Maine Supreme Judicial Court Affirms Denial of Intervention in Child Welfare Case


The State removed non-member children from their tribal member mother, and opposed the Passamaquoddy Tribe’s request for intervention. While intervention is one of right under ICWA, because these children are non-member children, the Court found that ICWA did not apply. In addition, the Court denied the Tribe’s request for permissive intervention in a cursory paragraph. The Court based much of its interpretation and decision on the Maine Indian Claims Settlement Act, making it fairly specific to tribes in Maine. Regardless, the reasoning is frustrating, especially for a permissive intervention, which is apparently allowed “when a ‘[nonparty’s] claim or defense and the main action have a question of law or fact in common’ and intervention will not ‘unduly delay or
prejudice the adjudication of the rights of the original parties.’” M.R. Civ. P. 24(b).

The dissent, pointing out that “In the matter before us, for the safety of the children, the District Court (Calais, D. Mitchell, J.) rejected the request to place the children in a kinship placement with their maternal grandmother. Instead, it authorized the Department of Health and Human Services to seek a foster placement for the children off the reservation and with caregivers who are not related to the children and are not members of the Passamaquoddy Tribe”, therefore “[w]ith the prospect of the children being removed from their Passamaquoddy relatives and the reservation community, the Passamaquoddy Tribe sought to intervene as a matter of right or, alternatively, with the court’s permission.” The dissent also acknowledges the Tribe’s assertion that”their participation in decisions related to the placement and resources available to the children are matters of importance to the court in addressing the needs of the children, whose mother is a member of the Passamaquoddy Tribe. The Tribe’s role, distinct from the role of family members, is important in informing the court of options regarding tribal resources and connections to tribal culture.”

(You had to know I’d end a series of ICWA posts on the case I found the most frustrating.)