This appeal concerns two Indian children, twins who now are two years old. Both children needed immediate medical attention following birth. The boy remained in the hospital while suffering withdrawal symptoms. The girl was not breathing when born but was revived by medical providers and transferred to the neonatal intensive-care unit at the Mayo Clinic in Rochester, where she was placed on a ventilator and put into “medically induced hypothermia cooling” to reduce seizures and protect her brain.

Three days after the children were born, the county petitioned for an order adjudicating the children as being in need of protection or services (CHIPS). Within days, the district court filed an order transferring care, custody, and control of the children from their birth parents (L.K. and A.S) to the county and granting the county authority to determine an out-of-home placement.

The boy was discharged from the hospital when he was 11 days old and was placed in the home of K.R. and N.R., who are non-Indian licensed foster-care providers. The girl was discharged when she was 37 days old and also was placed in K.R. and N.R.’s home.

The district court’s emergency-protective-care order noted that the children are eligible for enrollment with the Red Lake Band of Chippewa Indians and that ICWA applies. In mid-May 2022, a representative of the Red Lake Nation filed an affidavit stating that the tribe supports an out-of-home placement. After their placements, both children required numerous appointments at the Mayo Clinic in Rochester as well as in-home visits from medical professionals. The in-home therapy plan included monthly physical therapy, quarterly occupational therapy, and quarterly early-childhood-specialist services. K.R. and N.R. cared for the children as foster parents for more than a year. K.R. and N.R. stated in an affidavit that the county represented to them that they were the preferred long-term placement for the children.

On August 1, 2023, the county informed K.R. and N.R. that the Red Lake Nation had stated a preference that the children be placed with a relative of the birth mother. The relative has physical and legal custody of the children’s older sibling. Throughout August 2023, the county, the Red Lake Nation, the guardian ad litem, and K.R. and N.R. engaged in numerous communications concerning a plan to transition the children from K.R. and N.R.’s care to Red Lake. However, the relative did not complete the transition plan. Nevertheless, on September 1, 2023, the Red Lake Nation stated that it wanted the children to be transitioned to the relative’s care as soon as possible.

On September 9, 2023, the county informed K.R. and N.R. that the children would be transferred on September 13, 2023. On September 12, 2023, K.R. and N.R. filed an emergency motion for permissive intervention into the CHIPS case, a stay of the change of placement, a finding that good cause exists to not change the placement despite the expressed preference of the Red Lake Nation, and a declaration that ICWA and MIFPA are unconstitutional.

K.R. and N.R. urged the district court to stay the placement on the grounds that 1) the transition plan had not been implemented, 2) that the relative was unfamiliar with the children’s medical needs, 3) that the change of placement would result in the children being further away from the birth mother (L.K.), and that the birth mother favors continued placement with K.R. and N.R.

After a brief recess, the district court orally ruled that the children should immediately go to the Red Lake reservation and that a written order would follow. On September 15, 2023, the district court filed an order in which it denied K.R. and N.R.’s motion to stay the change of placement. On October 4, 2023, K.R. and N.R. filed an amended motion for permissive intervention and a petition for third-party custody. Further appeals are now in process.

Why This Case Matters:

• The 2023 Brackeen opinion indicates that the path this case is taking to the US Supreme Court is the path they preferred.
• Constitutional Concerns: ICWA violates the Tenth Amendment by commanding state officers to administer a federal regulatory program, which is seen as an overreach by federal law into state jurisdiction.
• Child Welfare: The placement preferences under ICWA do not always align with the best interests of the child or the direct wishes of parents.
• Rights of Parents: Parents should have a voice in the best interest of their children.
  

According to the last three US censuses, 75% of tribal members DO NOT live in Indian Country. Many have taken their families and left due to the high incidence of crime and abuse. Some families moved away decades ago. Further, most children of tribal heritage are multi-heritage – meaning they may have a parent, grandparent and other relatives who they love but who are not enrolled tribal members.

READ: Various Family Stories over the years

Nevertheless, the ICWA claims jurisdiction over children that are merely ELIGIBLE for enrollment, regardless of their background and preferences. This means that even if parents do not enroll their children, the tribal government still has jurisdiction if the child is “in need of care” and more right to take custody of a child than a beloved non-tribal aunt. In some cases, even non-tribal grandparents have been denied custody. In some cases, even enrolled relatives have been denied custody if they have turned their backs on tribal government.

However, ‘In the Matter of the Welfare of the Children of: L.K. and A.S., Parents‘, is headed to the Minnesota Supreme Court. CAICW was invited to write an Amicus brief in support of the petitioners.  You can read CAICW’s amicus here:

READ: CAICW Amicus Curiae Brief in Support of Petitioners

or type in the link for the AMICUS BRIEF: https://caicw.org/wp-content/uploads/2024/09/CAICW-Amicus-Curiae-Brief-in-Support-of-Petitioners.pdf

• Legal Costs: While the attorney for the parents is pro-bono, there are ancillary expenses We need funds to cover paralegals, expert witnesses, and other legal expenses to ensure a robust defense.
• Public Awareness: Your contribution will help us educate the public and policymakers about the importance of ICWA, ensuring widespread understanding and support.
• Setting Precedents: By supporting this case, you’re not just aiding one legal battle; you’re contributing to a broader movement for justice, recognition, and rights for Native children.

Minneapolis attorney Mark D. Fiddler, of Fiddler Osband Flynn LLC., is known nationally for his work concerning the Indian Child Welfare Act and is the lead attorney for the appellants/petitioners.

CAICW is a national 501c3. Donations to cover legal fees for the family are tax deductible. As has been done before, unless specified for CAICW, 100% of donations will be sent directly to the family’s attorneys (In this case, Fiddler Osband Flynn LLC.

How You Can Help:   

• Donate: Any amount you can contribute will make a difference. Your donation ensures we have the resources to fight this case with vigor.
• Spread the Word: Share our cause on social media, talk about it in your community, and help us reach more potential supporters.
• Volunteer: If you have skills in social media or fundraising, we could use your expertise.
• Join Us: Your support can make history, ensuring that Native children have rights and protections equal to that of every other child in the United States.

Act Now: We have set up a fund dedicated to this legal battle. Every dollar you contribute goes directly towards defending the rights of these children:

• Donate Online: Visit https://www.givesendgo.com/CAICW to make a secure donation
  

Thank you in advance for your generosity and for standing with us in this crucial moment. Together, we can defend the rights of generations yet to come.