Spears, Karen v. Sacramento Area Director, 28 IBIA 161 (1995)

CourtInterior Board of Indian Appeals

Appeal from a decision concerning eligibility for payment of attorney fees under the Indian Child Welfare Act.

Vacated and remanded.

  1. Board of Indian Appeals: Jurisdiction--Bureau of Indian Affairs: Administrative Appeals: Generally--Indians: Indian Child Welfare Act of 1978: Child Custody Proceedings

    Where Bureau of Indian Affairs regulations provide for appeals of certain decisions to the Assistant Secretary - Indian Affairs, the Assistant Secretary may refer the appeal to the Board of Indian Appeals under 43 CFR 4.330(a)(2). Absent a referral, however, the Board lacks jurisdiction over such appeals.

  2. Bureau of Indian Affairs: Administrative Appeals: Generally--Indians: Indian Child Welfare Act of 1978: Child Custody Proceedings

    Under 25 CFR 2.7(a), it is the responsibility of a Bureau of

    Indian Affairs deciding official to give notice of the decision to all interested parties known to the official.

  3. Bureau of Indian Affairs: Administrative Appeals: Generally--Estoppel--Indians: Indian Child Welfare Act of 1978: Child Custody Proceedings

    Where a Bureau of Indian Affairs regulation requires that a decision be issued within a certain time, the Board of Indian Appeals will not find the Bureau estopped by its delay in issuing a decision where the party seeking estoppel had a regulatory right to appeal from the Bureau's delay but failed to exercise that right.

    IBIA 95-55-A

  4. Attorney Fees: Generally--Indians: Indian Child Welfare Act of 1978: Child Custody Proceedings

    The Bureau of Indian Affairs regulation implementing 25 U.S.C. § 1912(b) (1994) does not authorize Bureau payment of attorney fees in voluntary child custody proceedings in State courts. 25 CFR 23.13.

    APPEARANCES: Margaret Crow Rosenfeld, Esq., Michael S. Pfeffer, Esq., Stephen V. Quesenberry, Esq., Jay B. Petersen, Esq., Leigh E. Lorry, Esq., and William H.D. Fernholz, Esq., Oakland, California, for appellant.

    OPINION BY ADMINISTRATIVE JUDGE VOGT

    Appellant Karen Spears seeks review of a November 23, 1994, decision of the Sacramento Area Director, Bureau of Indian Affairs (Area Director; BIA), concerning eligibility for payment of attorney fees under the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 (1994). 1/ For the reasons discussed below, the Board vacates the Area Director's decision and remands this matter to him for further consideration.

    Background

    Appellant is a member of the Cherokee Nation and the mother of two children. On May 12, 1992, she signed a California State form nominating Terry and Donna Sills as guardians of her children. She also signed the following statement: "WAIVER OF NOTICE AND CONSENT. I am entitled to notice in this proceeding. I waive notice of hearing of the petition for appointment of guardian of minor and consent to appointment of the guardian as requested." The Sills' guardianship petition was granted on August 27, 1992.

    On November 30, 1993, the Shasta County Superior Court appointed Margaret Crow Rosenfeld, Esq., of California Indian Legal Services (counsel), as appellant's attorney in further proceedings in the guardianship matter. In addition to appointing counsel, the order stated:

  5. The minors in this proceeding are Indian children within the meaning of [ICWA] in that they are the biological children of a tribal member and are eligible for membership. 3. California law does not provide for appointment of counsel in guardianship proceedings. 4. It has been determined that [appellant] is indigent.

    On December 6, 1993, counsel sent a copy of the November 30, 1993, court order to the Sacramento Area Office, requesting certification of appellant's eligibility for payment of attorney fees in the guardianship

    1/ All further references to the United States Code are to the 1994 edition.

    IBIA 95-55-A

    proceeding. On January 13, 1994, at the request of the Area Social Worker, counsel furnished a copy of the guardianship petition, a copy of appellant's proof of tribal membership, and appellant's complete name and address.

    On February 9, 1994, the Shasta County Superior Court issued another order appointing counsel as appellant's attorney in a second guardianship proceeding involving the same parties. 2/ On February 23, 1994, counsel submitted the second court order to the Area Office.

    The Area Office transmitted appellant's request to the BIA Central Office in Washington, D.C. The Acting Deputy Commissioner of Indian Affairs (Deputy Commissioner), by memorandum of April 25, 1994, to the Area Director, stated that the request had been denied because the child custody proceeding at issue was a voluntary proceeding and thus did not fall within the scope of proceedings for which attorney fees could be paid under BIA guidelines published in the Federal Register in 1979. Further, he stated, appellant's request was incomplete because it did not include the information required by 25 CFR 23.13(d).

    Counsel was furnished with a copy of the Deputy Commissioner's memorandum. She wrote to the Area Office on May 13, 1994, disputing the conclusion that the proceeding was a voluntary proceeding and contending that the information required by 25 CFR 23.13(d) relates to the second stage of attorney fee requests, i.e., actual requests for payment, and is not relevant to the initial request for certification of eligibility for payment of attorney fees.

    On September 22, 1994, October 11, 1994, and October 27, 1994, counsel wrote to the Area Office, requesting that a decision be made on appellant's request.

    On November 23, 1994, the Area Director issued the decision on appeal here. He stated:

    Your request for payment of attorney fees under [ICWA] for these two cases is denied on the basis that this case does not fall under the ICWA since this is a voluntary guardianship proceeding. Enclosed is a copy of [BIA's] guidelines published in the Federal Register, November 26, 1979, page 67587:

    "(c) voluntary placements which do not operate to prohibit the child's parent or Indian custodian from regaining custody of the child at any time are not covered by the Act. Where such placements are made pursuant to a written agreement that agreement shall state explicitly the right of the parent or custodian to regain custody of the child upon demand."

    ___________________________ 2/ The Sills filed a second guardianship petition on Nov. 18, 1993, resulting in assignment of a second case number and appointment of counsel for the second time.

    IBIA 95-55-A

    [Appellant] voluntarily requested this custody arrangement whereby her uncle and aunt would care for her two children until such a time as she was able to care for them. Enclosed is a copy of the original petition and nomination of guardianship signed by [appellant]. The enclosed petition does not include any language prohibiting the return of the children to [appellant].

    (Area Director's Nov. 23, 1994, Decision). The Area Director's decision stated that it could be appealed to this Board. Appellant filed a notice of appeal with the Board.

    [1] The Board found that it lacked jurisdiction over the appeal because, under 25 CFR 23.13(c), appeals from Area Directors' decisions concerning eligibility for payment of attorney fees under ICWA are appealable to the Assistant Secretary - Indian Affairs, rather than the Board. 3/ Accordingly, the Board transferred the appeal to the Assistant Secretary. 27 IBIA 93 (1994).

    On January 23, 1995, the Assistant Secretary referred the appeal back to the Board under 43 CFR 4.330(a)(2), because of "an extreme staffing shortage and a tremendous backlog of work within [BIA's] Division of Social Services." The Board established a briefing schedule on February 22, 1995, following receipt of the administrative record. Only appellant filed a brief. On August 24, 1995, the Board granted appellant's request for expedited consideration.

    Discussion and Conclusions

    25 CFR 23.13...

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