ICWA-aki

Since 2017, my work has been driven by one of two major projects--Haaland v. Brackeen and the Uniform State Indian Child Welfare Act--and all of the attendant projects and writings and ideas. I am a little tired. I would like to take a break from major projects, and spend some time thinking widely again. I also need to finally update my casebook, if my publisher will still have me, and I hope that by writing, I will write more. That's what I hear works, anyway. Also, take it or leave it, but I don't use AI to write (or anything, if I can help it). I just like dashes. -shrug emoji-

Just recently I gave a presentation that was back to talking about cases from different parts of the country and I enjoyed it so much. I miss writing and talking about individual cases and thinking about judicial reasoning and strategy. I have no interest in being comprehensive, or writing about every ICWA case. But I am interested in having a place for thoughts and announcements, and a few resources, mostly so I can send people links. I'm also interested in tribal jurisdiction as it relates to not just child dependency but family law generally, and tribal court work in these areas. I also have a bit of a special interest in Title IV-E and federal funding of tribal systems.

So this newsletter will be periodic, hopefully once a week, and highlighting cases or laws or questions I'm thinking through. I'll also let you know where I'll be speaking and what about. I want it to operate more like a newsletter than a blog, though you can use it either way.

In the interest in starting in a positive way, I have to give credit where credit is due, especially since I have frequently used Tennessee (derogatory) as an example in presentations. In this case, In re Knox G., M2024-01355-COA-R3-PT (Tenn. Ct. App. July 30, 2026) rather than ignore ICWA, the court of appeals fully engaged with the law. While I generally don't read unpublished opinions anymore, I happen to know that the Tennessee Court of Appeals doesn't publish their opinions without a long drawn out process, so I decided to check it out, and I was pleasantly suprised.

This case involved a step-parent adoption and the termination of the parental rights of a father who is a citizen at Choctaw. You know you have an interesting case when there is a footnote explaining that the trial court opinion said father was "the worst witness" the trial court had ever seen, but it had been amended by hand to say "one of the worst witnesses" the trial court had ever seen. The trial court terminated dad's parental rights, but after notice to the Tribe, the testimony of a qualified expert witness, and finding active efforts by mom. Not only that, the court's opinion addresses the ICWA findings first, and not as an after thought after the state law findings. Given that until last year, Tennessee courts and agency regularly used the existing Indian family exception to avoid ICWA's application, this is quite a shift.

Also, Choctaw Nation provided the QEW which is also a really excellent practice in third party or step-parent adoption proceedings. If a Tribal agency can provide that kind of support and testimony to ensure ICWA's application in state courts--despite this not being a dependency case--it goes a long way to ensuring court's follow the law in all termination of parental rights cases.

Finally, after the In re T.A.W. case I got a lot of questions about how an ex-partner or spouse can demonstrate active efforts. This case provides some clear and explicit examples at paragraph 6, despite the existence of a protective order against dad. Essentially, using the tools to facilitate parenting time, as well as ensuring she filed child support requests when father moved states, and filed requests for father to receive treatment for substance abuse. Despite this sounding like a very difficult situation for mom, rather than try to do an end run around ICWA, the parties and the court instead ensured all of its provisions were followed.