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Tuesday, September 20, 2011

ICWA and "Family Lore"

ICWA, California, and “Family Lore”
Author: Kate E. Fort, ICWA, Research

A new phrase caught our (Turtle Talk on Wordpress) eye while researching California notice cases for 2011 (far fewer than back in 2007, strangely enough, and far fewer Indian Child Welfare Act (ICWA) cases nationwide).

However, so far in 2011, the phrase “family lore” has popped up three times in ICWA cases in California cases.

It cropped up twice (in the same unpublished case) in 2010, but not once from 2000-2009. And in case you were wondering, there have been 37 cases remanded for ICWA notice compliance so far this year in California. All three cases this year come out of the 2nd Appellate District, and have different judges. However, because they are all out of the same lower court (Superior Court of L.A. County), they share the same County counsel and Assistant County counsel (chief of the Dependency division), though each had different Principle Deputy County counsels. The phrase seems to be coming out of the juvenile court record in each case.

Here are the cases and how “family lore” is used:
In re Jeremiah L.
2011 WL 3964653 (Cal.App. 2 Dist. Sept. 9, 2011)
Father appealed whether the court had reason to know ICWA should apply. The court rejected his argument.
The Department was ordered to contact maternal great-grandmother on maternal grandfather’s side for further information. The court stated, ‘At this time the court has no reason to know that the children would fall under the Indian Child Welfare Act. It sounds like family lore at this point.’ *8
The suggestion that maternal great great-grandmother was part Cherokee came from maternal grandfather, who was told this by maternal great-grandfather and maternal great great-grandmother. Maternal grandfather stated he would find out from maternal great-grandmother if there was further information. In these circumstances, the fact he did not make himself available to the social worker for a follow-up interview reasonably indicated that the story of Indian ancestry was nothing more than unfounded ‘family lore.’ *9
In re Hunter W.
2011 WL 3806151 (Cal.App. 2 Dist. Aug. 30, 2011)
The mother appealed claiming ICWA applied. The court rejected her argument.
The court held that it ‘does not believe that family lore, pursuant to case law, is reason to know a child would fall under [ICWA],’ and no notice need be given to any tribe or to the Bureau of Indian Affairs. The court ordered the parents to ‘keep [DCFS], their attorney, and the court aware of any new information relating to possible ICWA status.’” *9
However, as we have discussed, the court also concluded mother’s claim of Indian heritage through her father was too speculative to begin with, ruling that ‘[t]he court does not believe that family lore … is reason to know a child would fall under [ICWA].’ We conclude that this is an independent and valid reason for the court to find that ICWA did not apply. *10
In re Christina W.
2011 WL 635869 (Cal.App. 2 Dist. Feb. 23, 2011)
Mother and father appealed lack of notice for ICWA. Court reversed and remanded on the issue of notice (“Although the Father has not provided detailed information, his claim of Cherokee or Lakota ancestry was enough to satisfy the ‘minimal showing required to trigger the statutory notice provisions.’” *18). This case also includes some of the juvenile court transcript.
‘Pursuant to 224.3, relative membership which is remote or family lore without any reason or family lore without any recent identification with any tribe is not reason to know. The court is finding, based upon this information that the court does not have, at this particular point, any reason to know that the [ICWA] is involved.’ *14 (quoting the juvenile court)
[California Welfare & Institutions Code 224.3 makes no reference to family lore nor to the remoteness of the relationship as a reason NOT to know an Indian child is involved].
In re J.T.
2010 WL 2505639 (Cal.App. 4 Dist. June 22, 2010)
Father appealed lack of inquiry to determine if ICWA applied. Court rejected the appeal.
Here, mother was asked about possible Indian ancestry, in both the current and prior cases, and denied it. Consequently, if she later discovered that family lore indicates Indian ancestry, or if she had previously known it but had chosen not to disclose it, it was up to her to disclose that information to the court or to the department in order to trigger a duty either to make further inquiry or to give notice. Such information was exclusively within her knowledge, and its disclosure was wholly within her control. (See ibid.) *7.

After reading this, my only comment is there are Urban Indians - hello! And 80% of Indians today are urban Indians! Should Indian Child Welfare apply to urban Indians? Hell, YES! Most tribes are aware of where their citizens live - on and off the rez. If these children are part of the group of non-federally recognized tribes - they are lost. If they are mixed blood - they could be lost. If their parents are not enrolled, the children could certainly be lost. Should Indian children be adopted by kin and relatives - yes! That is why ICWA was enacted.... This attitude in California right now- it is not good.... Trace

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