Inmates on Drugs

A new study in Hennepin County, Minnesota (Minneapolis) found that 70% of inmates are on drugs at the time of booking.  This article from the Minneapolis Start Tribune discusses the study & the problem.  A very interesting read for those who deal with jail inmates, or are interested in the problem of drug use/abuse and its connection with crime.

Thanks to Professor Roger Baron from The University of South Dakota School of Law for passing along the article.

Rationale for A Proposal for Amendments to the Indian Child Welfare Act

In my previous blog entry, I posted my proposal for amendments to the Indian Child Welfare Act.  As promised, this post is my rationale for that proposal, as well as a bibliography of sources for my proposed amendments and the rationale.  As with the previous post, I welcome comments.

Problem

            In 1978, Congress enacted the Indian Child Welfare Act to address the “alarmingly high percentage of Indian families […] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and institutions,” as well as the fact “that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.”[1]  In states with large Indian populations, 25 to 35 percent of all Indian children were removed from their homes and placed into foster adoptive homes at one point in their lives.[2] 

 Making the situation more alarming is that Native American children were rarely removed from their homes because of physical abuse.[3]  These children were removed and their parents judged unfit because of alleged neglect, emotional mistreatment, or abuse of alcohol.[4]  Native American parents and families were routinely judged to be unfit by non-Indian social workers and judges because these non-Indian individuals were ignorant of the traditional and cultural Indian ways of childrearing,[5] thus resulting in a disproportionate number of Indian children being removed from their families on grounds of alcohol abuse as compared to the number of non-Indian families affected by the same addiction, and evidencing an obvious cultural bias. [6]  According to Congressional findings, a main reason for the disproportionate removal of Indian children was “that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.”[7]  Judges charged with making these custody decisions “rarely received the expert testimony of native people who could familiarize [them] with traditional child-rearing practices,” but instead relied upon the testimony of non-Indian social workers who were ignorant of the ways and traditions of Native Americans.[8]  These social workers often advised courts that the abject poverty of many Indian families prevented them from properly parenting their children.[9]  “The result was oftentimes the judicial countenance of abusive practices of state welfare agencies.”[10] 

In enacting the ICWA, Congress declared its policy to be the protection of

the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimal Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.[11] 

In essence, the ICWA was designed to accomplish three objectives: (1) to eliminate the removal of Indian children from their families because of cultural bias and ignorance; (2) to assure that those Indian children who do need to be removed from their families be placed in foster and adoptive homes that reflect their unique cultures and backgrounds; and (3) to encourage tribal court adjudication of proceedings involving Indian children.[12] 

Solution in ICWA—New Problems

            The Indian Child Welfare Act of 1978 “established minimum federal jurisdictional, procedural, and substantive standards aimed to achieve the dual purposes of protecting the right of an Indian child to live with an Indian family and to stabilize and foster continued tribal existence.”[13]  It seems as if the ICWA has been a success, though it is difficult to tell because of the limited number of compliance studies that have taken place, and the limited generalizability of these compliance studies.  However, with the ostensible success of the ICWA in improving the lives of Indian children, comes also problems.  These problems arise from misinterpretation of the ICWA’s mandates, as well as from unwillingness to apply the ICWA.  These problems also arise from lack of funding and lack of clarity in the language of the ICWA and the resulting BIA Guidelines.  Only a few of the more substantial problems will be addressed here. 

            The existing Indian family exception is a judicially created doctrine holding that the ICWA does not apply to those Indian children who have never been a member of an Indian home or culture and probably never would be.[14]  Prior to the United States Supreme Court’s decision in Mississippi Band of Choctaw Indians[15], many states adopted the existing Indian family exception.  In that case, the United States Supreme Court dealt with the status of twin babies who were born out of wedlock to parents who both were enrolled members of the Mississippi Band of Choctaw Indians (Tribe) as well as residents and domiciliaries of the Choctaw Reservation.[16]  On January 10, 1986, the twins’ mother deliberately gave birth to the twins in a county some 200 miles from the reservation and executed a consent-to-adoption form in that same county.[17]  The twins’ father signed a similar form.[18]  On January 16, 1986, the Holyfields filed a petition for adoption of the twins in the same court; and the adoption proceedings were concluded on January 28 with the issuance of a Final Decree of Adoption.[19]  The adoption decree contained no reference to ICWA or mention of the twins’ Indian background, despite the Chancery Court’s apparent awareness of both.[20] 

            Two months after the Final Decree of Adoption the Tribe moved to vacate the adoption decree on the ground that the tribal court should have exclusive jurisdiction of the twins.[21]  The Chancery Court overruled the motion and held that the Tribe had “never obtained exclusive jurisdiction over the children…”[22]  That court primarily relied upon a few facts in reaching this conclusion; first, that the twins’ mother “went to some efforts to see that they were born outside the confines of the Choctaw Indian Reservation,” second, that the parents had promptly arranged for the adoption of the twins by the Holyfields, and third, that “at no time from the birth of these children to the present date have either of them resided on or physically been on the Choctaw Indian Reservation.”[23]  The Supreme Court of Mississippi subsequently affirmed the Chancery Court’s decision.[24]  That court stated that,

The Indian twins…were voluntarily surrendered and legally abandoned by the natural parents to the adoptive parents, and it is undisputed that the parents went to some efforts to prevent the children from being placed on the reservation as the mother arranged for their birth and adoption in Gulfport Memorial Hospital, Harrison County, Mississippi;

and distinguished state cases that appeared to establish that “the domicile of minor children follows that of the parents.”[25]  The Mississippi Supreme Court said that the domicile of the twins was off of the reservation and that the state court properly had jurisdiction over the adoption proceedings of those twins.[26]  In support of its position, the Supreme Court of Mississippi stated that the lower court judge “did conform and strictly adhere to the minimum federal standards governing adoption of Indian children with respect to parental consent, notice, service of process, etc.,” while at the same time concluding that the provisions of ICWA were inapplicable by stating that “these proceedings…actually escape applicable federal law on Indian Child Welfare.”[27] 

            The United States Supreme Court recognized that the proceeding at issue was a “child custody proceeding” and that the children involved in that proceeding were “Indian children.”[28]  Because the twins fit into these portions of ICWA, the issues for determination by the Court were whether the state law definition of “domicile” should control, and whether under the ICWA definition of “domicile” the twins were non-domiciliaries on the reservation.[29]  The Supreme Court recognized that the language of ICWA does not define “domicile;” and that the definition is a matter of Congressional intent.[30]  The Court began with the canon of construction, stating that “in the absence of a plain indication to the contrary,…Congress when it enacts a statute is not making the application of the federal act dependent on state law.”[31]  It reached this conclusion because “federal statutes are generally intended to have uniform nationwide application,”[32] and because of the presumption that “the federal program would be impaired if state law were to control.”[33]  Congress very clearly did not intend for the critical terms in ICWA to rely on state law for definition, and actually was quite concerned with curtailing state authority.[34]  In support, the Court states that,

Even if we could conceive of a federal statute under which the rules of domicile (and thus of jurisdiction) applied differently to different Indian children, a statute under which different rules apply from time to time to the same child, simply as a result of his or her transport from one State to another, cannot be what Congress had in mind.[35] 

In fact, the Court is concerned that a State might apply a definition of domicile that would render ICWA inapplicable, or that an “adoption brokerage business” might develop if Mississippi’s position were sustained.[36] 

            Because the United States Supreme Court determined that state law does not control the definition of “domicile,” it relied upon the term’s generally uncontroverted and widely used definition.[37]  The Court stated that domicile for adults is “established by physical presence in a place in connection with a certain state of mind concerning one’s intent to remain there.”[38]  The Court continues that the domicile of minors is determined by the domicile of their parents because “most minors are legally incapable of forming the requisite intent to establish a domicile” of their own and that the domicile of illegitimate children means the domicile of the mother.[39] 

            Because the domicile of the unwed mother and father was at all relevant times on the Choctaw Reservation, the domicile of the twin babies, at the time of their birth, was also on the reservation.[40]  The Court continues that the mother’s voluntary surrender of the twins’ to the Holyfields does not render this finding of domicile on the reservation incorrect.[41]  In perhaps the most significant statement of ICWA and the portion of the opinion which most directly affects the existing Indian family doctrine, the United States Supreme Court declared that,

Tribal jurisdiction under § 1911(a) was not meant to be defeated by the actions of individual members of the tribe, for Congress was concerned not solely about the interests of Indian children and families, but also about the impact on the tribes themselves of the large numbers of Indian children adopted by non-Indians.[42] 

The Court also continues that “the protection of this tribal interest [the tribe’s ability to assert its interest in its children] is at the core of the ICWA, which recognizes that the tribe has an interest in the child which is distinct from but on parity with the interest of the parents.”[43]  In line with this position, the United States Supreme Court, with three dissenters, reversed the judgment of the Supreme Court of Mississippi and remanded the case. 

            As a result of Mississippi Band of Choctaw Indians v. Holyfield, which implicitly rejected the existing Indian family exception[44], many states have rejected the existing Indian family exception through court decision and through legislation.  These states are: Alabama, Alaska, Arizona, California, Colorado, Idaho, Illinois, Indiana, Iowa, Maine, Michigan, Minnesota, Montana, New Jersey, New York, North Carolina, North Dakota, Oklahoma, Oregon, South Dakota, Texas, Utah, and Washington.[45]  However, some states did not read Holyfield as eliminating the existing Indian family exception.  These states are: California, Kansas, Kentucky, Louisiana, Missouri, Tennessee, and Washington.[46] 

Additionally, in cases where a tribe appears to have exclusive jurisdiction, but may not be able to take jurisdiction over that case for a variety of reasons[47], it is currently unclear whether a state court may take jurisdiction over the case.  Section 1911(a) of the ICWA deals with exclusive jurisdiction vested in tribal courts.  The BIA Guidelines state that where the tribe exercises exclusive jurisdiction over child custody proceedings, the state court proceeding should be dismissed.[48]  Most states have never addressed the situation, so the answer to whether a tribe may waive exclusive jurisdiction does not appear to be entirely clear. 

Exclusive jurisdiction under the ICWA seems to be subject matter jurisdiction, which cannot be waived or consented to.  However, at least one state has held that a tribe may waive exclusive jurisdiction under the ICWA.  In the case of In the Matter of J.M., the Supreme Court of Alaska stated that in order for a tribe to waive exclusive jurisdiction, “[t]he tribe itself must have, by some prior act performed through a legally recognized procedure, conferred jurisdiction upon the [state] court.”[49]  The Court went on to state that implying a waiver of jurisdiction is inconsistent with ICWA’s objective of encouraging tribal control over decisions of custody of Indian children.[50]  Additionally, the Court stated that courts “historically have been reluctant to imply a waiver of Indian rights.”[51]  In support of its holding that exclusive tribal jurisdiction can be waived, the Supreme Court of Alaska cited to a Montana case (which did not deal specifically with ICWA, but rather with tribal jurisdiction in general): “[c]ase law also holds that procedural requirements must be strictly complied with before a state can exercise jurisdiction over a matter that otherwise would be within a tribe’s jurisdiction.”[52] 

The Court further states that states and tribes can enter into a formal agreement under 25 U.S.C. § 1919(a), whereby the tribe would be able to waive its exclusive jurisdiction.[53]  However, the Court holds that these agreements are not necessary where the state exercises jurisdiction because the tribe has clearly expressed its intent to waive jurisdiction.[54]  25 U.S.C. §1919(a) allows states and tribes to enter into agreements with each other “respecting care and custody of Indian children and jurisdiction over child custody proceedings, including agreements which may provide for orderly transfer of jurisdiction on a case-by-case basis and agreements which provide for concurrent jurisdiction between States and Indian tribes.”  This would imply that in the current type of situation, a tribe and a state could enter into agreement whereby tribal exclusive jurisdiction would be waived by the tribe’s failure to respond to the State’s request to transfer jurisdiction.  The agreement would likely be interpreted as an affirmative act waiving jurisdiction, rather than as a passive act of implied waiver. 

As a result, amendments to the ICWA are needed in order to ensure that Indian culture and practices are of continued vitality in the future, and to ensure that tribes are able to retain their most important asset, their people. 

Clarity in Amendments

A Section by Section Analysis of the Amendments

            These proposed amendments address the additional problems that have arisen as a result of misapplication of the ICWA, as well as to make clerical corrections to the ICWA.  Section 4—Congressional Findings—merely makes a clerical correction to the Act’s quotation from the United States Constitution, Indian Commerce Clause.  Section 11—Pending Court Proceedings—amendment (2) makes a similar clerical correction, in that mail must be sent certified in order to have a return receipt, instead of registered mail.  Section 10—Full Faith and Credit makes a clerical amendment in that Congress intended that tribal proceedings and judgments in child custody determinations under the ICWA be granted full faith and credit, and the current language of the Act only gives full faith and credit to proceedings.  The amendment is proposed to ensure that courts do not reach absurd results by their reliance upon the plain meaning of the existing text.  Under the plain meaning of the existing text, state courts may not be required to give full faith and credit to judgments entered by tribal courts and may be permitted to re-litigate issues determined by tribal courts.  This could be an absurd result in that state courts would not be required to give full faith and credit to judgments, but only to proceedings. 

            Section 5—Definitions—clarifies that an Indian child may have only one “Indian child’s tribe” for purposes of the ICWA.  Courts, commentators, and administrators have often questioned whether an Indian child may have more than one “Indian child’s tribe” for purposes of the Act and this amendment answers the question definitively.  Section 11—Pending Court Proceedings amendment (3) is an additional part of this clarification. 

Section 6—Congressional Declaration of Policy and Applicability—definitively puts to rest the “existing Indian family” exception, as a way to avoid applying the ICWA.  It makes absolutely clear that the exception cannot be a reason to avoid the Act’s provisions.  The amendment also explains that Indian children should have the opportunity to develop and maintain relationships with family and tribe and that these opportunities may not be disallowed.  Section 11—Pending Court Proceedings—amendment (5) furthers this position.  Qualified expert witnesses may not be denied or refused because the child is not part of an existing Indian family. 

Sections 7 and 8—Exclusive Jurisdiction over Child Custody Proceedings and Transfer of Jurisdiction to Tribal Court—have two main purposes: first, to reiterate Congress’ preference that custody determinations be made by tribal courts whenever possible; and second, to allow tribal courts to decline jurisdiction over proceedings while ensuring that decisions to decline jurisdiction be express and clear so that no ambiguities arise about the intentions of tribal courts. 

Section 9—Intervention in State Court Proceedings—ensures that tribes will be permitted to intervene in all child custody proceedings involving Indian children as well as makes clear that the tribe need not have an attorney in order to intervene. 

Section 11—Pending Court Proceedings—amendment subpart (4) mandates that courts recognize the unique relationship between each parent and each child and that the requirements of remedial and rehabilitative services applies individually to each child in a family. 

Section 12—Tribal Affiliation Information—completely replaces the previous section, because the previous section engendered much confusion.  It simplifies the language and is meant to simplify the procedures to enable adopted Indians to become members of their tribes. 

---

[1] 25 U.S.C. §§ 1901(4) and (5) (2006). 

[2] B.J. Jones, Mark Tilden & Kelly Gaines-Stoner, The Indian Child Welfare Act Handbook, Second Edition: A Legal Guide to the Custody and Adoption of Native American Children, 2 (ABA, Sec. of Fam. L. 2008) [hereinafter Jones, Tilden & Gaines-Stoner, The ICWA Handbook]. 

[3] Id. 

[4] Id. at 2-3. 

[5] Id. 

[6] Id. at 3. 

[7]

Bibliography

Statutes:

25 U.S.C. §§ 1901-1963 (2006). 

Cases:

Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989). 

In the Matter of J.M., 718 P.2d 150 (Alaska 1986). 

In re Baby Boy L., 643 P.2d 168 (Kan. 1982)

Blackwolf v. District Court, 493 P.2d 1293 (Mont. 1972)

Secondary Authority:

B.J. Jones, Mark Tilden & Kelly Gaines-Stoner, The Indian Child Welfare Act Handbook, Second Edition: A Legal Guide to the Custody and Adoption of Native American Children (ABA, Sec. of Fam. L. 2008). 

Dept. of Int., Bureau of Indian Affairs, Guidelines for St. Courts.; Indian Child Custody Proceedings, 44 Fed. Reg. 67584 (Nov. 26, 1979). 

H.R. 2750, 108^th Cong. (Jul. 15, 2003)

Native American Rights Fund, A Practical Guide to the Indian Child Welfare Act, (Native American Rights Fund 2007).  

A Proposal for Amendments to the Indian Child Welfare Act

The Indian Child Welfare Act was enacted in 1978, and has never been amended since its enactment.  After doing a fair amount of research into ICWA, as well as dealing with the requirements of ICWA in my profession and discussing it with others, it is clear to me that ICWA needs to be amended.  Following is a bill with my proposed amendments to ICWA. In my next post, I will provide an explanation into why I believe these amendments are necessary as a whole, but will also explain the amendments section by section.  That post will also include a bibliography of some of the sources that I used to assist in my drafting of this proposal.  I welcome feedback in the comments section regarding the contents of this set of proposed amendments and the rationale, as well as your passing along these blog entries to your legislators if you are so inclined.

A BILL

To make technical and clerical amendments to the Indian Child Welfare Act of 1978. 

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

            This Act may be cited as the “Indian Child Welfare Act Amendments of 2011”.

SEC. 2. PURPOSE. 

            The purpose of this Act is to make technical and clerical amendments to the Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901-1963. 

SEC. 3. FINDINGS.

            The Congress finds—

(1)   that the Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901 et seq. is of continued importance and practicability;

(2)   that there are minor clerical errors in the Act;

(3)   that certain amendments are necessary to correct those clerical errors;

(4)   that there have been misinterpretations and misunderstandings of provisions of the Act;

(5)   that certain technical amendments are necessary to correct misinterpretations and misunderstandings of provisions of the Act. 

SEC. 4. CONGRESSIONAL FINDINGS. 

            Section 2(1) of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901(1)) is amended as follows—by striking “tribes” and inserting “Tribes”. 

SEC. 5. DEFINITIONS. 

            Section 4(5) of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1903(5)) is amended as follows—by adding to the end the following: “and (c) there shall be only one tribe deemed to be the Indian child’s tribe”.

SEC. 6. CONGRESSIONAL DECLARATION OF POLICY AND APPLICABILITY

            Section 3 of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1902) is amended as follows—

(1)  by inserting “(a)” before “The Congress”;

(2)  by inserting “by assuring that Indian children have the opportunity to develop or enhance their relationship with their families and Indian tribes” after “culture”; and

(3)  by adding to the end the following: “(b) This Act shall apply to any Indian child involved in a child custody proceeding regardless of whether such child has ever been part of an Indian family, is currently part of an Indian family, or has maintained a social or cultural relationship with an Indian tribe.”.

SEC. 7. EXCLUSIVE JURISDICTION OVER CHILD CUSTODY PROCEEDINGS.

            Section 101(a) of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1911(a)) is amended as follows—

(1)  by inserting after “tribal court” the following: “or has become subject to a tribal court’s jurisdiction under subsection (b)”;

(2)  by inserting at the end the following: “In situations in which there is uncertainty about the residence or domicile of the child, or whether the child is a ward of a tribal court, shall be resolved in favor of the tribe’s exercise of exclusive jurisdiction.”; and

(3)  by inserting at the end the following: “The tribal court of the tribe may decline to exercise exclusive jurisdiction over custody proceedings, but must do so expressly, affirmatively, and in writing.  If a tribe declines jurisdiction, the state court shall assume jurisdiction over the proceedings.”.

SEC. 8. TRANSFER OF JURISDICTION TO TRIBAL COURT.

            Section 101(b) of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1911(b)) is amended to read as follows—

            “(b) TRANSFER OF PROCEEDINGS; DECLINATION BY TRIBAL COURT.—In any state court child custody proceeding involving an Indian child not domiciled or residing within the reservation of the Indian child’s tribe and not a ward of a tribal court, and upon the petition of either parent or the Indian custodian or the Indian child’s tribe, the court shall transfer such proceeding to the jurisdiction of the tribe, unless

(1)  either parent objects to the transfer of jurisdiction;

(2)  the tribal court of the Indian child’s tribe expressly, affirmatively, and in writing, declines the transfer of jurisdiction;

(3)  the tribal court of the Indian child’s tribe notifies the State court, in writing or through a representative, that the tribal court does not have subject matter jurisdiction;

(4)  in circumstances where the evidence necessary to decide the case cannot be adequately presented in the tribal court without undue hardship to the parties or the witnesses, and the tribal court  is unable to mitigate such hardship by making arrangements to receive and consider such evidence by remote communication, hearing the evidence at a location convenient to the parties or the witnesses, or any other means permitted in the Indian tribe’s rules of evidence or discovery; or

(5)  there is good cause to the contrary.”

SEC. 9. INTERVENTION IN STATE COURT PROCEEDINGS.

            Section 101(c) of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1911(c)) is amended—

(1)  by adding “(1)” before “In”;

(2)  by striking “proceeding for the foster care placement of, or termination of parental rights to,” and inserting “child custody proceeding involving”;

(3)  by adding at the end the following: “(2) Any motion, application, or other form of request to intervene in a child custody proceeding pursuant to paragraph (1) may be filed pro se or through legal counsel.”.

SEC. 10. FULL FAITH AND CREDIT.

            Section 101(d) of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1911(d)) is amended—

(1)   by striking “and judicial proceedings” the first place it appears and inserting “judicial proceedings, and tribal court judgments”;

(2)   by striking “and judicial proceedings” the second place it appears and inserting “judicial proceedings, and judgments”. 

SEC. 11. PENDING COURT PROCEEDINGS

            Section 102 of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1912) is amended in subsection (a)—

(1)  by inserting “(1)” after (a)”;

(2)  by striking, in the first sentence, “registered” and inserting “certified”;

(3)  by adding at the end the following: “(2) If more than one tribe may be the Indian child’s tribe, each tribe must be notified of the pending proceedings and of its right to intervention so that each tribe may be afforded the opportunity to present evidence to the court that the tribe should be deemed the Indian child’s tribe.  After an adjudication of the Indian child’s tribe, only that tribe must receive further notice of pending proceedings.”

(4)  by adding at the end the following: “(3) No involuntary child custody proceeding commenced prior to the birth of the Indian child shall be valid.  Nothing in this paragraph shall limit the authority of a State court to require that the prospective parent of an unborn Indian child receive remedial and rehabilitative services designed to protect the health of such parent and unborn child and prevent the foster care or adoptive placement of such child after birth.”.

(5)  by adding at the end the following: “(4) The requirement of qualified expert witnesses applies regardless of whether such child has ever been part of an Indian family, is currently part of an Indian family, has maintained a social or cultural relationship with an Indian tribe and regardless of whether a cultural bias could be implicated.”.

SEC. 12. TRIBAL AFFILIATION INFORMATION.

            Section 107 of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1917) is amended by striking the existing section and replacing with the following:

“SEC. 107. DISCLOSURE OF INFORMATION REGARDING TRIBAL AFFILIATION.

            “Upon petition of an adopted Indian who is 18 years of age or older, or of an adoptive parent or guardian of an Indian who is under the age of 18 or incompetent, or of the Indian tribe of an adopted Indian, to the court which entered the final decree of adoption or any other court of competent jurisdiction for the release of information regarding tribal affiliation, if any, of the adopted child’s biological parents, the court shall disclose, from any records subject to its jurisdiction, such information to the petitioner and shall provide the petitioner with any other identifying information as may be necessary to protect any rights flowing from the individuals tribal relationship.”.

SEC. 13. SEVERABILITY.

            Section 403 of the Indian Child Welfare Act of 1978 (25 U.S.C. 1963) is amended to read as follows: “SEC. 403. SEVERABILITY.

“If any provision of this Act is found or held to be invalid, all valid provisions that are severable from the invalid provision shall remain in effect and not be affected thereby.  If a provision of this Act is found or held to be invalid in one or more of its applications, the provision shall remain in effect for all valid applications that are severable from the invalid applications and not be affected thereby.”. 

SEC. 14. EFFECTIVE DATE.

            This Act is effective upon passage by both Houses of Congress and signature by the President of the United States of America, and shall be prospectively effective 

The Existing Indian Family Exception to ICWA (part 4)

Part 4, the final portion, of my paper on the existing Indian family exception to ICWA.

Application of the Existing Indian Family Doctrine after Holyfield

     In the time since Mississippi Band of Choctaw Indians v. Holyfield was decided in 1989, several states that had not previously decided the issue of the existing Indian family doctrine addressed it and declined to adopt the exception.  Those states were Alaska[1], Arizona[2], Idaho[3], Michigan[4], New York[5], North Dakota[6], and Utah[7].  Still other states that had not previously decided the issue of the existing Indian family doctrine adopted the exception after Holyfield.  Those states were Alabama[8], Illinois[9], Kentucky[10], Louisiana[11], Tennessee[12], and Washington[13].  Colorado[14], Nebraska[15], Wisconsin[16], and Wyoming[17] have taken cases which have addressed the topic of the existing Indian family doctrine, but decided those cases on separate grounds, thus deferring their decision on whether to adopt the existing Indian family doctrine. 

California has mixed case law coming out of its Courts of Appeals as to the existing Indian family exception.  To deal with this conflict of case law, the California Legislature enacted Section 360.6 of the California Welfare and Institutions Code.  It defined “Indian child” the same way the ICWA defines the term and declares:

(a)        The Legislature finds and declares the following:
(1)  There is no resource that is more vital to the continued existence and integrity of Indian tribes than their children, and the State of California has an interest in protecting Indian children who are members of, or are eligible for membership in, and Indian tribe.
(2)  It is in the interest of an Indian child that the child’s membership in the child’s Indian tribe and connection to the tribal community be encouraged and protected.

(b)        In all Indian child custody proceedings, as defined in the federal Indian Child Welfare Act, the court shall consider all of the findings contained in subdivision (a), strive to promote the stability and security of Indian tribes and families, comply with the federal Indian Child Welfare Act, and seek to protect the best interest of the child.

(c)        A determination by an Indian tribe that an unmarried person who is under the age of 18 years, is either (1) a member of an Indian tribe or (2) eligible for membership in an Indian tribe and a biological child of a member of an Indian tribe shall constitute a significant political affiliation with the tribe and shall require the application of the federal Indian Child Welfare Act to the proceedings.[18] 

After this legislation was enacted, however, a California Court of Appeals rejected the authority of the state to enact legislation regarding “the family relations of members of federally recognized Indian tribes.”[19]  Since that time the Supreme Court of California has not taken a case to resolve this conflict over the existing Indian family doctrine between the state Courts of Appeals and the state legislature. 

     The Iowa legislature appears to have made decision on the issue of whether to adopt the existing Indian family doctrine for the judiciary.  The legislature adopted Iowa Code Section 232B.5(2)[20].  That Section states:

The federal Indian Child Welfare Act and this chapter are applicable without exception in any child custody proceeding involving an Indian child.  A state court does not have discretion to determine the applicability of the federal Indian Child Welfare Act or this chapter to a child custody proceeding based upon whether an Indian child is part of an existing Indian family.[21] 

Based upon this language, it does not appear that Iowa has or will adopt the existing Indian family doctrine.  If a party wanted the court to adopt the exception, it appears that an argument similar to the one adopted in the California Court of Appeals case, In re Santos Y.[22] could be used.  It is unlikely that Iowa would probably accept that argument, however, based upon the decisions of the North Dakota Supreme Court in the case of In the Interest of A.B.[23] and the Oklahoma Supreme Court in the case of In the Matter of Baby Boy L.[24]. 

     Mississippi originally adopted the existing Indian family doctrine in Matter of B.B.[25], but the case’s jurisdiction was postponed by Mississippi Band of Choctaw Indians v. Holyfield[26], which then reversed the judgment of B.B.  It appears that because of and after the decision in Holyfield, Mississippi has not adopted the existing Indian family exception in subsequent cases. 

     In the aftermath of Mississippi Band of Choctaw Indians v. Holyfield[27], two states reversed their decisions to adopt the existing Indian family exception.  Those states were Oklahoma in its code and in the case of In the Matter of Baby Boy L.[28] and South Dakota in the case of Matter of Adoption of Baade[29]. 

     In Oklahoma Statutes Annotated title 10, section 40.3(B), the Oklahoma legislature stated,

Except as provided for in subsection A of this section, the Oklahoma Indian Child Welfare Act applies to all state voluntary and involuntary child custody court proceedings involving Indian children, regardless of whether or not the children involved are in the physical or legal custody of an Indian parent or Indian custodian at the time state proceedings are initiated.[30]

Subsequent to the adoption of this legislation in 1997[31], the Oklahoma declined to adopt the existing Indian family doctrine in the case of In the Matter of Baby Boy L.[32]  That case involved a non-Indian mother who placed her newborn baby for adoption without the consent of the Indian father who was a member of the Muscogee Creek Indian Nation of Oklahoma.[33]  The child’s paternity and the membership of the father in the tribe were not disputed.[34]  The mother found a non-Indian couple from another state who wished to adopt the child and informed the father of this decision.[35]  The child was born off of the reservation; and after the birth, the birth mother sought an order in state court for termination of the father’s parental rights without consent because the father had not contributed to the birth mother’s support during the pregnancy.[36]  Notice of the proceedings was given to the father, the Bureau of Indian Affairs, and to the Muscogee Creek Nation.[37]  The father objected to the adoption; and the tribe filed a motion to intervene acknowledging that the child was eligible for membership in the tribe.[38]  The tribe’s motion to intervene was granted; and the tribe filed a motion to dismiss the adoption proceedings because ICWA placement preferences required that the child be given to the father.[39]  The trial court denied the tribe’s motion and determined that the existing Indian family exception to ICWA applied because the father had not contributed to the support of the mother during the pregnancy.[40]  The father appealed and the Court of Civil Appeals affirmed the trial court’s judgment.[41]  On appeal, the Oklahoma Supreme Court cited Mississippi Band of Choctaw Indians v. Holyfield[42] as a “watershed opinion” and stated that the Oklahoma statute[43] was enacted in response to that United States Supreme Court case and the Oklahoma Supreme Court case of Matter of S.C.[44] in which the state Supreme Court determined that Holyfield did not invalidate the existing Indian family exception.[45]  After analysis of the constitutionality of the Oklahoma statute, the Supreme Court of that state relied on North Dakota’s decision in the case of In the Interest of A.B.[46] and determined that the statute was constitutional and the existing Indian family doctrine was inapplicable in Oklahoma.[47] 

     The South Dakota took a more direct approach to the existing Indian family doctrine after Mississippi Band of Choctaw Indians v. Holyfield[48] and overturned its decision, from Claymore v. Serr[49], to adopt the existing Indian family exception.  In Matter of Adoption of Baade, the South Dakota Supreme Court dealt with the case of a child, born to a non-Indian mother and a father who was a member of the Sisseton-Wahpeton Sioux Tribe, and adopted by the birth mother’s sister and brother-in-law.[50]  The birth father was served with notice of the adoption proceedings and petitioned the state court to transfer the proceedings to tribal court.[51]  The mother objected to the transfer and it was denied.[52]  The father subsequently began a paternity in tribal court, was adjudged the father of the child; and the child was enrolled as a member of the Sisseton-Wahpeton Sioux Tribe.[53]  The tribe then received notice of the adoption proceedings.[54]  On appeal of the adoption, the father claimed that his parental rights could not be terminated without evidence beyond a reasonable doubt that his continued custody of the child would likely result in serious emotional or physical damage to the child.[55]  The adoptive parents claimed that Claymore v. Serr[56] controlled and that because the child had never been a member of an existing Indian family, ICWA did not apply to the proceedings.  The South Dakota Supreme Court stated that it read Holyfield to overrule the existing Indian family exception.[57]  The court stated that the existing Indian family doctrine “fails to recognize the legitimate concerns of the tribe that are protected under the Act”[58] and that “Congress clearly intends that the only prerequisite to the operation of the ICWA be the involvement of an Indian Child in a child custody proceeding.”[59] 

     In 1996, Ohio Congresswoman Deborah Pryce proposed legislation to amend ICWA.[60]  That bill would have required that before state courts apply ICWA they determine if the child is a natural child of a parent who “maintains significant social, cultural, or political affiliation with the Indian tribe of which either parent is a member.”[61]  The bill passed the United States House of Representatives in that form, but was rejected by the Senate Committee on Indian Affairs because of tribal opposition.[62] 

Conclusion

     The United States Supreme Court’s decision in Mississippi Band of Choctaw Indians v. Holyfield[63] has been called the “death knell” of the existing Indian family doctrine, yet state courts have resurrected the doctrine “in a further attempt to defeat the application of ICWA.”[64]  Courts which continue to apply the existing Indian family concept have stated that because Holyfield never specifically addressed and rejected the doctrine, it is applicable.  The law regarding the existing Indian family is in a state of flux.  States have mixed holdings regarding whether the doctrine is applicable in conformance with ICWA.  This will probably continue until the issue is addressed by Congress or the United States Supreme Court. 

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[1] See In re Adoption of T.N.F., 781 P.2d 973 (Alaska 1989). 

[2] See Michael J., Jr. v. Michael J., Sr., 7 P.3d 960 (Ariz. App. 2000). 

[3] See In re Baby Boy Doe, 849 P.2d 925 (Idaho 1993). 

[4] See In re Elliott, 554 N.W.2d 32 (Mich. App. 1996). 

[5] See In re Baby Boy C., 27 A.D.3d 34 (N.Y. App. Div. 1 Dept. 2005). 

[6] See In re A.B., 663 N.W.2d 625 (N.D. 2003). 

[7] See Interest of D.A.C., 933 P.2d 993 (Utah App. 1997). 

[8] See Ex Parte C.L.J., 946 So.2d 880 (Ala. Civ. App. 2006). 

[9] See In re Adoption of S.S., 657 N.E.2d 935 (Ill. 1995). 

[10] See Rye v. Weasel, 934 S.W.2d 257 (Ky. 1996). 

[11] See Hampton v. J.A.L., 658 So.2d 331 (La. App. 1995). 

[12] See In re Morgan, 1997 WL 716880 (Tenn. Ct. App. 1997). 

[13] See Adoption of Crews, 825 P.2d 305 (Wash. 1992).           

[14] See In the Matter of Catholic Charities and Community Services of the Archdiocese of Denver, 942 P.2d 1380 (Colo. App. 1997). 

[15] See In re Adoption of Kenten H., 725 N.W.2d 548 (Neb. 2007). 

[16] See In re Termination of Parental Rights to Branden F., 695 N.W.2d 905 (Wisc. App. 2005). 

[17] See In re S.N.K., 108 P.3d 836 (Wyo. 2005). 

[18] D.H. Gethes, C.F. Wilkinson, R.A. Williams, Jr. Cases and Materials on Federal Indian Law at 675 (citing California Welfare and Institutions Code §360.6). 

[19] D.H. Gethes, C.F. Wilkinson, R.A. Williams, Jr. Cases and Materials on Federal Indian Law at 676 (citing In re Santos Y., 112 Cal. Rptr. 692 (Cal. App. 2d Dist. 2001)). 

[20] Iowa Code Ann. § 232B.5(2) (West 2007). 

[21] Id. 

[22] Supra.

[23] 663 N.W.2d 625 (N.D. 2003). 

[24] 103 P.3d 1099 (Okla. 2004).  See below for analysis of that case. 

[25] 511 So.2d 918 (Miss. 1987). 

[26] Supra. 

[27] Supra. 

[28] 103 P.3d 1099 (Okla. 2004). 

[29] 462 N.W.2d 485 (S.D. 1990). 

[30] Okla. Stat. Ann.  tit. 10, § 40.3(B) (West 2007). 

[31] D.H. Getches, C.F. Wilkinson, R.A. Williams, Jr., Cases and Materials on Federal Indian Law, at 676. 

[32] Supra. 

[33] 103 P.3d 1099, 1101-02. 

[34] Id. at 1102. 

[35] Id. 

[36] Id. 

[37] Id. 

[38] Id. 

[39] Id. 

[40] Id. at 1103. 

[41] Id. 

[42] Supra. 

[43] Okla. Stat. Ann. tit. 10 § 40.3(B). 

[44] 833 P.2d 1249 (Okla. 1992). 

[45] 103 P.3d 1099, 1104-05. 

[46] Supra. 

[47] 103 P.3d 1099, 1107. 

[48] Supra. 

[49] Supra. 

[50] 462 N.W.2d 485, 487. 

[51] Id.

[52] Id. 

[53] Id. 

[54] Id. 

[55] Id. at 489 (citing