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Congress Required Assessment of State ICWA Compliance. It Didn’t Tie Shortfalls to Corrective Plans or Funding Consequences – Turtle Talk

Congress Required Assessment of State ICWA Compliance. It Didn’t Tie Shortfalls to Corrective Plans or Funding Consequences – Turtle Talk

In my earlier post today, I wrote that neither S. 4976 nor S. 4638 would require HHS to evaluate each state’s compliance with ICWA. That’s true of the bills, but it leaves out an important piece of existing law. Congress has already required federal assessment and reporting. 42 U.S.C. § 628d directed HHS to develop an ICWA technical assistance plan by October 1, 2025. The plan must use data sufficient to assess state performance on identifying Indian children, notifying Tribes, transferring cases to Tribal court, and complying with ICWA’s requirements for placements and termination of parental rights. Every two years, HHS must report to Congress on state compliance and federal efforts to improve it. That framework isn’t fully operating, however. In a report dated July 15, 2026, ACF described the plan as still under development. As of September 23, I couldn’t locate a published plan or an announcement that it had been completed. Existing federal data is limited. States currently report only four categories of ICWA-related information through AFCARS, and ACF has identified serious reliability problems. A 2024 rule will substantially expand that collection, but states won’t begin collecting the new data until October 1, 2028. The first files containing the new data aren’t due to ACF until May 15, 2029. That leaves the central gap identified by the Commission on Native Children. The Commission didn’t only ask for better information. Recommendation 2 called for improvement plans when states fall short and for progress toward ICWA benchmarks to matter for federal child welfare funding. Current law doesn’t create that system. States must describe their ICWA measures in their Title IV-B plans, and HHS has general authority to enforce compliance with approved plans. In its 2024 AFCARS rule, however, ACF stated that it has no jurisdiction to impose consequences on states under ICWA, and the Bureau of Indian Affairs has told ACF that it has no role in enforcing state compliance either. The law establishes no substantive ICWA performance benchmarks and doesn’t require ICWA-specific corrective plans or funding consequences when a state falls short. That doesn’t mean any funding penalty would improve compliance. Justice Anne McKeig of the Minnesota Supreme Court told ACF in a 2025 comment that Minnesota law allows the state to reduce federal funding to counties it finds didn’t fully comply with ICWA in the preceding year, sometimes because of a technicality outside the county’s control. She warned that the penalty can deprive a struggling county of the money it needs to provide active efforts. The Commission proposed a more calibrated approach that includes improvement plans with benchmarks, with progress tied either to continued federal funding or to additional incentive funds. ACF’s consultation report records Tribal recommendations for annual state reporting and actionable improvement plans. It also records a recommendation that states failing to consult with Tribes not receive administrative costs. ACF didn’t commit to those measures. Ultimately, neither S. 4976 nor S. 4638 closes this gap. Congress has required the federal government to identify where states are falling short, but it hasn’t created the improvement and accountability system the Commission recommended. An immediate opportunity ACF is accepting written comments from Tribes for its 2026 Annual Tribal Consultation until 5:00 p.m. ET this Friday, September 25. Comments can be sent to [email protected] with the subject line “ACF Tribal Consultation Testimony.” Tribal Nations could ask ACF to publish the § 628d plan, state whether and when it was completed, and explain how it will assess and respond to state noncompliance before the expanded AFCARS data become available. Resources The Way Forward: Report of the Commission on Native Children 42 U.S.C. § 628d ACF Tribal Consultation Report (dated July 15, 2026) Public Comments, Regulations.gov Docket ACF-2025-0038 ACF’s 2024 AFCARS Final Rule ACF Annual Tribal Consultation Notice Source link

September 23, 2026

Contract – Fraud in the execution – Operating agreement

Contract – Fraud in the execution – Operating agreement

Where a defendant has moved for summary disposition, that motion should be denied, despite the defendant’s argument that the plaintiff’s claimed reliance on the defendant’s alleged misrepresentation was unreasonable as a matter of law. “On April 23, 2006, John Zervas moved for partial Summary Disposition. … “… The court denies the motion with respect to the fraud and misrepresentation claims found in Count I. The court grants the motion with respect to the conversion claim found in Count II. … “Although the complaint alleges additional wrongdoing, its essential claims are straightforward. Doug Obiedzinski and John Zervas formed Perfect Touch Detailing LLC and entered into an operating agreement. Obiedzinski alleges that Zervas represented he would amend the operating agreement to increase his interest from 12% to an agreed-upon 15% but instead changed his interest to 25%. Obiedzinski claims he relied on Zervas’ oral representation and signed the amended agreement without reading it. He also alleges that Zervas represented he would take only his agreed-upon share of the company’s monthly profits but then used his access to the company’s bank account to withdraw more than that amount. … “In this case, the final operating agreement stated the profit-distribution percentages in plain and unambiguous language. In fact, the relevant provision was set forth in block form, making it particularly conspicuous on the page. This raises an obvious question: Can a party to an operating agreement reasonably rely on an oral representation by the person who drafted the agreement when the agreement itself, containing the correct information, is in that party’s hands as he signs it without reading it? “As a general proposition, the law presumes that whoever signs a contract knows the nature of the document and understands its contents, even if he or she has not read the agreement. … “This sensible mile however is subject to some exceptions. Among the exceptions is fraud in the execution. See Rood v. Midwest Matrix Mart, Inc., 350 Mich. 559, 87 N.W.2d 186 (1957). … “The Supreme Court held that a party who signs a written instrument may nevertheless present evidence that his signature was procured through fraud concerning the contents of the instrument. The Court distinguished such fraud in the execution from ordinary fraud in the inducement, explaining that the former occurs when a person is deceived about the nature or contents of the writing he is signing. … The Court further held that a party is not barred as a matter of law from asserting such fraud merely because he failed to read the document before signing it. Although that failure may constitute negligence, negligence is not a defense to intentional fraud when the failure to read was induced by the other party’s trick, stratagem, or artifice. Accordingly, where a party alleges and can present evidence that he relied upon misrepresentations concerning the contents of a document and was thereby induced to sign it without reading it, the issue is one for the factfinder rather than a matter that can be resolved solely because the party signed the writing. “In other words, a party who signs a written instrument may introduce evidence that he was fraudulently induced to sign it when the alleged fraud concerns the contents of the instrument itself. This is fraud in the execution, rather than ordinary fraud in the inducement. “Although Rood was decided in 1957, it still represents Michigan law. … “The fraud in the execution part of Count I therefore survives the motion for summary disposition. …” Obiedzinski v. Zervas; MiLW No. 10-111135, 7 pages; Michigan Circuit Court for the County of Kent; Benson, J. Source link

September 23, 2026

Spokane County Bar Assn. Indian Law Section Save the Date – Turtle Talk

Spokane County Bar Assn. Indian Law Section Save the Date – Turtle Talk

The leading blog on legal issues in Indian Country The views and opinions expressed on Turtle Talk are the authors’ and do not necessarily reflect the official policy or position of Michigan State University. Follow Blog via Email Join 11.2K other subscribers Source link

September 22, 2026

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