The California court of appeals (1st district) reversed a lower court ruling holding that ICWA was unconstitutional as applied to the facts in the case. Here is the opinion.
An excerpt:
Mother next argues that the family court erred in concluding that Cecelia’s placement with Nicole was constitutionally insulated from the ICWA. We agree that the family court acted prematurely in finding the ICWA unconstitutional as applied to Cecelia’s custody decision. Prudent judicial restraint requires courts to avoid the unnecessary decision of constitutional issues. (E.g., Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1357.) Without determining that the ICWA actually required Cecelia’s return to Mother, the family court concluded that the ICWA could not constitutionally require such a return. Under the doctrine of judicial restraint, the family court should not have proceeded to consider the constitutional question unless it had first concluded, after applying the various substantive provisions of the ICWA, that a constitutional issue actually existed. Such restraint is particularly important in these circumstances because the constitutional right invoked by the court is by no means well established. Accordingly, we must remand the matter to the family court for application of the substantive provisions of the ICWA. In doing so, we do not mean to suggest any view as to the proper outcome of this matter under the ICWA.
Turtle Talk 
A recent case that took place in El Centro CA. dealt with a child member of my Tribe. The ten year old had been spanked by his step-father. A neighbor who was applying for the same job as that of the step-father chose to report the incident to the authorities. Thus CPS was brought into the picture and the child was taken into protective custody and placed in foster care. In other cases after notifying CPS that the child is American Indian and a member of our Tribal our Clan participated in the proceedings or the case was turned over to our Tribal Clan Court. In this case CPS ignored the fact that ICWA was involved. The childs mother is a Tribal member with a roll number as is the grandmother as well as the child.
The conclusion of the court that ended this past Friday was that the child was to be turned over to his biological father who lives in Alabama and who had previously been charged with child abuse. The childs mother as well as the child’s grandparents are outraged and are wondering why their grandson was not turned over to them or another member of our Clan. They are also concerned that CPS and the court system in El Centro Ca refused to acknowledge that the child is a citizen of our tribe.
Any comments or assistance is greatly appreciated.
Dr. Robert Nighthawk Vann
Member NNABA & Clan Chief Echota Cherokee Tribe of Alabama Echota cherokee Deer Clan West