CILS Brackeen News Flash

On April 6, 2021, an en banc panel of the U.S. Fifth Circuit Court of Appeal decided Brackeen v. Haaland, a case challenging the constitutionality of the Indian Child Welfare Act (ICWA). Read the full decision here.

The good news is (1) this decision does not apply in California nor in any state in the Ninth Circuit; and (2) it generally affirms the ICWA’s overall constitutionality.

The 325-page decision is a split authority on many of the ICWA’s specific provisions. CILS will continue to analyze the complexities of the various opinions and will provide further updates as warranted.

However, per our preliminary review, a majority of the Fifth Circuit found three portions of the ICWA unconstitutional under the anticommandeering doctrine:

  • 25 USC 1912(d) – active efforts requirement as applied to state agencies;
  • 25 USC 1912(e) and (f) – testimony of a qualified expert witness; and,
  • 25 USC 1915(e) – placement record-keeping requirements.

The anticommandeering doctrine, which springs from the Tenth Amendment, says that the federal government cannot make states adopt federal laws as their own nor enforce those laws.  It’s important to remember that in states like California, which have codified the ICWA into state law; the anticommandeering doctrine cannot be used to invalidate state law because it only addresses the compulsory adoption and enforcement of federal laws.

Flowing from the anticommandeering holdings, the Fifth Circuit also held certain related portions of the BIA’s 2016 ICWA regulations to be invalid.  California has already incorporated those regulations into state law (as of 2019 via AB 3176), so ICWA cases here will be unaffected for the same reasons as above.

There is a strong likelihood that one or both parties will ask for a review by the U.S. Supreme Court.  The Supreme Court accepts very few of the many petitions for review it receives, although the chances of it granting certiorari do increase with the creation of a split amongst the federal appellate courts, as the Brackeen decision does.

It is worth noting the lead portion of the decision calls out the fact that the states challenging the ICWA’s constitutionality (Texas, Louisiana, Indiana, and Ohio with its amicus brief) are home to only a tiny fraction of the nation’s Indian tribes and citizens, while the 26 states who came out in favor of the law, including California, are home to a vast majority of both.

Again, CILS will have further analysis to offer as we work our way through this lengthy decision.  We will continue to monitor the case if a review is sought and will continue to be watchful for attempts to push anti-ICWA arguments in California.

Stay safe!

TRIBAL ALERT – Tribes Disqualified from ARP Public Safety and Justice Funding

To All Tribal Leaders;

The BIA is proposing to set aside $772.5 million dollars of the American Rescue Plan (ARP) appropriation for “public safety and justice (PSJ)”.  This set aside will be distributed “based on the existing allocation of base (reoccurring annual) funding level for OJS-funded, tribally operated, programs.”  This means the funding will be allocated to tribes based on their annual 638 contract funding levels for PSJ services which includes tribal courts and law enforcement.

Unfortunately, the BIA does not execute 638 contracts for PSJ funding to tribes in Public Law 280 states (except for Self-Governance tribes).  Since California is a Public Law 280 state, tribes do not have 638 contracts for PSJ funding and thus there is no “base (reoccurring annual) funding level” in which to allocate the $772.5 million to California Tribes.

CILS strongly encourages Tribes in their written comments to the BIA that it develop a fair and equitable funding formula for the distribution of the $772.5 million set aside so that California Tribes, and all tribes in Public Law 280 states, receive PSJ funding.

Written comments are due tomorrow Wednesday March 31, 2021 and should be sent to consultation@bia.gov.

If you have any questions, would like further information, or need assistance, please contact Dorothy Alther at dalther@calindian.org.

Attached is a sample letter.

Draft Comment Letter

 

When Does the Indian Child Welfare Act (ICWA) Apply?

By Kia Murdoch, CILS Sacramento office Staff Attorney

ICWA provides protections for Indian children in State Court “Child Custody Proceedings.”

The ICWA is a federal law that provides procedures to protect “the best interests of Indian children and promote the stability and security of Indian tribes and families” in certain child custody proceedings.[i] Protecting children’s connection to their culture, their Tribal community, and their Tribal membership interests are important not only for the individual children but for the future of their Tribes.

The ICWA broadly defines child custody proceedings, but ICWA protections are commonly applied in state dependency cases where a state welfare agency has removed or may remove the child from their parent’s home, whether temporarily, permanently, voluntarily, or involuntarily. ICWA specifically applies to dependency proceedings where an “Indian child” is involved or where the welfare agency has reason to know the child involved may be an “Indian child.”

The ICWA also applies in guardianship and private adoption cases involving Indian children.  The ICWA does not apply to divorce or custody cases between the Indian child’s parents.

I have Indian ancestry; does ICWA apply to my family?

Who is an “Indian child”? The ICWA defines an “Indian child” as any “unmarried person under the age of 18 who either (1) is a member of an Indian tribe, or (2) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.[ii]

It is important to note that an “Indian tribe” for ICWA purposes refers to a federally recognized Tribe.[iii]  Not all Indian tribes are federally recognized, and unfortunately, merely having Native American or American Indian ancestry is not enough to trigger ICWA protections. The federally recognized Indian tribes are listed in the Federal Register.

However, California law gives the court discretion to allow non-federally recognized tribes to participate in child custody proceedings if the child would be an “Indian child” under ICWA, except for the Tribe’s lack of federal recognition.[iv]  Unlike child custody proceedings where a federally-recognized Tribe must be notified of the proceedings when there is reason to believe the child involved might be a Tribal member, an unrecognized California tribe is not required to be notified; instead they must request the court for permission to participate in the child custody proceeding.[v]

ICWA applies even when the court is not sure if the child is an “Indian child.” So long as the court has reason to know the child involved in the child custody proceeding may be an Indian child, the court must proceed under that assumption that the ICWA applies until the Tribe informs the court that the child is neither a member nor eligible for membership.

What counts as “membership” in a Tribe?

Under ICWA, the Tribe has the sole authority to determine what membership means.[vi] For example, membership does not necessarily mean formal enrollment.[vii] Further, the Court cannot question how the Tribe decides to define membership. If the Tribe decides the child involved in a child custody proceeding is not a member, ICWA still applies if the child is eligible for membership and is the biological child of a member of the Tribe.

If ICWA applies to my family, what should I do?

In dependency cases, the child welfare agency must notify the Tribe as soon as they have reason to know the child involved may be an Indian child. If you believe the ICWA may apply to your family, inform the social worker which Tribe(s) the child may be a member of, so the social worker can notify the Tribe(s) to determine membership status.

[i] 25 U.S.C.A. § 1902.

[ii] 25 U.S.C.A. § 1903(4).

[iii] 25 U.S.C.A. § 1903(8).

[iv] Cal. Fam. Code § 185 (See also Welf. & Inst. Code § 306.6).

[v] Ibid.

[vi] United States v. Bruce, 394 F.3d 1215, 1225 (2005) (“[O]ne of an Indian tribe’s most basic powers is the authority to determine its own membership”).

[vii] In re Jack C., 192 Cal.App.4th 967 (2011).

Efforts at Justice for Missing and Murdered Native Women

By Jedd Parr, CILS Sacramento office Directing Attorney

Over the last several years, the prevalence of violence suffered by Native Americans, particularly at the hands of non-Indian perpetrators, has finally become more widely acknowledged.  Violence affects both men and women, but especially women.  Although the data can be incomplete, it has been reported that Native American women are afflicted by violence at a frequency up to ten times the national average.  According to the National Institute of Justice, over 84% of Native women have experienced violence at least once in their lifetimes – nearly 40% within the past year alone.[1]

One of the most troubling issues in this area is missing and murdered Native women whose deaths or disappearances go unsolved.  Official data on just how often this occurs is lacking, but anecdotally, people familiar with the problem know it is all too frequent.

There are several contributing factors.  On Indian reservations, one significant roadblock is that tribes generally lack criminal jurisdiction over non-Indians,[2] per the Supreme Court’s 1978 decision in Oliphant.[3]  This decision makes tribal communities reliant on outside federal or state law enforcement agencies for the apprehension and prosecution of crimes committed by non-Indians.  Complex jurisdictional issues, absence of community trust in external law enforcement, and high rates of cases being declined for prosecution all add to many of these cases going unsolved.

In California, a state subject to Public Law 280, confusion over jurisdictional issues often leads to a decreased law enforcement presence on Indian reservations in general, as well as a lack of communication between tribes and state and local law enforcement agencies.  However, a study by the Urban Indian Health Institute identified numerous unsolved cases in off-reservation, urban settings.[4]  This data suggests the problem is not just rooted in the above on-reservation factors but in broader concerns such as unreliable data collection systems, racial misclassifications, and bias in media coverage of cases involving Indian women.

Recently there have been efforts on the national and state level to address some of these concerns.  In November 2019, a federal Task Force was convened under the name “Operation Lady Justice.”  Its stated goals include consultations with tribes, model protocols such as best practices for law enforcement and improved data collection and use, and public education and outreach.[5]  In September 2020, California passed Assembly Bill 3099 (Ramos), which sets forth similar goals.  Although these measures have only just begun, with outstanding questions about whether they are comprehensive enough and how effective they can ultimately be, one can hope they represent at least the first steps towards confronting this tragic crisis.

[1] https://nij.ojp.gov/topics/articles/violence-against-american-indian-and-alaska-native-women-and-men#table2

[2] With the exception of “special domestic violence criminal jurisdiction” under the Violence Against Women Act, which requires a number of potentially costly expenditures by tribes before it can be exercised.

[3] Oliphant v. Suquamish Indian Tribe (1978) 435 U.S. 191.

[4] https://www.uihi.org/wp-content/uploads/2018/11/Missing-and-Murdered-Indigenous-Women-and-Girls-Report.pdf

[5] https://operationladyjustice.usdoj.gov/

Changes To CILS Domestic Violence/Sexual Assault Legal Services During COVID

By Susan Dalati, CILS Escondido office Staff Attorney

The CILS Domestic Violence/Sexual Assault (“DV/SA”) Legal Advocacy Program is housed CILS’ Escondido office and is comprised of an attorney and legal advocate. Due to the pandemic, the DV/SA Program staff began providing virtual legal services in March 2020. To date, their services are still being provided virtually. The transition to virtual services has been challenging, but the DV/SA legal staff has met the challenges by assessing their clients’ needs and making changes to accommodate those needs.

One of the significant changes was that DV/SA community providers started to meet more frequently to communicate their current status regarding services and sharing their available resources. The North County Domestic Violence Coalition (currently chaired by the CILS DV Staff Attorney and well attended) started meeting virtually every other week. (They have gone back to monthly meetings). During the pandemic, a new virtual meeting group of providers was formed headed by Keely Linton, the Executive Director of Strong Hearted Native Women’s Coalition, and comprised of local Tribal community partners. This meeting occurs every week and is still happening.  The meeting has been tremendously helpful in allowing partners to keep in touch, share resources, and expeditiously coordinate client services when needed. The DV/SA Legal Staff feels that this meeting has fostered strong bonds with the Tribal community partners.

The DV/SA Legal Staff found that it sometimes seems to take a bit longer to build trust with a new client because client meetings are being conducted virtually. The DV/SA Legal Staff try to make sure the client is comfortable with them before dispensing legal advice. During the pandemic, the DV/SA Legal Staff has had former clients return to them for services. Some of the issues that have arisen for returning clients include; a marked increase in abuse by their perpetrators, custody and visitation issues related to the pandemic, challenges with maintaining sobriety and mental health, etc. The legal advocate and attorney have worked together since the beginning of the CILS’s first DV/SA grant in 2015. They have always encouraged former clients to return for services if new issues arise or prior issues re-emerge.

The DV/SA Legal Staff is currently taking new client referrals. They assist survivors of domestic violence, sexual assault, stalking, and sex trafficking. All of their services are cost-free, and there are no income guidelines. They primarily serve San Diego, Riverside, and San Bernardino counties, but they can also give out general information and referrals for other counties. Potential clients can reach out to the legal advocate at (760) 746-8941 extension 106. Please leave a message along with a safe phone number, and your call will be returned. Below please find a list of additional DV/SA resources.

RELATED LINKS

Avellaka “Safety for Native Women” Program Office: 1 (760) 742-8628

Cahuilla Consortium: www.cahuillaconsortium.org 24/7 Helpline: 1 (951) 330-0479 Office: 1 (951) 763-5547 Advocacy email: info@cahuillaconsortium.org

Iipay Nation of Santa Ysabel Domestic Violence and Sexual Assault Advocacy 24/7 Office: 1 (760) 765-8897

Indian Health Council’s “Peace Between Partners” Program: www.indianhealth.com  Advocate and Therapist: 1 (760) 749-1410 ext. 5249

San Pasqual Band of Mission Indians Native Women’s Resource Program: www.sanpasqualbandofmissionindians.org  Office: 1 (760) 651-5171

Southern Indian Health Council’s REVIVE Program: http://sihc.org  Office: 1 (619) 445-1188 ext. 200

Strong Hearted Native Women’s Coalition, Inc.: http://strongheartednativewomen.org Office: 1 (760) 644-4781

StrongHearts Native Helpline: http://strongheartshelpline.org  Helpline: 1 (844) 762-8483

Non-Native American Specific Resources:

California Courts Self Help: http://www.courts.ca.gov/selfhelp-domesticviolence.htm

National Center for Domestic and Sexual Violence: http://www.ncdsv.org

National Domestic Violence Hotline: www.ndvh.org  or https://www.thehotline.org   Helpline: 1 (800) 799-7233 (SAFE)

National Human Trafficking Hotline www.humantraffickinghotline.org 1 (888) 373-7888 (TTY: 711) *Text 233733

National Suicide Prevention Lifeline: 1 (800) 273-8255 (TALK)

Rape Abuse Incest National Network: www.rainn.org 1 (800) 656-4673 (HOPE)