Federal ICWA lawsuit remains a case to watch despite split decision in 5th Circuit Court of Appeals

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A lawsuit challenging the Indian Child Welfare Act received a split decision in federal appeals court on April 6, 2021. The law, the lawsuit and the split resulted in a 300-plus-page decision that confounded experts and lay people alike. The decision won’t impact Alaska directly. But legal experts  say Alaska should still keep an eye on the case.

The Indian Child Welfare Act, or ICWA, basically provides Tribes with an opportunity to intervene when state child welfare and adoption agencies consider whether or not to remove a Native child from a home. The children can be enrolled citizens of the Tribe or be eligible for membership status. 

Victory! #ICWA

 

Seattle Times: “A victory for Native children’s rights to remain with family and tribe”

October 8, 2020 Matthew L.M. Fletcher

Op-ed by Kitty-Ann van Doorninck, Helen Halpert and Ron J. Whitener, here, profiling the recent watershed ICWA decision by the Washington Supreme Court, authored by Justice Raquel Montoya-Lewis.

 

Washington Supreme Court says Indian Child Welfare Act should be more broadly applied #ICWA

By Paula Wissel • source

• 

  Washington Supreme Court Justice Raquel Montoya-Lewis, left, reacts to applause after she was sworn in, Monday, Jan. 6, 2020, in Olympia, Wash. Montoya-Lewis wrote the unanimous opinion calling for the Indian Child Welfare Act to be more broadly applied.  [Ted S. Warren / The Associated Press (file)]

A Washington Supreme Court decision saying the Indian Child Welfare Act should be more broadly applied is being called a big win for Native American rights.

Congress passed the Act in 1978. Washington state has its own version as well, called the Washington Indian Child Welfare Act. What the welfare acts do is require that tribes be notified and allowed to intercede in child custody or loss of parental rights cases if the family has any tribal relationships.

The unanimous opinion was written by Washington’s first Native American justice Raquel Montoya-Lewis, who cited the long history of Native American children being taken from their communities.

The case before the court involved the removal of two toddlers from their Kent home in June 2018. Police cited "neglect and unsanitary conditions" as the reason for placing them in protective custody. During the hearing to see if they would be returned to their parents pending review of the case, both parents mentioned they had tribal heritage. The mother indicated she had a grandmother who was a Tlingit-Haida and the father said he had connections to the Umatilla band in Oregon. 

But the judge determined there was not enough evidence presented of those connections and decided the Indian Child Welfare Act did not apply. King County Public Defender Tara Urs says not applying the act at that point was harmful, as the children ended up being placed in foster care.

“It actually made a difference in the lives of these children, the failure to apply the law,” Urs said.

Eventually, the 2-year-old and 21-month-old did go live with a Tlingit-Haida relative in Alaska. 

In overturning the lower court, the state Supreme Court said the Child Welfare Act should have been applied early on in the case, saying the bar for applying it needs to be very low when determining a family’s relationship to a tribe. Justice Raquel  Montoya-Lewis began the opinion by harking back to the past. She wrote:

"In Native American communities across the country, many families tell stories of family members they have lost to the systems of child welfare, adoption, boarding schools, and other institutions that separated Native children from their families and tribes. This history is a living part of tribal communities, with scars that stretch from the earliest days of this country to its most recent ones."

Crosscut Article on Greer Case

Crosscut Article on Greer Case by ilpc

This court case could weaken Washington’s 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.

Here

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.

READ: This court case could weaken WA’s Indian Child Welfare Act | Crosscut

ICWA was thereafter applied to the case, but the damage was done — the children were placed in foster care without the normal protections the law would have offered them. Now, the Central Council of Tlingit and Haida Indian Tribes of Alaska are challenging the decision in the Washington State Supreme Court. If the court’s decision is upheld, advocates say the case could significantly weaken the use of ICWA in Washington by raising the bar for what qualifies as a “reason to know” that a child is “Indian” in the eyes of the law.

Kathryn Fort, director of Michigan State’s Indian Law Clinic, who is arguing on behalf of the tribes in the case involving Greer and Graham, says that it shouldn’t be so difficult. The burden of checking in with a tribe is low, she says, but the outcome has immense implications for the family, children and tribe.

Briefing and oral arguments here.

GOOD WIN: #ICWA

Washington Supreme Court Opinion Clarifies Rights of Parents under ICWA, WICWA

By Emily Schwing 

• 

  
  

  File photo of The Temple of Justice in Olympia, Washington.

  Harvey Barrison / Flickr - tinyurl.com/zhj7uae

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.
A woman with a child remarried. A court in southwest Washington agreed to terminate the parental rights of the child's father -- her ex. He was in prison and had problems with drugs.
But in this case, the state high court said that shouldn't have happened -- at least, not so fast. Because even though the child, the mother and the stepfather are all Indian and the father is not, the child's rights are protected under the federal Indian Child Welfare Act and the Washington Indian Child Welfare Act.
Craig Dorsay represented the Samish tribe as a friend of the court. He called the opinion “a very good win for tribes, Indian families and Indian children.”
“The fact that the child may have an Indian parent and a non-Indian parent, should not avoid or reduce protections that the act is designed to afford to the child,” Dorsay said.
But Mark Fiddler, counsel for the child’s mother, argued the opinion lays out guidelines that “no other father would have to follow.” For example, he said if no parties had been Indian, the father’s rights would have likely remained terminated.
In the long run, Dorsay said it sets a precedent for all private adoption cases involving Native American children.
The Supreme Court has sent the case back to the trial court for reconsideration.

WA state Native adoptees - GOOD NEWS

BIG NEWS! Wanted to let you all know that Governor Inslee signed the original birth certificate (OBC) bill (HB 1525) this week.  What this means is that after June 30, 2014, Washington state adoptees will be able to get a copy of their original birth certificate as long as their birth parent hasn't filled out a veto preventing them from getting their own birth record.

We worked hard to get the veto removed but certain legislators were hellbent on making sure there was a veto option for birth parents, and ultimately they got their way.

Statistics from other states show that the majority of WA adoptees will be able to get their OBC, which is good. It's just sad (and maddening) that there will be some adoptees who will be denied.
FOR ALL OF YOU WANTING TO GET YOUR OBC NEXT YEAR WHEN THE LAW GOES INTO EFFECT, WE ADVISE YOU REQUEST THAT OBC ASAP. Most vetoes will be filled out
the first year or two, so best to request it quickly next year.
-Penni

Washington State Adoptee Rights Bill

Website:   Washington Coalition for Adoptee Rights & Equality
Email: washingtonadopteerights@gmail.com

NOTE: We posted about this pending legislation on this blog... There are 24 tribes in WA state - that is one of the states where Native American children were taken as part of the Indian Adoption Projects!  I know many adoptees from there. So happy we have movement on opening adoption records, finding tribal relatives and OBC access. Sad there is a veto clause...Trace

HUGE DAY FOR WASH STATE ADOPTEES

Hello!
Big, HUGE day for WA adoptees!!

Sen Mike Carrell of Tacoma amended his OBC bill SB 5118, and REMOVED the veto (affidavit of nondisclosure) and replaced w/ the 'contact preference form'. What this means is that EVERY SINGLE WA ADOPTEE COULD GET THEIR ORIGINAL BIRTH CERT....IF this bill passes!!

The amended bill was voted on today in the Senate Human Services & Corrections committee, and PASSED!! This is the same committee that has blocked this bill the past 3 years (well, 'the committee' didn't block it -
the former chair is the one that did the blocking).

Next stop for this bill is the Senate Ways & Means committee, where there will hopefully be another hearing and another vote. Then another committee, Senate floor, then over to the House to start the process there.

So we have a LONG way to go BUT this is year is looking like we actually have a REAL chance of passing one of these OBC bills!

BUT...

WE NEED YOUR HELP!!

We need more people showing up in Olympia for these hearings, even if you don't testify, WE NEED TO FILL THE ROOM TO SHOW THE LEGISLATORS THAT THIS ISSUE IMPACTS MANY OF US!!!

We also need you ALL to keep writing snail mail, emails, and calling legislators on each committee that each bill goes to. Writing the letters and emails are easy once you write up your first one. Because after that first one, you can just copy-n-paste for future letters/emails. Easy peasy!!
And we're more than happy to help!!

We also need to increase our 'fans' on Facebook and 'followers" on Twitter. Links are below.

IF YOU ARE WILLING AND ABLE TO GO TO OLYMPIA FOR HEARINGS IN THE COMING
WEEKS, PLEASE LET ME KNOW!!

Thanks!!
-Penni

Find WA-CARE in the following places:

www.wa-care. com
Facebook (http://www.facebook .com/pages/ Wa-Care/14191478 2493687)
Twitter (https://twitter. com/WA_CARE)
Email (washingtonadopteerights@gmail. com)

PLEASE take the time and like and follow and contact Penni - I have several adoptee friends from WA state who need this! Thanks for reading this blog, too! XOX Trace

WA #NDN tribe gain full control on Child Welfare matters

Port Gamble S'Klallam Obtain Full Control Over Child Welfare Matters

Posted on March 29, 2012

After a decade-long effort in conjunction with the federal and state departments of Health and Human Services, the state Attorney General's Office, and tribal lawyers, the Port Gamble S’Klallam Tribe has achieved a landmark goal -- complete control over the welfare of their own children. The 1,000-member Tribe in western Washington became the first in the nation to assume all control of guardianships, foster care, and adoptions for their children. Under an agreement with the federal government, the Tribe has disengaged the oversight by DSHS and is now solely responsible for its child-welfare cases.
The contemporary practice of removing Native American children from reservations in child-welfare cases has been likened to the infamous boarding-school era, when the federal government forcibly placed Native children in state or religious institutions to “assimilate” them into “American” culture.
To break away from this system, Port Gamble S'Klallam's children and families coordinator Jolene George has spent years working with DSHS to draft policies on how they would handle child-welfare protocols, which are listed under Title IV-E of the Social Security Act. "We will no longer lose our children," George said. "We didn't do this with a grant. We put our efforts, our money and whatever we could to do this."
Francine Swift, a member of the Port Gamble S'Klallam Tribal Council, said it's vital to have children stay on the reservation so they don't forget their ancestry and traditions. She said that before the Indian Child Welfare Act, children were adopted out and lost complete contact with their relatives, ancestors, and culture. "We never want to see our kids go through this again," Swift said.

 

http://www.nativelegalupdate.com/admin/trackback/274803

 

 

This is one excellent example of tribes in action - and it is happening in more states! Happy Dance!

Trace

WE NEED YOU NOW! New Bill in WA state

IMPORTANT!! New WA bill for OBCs and Non-ID! 


Write these lawmakers! I did!



Penni writes on Soaring Angels:
Hello- We have a new bill this year that would release original birth certificates (OBC) to Washington State adoptees AND would also compel counties and adoption agencies to give out ALL possibly non-id (changes the 'shall' to 'will' in the non-id RCW - YAY!!).

This bill is House Bill 2211:
http://apps. leg.wa.gov/ billinfo/ summary.aspx? bill=2211

Because there are certain legislators who are extremely anti-open records, we did have to agree to a compromise this year. This compromise would add an option for birth parents to file an affidavit of non-closure, which would
mean the adoptee couldn't get their original birth certificate. 

The good thing about this particular compromise is that it would expire every 2 years and the birth parent would have to renew it. Also, even if a birth parent would file an affidavit of non-disclosure, the adoptee would
still be able to get their non-identifying information.

WHAT WE NEED FROM YOU:

1. CONTACT YOUR REPRESENTATIVE! 
We need all of you with a WA connection to contact your state representative and ask them to support House Bill 2211 (HB 2211). 

You can find your representatives here:
http://apps. leg.wa.gov/ DistrictFinder/ Default.aspx

2. IF YOUR REPRESENTATIVE IS ON THE HOUSE JUDICIARY COMMITTEE, SETUP A MEETING!
If any of you live in a district with a representative on the House Judiciary Committee, and would be willing to set up a meeting, we could arrange to have someone from WA-CARE go with you to the meeting. 

Here are the members of the Judiciary Committee:
http://www.leg. wa.gov/House/ Committees/ JUDI/Pages/ MembersStaff. aspx. 

3. SETUP A MEETING WITH ONE OF THESE SENTATORS!
Do any of you live in the districts belonging to Sen. Becker, Sen. Keiser, Sen. Stevens, and Sen. Pridemore?? If yes, we also need to try to set up meetings with one of these sentators in the event that the bill passes the
house and moves on to the senate, need to find a potential senator to sponsor the bill.

For more information about the efforts in WA to get the adoption laws changed, see the WA-CARE website: http://wa-care.com/default. aspx

Next WA-CARE meeting: Wed, Jan 18, 2012, 11.30am at Cutter's Point Coffee, 5750 Ruddell Road SE, Lacey, WA.

Any comments or questions, please email WA-CARE at washingtonadopteerights@gmail. com
Thanks! Penni


From Trace: Write a letter to the legislators and email Penni and tell your story - good and bad - adoption secrecy is like a cancer and needs maximum exposure aimed at the lawmakers. The adoptee and their stories are critical to change these lawmakers minds.

TO:	Representative Tina Orwall
FROM:	Ms. Trace A DeMeyer
BILL:	2211 (For Adoptee Rights)
	Dear Rep Tina Orwall I did live and work in WA state for many years but currently live in MA. I am an adoptee and an author. My struggle to find my identity, my medical history, my ancestry, my family and my tribe is detailed in my memoir ONE SMALL SACRIFICE: Lost Children of the Indian Adoption Projects. My book is on Amazon. My blog (www.splitfeathers.blogspot.com) has research and history and many articles by and about adoptees who are also struggling with archaic laws. Not all have American Indian ancestry. Do you know who you are? Do you know what it is like not to know? Or date someone who could be your relative? Or get sick and not have medical history? Or have a fake birth certificate and now with the REAL ID ACT you may not be able to get a new drivers license or passport. My friends Wanda and Tom are WA state adoptees and cannot find their parents. Is that right? They are adults, not children. It's possible their parents are dead but they remember their siblings before they were taken to CT to be adopted. That was a part of the Indian Adoption Project. Excerpt from my second book SPLIT FEATHERS: TWO WORLDS Administered by the Child Welfare League of America and funded by a federal contract from the Bureau of Indian Affairs and the U.S. Children’s Bureau, the Indian Adoption Project lasted from 1958 through 1967. During an era when matching dominated adoption practice, it placed 395 Native American children from 16 western states with white families in Illinois, Indiana, New York, Massachusetts, Missouri, and other states in the East and Midwest. (Only 14 children were adopted by Southern families and one child was adopted in Puerto Rico.) Approximately fifty public and private adoption agencies cooperated with the project, but the largest number of children were placed by agencies that were leaders in African-American adoptions and services to children of color: Louise Wise Services and Spence-Chapin Adoption Services (both of New York) and the Children’s Bureau of Delaware. Because tribes are legally considered sovereign nations, the incorporation of Indian children into non-Indian families constituted a kind of international as well as transracial adoption...The Indian Adoption Project was perhaps the single most important exception to race-matching... It aspired to systematically place an entire child population across lines of nation, culture, and race. (85% of Indian children in 16 states were placed in CLOSED ADOPTIONS)(Each state had its own program after IAP using the ARENA projects which moved thousands of Indian children from Canada and the US to non-Indian adoptive families. I have more proof in book 2.) In the late 1960s and early 1970s, Native Americans challenged the idea that the Indian Adoption Project was a triumph and denounced the project as the most recent in a long line of genocidal policies toward native communities and cultures. In June 2001, Child Welfare League Executive Director Shay Bilchik legitimated Native concerns, formally apologizing for the Indian Adoption Project at a meeting of the National Indian Child Welfare Association. He put the Child Welfare League of America on record in support of the Indian Child Welfare Act. “No matter how well intentioned and how squarely in the mainstream this was at the time,” he said, “it was wrong; it was hurtful; and it reflected a kind of bias that surfaces feelings of shame.” Source: http://darkwing.uoregon.edu/~adoption/topics/IAP.html When you consider all the lies and secrecy and harm that surrounds adoption, how does that make you feel? Trace A. DeMeyer
RESPONSE:	Ms. DeMeyer has requested a response to this message.

Yakama teen in 22 foster homes - ICWA not working

Teen who committed suicide had been in 22 foster homes

By Rikki King, Herald writer © 2011 The Daily Herald Co., Everett, WA

LYNNWOOD, WA -- A boy who jumped to his death from a Lynnwood overpass in January had been on a waiting list for a bed at a state-run psychiatric hospital. He had been in 22 different foster homes since 1998.

The boy, 14, ran away from his Lynnwood-area group home Jan. 21. Just 20 minutes later, he jumped from the Alderwood Mall Parkway overpass onto I-5 below.

His public death, which played out in front of shocked witnesses and stalled traffic on I-5 for hours, haunted many. The state's Children's Administration on July 20 released an executive fatality review of the boy's death. The administration is a division of the state Department of Social and Health Services.

The boy was a dependent of a Yakama tribal child welfare agency and had been a ward of the state since he was a toddler. The Herald is not naming him because of his age and the circumstances surrounding his death.

State law requires the Children's Administration to conduct a fatality review every time a child dies unexpectedly while in its care or while receiving its services, spokeswoman Sherry Hill said.

The fatality reviews don't seek to explain all the circumstances surrounding a child's death.

"We look at ways to improve education, policy, training and then if there are any legislative changes that may be needed," Hill said.

During the boy's life, the Children's Administration had worked with the welfare agency and tribal courts to provide services to him.

Tribal leaders and tribal health care workers were involved in the fatality review. So were representatives from multiple districts within the Children's Administration where the boy had lived, Hill said.

Since June 2009, the boy had been in group homes supervised by staff. Just weeks before his death he was placed at Cypress House in the Lynnwood area awaiting room at the psychiatric hospital.

In the year leading up to his being placed in tribal care as a toddler, the boy was visited at least six times by Child Protective Services, records show. Each visit investigated allegations that the boy's mother was abusing or neglecting her children.

Social workers for years tried to involve the boy's parents in his care.

His mother committed suicide in 2001. A few years later, his father was sent to prison.

The boy and his siblings' longest stay in one place was several years in a Yakama Nation foster home. The stability of the home was good for them while they dealt with their mother's death, the review says. However, the foster father died in 2004, and the grieving foster mother asked for the children to be removed.

After that, the boy had a history of struggling to adjust to new homes. He had significant behavioral and mental health issues, the details of which are blacked out in the report.

The boy in 2009 faced legal trouble in Benton and Yakima counties, court records show. Both cases involved assaults. He was still under active court supervision at the time of his death.

Late last summer, caseworkers started trying to get him into a psychiatric hospital.

The fatality review found that case workers did not consistently convey information about the boy's history to all involved in his care, especially regarding his behavior issues and safety planning. People at the group home in Lynnwood may not have known about the behaviors that led the state to seek a hospital placement. He was supposed to be under constant "visual and earshot" supervision at the home.

The review team concluded more supervision may have been needed. It also suggested more scrutiny for placing young people with such complex cases outside their home communities.

The review recommends that Children's Administration workers in similar cases make sure every caregiver has a comprehensive summary of the case. That discussion should occur before the child is placed at the home. The administration also may want to develop additional training for foster parents who care for children with complex mental health and behavioral issues, the team suggested.

In the week after his death, the boy's body was returned to his family for burial. An obituary that ran in an Eastern Washington newspaper said he was an enrolled member of the Yakama Nation. He spent at least part of his life on the Yakama Reservation and was a member of the Shaker and Longhouse religions.

Memorial services took place over several days in the Yakima area shortly after his body was sent back home.

[I am saddened by this story so much. This tragedy again scores the fact that the Indian Child Welfare Act has not worked in many ways and needs attention.   Prayers for this teen and his tribe...Trace]

Washington state ICWA passed today

WASHINGTON INDIAN CHILD WELFARE ACT PASSED (6-1-11) NEWS!!

After a multi-year tribal effort to make this Act a reality, Governor Chris Gregoire has signed the Washington State Indian Child Welfare Act (WICWA) into law. AAIA has worked closely with Washington state tribes on Indian child welfare issues for many years and we believe this is an important step forward in the ongoing efforts to promote the safety and well-being of Indian children and families.

WICWA has two main purposes. First, it codifies in Washington law the main provisions of the federal Indian Child Welfare Act (ICWA). This helps to make sure that state courts, attorneys and others involved with the state legal system incorporate ICWA protections for Indian children, families and tribes into their everyday practice. AAIA has long been involved in Indian child welfare advocacy. Studies and efforts by the AAIA were the catalyst for the enactment of the ICWA in 1978.

Second, WICWA clarifies how the federal law should be implemented and expands upon its protections. Among the most meaningful additions are provisions which define important legal terms, such as “active efforts,” “best interests,” and “qualified expert witnesses,” modify the placement preferences and improve procedures for identifying Indian children, including recognizing tribal decisions on membership as conclusive.

AAIA provided technical legal assistance to Washington tribal leaders and attorneys drafting and advocating for WICWA. WICWA builds upon previous tribal efforts to implement ICWA in Washington State which AAIA has assisted, including negotiation of a landmark tribal-state Indian child welfare agreement with the state, incorporation of provisions in the agreement into state practices and procedures, and legislation requiring the state to recognize tribally-licensed foster homes.

WICWA will help to advance the central goals of ICWA – namely to keep Indian families together and to ensure placement with extended family or tribal members whenever possible.
http://turtletalk.wordpress.com/2011/06/01/washington-icwa-passes/

[Great news...now we need other states to do this... Trace]