California Supreme Court Limits Forfeiture Doctrine in ICWA Cases

In only its third opinion on the Indian Child Welfare Act, the California Supreme Court issued its In re Isaiah W. ruling regarding a parent’s forfeiture of the right to appeal ICWA violations. Isaiah W. involved a mother’s tardy appeal of the Act’s notice and inquiry provisions. The mother, Ashlee R., failed to appeal ICWA’s application at a dispositional hearing and was permanently foreclosed from raising the notice (and substantive application) violations at a later stage.

Under California law the “dispositional hearing” is treated as a final judgment for dispositional issues and must be appealed within 60 days, or else any objections are waived. The appeal rule in California appeared to be inconsistent with the ICWA’s continuing duty to give notice, and to make an inquiry, and a tribe’s right to raise ICWA violations at later hearings. California Indian Legal Services, along with the United States filed Amicus Briefs supporting the mother’s continuing right to appeal ICWA errors.

The dispute in Isaiah W. was arisen after the mother informed the juvenile court that her son may have had Native American ancestry, but Court nevertheless found ICWA inapplicable and did not order the social service agency to notice the specified tribes or the BIA. The mother did not object to the Court’s inaction, and never appealed the juvenile court’s dispositional order. Later, the mother did appeal the ICWA non-notice, but not until the final Dependency stage, which is called the Selection and Implementation Hearing. Isaiah’s mother’s appealed occurred after the order was made terminating her parental rights, on the ground that “the juvenile court had reason to know Isaiah was an Indian child yet failed to order the Department to comply with ICWA‘s notice requirements.” The Court of Appeal denied her challenge because, under Dependency procedural law, Ashlee R. should have appealed after disposition.

The California Supreme Court’s July 7, 2016, decision acknowledged the Agency and Juvenile Court’s continuing duty of notice and inquiry, and did not preclude a parent from appealing a juvenile court order—even if the dispositional issues were subsumed, or included in a subsequent order terminating parental rights.” The 6-1 ruling reaffirmed the juvenile court’s continuing, and ongoing duty to inquire whether a child is an Indian child, or eligible for membership.

Significantly, the Court’s ruling recognized that:

(1) Indian tribes have interests protected by ICWA that are separate and distinct from the interests of parents of Indian children, and parents cannot waive a tribe’s rights.

(2) The affirmative and continuing duty of inquiry belong to the Court, not the parents, and that duty is not excused after 60 days elapse. An earlier finding of insufficient data did not relieve the Court and Agency of its inquiry and notice obligations.

(3) Notice is the cornerstone of a tribe’s participation in an ICWA case, and the law was clearly written to protect the integrity and stability of Indian tribes despite the potential for delay in placing a child, while being mindful of a child‘s need for a permanent and stable home.

The Supreme Court’s opinion impliedly recognized that the Agency and the trial court, as well as the parents, have a role and obligation in the inquiry process, but did not incentivize delay in making inquiry or notice. Although the dissenting opinion was correctly concerned about the effect on a child’s need for permanency and a stable home, a parent’s failure to perfect an appeal does not give the Agency an open-ended pass on compliance.

On balance, this decision is consistent with many tribes’ interpretation of the ICWA, but it is the first time the state Supreme Court has weighed in on the issue. To the extent that the lower court imposed a one-strike-and-you’re-out rule on appeals of ICWA violations, this Court acknowledged a parent (and tribe’s) continuing ability to appeal notice and other types of non-compliance.

Should you have any questions about the ruling please feel free to contact any of our California Indian Legal Services field offices, or contact us by email. [;;].

CILS Presents “Keeping Native Families Safe – DV and ICWA Resources” Training

CILS in conjunction with Indian Health Council is presenting a training entitled Keeping Native Families Safe – DV and ICWA Resources. This training course will provide an overview of the overlap between the domestic violence and the Indian Child Welfare Act (ICWA) dependency worlds, which frequently collide.

Tribal leaders, tribal and county social workers, tribal ICWA workers, domestic violence advocates, and community members are invited to attend.

Join us on Tuesday, July 26, 2016, 9:00 a.m. to 4:00 p.m. at Indian Health Council, 50100 Golsh Rd, Valley Center, CA 92082. Lunch will be provided with the training.

Please R.S.V.P. by July 18th to Rachel Bilodeau at rbilodeau @ or call (760) 746-8941 (x118).

This training is sponsored by Southern California Edison, Blue Shield Against Violence Initiative, Peace Between Partners, Indian Health Council and California Indian Legal Services.

Keeping Native Families Safe flyer

CILS Releases New ICWA Webinar Series

CILS has just released a new ICWA Webinar Series designed to provide tribal ICWA social advocates with training resources and expertise. This project was sponsored by a grant from the State of California’s Health and Human Services Agency.
2015 BIA Guidelines PPT 3.28.16
The ICWA Webinar Series will expand the skills of tribal ICWA advocates. The substantive knowledge and advocacy skills developed through these webinars will better equip the advocates to more effectively represent their tribes and clients in court leading to better outcomes for tribal children and families. The goal is to ensure that Native American children are not deprived of their Indian heritage.

CILS Promotes and Adds New Attorneys and Staff

Several personnel changes have occurred in our Sacramento and Eureka offices. Jedd Parr, Eureka Staff Attorney, has been promoted to Sacramento Directing Attorney. CILS welcomes James Flower, new Eureka Staff Attorney. James has been practicing law for more than 30 years. CILS welcomes Blake Atkerson, new Sacramento Staff Attorney. Blake is a former law clerk in the Sacramento Office. Blake is an enrolled member of the Osage Nation in Oklahoma. Kimberly White is our new Legal Assistant in the Sacramento Office. Kim has extensive legal secretarial experience and joined the staff at the end of April.

In the Bishop office, Jasmine Andreas, Bishop Staff Attorney, has been promoted to Bishop Directing Attorney.

CILS Welcomes California Bar Foundation Fellow, Laura Neacato, to Bishop Office

Growing up in Southern California, Laura Neacato received her B.A. in Philosophy from the University of California, Los Angeles. Throughout her undergraduate career, she focused on providing education and resources to underserved communities in both Africa and the United States.

LNeacato PhotoAs a recent law school graduate of the University of San Francisco, Laura’s work focused on International Human Rights and Bankruptcy law. As an American Bankruptcy Institute Medal of Excellence Recipient, and a United States Bankruptcy Court judicial extern for the Honorable Elaine M. Hammond, Laura found Bankruptcy as another means to provide access and justice to underserved communities.

Through USF’s International Human Rights Clinic, Laura has advocated on two separate occasions at the United Nations in Geneva, Switzerland as a Frank C. Newman intern and as a Human Rights Advocate representative. She has participated in the U.N. forums for the Expert Mechanism on the Rights of Indigenous Peoples and the Working Group on Business and Human Rights. Through her participation, she spoke for the need for a legally binding instrument on corporations and business enterprises in the extractive industries. Her human rights work focused on Indigenous Peoples from all over the world and the paramount need to protect these vulnerable groups from human rights violations from business, transnational and national corporations.