case involving three Native American children.
Nov. 12, 2014 – The Centers for Medicare & Medicaid Services (CMS) today awarded $3.9 million for outreach and enrollment efforts aimed at American Indian and Alaska Native children eligible for Medicaid and the Children’s Health Insurance Program (CHIP). The grant awards will fund activities to engage schools and tribal agencies in Medicaid and CHIP outreach and enrollment activities.
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.
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.
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.
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.
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.”
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.
The Michigan Tribal State Federal Judicial Forum convened October 27-28 in Petoskey to review and adopt its charter and address the importance of judicial leadership in child welfare issues. The Forum was created by Michigan Supreme Court Administrative Order in June and is the first entity of its kind to meet since the previous Tribal State Court Forum was created in 1992.
An article describing a recent social welfare conference at Chadron State College includes some ICWA references:
During a panel discussion following the keynote, William Cross of Gordon, Nebraska, social worker with the ICWA ONTRAC office in Pine Ridge, South Dakota, challenged the Oglala Sioux tribe and CSC to collaborate more often to support Native American children.
The Michigan Tribal State Federal Judicial Forum, which was created this year and held its first meeting in Petoskey this week, provides an ongoing venue for all three jurisdictions to convene and improve working relations and communications. A priority for the Forum is addressing child welfare issues, and ensuring that our courts systems are meeting the needs of Native children and families in a way that’s culturally sensitive and appropriate in accordance with the Indian Child Welfare Act of 1978 (ICWA).
Background provided by Westlaw: Child dependency proceeding was commenced. The Superior Court, Mendocino County, Nos. SCUKJVSQ 13–16775, SCUKJVSQ 13–16776, SCUKJVSQ 13–16777, Cindee F. Mayfield, J., issued order setting a permanent plan hearing, and mother petitioned for extraordinary relief.
Holdings provided by Westlaw: The Court of Appeal, Rivera, J., held that:
1) Court of Appeal would apply substantial evidence review, and
2) evidence was sufficient to support finding that County Health and Human Services Agency made active efforts required by the Indian Child Welfare Act.
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.
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.
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 ]
On October 17, 2014, the Winnebago community celebrated the grand opening of Educare Winnebago, a new state-of-the-art early childhood education school that ultimately will serve 191 children on the Winnebago Indian Reservation in northeastern Nebraska. The school is the first Educare in a Native American community, the fourth Educare in Nebraska and the 20th Educare in the country.
The 183 schools are spread across 23 states and fall under the jurisdiction of the Interior Department’s Bureau of Indian Education. The schools serve about 48,000 children, or about 7 percent of Native-American students, and are among the country’s lowest performing.
They are in some of the most out-of-the-way places in the country; one is at the bottom of the Grand Canyon, reachable by donkey or helicopter. Most are small, with fewer than 150 students.
Native American children are disproportionally represented in child welfare. Efforts to effect change must be culturally competent and protect the best interests of Indian children and strengthen Native families. This month, we look at cultural adaptations of trauma treatments, research on the use of social services by urban American Indian families, and a guide to help CASAs [court appointed special advocates] advocate for Native children.
Two tribes of the Lakota Sioux Nation in South Dakota Indian Country have been awarded planning grants by the Department of Health and Human Services, marking a historic moment in the ongoing effort to stop the illegal State seizure of Lakota children by creating an independent tribal-run family services program administered for Lakota, by Lakota.
In a split decision, the Alaska Supreme Court has ruled against the village of Tununak, which was appealing a lower court’s decision that allowed an Alaska Native infant to be adopted by non-Native parents rather than giving custody to her extended biological family in the tiny Western Alaska community.
The Supreme Court’s ruling this month upholds an earlier Superior Court ruling that concerns about the baby girl’s well-being trumped legal preferences built into a federal law designed to keep children from being adopted away from their Native American communities when possible.
Citing a U.S. Supreme Court ruling on a similar case, three of the Alaska Supreme Court justices said the lower court was correct in letting a non-Native couple in Anchorage adopt the girl, because an approved member of her biological family had not officially filed to adopt her. Two of the justices disagreed, saying that was not enough reason to override the Native preference.
On September 12, 2014, the Alaska Supreme Court issued a decision that will effectively bar most Alaska Native families from asserting their rights under the Indian Child Welfare Act (ICWA) and in doing so will increase the number of Native children severed from their families and culture.
In the Native Village of Tununak II v. the State of Alaska, the Alaska Supreme Court ruled that in order to be considered as an adoptive placement option for children in State custody, family members and other Native families must file formal adoption petitions in State Superior Court. The Alaska Supreme Court held that the United States Supreme Court’s decision last year in the Baby Veronica case required this new rule.
State, county, and tribal leaders from Minnesota gathered at Fortune Bay Resort Casino on Thursday [Sept. 25] to talk about what they are calling a crisis of Indian children.
Native Americans account for one percent of Minnesota’s population. However, Native American children are four times more likely to live in poverty than the state’s white children, and one and seven are placed in foster care, according to tribal leaders.
[September 19, 2014] Last night, the U.S. Senate passed the Preventing Sex Trafficking and Strengthening Families Act, bipartisan child welfare legislation aimed at reducing child sex trafficking, increasing adoptions and improving child support collections. The bill includes a number of proposals from legislation introduced by U.S. Senator Orrin Hatch (R-Utah) last September (S. 1518, the Improving Outcomes for Youth at Risk for Sex Trafficking Act, I O Youth). After passing the Senate last night and the House of Representatives in June, the Preventing Sex Trafficking and Strengthening Families Act will be sent to President Obama to be signed into law.
Increase the depth of your understanding of the Indian Child Welfare Act of 1978. Take the National Indian Child Welfare Association’s online ICWA training course at your own pace. The provisions of ICWA are explained in non-legal language and presented in the order in which a child welfare worker might encounter them in an ICWA case.
Geared toward those who work in, or study, the out-of-home placement of Indian children, the course will resonate with social workers, tribal social service agency directors and boards, state and county social workers and supervisors, training personnel, professors, and students.
Learn what led to ICWA’s enactment and be equipped to explain ICWA to those unfamiliar with its purpose
Be confident in knowing principles of good social work, including how handle a case involving an Indian child in compliance with ICWA
Acquire the information needed to handle the out-of-home placement of an Indian child
Identify cultural factors to consider when handling cases involving Indian children and families
Upon successful completion of the course earn a certification of completion
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.
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.
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.
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.
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.
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.
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.
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.
Indian Child Welfare Act of 1978: A Court Resource Guide
This court resource guide was written by a special committee formed by the Michigan Supreme Court to help Michigan judges learn about the federal Indian Child Welfare Act of 1978, the need for states to comply with the Act, and discuss its implementation in Michigan.
ICWA Special Committee
State Court Administrative Office
July, 2012
Federal officials got a firsthand look at one deteriorating Native American school in Minnesota Tuesday–they said it’s one of many suffering similarly throughout the country.
After touring Bug-O-Nay-Ge-Shig School in Bena, Minnesota, Secretary of Interior Sally Jewell said it’s just one example of how the country is letting down it’s Native American students.
Read the full article and watch the video at the WDIO 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.
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….
Lac du Flambeau hopes to provide more support for families and kids in its foster care system. The state of Wisconsin has signed an agreement allowing the tribe to access a new stream of federal funding. The Title IV-E program is the federal government’s foster care program. Until recently, funds from that program have gone to the state of Wisconsin and its counties, but have never been funneled to the tribes. That’s changing, now that officials have signed an agreement allowing that money to flow directly to the tribe’s foster care administration.
August 18, 2014. In what is being called a rare move, the Department of Justice last week threw its support behind two South Dakota tribes and two Native American mothers that have accused state officials of violating the Indian Child Welfare Act by taking custody of their children for 60 days after only a brief hearing.
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.
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.
On Wednesday, July 23, 2014, the House of Representatives unanimously approved H.R. 4980, the “Preventing Sex Trafficking and Strengthening Families Act.” This bipartisan, bicameral bill reflects agreements reached between House and Senate leaders on three separate bills designed to prevent sex trafficking of children in foster care, increase adoptions from foster care, and increase child support collections for families, among other purposes.
Imagine entering family court and knowing that what’s at stake is the person you hold most dear – your child. Now imagine having a judge tell you that he’s removing your child from your custody, from your home. When you ask him why, the judge’s replies, “I honestly can’t tell you.” The judge then signs an order giving custody of your son to Social Services.
You might think that such a court proceeding could never happen in the United States – but you’d be wrong.
The Alaska Supreme Court ruled Friday in support of an Interior tribal court in a child custody and tribal sovereignty case that was contested by Gov. Sean Parnell’s administration.
The case, Simmonds v. Parks, started almost six years ago as a custody dispute in the Village of Minto, a town of 200 people about 130 road miles northwest of Fairbanks.
[Vice-president of the National Alliance for Drug Endangered Children, Lori] Moriarty spoke to a gathering of about 150 tribal officials, law enforcement officers, educators, attorneys and victims’ advocates on developing a successful collaborative response to drug endangered children at the 2014 Indian Country Conference, July 16-17 at Prairie Band Casino and Resort in Mayetta, Kansas. “I’m going to tell you today,” Moriarty said, “children plus drugs equals risk.”
…
Moriarty said one of the biggest challenges of substance abuse and drug endangered children has been competing goals between law enforcement and child welfare advocates. While the goal for child welfare advocates may be family reunification, law enforcement’s primary focus has been arrests and seizures. “Why are we not looking for the kids?”
U.S. Senators Tim Johnson (D-SD), James Inhofe (R-OK), Heidi Heitkamp (D-ND), and Lisa Murkowski (R-AK) today introduced the Tribal Adoption Parity Act. The legislation ensures parents adopting American Indian and Alaskan Native children through tribal courts are treated fairly under our nation’s tax code by making it easier for adoptive parents across Indian Country to claim the full adoption tax credit for “special needs” children.
This week 26 key decision-makers from the Spirit Lake Sioux Tribe, federal and state governments, as well as local and national private organizations met to kick off a comprehensive strategy called the “Spirit Lake Child Welfare Improvement Project.” The purpose of this gathering was to convene decision-makers to craft a vision and an initial plan for the improvement of the child welfare system at Spirit Lake.
The past 11 months have been long, hard months for a Rosebud Sioux mother named Audre’y Eby. Last August, she picked up her twin 16-year-old sons from her ex-husband’s Iowa residence to bring them to visit her home in western Nebraska, and she discovered that the special-needs boys — one is blind and autistic, and the other has cerebral palsy — had been abused.
…
Caught between the laws of two states, Eby appeared in Iowa’s Plymouth District Court before Judge Steven Andreason this past May, under threats of criminal prosecution for kidnapping in Iowa and being reported for child endangerment in Nebraska. Her ex-husband’s attorneys, she said, demanded that she immediately return the boys.
After Eby and the boys’ biological father separated in 2003, when the boys were six, she cared for them. When they turned 12, she thought they should get to know their father. “At the time it seemed like a reasonable idea,” Eby recalled. As the problems in the father’s home mounted, she fought to get the boys back, succeeding briefly in 2011. Through all the abuse and neglect findings, Iowa DHS documents reveal, the agency’s goal has generally been to reunite the twins with their father, and the courts have concurred.
The level of racism in Indian schools is astounding. But the level of its exposure is miniscule. Most of it is covered up, hidden, not talked about, and not acted upon. But the affect it has on Indian children is horrendous and debilitating.
Five South Dakota tribes have asked the federal government for financial assistance to help operate their own foster care services.
…
The Standing Rock, Cheyenne River, Yankton, Oglala and Crow Creek Sioux tribes submitted applications Monday seeking federal planning dollars to develop and operate their own programs.
The Rosebud Sioux Tribe received one of the $300,000 grants last fall and is among the first tribes in the nation to do so.
Northeastern State University is one of 11 universities nationwide to receive five-year funding of $735,000 through the National Child Welfare Workforce Institute, a service of the U.S. Children’s Bureau, a media release states.
NSU’s Department of Social Work and the Cherokee Nation Indian Child Welfare entered into a formal partnership that will assist in building a more effective and efficient bridge between both institutions that will support and enhance Cherokee Nation tribal child welfare services. This collaboration will include ongoing workforce training as well as a workforce entry and retention plan.
On Friday, June 27, the Navajo Nation made an historic pact with the U.S. Department of of Health and Human Services to execute a direct funding agreement through the Title IV-E program under the Social Security Act that will reimburse the tribe and its child welfare agencies for federally eligible foster care, adoptions and guardianships.
A congressional committee has begun investigating why child abuse and neglect persists on North Dakota’s Spirit Lake reservation, almost two years after the federal government stepped in to address the problem.
At a hearing on Tuesday, tribal leaders and officials from the Bureau of Indian Affairs and the Department of Health and Human Services are expected to be asked about ongoing allegations of abuse and neglect on the reservation, and the lack of visible progress in correcting the problems.
“Clearly the current system is failing our children,” Rep. Kevin Cramer (R-N.D.) said in a statement. “The goal of this hearing is to shine a light on the situation and promote a dialogue about solutions.”
The Seminole Tribe of Florida is currently accepting applications for a Superintendent of Education.
The person in this position will be responsible for the overall leadership, development, organization, management, operation, and implementation of Seminole Tribe of Florida’s Educational programs across departments including the Ahfachkee School, Ahfachkee Traditional Preservation, Pemayetv Emakakv Charter School, Brighton Charter Cultural Program, and the Preschool Program.
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.”
Three-year-old Elle was cleared to be adopted by her foster parents, and then was removed and placed with her uncle. See related articles at the KING website:
Statistics highlight the magnitude of the problem. Although they represent 1% of the U.S. population, Native American juveniles represent 2% to 3% of youth arrests in categories such as theft and alcohol possession. Similarly, they are committed to adult incarceration at a rate 1.84 times that of whites and are placed under the jurisdiction of the criminal justice system at a rate 2.4 times that of whites. In four states with substantial Native American populations, they represent from 29% to 42% of juveniles held in secure confinement.
Read the full article by Robert Winters, JD, Professor, School of Criminal Justice, Kaplan University, at the Corrections.com website.
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.
“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.”
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.
In the wake of Friday’s visit by President Barack Obama and First Lady Michelle Obama to the Standing Rock Sioux Reservation in North Dakota, the White House released an action plan to help strengthen and sustain at least two of Obama’s biggest initiatives in Indian country: Education and Economic Development.
Acknowledging the “crisis” in Indian education, including low educational attainment rates of Native high school students and the even lower number of college graduates in Indian country, the departments of Interior and Indian Education released a “Blueprint for Reform,” a comprehensive plan “to redesign the [Bureau of Indian Education] BIE to achieve one overarching goal: for tribes to deliver a world-class education to all students attending BIE schools,” according the Bureau of Indian Affairs.
March 17 – Yesterday, the federal District Court for the District of Arizona dismissed A.D. v. Washburn, a case brought by the Goldwater Institute challenging the Indian Child Welfare Act’s (ICWA) application to Native children in the Arizona foster care system. This case was an attempt by a special interest group to dismantle the law that has protected thousands of Native children and families nationwide.
Imagine a foster child finally getting a permanent home, but having to leave her friends and teachers behind to make that happen. Upturning one part of a child’s life to create stability in another part happens too often with foster children. We owe it to Alaska children in foster care to make their transition back to their home or to new homes, whether temporary or permanent, as seamless and supported as possible.
Read the full article at the Indian Country Today Media Network website.
Read the full article at the NICWA website.
See the October 2014 issue at the Children’s Bureau Express website.[September 19, 2014] Last night, the U.S. Senate passed the Preventing Sex Trafficking and Strengthening Families Act, bipartisan child welfare legislation aimed at reducing child sex trafficking, increasing adoptions and improving child support collections. The bill includes a number of proposals from legislation introduced by U.S. Senator Orrin Hatch (R-Utah) last September (S. 1518, the Improving Outcomes for Youth at Risk for Sex Trafficking Act, I O Youth). After passing the Senate last night and the House of Representatives in June, the Preventing Sex Trafficking and Strengthening Families Act will be sent to President Obama to be signed into law.
Learn more and register at the National Indian Child Welfare Association website.Lac du Flambeau hopes to provide more support for families and kids in its foster care system. The state of Wisconsin has signed an agreement allowing the tribe to access a new stream of federal funding. The Title IV-E program is the federal government’s foster care program. Until recently, funds from that program have gone to the state of Wisconsin and its counties, but have never been funneled to the tribes. That’s changing, now that officials have signed an agreement allowing that money to flow directly to the tribe’s foster care administration.
Read the full press release at Chairman Dave Camp’s website.
Read the full article at the NewsMiner.com website.
This week 26 key decision-makers from the Spirit Lake Sioux Tribe, federal and state governments, as well as local and national private organizations met to kick off a comprehensive strategy called the “Spirit Lake Child Welfare Improvement Project.” The purpose of this gathering was to convene decision-makers to craft a vision and an initial plan for the improvement of the child welfare system at Spirit Lake.
