How to Use this Blog

Howdy! We've amassed tons of information and important history on this blog since 2010. If you have a keyword, use the search box below. Also check out the reference section above. If you have a question or need help searching, use the contact form at the bottom of the blog.

“As an Amazon Associate I earn from qualifying purchases.” If you buy any of the books at the links provided, the editor will earn a small amount of money or commission. (we thank you) (that is our disclaimer statement)

This is a blog. It is not a peer-reviewed journal, not a sponsored publication... The ideas, news and thoughts posted are sourced… or written by the editor or contributors.

Can you help us? Here is how:

WRITE AND POST A BOOK REVIEW ONLINE:
Please know that if you write an honest book review, we are very very appreciative. Amazon, Kobo, Good Reads, Apple Books, etc. - every opinion counts.

DONATE COPIES:
If you can, please donate a copy of our book titles to your local library, college or school.

Search This Blog

Tuesday, March 29, 2016

ICWA Case Updates and Legal Clarifications


Because of the recent media attention to ICWA, here’s a quick update and clarification of some legal details:

ICWA has not been amended, updated, or changed. Ever. The same language that Congress passed in 1978 is the same language in effect today.

In 2015 the Bureau of Indian Affairs updated the ICWA Guidelines for State Courts for the first time since 1979. These non-binding Guidelines are considered persuasive by many states and are in effect now.  State courts are using them in their decisions.  The National Council for Adoption (NCFA) and Building Arizona Families (BAF) challenged the implementation of the 2015 Guidelines in the Eastern District of Virginia (E.D.Va) where they lost a motion to dismiss.  However, they have filed an appeal in the Fourth Circuit, which is where the case currently sits.

Also in 2015, the Department of the Interior proposed federal regulations. Those regulations went through an intensive comment period (you can still read all of those comments here). The regulations have not yet been promulgated, which means the federal government has not released them pursuant to the Administrative Procedures Act–which means they do not currently exist. No one knows when they will be promulgated, or what they look like at this point. People (including us) speculate on when or if they will be promulgated before the end of the Administration, but we do not know. We do anticipate (speculate) there will be litigation over the regulations if/when they are.

Finally, the Goldwater litigation, which attracted a big splash of media attention when the complaint was filed in 2015, is on-going. Their goal is to have a court find that ICWA is a race-based law, meaning that the law would be subject to strict scrutiny in the federal courts (you can read a Wall Street Journal op-ed by the Goldwater attorneys discussing this here, but only if you want to and you probably don’t). This, of course, completely disregards long settled federal and state law (1) regarding tribes, tribal people, political status, and citizenship, which NICWA addresses perfectly at the end of an article here (and you can now disregard the reporter’s claim that ICWA has been amended because you’ve read this post and know that’s wrong). Along those lines, the plaintiffs in the Goldwater case just tried to add two new named plaintiffs, one of whom is not eligible for membership in any tribe. This has led to recent filings by both the federal and state governments named in this case asking the judge to dismiss. Both filings explain in detail why ICWA is not a race-based law.

(1) See, e.g., In the Interest of A.B., 663 N.W.2d 625, 636 (N.D. 2003); In re A.A., 176 P.3d 237, 240 (Kan. App. 2008); In re Adoption of Hannah S., 48 Cal. Rptr. 3d 605, 610-11 (Cal. Ct. App., 3rd. Dist. 2006); In re Interest of Phoenix L., 708 N.W.2d 786, 797-89 (Neb. 2006), rev’d on other grounds; Matter of M.K., 964 P.2d 241, 244 (Okla. Ct. App. 1998); In re Marcus S., 638 A.2d 1158, 1159 (Maine 1994); State ex rel. Children’s Services Div. v. Graves, 848 P.2d 133, 134 (Or. Ct. App. 1993); In re Miller, 451 N.W.2d 576, 579 (Mich. App. 1990); Matter of Appeal in Pima County Juvenile Action No. S-903, 635 P.2d 187, 193 (Ariz. Ct. App. 1981); Matter of Guardianship of D.L.L., 291 N.W.2d 278, 281 (S.D. 1980).

No comments:

Post a Comment

Please: Share your reaction, your thoughts, and your opinions. Be passionate, be unapologetic. Offensive remarks will not be published. We are getting more and more spam. Comments will be monitored.
Use the comment form at the bottom of this website which is private and sent direct to Trace.

Support them!

What our Nations are up against!

What our Nations are up against!

To Veronica Brown

Veronica, we adult adoptees are thinking of you today and every day. We will be here when you need us. Your journey in the adopted life has begun, nothing can revoke that now, the damage cannot be undone. Be courageous, you have what no adoptee before you has had; a strong group of adult adoptees who know your story, who are behind you and will always be so.

Did you know?

Did you know?
lakota.cc/16I9p4D

Help in available!

Help in available!
1-844-7NATIVE (click photo)

click to listen

Diane Tells His Name

where were you adopted?

where were you adopted?