Michigan Court of Appeals Decides MIFPA Application to Removal of Child from the Home

Here is the opinion in In re Detmer/Beaudry. The question of whether an involuntary removal of a child triggers ICWA if the child is not placed in “foster home or institution or home of a guardian or conservator” 25 U.S.C. 1903(1)(i) is one that comes up pretty regularly. This case addresses that question under the Michigan Indian Family Preservation Act (MIFPA) and concludes that when a child is removed from respondent mother and placed with his non-respondent father, that removal still triggers MIFPA’s protections. The court focused on the dictionary definition of “removed” and found:

Thus, we understand “removed” in MCL 719B.15(2) to mean the instance when a court orders that a child be physically transferred or moved from the care and residence of a parent or custodian to the care and residence of some other person or institution. Based on this understanding, it becomes clear that the trial court erred with respect to AB. Over respondent mother’s objection, the trial court ordered that AB be physically placed with his nonrespondent father. AB had previously resided with respondent-mother and spent every other weekend with his nonrespondent father. The trial court’s order moved AB’s residence to his nonrespondent father’s home and conditioned respondent-mother’s visitation on the discretion of DHHS. Under our reading of MCL 712B.15(2), the trial court “removed” AB from respondent-mother.

***

Because AB was removed from a parent, the trial court was required under MIFPA to make findings on whether active efforts were made to provide remedial services, whether those efforts were successful, and whether respondent-mother’s continued custody of AB posed a risk of emotional or physical harm to the child. MCL 712B.15(2). The trial court was similarly required to hear testimony of a qualified expert witness concerning these matters. MCL 712B.15(2). The trial court made no such findings and heard no such testimony, and this was reversible error.

The ICWA Appellate Clinic at MSU Law co-authored the Tribe’s brief in this case.

Posted in Author: Kate E. Fort, Child Welfare, ICWA, Michigan Indian | Tagged , , , , , | Leave a comment

Federal Court Dismisses San Pasqual Band Membership Suits

Here are the materials in Alegre v. Zinke (S.D.Cal.):

20-1 Motion to Dismiss

28-1 Response

33 Reply

43 DCT Order

And here are the materials in the companion case Alegre v. United States (S.D. Cal.):

6 Motion for TRO

16-1 Motion to Dismiss

23 Response

25 Reply

29 DCT Order

Posted in Author: Matthew L.M. Fletcher, Research, tribal membership | Tagged , , , , | Leave a comment

Ninth Circuit Affirms Major Crimes Act Manslaughter Conviction

Here is the unpublished opinion in United States v. Bearcomesout.

Posted in Author: Matthew L.M. Fletcher, Criminal, Research | Tagged , , | Leave a comment

Federal Magistrate Recommends Rejection of Federal & Hualapai Criminal Convictions

Here are the materials so far in Smith v. United States (D. Ariz.):

1 Motion to Vacate

8 Government Response

13 Reply

14 Magistrate Report

Posted in Author: Matthew L.M. Fletcher, Criminal, Research | Tagged , , , | Leave a comment

Oneida of New York Sues Interior over Name Change of Oneida of Wisconsin

Here is the complaint in Oneida Indian Nation of New York v. Dept. of Interior (N.D.N.Y.):

1 Complaint

Posted in Author: Matthew L.M. Fletcher, Research | Tagged , | Leave a comment

Suit over Navajo Hopi Relocation Benefit Payments

Here is the complaint in Nelson v. Office of Navajo Hopi Indian Relocation (D. Ariz.):

1 Complaint

Posted in Author: Matthew L.M. Fletcher, Research | Tagged , , | Leave a comment

Picayune Rancheria Challenge to North Fork Rancheria Gaming Fails

Here are the materials in Picayune Rancheria of Chukchansi Indians v. Dept. of Interior (E.D. Cal.):

26 North Fork Motion for Summary Judgment

29 US Brief

33 Picayune Response

35 North Fork Reply

36 US Reply

42 DCT Order

Posted in Author: Matthew L.M. Fletcher, IGRA, Research | Tagged , , , | Leave a comment

California Indian Law Association 17th Annual Indian Law Conference & Gala

Link: Register

CILA is pleased to announce that its 17th Annual Indian Law Conference & Gala will take place at the Thunder Valley Casino and Resort, 1200 Athens Avenue, Lincoln, California. Attorneys attending the Conference may receive 6.00 Regular MCLE credits.

Agenda at a Glance

Welcome Dinner & Gala
October 12, 2017
6:00 pm – 9:00 pm

6:00 – 6:30 pm Arrival
6:30 pm Dinner Service Begins
6:45 – 7:10 Recognition of 2017 California Bar Foundation Diversity Bar Review Scholarship Recipient ​
7:15 – 7:30 pm Presentation of Outstanding Achievement in California Indian Law Award
9:00 pm Gala Concludes

Conference Panels
October 13, 2017
8:30 am – 5:00 pm

8:30 – 8:50  am Registration and Continental Breakfast

8:50 – 9:00  am Opening Prayer and Welcome

9:00 – 10:15 am Update on California Indian Law Litigation and Legislation
Moderator: TBD
Panelists: [INVITED]Jacob Mejia, Executive Director, Tribal Alliance of Sovereign Indian Nations
                  [INVITED]Seth Davis, Assistant Professor of Law, University of California, Irvine School of Law

10:15 – 10:30 am Break

10:30– 12:00 pm California Gaming Update: The End of the Brown Administration
Moderator: TBD
Panelists: [INVITED]George Forman, Founding Partner, Forman & Associates
                  [INVITED] Joe Dhillon, Senior Advisor for Tribal Negotiations, Office of Governor Brown
                  [INVITED] Loretta Tuell, Shareholder, Greenberg Traurig, LLP

12:00 – 1:00 pm Lunch (provided)

12:15 – 12:45 pm Keynote Address:  Judge Abby Abinanti, Chief Judge, Yurok Tribe

1:15 – 2:30 pm  Tribal Disenrollment and Exclusions: A Discussion of Tribal Interests 
Moderator: [INVITED]Adam Bailey, Associate, Hobbs, Straus, Dean & Walker
Panelists: TBD

2:30 – 3:30 pm CILA Organizational Matters: Board Elections and Other Business

3:30 – 5:00 pm Professional Responsibility – Protecting Your Tribal Clients & Yourself
Moderator: TBD
Panelists: [INVITED]Samuel Kohn, Associate, Dentons LLP
                  TBD

Posted in Author: Sarah Donnelly, Symposia | Tagged | Leave a comment

“Tribal Justice” Doc Airing Tonight

Here.

Posted in Author: Matthew L.M. Fletcher, Research, Tribal Codes | Tagged | Leave a comment

Comments from Tribes Needed for AFCARS Data Collection

As we have written about here and here and here, the Automated Foster Care and Adoption Reporting System (AFCARS), currently the only federal source of data on children in foster care, recently added data collection elements for AI/AN kids in care. This means that for the first time, we would have some real data from the states on their ICWA work. This sounds like dry stuff, but it’s really the one major way for us to have aggregate nationwide data on notice/placements/transfer–basically all of ICWA.

Unfortunately, it appears the Administration is trying to change or kill the rule. We received information late (this weekend) that the Administration for Children and Families asked for a “Proposed Information Collection Activity, Comment Request” in June, but it didn’t trigger an alert under our search terms. As such, comments on WHY this is so important are due August 30th. There are a few of us working on comments for tribes, so please contact us or leave a comment if you are interested (I’ll try to post something this week). If you work for a state, and think this is important information to have, or are already collecting it, PLEASE try to submit something in support. The information question presented is:

The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency’s estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

Posted in Author: Kate E. Fort, Child Welfare, ICWA | Leave a comment