Thursday, December 1, 2011

Shaken Baby Syndrome

When I was a law clerk, the year after I graduated from law school, I had the opportunity to watch two separate criminal trials where the issue was shaken baby syndrome.  In one trial, the defendant was convicted; in the other, the defendant was acquitted.  In both cases, the prosecution and defense both presented the testimony of expert witnesses on this very topic.  Needless to say, it was extremely interesting to watch and learn about.  However, it made very clear to me that the diagnoses of shaken baby syndrome is far from a medical certainty.  There are many variables that go into whether shaken baby syndrome is present in the particular child.  But even more interesting (at least to me), is the question of whether shaken baby syndrome even exists, as well as whether shaking alone can cause injury or if an impact of the head is needed.  I take no position on this, because frankly I lack the medical training to honestly evaluate it.

In the December 2011 issue of the ABA Journal, an American Bar Association publication, this very topic has been taken up.  I urge you to read it and consider the issue for yourself.  (The article is in the hard copy version of the ABA Journal, but hasn't yet been posted on their website.  Once it is, I'll add the link.)  Here is the link to the article (Updated 12/08/2011).  The ABA Journal has also written about this topic before.  This is a list of some of their other articles on the topic.

Wednesday, September 14, 2011

Identity Theft & Kids Aging Out of Foster Care

I recently attended the National Association of Counsel for Children (NACC) Conference.  At the conference, I heard in a couple of different breakout sessions about one particular problem that is facing foster kids who have aged out of the system or are about to do so.  That is the problem of identity theft.  Studies show that 1/2 of the kids in foster care in California are victims of identity theft.  Estimates are that fewer South Dakota foster care kids are victims, but any number other than zero is too many.  Making the problem even worse is that most of these kids don't discover the identity theft until they have already aged out of the system and are without support and assistance with cleaning up the problem.

While in foster care, kids' personal information, including date of birth and social security number, passes through an untold number of hands.  HHS/DSS caseworkers and supervisors, attorneys, court personnel, counselors and therapists, medical professionals, and others all come into contact with the children's files.  In addition, kinship placements, foster families, group home staff, and immediate family all get copies of the children's files.  When children's identifying information passes through so many people's hands, as well as is retained by the child's biological family, it's really not surprising that when these kids age out, they often find out that they are victims of identity theft.

So what can we do about it?  Well for one thing, we can use something other than the children's social security number as an identifier.  This would make it slightly more difficult for the identities of children to be compromised.

In addition, we can do credit checks of foster care kids when they are 16 years old, so that identity theft & credit problems can be cleaned up before they age out of the system.  Many states have already enacted legislation mandating that their states' HHS/DSS do this as part of the process of educating and preparing those kids who are about to age out of the system.  South Dakota could certainly use those states' laws as a model for legislation here.  HHS could begin doing these credit checks as part of the process of preparing foster care kids to age out, even without legislation in place.  Guardians ad litem can and should assist in this process.

Moreover, kids who are about to age out of the system need to be educated so that they can protect themselves against others taking advantage of them once they do age out.  This education needs to be very practical and pragmatic.  Topics such as how you check your credit reports, what are the implications of cosigning or taking out a loan for someone else, etc. need to be covered.  Guardians ad litem need to ensure that these kids are getting the information that they need on this front.

This is something that cannot wait.  We need to begin taking these steps immediately to protect these children from further identity theft, and to help them clean up the cases of identity theft that have already occurred.

Tuesday, September 13, 2011

Rural Practice and South Dakota

I'm from South Dakota originally, but recently relocated to Nebraska.  When I lived in South Dakota, I practiced law from Rapid City, and ventured to other, smaller towns for the occasional case.  In Nebraska, I live and practice in a much more rural setting.  Holdrege, Nebraska is a town of about 5,000 people, set in a county of about 10,000 people.  However, many of my cases come out of the surrounding counties, the county seats of which are much smaller.

When I was a law student, I distinctly remember the Chief Justice of the South Dakota Supreme Court, David Gilbertson speaking to law students about the absence of attorneys in many rural communities and the problems this was creating in the administration of justice.  I remember thinking that rural practice could be an excellent opportunity, but not having a clue as to how one would find out about rural communities in need of attorneys.

Well, the South Dakota State Bar Association has taken up the challenge of studying the decline of rural law practice through its recent announcement of the creation of the Rural Practice Task Force (see page 2 of the State Bar Newsletter).  This development has been widely reported on, both within South Dakota (see the Argus Leader's coverage), as well as more widespread national coverage (see the Wall Street Journal Law Blog's coveragesee this post from the Rural Lawyer blog, and see this post from My Shingle).

In my short time thus far practicing law in rural Nebraska, I have already heard from one judge and multiple attorneys about the need for attorneys in certain rural communities, as well as the gratitude and relief that some new attorneys are moving to more rural communities to begin their careers.  It is clear to me that this problem is certainly not limited to South Dakota.

What should be done to address the problem of 'justice denied' in rural communities?  I'm not exactly sure, but I think that the task force created by the South Dakota State Bar is an excellent first step.  I, for one, will be following the task force's activity to see what they discover.

Thursday, September 8, 2011

South Dakota Rural Areas Need Lawyers

When I was in law school, the need for attorneys to practice in rural areas was a topic much discussed among the students and the faculty.  Chief Justice Gilbertson, of the South Dakota Supreme Court, even came to the law school to discuss the issue on more than one occasion.  It looks like the Wall Street Journal has picked up the topic now.  You can access the story here, if you are interested in reading more.

Thursday, August 18, 2011

Non-Probate Assets

I have previously posted explaining (see this post) why it is necessary for everyone to have a will, and explained some of the topics that are frequently covered in in a will.  I also explained that it's important to have an attorney draft that will for you because the attorney should be familiar with state law & can customize your estate planning documents to your needs.

In that post, I didn't cover the topic of non-probate assets.  Non-probate assets are things like 401Ks, IRAs, annuities, and insurance policies.  These are called non-probate assets because they pass outside of probate court.  These assets pass directly to the person listed as beneficiary, or directly to a spouse without a beneficiary designation.

Because of non-probate assets, it is important to review beneficiary designations to determine whether those designations are still appropriate.  In addition, it is important to let your estate planning attorney know about these kinds of assets so that the attorney can make recommendations to you, in order to ensure that your estate passes as you would like it to.  This post explains in more detail why it is so important.

Tuesday, July 5, 2011

Juvenile Law: Nebraska v. South Dakota

As an attorney who was first licensed in South Dakota, and who practiced there before moving to Nebraska, I grew accustomed to South Dakota procedures in different types of cases.  As a result, becoming acquainted with how things are done in Nebraska has been an adjustment and a definite learning experience.  Juvenile law is one area where there are definite differences between Nebraska and South Dakota.  Here are just a few of the differences between the two states, and my opinion on which is superior.

SD: Different types of cases involving juveniles (abuse & neglect, juvenile delinquency, child in need of supervision, etc.) each have their own chapter of the Code, and as a result, have slightly different procedures.
NE:  Different types of cases involving juveniles are all handled under one section of the Code, and therefore have uniform procedures.
Winner: NE.  It's really nice that the cases all have identical procedures, so that the attorneys and participants in the case cannot get tripped up by some minor difference in the procedures for different types of cases.  

SD: Child's attorney appointed to represent the interests of the child in an abuse & neglect case.  Child's attorney is an attorney for the child who also advocates the best interests of the child (as they quite often are the same thing), although a Guardian ad Litem (GAL) may be appointed if the child's stated interests appear to differ from the best interests of the child.  
NE: GAL appointed to represent the interests of the child in an abuse & neglect case.  GAL represents the best interests of the child, and an additional attorney may be appointed if the child's stated interests appear to differ from the best interests of the child.  
Winner: These are essentially equivalent, although just the reverse of one another.  

SD: Department of Social Services (DSS) prepares a Report to the Court before every hearing.  The Child's Attorney does not prepare a Report to the Court.  
NE: GAL prepares a Report to the Court before every hearing.  The Department of Health and Human Services (HHS) does not prepare a Report to the Court.  
Winner: Neither state wins.  There are benefits to both systems, and therefore I would recommend that both states adopt a requirement that DSS/HHS & the GAL/Child's Attorney prepare Reports to the Court.  HHS has information such as completion of parenting classes, treatment information from parents, as well as information about contacts with the parents, that is valuable for the parties, attorneys, and the judge to consider.  However, the GAL is more of an impartial outsider to the case than is DSS/HHS, and therefore is in a better position to make recommendations to the judge as to what should happen in the case going forward.  In addition, because the GAL is an attorney, and the social worker is not an attorney, the GAL is in a better position to review the law applicable to the case & ensure that it is complied with.  

SD: The State's Attorney represents DSS's interests and may require DSS to take action.
NE: The County Attorney does not represent HHS's interests, and HHS may bring in its own attorney if HHS's recommendations are in conflict with those of the County Attorney.  
Winner: South Dakota.  SD's procedure here is much cleaner and smoother.  It makes much more sense to have the County Attorney, who represents the interests of the State on a daily basis, advocate the position of a state agency.  Likewise, it makes sense for the County Attorney to have some control over the actions of the state agency prior to the case being heard before the judge.  

So as you can see, there are differences between how juvenile cases are handled in Nebraska and South Dakota.  There are benefits to the systems of each state, as well as reasons for the different approaches.  It also makes clear how important it is to be represented by an attorney familiar with these procedures.  

Tuesday, June 28, 2011

From the Mountains to the Prairies

I recently relocated from my hometown in the Black Hills of South Dakota to Holdrege, Nebraska.  It has definitely been a change for a girl used to seeing mountains every day to go to the prairies.  However, the landscape is not the only thing that is different about living in Nebraska.

Over on my new blog, From the Mountains to the Prairies, I'll be discussing legal issues relating to Nebraska, just as I've done here on topics relating to South Dakota.  From time to time, I may post a topic on both blogs and talk about the differences between the law in Nebraska and South Dakota, as those may be of interest to readers interested in both states' law.

If you're interested in Nebraska law, I hope that you'll check out the new blog as well.  Happy reading!

Exceptional Pardon Hearing Change

I recently found out about a change from the South Dakota Board of Pardons and Paroles with how they handle exceptional pardon and other clemency hearings, and as I know these are popular topics on this blog, I thought I would pass along this information to my readers.  

It used to be that the Board of Pardons and Paroles would handle all of the applications received in a given month at the next Board meeting.  This meant that the Board's meetings were not equal in length/time, and could vary greatly depending on the volume of clemency applications received.  The Board has recently made a change in that they only handle a certain number of applications in a given month (I believe they handle 5 per meeting, but don't know this for certain).  This means that there is a backlog of applications waiting for hearings.  

As a result, the process of attempting to obtain an exceptional pardon or other forms of clemency is a lengthier process  than it used to be.  Getting an application in to the Board for consideration as quickly as possible is important, as the applications are heard by the Board in the order they are received.  

Tuesday, February 1, 2011

A Recipe for Successful & Sustainable Relationship

Quite often in my family law practice, I deal with folks whose relationships have broken down.  When the relationship falls apart, those involved are often left to wonder what went wrong, especially if the parties feel as if they put everything into the relationship.  However, this interesting article indicates that putting the relationship first may not be the best approach, as the best relationships give something back to the participants.  
Food for thought in this pre-Valentine's Day season.  

Wednesday, January 26, 2011

Inmates on Drugs

A new study in Hennepin County, Minnesota (Minneapolis) found that 70% of inmates are on drugs at the time of booking.  This article from the Minneapolis Start Tribune discusses the study & the problem.  A very interesting read for those who deal with jail inmates, or are interested in the problem of drug use/abuse and its connection with crime.

Thanks to Professor Roger Baron from The University of South Dakota School of Law for passing along the article.

Monday, January 24, 2011

Rationale for A Proposal for Amendments to the Indian Child Welfare Act

In my previous blog entry, I posted my proposal for amendments to the Indian Child Welfare Act.  As promised, this post is my rationale for that proposal, as well as a bibliography of sources for my proposed amendments and the rationale.  As with the previous post, I welcome comments.


            In 1978, Congress enacted the Indian Child Welfare Act to address the “alarmingly high percentage of Indian families […] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and institutions,” as well as the fact “that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.”[1]  In states with large Indian populations, 25 to 35 percent of all Indian children were removed from their homes and placed into foster adoptive homes at one point in their lives.[2] 

 Making the situation more alarming is that Native American children were rarely removed from their homes because of physical abuse.[3]  These children were removed and their parents judged unfit because of alleged neglect, emotional mistreatment, or abuse of alcohol.[4]  Native American parents and families were routinely judged to be unfit by non-Indian social workers and judges because these non-Indian individuals were ignorant of the traditional and cultural Indian ways of childrearing,[5] thus resulting in a disproportionate number of Indian children being removed from their families on grounds of alcohol abuse as compared to the number of non-Indian families affected by the same addiction, and evidencing an obvious cultural bias. [6]  According to Congressional findings, a main reason for the disproportionate removal of Indian children was “that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.”[7]  Judges charged with making these custody decisions “rarely received the expert testimony of native people who could familiarize [them] with traditional child-rearing practices,” but instead relied upon the testimony of non-Indian social workers who were ignorant of the ways and traditions of Native Americans.[8]  These social workers often advised courts that the abject poverty of many Indian families prevented them from properly parenting their children.[9]  “The result was oftentimes the judicial countenance of abusive practices of state welfare agencies.”[10] 

In enacting the ICWA, Congress declared its policy to be the protection of

the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimal Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.[11] 

In essence, the ICWA was designed to accomplish three objectives: (1) to eliminate the removal of Indian children from their families because of cultural bias and ignorance; (2) to assure that those Indian children who do need to be removed from their families be placed in foster and adoptive homes that reflect their unique cultures and backgrounds; and (3) to encourage tribal court adjudication of proceedings involving Indian children.[12] 

Solution in ICWA—New Problems

            The Indian Child Welfare Act of 1978 “established minimum federal jurisdictional, procedural, and substantive standards aimed to achieve the dual purposes of protecting the right of an Indian child to live with an Indian family and to stabilize and foster continued tribal existence.”[13]  It seems as if the ICWA has been a success, though it is difficult to tell because of the limited number of compliance studies that have taken place, and the limited generalizability of these compliance studies.  However, with the ostensible success of the ICWA in improving the lives of Indian children, comes also problems.  These problems arise from misinterpretation of the ICWA’s mandates, as well as from unwillingness to apply the ICWA.  These problems also arise from lack of funding and lack of clarity in the language of the ICWA and the resulting BIA Guidelines.  Only a few of the more substantial problems will be addressed here. 

            The existing Indian family exception is a judicially created doctrine holding that the ICWA does not apply to those Indian children who have never been a member of an Indian home or culture and probably never would be.[14]  Prior to the United States Supreme Court’s decision in Mississippi Band of Choctaw Indians[15], many states adopted the existing Indian family exception.  In that case, the United States Supreme Court dealt with the status of twin babies who were born out of wedlock to parents who both were enrolled members of the Mississippi Band of Choctaw Indians (Tribe) as well as residents and domiciliaries of the Choctaw Reservation.[16]  On January 10, 1986, the twins’ mother deliberately gave birth to the twins in a county some 200 miles from the reservation and executed a consent-to-adoption form in that same county.[17]  The twins’ father signed a similar form.[18]  On January 16, 1986, the Holyfields filed a petition for adoption of the twins in the same court; and the adoption proceedings were concluded on January 28 with the issuance of a Final Decree of Adoption.[19]  The adoption decree contained no reference to ICWA or mention of the twins’ Indian background, despite the Chancery Court’s apparent awareness of both.[20] 

            Two months after the Final Decree of Adoption the Tribe moved to vacate the adoption decree on the ground that the tribal court should have exclusive jurisdiction of the twins.[21]  The Chancery Court overruled the motion and held that the Tribe had “never obtained exclusive jurisdiction over the children…”[22]  That court primarily relied upon a few facts in reaching this conclusion; first, that the twins’ mother “went to some efforts to see that they were born outside the confines of the Choctaw Indian Reservation,” second, that the parents had promptly arranged for the adoption of the twins by the Holyfields, and third, that “at no time from the birth of these children to the present date have either of them resided on or physically been on the Choctaw Indian Reservation.”[23]  The Supreme Court of Mississippi subsequently affirmed the Chancery Court’s decision.[24]  That court stated that,

The Indian twins…were voluntarily surrendered and legally abandoned by the natural parents to the adoptive parents, and it is undisputed that the parents went to some efforts to prevent the children from being placed on the reservation as the mother arranged for their birth and adoption in Gulfport Memorial Hospital, Harrison County, Mississippi;

and distinguished state cases that appeared to establish that “the domicile of minor children follows that of the parents.”[25]  The Mississippi Supreme Court said that the domicile of the twins was off of the reservation and that the state court properly had jurisdiction over the adoption proceedings of those twins.[26]  In support of its position, the Supreme Court of Mississippi stated that the lower court judge “did conform and strictly adhere to the minimum federal standards governing adoption of Indian children with respect to parental consent, notice, service of process, etc.,” while at the same time concluding that the provisions of ICWA were inapplicable by stating that “these proceedings…actually escape applicable federal law on Indian Child Welfare.”[27] 

            The United States Supreme Court recognized that the proceeding at issue was a “child custody proceeding” and that the children involved in that proceeding were “Indian children.”[28]  Because the twins fit into these portions of ICWA, the issues for determination by the Court were whether the state law definition of “domicile” should control, and whether under the ICWA definition of “domicile” the twins were non-domiciliaries on the reservation.[29]  The Supreme Court recognized that the language of ICWA does not define “domicile;” and that the definition is a matter of Congressional intent.[30]  The Court began with the canon of construction, stating that “in the absence of a plain indication to the contrary,…Congress when it enacts a statute is not making the application of the federal act dependent on state law.”[31]  It reached this conclusion because “federal statutes are generally intended to have uniform nationwide application,”[32] and because of the presumption that “the federal program would be impaired if state law were to control.”[33]  Congress very clearly did not intend for the critical terms in ICWA to rely on state law for definition, and actually was quite concerned with curtailing state authority.[34]  In support, the Court states that,

Even if we could conceive of a federal statute under which the rules of domicile (and thus of jurisdiction) applied differently to different Indian children, a statute under which different rules apply from time to time to the same child, simply as a result of his or her transport from one State to another, cannot be what Congress had in mind.[35] 

In fact, the Court is concerned that a State might apply a definition of domicile that would render ICWA inapplicable, or that an “adoption brokerage business” might develop if Mississippi’s position were sustained.[36] 

            Because the United States Supreme Court determined that state law does not control the definition of “domicile,” it relied upon the term’s generally uncontroverted and widely used definition.[37]  The Court stated that domicile for adults is “established by physical presence in a place in connection with a certain state of mind concerning one’s intent to remain there.”[38]  The Court continues that the domicile of minors is determined by the domicile of their parents because “most minors are legally incapable of forming the requisite intent to establish a domicile” of their own and that the domicile of illegitimate children means the domicile of the mother.[39] 

            Because the domicile of the unwed mother and father was at all relevant times on the Choctaw Reservation, the domicile of the twin babies, at the time of their birth, was also on the reservation.[40]  The Court continues that the mother’s voluntary surrender of the twins’ to the Holyfields does not render this finding of domicile on the reservation incorrect.[41]  In perhaps the most significant statement of ICWA and the portion of the opinion which most directly affects the existing Indian family doctrine, the United States Supreme Court declared that,

Tribal jurisdiction under § 1911(a) was not meant to be defeated by the actions of individual members of the tribe, for Congress was concerned not solely about the interests of Indian children and families, but also about the impact on the tribes themselves of the large numbers of Indian children adopted by non-Indians.[42] 

The Court also continues that “the protection of this tribal interest [the tribe’s ability to assert its interest in its children] is at the core of the ICWA, which recognizes that the tribe has an interest in the child which is distinct from but on parity with the interest of the parents.”[43]  In line with this position, the United States Supreme Court, with three dissenters, reversed the judgment of the Supreme Court of Mississippi and remanded the case. 

            As a result of Mississippi Band of Choctaw Indians v. Holyfield, which implicitly rejected the existing Indian family exception[44], many states have rejected the existing Indian family exception through court decision and through legislation.  These states are: Alabama, Alaska, Arizona, California, Colorado, Idaho, Illinois, Indiana, Iowa, Maine, Michigan, Minnesota, Montana, New Jersey, New York, North Carolina, North Dakota, Oklahoma, Oregon, South Dakota, Texas, Utah, and Washington.[45]  However, some states did not read Holyfield as eliminating the existing Indian family exception.  These states are: California, Kansas, Kentucky, Louisiana, Missouri, Tennessee, and Washington.[46] 

Additionally, in cases where a tribe appears to have exclusive jurisdiction, but may not be able to take jurisdiction over that case for a variety of reasons[47], it is currently unclear whether a state court may take jurisdiction over the case.  Section 1911(a) of the ICWA deals with exclusive jurisdiction vested in tribal courts.  The BIA Guidelines state that where the tribe exercises exclusive jurisdiction over child custody proceedings, the state court proceeding should be dismissed.[48]  Most states have never addressed the situation, so the answer to whether a tribe may waive exclusive jurisdiction does not appear to be entirely clear. 

Exclusive jurisdiction under the ICWA seems to be subject matter jurisdiction, which cannot be waived or consented to.  However, at least one state has held that a tribe may waive exclusive jurisdiction under the ICWA.  In the case of In the Matter of J.M., the Supreme Court of Alaska stated that in order for a tribe to waive exclusive jurisdiction, “[t]he tribe itself must have, by some prior act performed through a legally recognized procedure, conferred jurisdiction upon the [state] court.”[49]  The Court went on to state that implying a waiver of jurisdiction is inconsistent with ICWA’s objective of encouraging tribal control over decisions of custody of Indian children.[50]  Additionally, the Court stated that courts “historically have been reluctant to imply a waiver of Indian rights.”[51]  In support of its holding that exclusive tribal jurisdiction can be waived, the Supreme Court of Alaska cited to a Montana case (which did not deal specifically with ICWA, but rather with tribal jurisdiction in general): “[c]ase law also holds that procedural requirements must be strictly complied with before a state can exercise jurisdiction over a matter that otherwise would be within a tribe’s jurisdiction.”[52] 

The Court further states that states and tribes can enter into a formal agreement under 25 U.S.C. § 1919(a), whereby the tribe would be able to waive its exclusive jurisdiction.[53]  However, the Court holds that these agreements are not necessary where the state exercises jurisdiction because the tribe has clearly expressed its intent to waive jurisdiction.[54]  25 U.S.C. §1919(a) allows states and tribes to enter into agreements with each other “respecting care and custody of Indian children and jurisdiction over child custody proceedings, including agreements which may provide for orderly transfer of jurisdiction on a case-by-case basis and agreements which provide for concurrent jurisdiction between States and Indian tribes.”  This would imply that in the current type of situation, a tribe and a state could enter into agreement whereby tribal exclusive jurisdiction would be waived by the tribe’s failure to respond to the State’s request to transfer jurisdiction.  The agreement would likely be interpreted as an affirmative act waiving jurisdiction, rather than as a passive act of implied waiver. 

As a result, amendments to the ICWA are needed in order to ensure that Indian culture and practices are of continued vitality in the future, and to ensure that tribes are able to retain their most important asset, their people. 

Clarity in Amendments
A Section by Section Analysis of the Amendments

            These proposed amendments address the additional problems that have arisen as a result of misapplication of the ICWA, as well as to make clerical corrections to the ICWA.  Section 4—Congressional Findings—merely makes a clerical correction to the Act’s quotation from the United States Constitution, Indian Commerce Clause.  Section 11—Pending Court Proceedings—amendment (2) makes a similar clerical correction, in that mail must be sent certified in order to have a return receipt, instead of registered mail.  Section 10—Full Faith and Credit makes a clerical amendment in that Congress intended that tribal proceedings and judgments in child custody determinations under the ICWA be granted full faith and credit, and the current language of the Act only gives full faith and credit to proceedings.  The amendment is proposed to ensure that courts do not reach absurd results by their reliance upon the plain meaning of the existing text.  Under the plain meaning of the existing text, state courts may not be required to give full faith and credit to judgments entered by tribal courts and may be permitted to re-litigate issues determined by tribal courts.  This could be an absurd result in that state courts would not be required to give full faith and credit to judgments, but only to proceedings. 

            Section 5—Definitions—clarifies that an Indian child may have only one “Indian child’s tribe” for purposes of the ICWA.  Courts, commentators, and administrators have often questioned whether an Indian child may have more than one “Indian child’s tribe” for purposes of the Act and this amendment answers the question definitively.  Section 11—Pending Court Proceedings amendment (3) is an additional part of this clarification. 

Section 6—Congressional Declaration of Policy and Applicability—definitively puts to rest the “existing Indian family” exception, as a way to avoid applying the ICWA.  It makes absolutely clear that the exception cannot be a reason to avoid the Act’s provisions.  The amendment also explains that Indian children should have the opportunity to develop and maintain relationships with family and tribe and that these opportunities may not be disallowed.  Section 11—Pending Court Proceedings—amendment (5) furthers this position.  Qualified expert witnesses may not be denied or refused because the child is not part of an existing Indian family. 

Sections 7 and 8—Exclusive Jurisdiction over Child Custody Proceedings and Transfer of Jurisdiction to Tribal Court—have two main purposes: first, to reiterate Congress’ preference that custody determinations be made by tribal courts whenever possible; and second, to allow tribal courts to decline jurisdiction over proceedings while ensuring that decisions to decline jurisdiction be express and clear so that no ambiguities arise about the intentions of tribal courts. 

Section 9—Intervention in State Court Proceedings—ensures that tribes will be permitted to intervene in all child custody proceedings involving Indian children as well as makes clear that the tribe need not have an attorney in order to intervene. 

Section 11—Pending Court Proceedings—amendment subpart (4) mandates that courts recognize the unique relationship between each parent and each child and that the requirements of remedial and rehabilitative services applies individually to each child in a family. 

Section 12—Tribal Affiliation Information—completely replaces the previous section, because the previous section engendered much confusion.  It simplifies the language and is meant to simplify the procedures to enable adopted Indians to become members of their tribes. 

[1] 25 U.S.C. §§ 1901(4) and (5) (2006). 
[2] B.J. Jones, Mark Tilden & Kelly Gaines-Stoner, The Indian Child Welfare Act Handbook, Second Edition: A Legal Guide to the Custody and Adoption of Native American Children, 2 (ABA, Sec. of Fam. L. 2008) [hereinafter Jones, Tilden & Gaines-Stoner, The ICWA Handbook]. 
[3] Id. 
[4] Id. at 2-3. 
[5] Id. 
[6] Id. at 3. 

25 U.S.C. §§ 1901-1963 (2006)

Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989)
In the Matter of J.M., 718 P.2d 150 (Alaska 1986). 
In re Baby Boy L., 643 P.2d 168 (Kan. 1982)
Blackwolf v. District Court, 493 P.2d 1293 (Mont. 1972)

Secondary Authority:
B.J. Jones, Mark Tilden & Kelly Gaines-Stoner, The Indian Child Welfare Act Handbook, Second Edition: A Legal Guide to the Custody and Adoption of Native American Children (ABA, Sec. of Fam. L. 2008). 
Dept. of Int., Bureau of Indian Affairs, Guidelines for St. Courts.; Indian Child Custody Proceedings, 44 Fed. Reg. 67584 (Nov. 26, 1979)
H.R. 2750, 108th Cong. (Jul. 15, 2003)
Native American Rights Fund, A Practical Guide to the Indian Child Welfare Act, (Native American Rights Fund 2007).  

Friday, January 21, 2011

A Proposal for Amendments to the Indian Child Welfare Act

The Indian Child Welfare Act was enacted in 1978, and has never been amended since its enactment.  After doing a fair amount of research into ICWA, as well as dealing with the requirements of ICWA in my profession and discussing it with others, it is clear to me that ICWA needs to be amended.  Following is a bill with my proposed amendments to ICWA. In my next post, I will provide an explanation into why I believe these amendments are necessary as a whole, but will also explain the amendments section by section.  That post will also include a bibliography of some of the sources that I used to assist in my drafting of this proposal.  I welcome feedback in the comments section regarding the contents of this set of proposed amendments and the rationale, as well as your passing along these blog entries to your legislators if you are so inclined.

To make technical and clerical amendments to the Indian Child Welfare Act of 1978. 

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

            This Act may be cited as the “Indian Child Welfare Act Amendments of 2011”.

            The purpose of this Act is to make technical and clerical amendments to the Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901-1963

            The Congress finds—
(1)   that the Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901 et seq. is of continued importance and practicability;
(2)   that there are minor clerical errors in the Act;
(3)   that certain amendments are necessary to correct those clerical errors;
(4)   that there have been misinterpretations and misunderstandings of provisions of the Act;
(5)   that certain technical amendments are necessary to correct misinterpretations and misunderstandings of provisions of the Act. 

            Section 2(1) of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901(1)) is amended as follows—by striking “tribes” and inserting “Tribes”. 

            Section 4(5) of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1903(5)) is amended as follows—by adding to the end the following: “and (c) there shall be only one tribe deemed to be the Indian child’s tribe”.

            Section 3 of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1902) is amended as follows—
(1)  by inserting “(a)” before “The Congress”;
(2)  by inserting “by assuring that Indian children have the opportunity to develop or enhance their relationship with their families and Indian tribes” after “culture”; and
(3)  by adding to the end the following: “(b) This Act shall apply to any Indian child involved in a child custody proceeding regardless of whether such child has ever been part of an Indian family, is currently part of an Indian family, or has maintained a social or cultural relationship with an Indian tribe.”.

            Section 101(a) of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1911(a)) is amended as follows—
(1)  by inserting after “tribal court” the following: “or has become subject to a tribal court’s jurisdiction under subsection (b)”;
(2)  by inserting at the end the following: “In situations in which there is uncertainty about the residence or domicile of the child, or whether the child is a ward of a tribal court, shall be resolved in favor of the tribe’s exercise of exclusive jurisdiction.”; and
(3)  by inserting at the end the following: “The tribal court of the tribe may decline to exercise exclusive jurisdiction over custody proceedings, but must do so expressly, affirmatively, and in writing.  If a tribe declines jurisdiction, the state court shall assume jurisdiction over the proceedings.”.

            Section 101(b) of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1911(b)) is amended to read as follows—
            “(b) TRANSFER OF PROCEEDINGS; DECLINATION BY TRIBAL COURT.—In any state court child custody proceeding involving an Indian child not domiciled or residing within the reservation of the Indian child’s tribe and not a ward of a tribal court, and upon the petition of either parent or the Indian custodian or the Indian child’s tribe, the court shall transfer such proceeding to the jurisdiction of the tribe, unless
(1)  either parent objects to the transfer of jurisdiction;
(2)  the tribal court of the Indian child’s tribe expressly, affirmatively, and in writing, declines the transfer of jurisdiction;
(3)  the tribal court of the Indian child’s tribe notifies the State court, in writing or through a representative, that the tribal court does not have subject matter jurisdiction;
(4)  in circumstances where the evidence necessary to decide the case cannot be adequately presented in the tribal court without undue hardship to the parties or the witnesses, and the tribal court  is unable to mitigate such hardship by making arrangements to receive and consider such evidence by remote communication, hearing the evidence at a location convenient to the parties or the witnesses, or any other means permitted in the Indian tribe’s rules of evidence or discovery; or
(5)  there is good cause to the contrary.”

            Section 101(c) of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1911(c)) is amended—
(1)  by adding “(1)” before “In”;
(2)  by striking “proceeding for the foster care placement of, or termination of parental rights to,” and inserting “child custody proceeding involving”;
(3)  by adding at the end the following: “(2) Any motion, application, or other form of request to intervene in a child custody proceeding pursuant to paragraph (1) may be filed pro se or through legal counsel.”.

            Section 101(d) of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1911(d)) is amended—
(1)   by striking “and judicial proceedings” the first place it appears and inserting “judicial proceedings, and tribal court judgments”;
(2)   by striking “and judicial proceedings” the second place it appears and inserting “judicial proceedings, and judgments”. 

            Section 102 of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1912) is amended in subsection (a)—
(1)  by inserting “(1)” after (a)”;
(2)  by striking, in the first sentence, “registered” and inserting “certified”;
(3)  by adding at the end the following: “(2) If more than one tribe may be the Indian child’s tribe, each tribe must be notified of the pending proceedings and of its right to intervention so that each tribe may be afforded the opportunity to present evidence to the court that the tribe should be deemed the Indian child’s tribe.  After an adjudication of the Indian child’s tribe, only that tribe must receive further notice of pending proceedings.”
(4)  by adding at the end the following: “(3) No involuntary child custody proceeding commenced prior to the birth of the Indian child shall be valid.  Nothing in this paragraph shall limit the authority of a State court to require that the prospective parent of an unborn Indian child receive remedial and rehabilitative services designed to protect the health of such parent and unborn child and prevent the foster care or adoptive placement of such child after birth.”.
(5)  by adding at the end the following: “(4) The requirement of qualified expert witnesses applies regardless of whether such child has ever been part of an Indian family, is currently part of an Indian family, has maintained a social or cultural relationship with an Indian tribe and regardless of whether a cultural bias could be implicated.”.

            Section 107 of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1917) is amended by striking the existing section and replacing with the following:
            “Upon petition of an adopted Indian who is 18 years of age or older, or of an adoptive parent or guardian of an Indian who is under the age of 18 or incompetent, or of the Indian tribe of an adopted Indian, to the court which entered the final decree of adoption or any other court of competent jurisdiction for the release of information regarding tribal affiliation, if any, of the adopted child’s biological parents, the court shall disclose, from any records subject to its jurisdiction, such information to the petitioner and shall provide the petitioner with any other identifying information as may be necessary to protect any rights flowing from the individuals tribal relationship.”.

            Section 403 of the Indian Child Welfare Act of 1978 (25 U.S.C. 1963) is amended to read as follows: “SEC. 403. SEVERABILITY.
“If any provision of this Act is found or held to be invalid, all valid provisions that are severable from the invalid provision shall remain in effect and not be affected thereby.  If a provision of this Act is found or held to be invalid in one or more of its applications, the provision shall remain in effect for all valid applications that are severable from the invalid applications and not be affected thereby.”. 

            This Act is effective upon passage by both Houses of Congress and signature by the President of the United States of America, and shall be prospectively effective