In only the third Washington Supreme Court case to directly interpret ICWA and the first to interpret WICWA, the Court holds In re Crews (the case that established EIF in Washington) is overturned.
Under our above interpretation of ICWA and WICWA, if a case (1) meets the definition of a “child custody proceeding” and (2) involves an Indian child, both acts shall apply. ICWA and WICWA recognize only two exceptions to coverage–delinquency
proceedings and custody disputes following divorce where one parent retains custody of the Indian child. Our interpretation therefore overrules Crews to the extent that it embraced the existing Indian family exception because it recognizes no additional exceptions to coverage outside of the two expressly stated in ICWA and WICWA.
ICWA and WICWA also apply based on the child’s membership, not the parent’s:
For these reasons, we hold that whether the parent whose rights are being terminated is non-Indian is immaterial to a finding that ICWA and WICWA apply. If the child at issue is an Indian child and that child is involved in a child custody proceeding, ICWA and WICWA shall apply.
Craig Dorsay represented the tribal amicus brief (including oral arguments), and NARF and Indian Law Clinic at MSU Law provided strategy and research support in this case. Previous coverage here.
We thought it would be helpful to make available a few useful law review articles that parse through the issues raised in the Baby Veronica case.
Indian Child Welfare Act: generally and legislative history
B.J. Jones, The Indian Child Welfare Act: In Search of a Federal Forum to Vindicate the Rights of Indian Tribes and Children against the Vagaries of State Courts, 73 N.D. L. Rev. 395 (1997) (PDF)
Patrice Kunesh-Hartman, The Indian Child Welfare Act of 1978: Protecting Essential Tribal Interests, 60 U. Colo. L. Rev. 131 (1989) (PDF)
Existing Indian Family Exception
Barbara Atwood, Flashpoints Under the Indian Child Welfare Act: Toward a New Understanding of State Court Resistance, 51 Emory L.J. 587 (2002) (PDF)
Christine Metteer, The Existing Indian Family Exception: An Impediment to the Trust Responsibility to Preserve Tribal Existence and Culture as Manifested in the Indian Child Welfare Act, 30 Loy. L. A. L. Rev. 647 (1997) (PDF)
ICWA Constitutionality
Matthew L.M. Fletcher, ICWA and the Commerce Clause, in The Indian Child Welfare Act at 30: Facing to the Future (2009) (PDF)
Here is the opinion, obliquely applying the existing Indian family exception, in In re the Adoption of J.C.
Here is the opinion in In re N.J. This is a disturbing development, especially since the Nevada Supreme Court made no effort whatsoever to engage the very real controversy whether the EIF “exception” is consistent with both the text of the ICWA and Congressional intent.
An excerpt:
We hold that the EIF doctrine should be used on a case-by-case basis to avoid results that are counter to the ICWA’s policy goal of protecting the best interest of a Native American child. In the present case, we recognize that N.J.’s interest is protected by the ICWA because her putative father is a member of the Ely Shoshone Tribe. Her father, however, is not contesting the termination, nor is the tribe. The termination will not result in the breakup of a Native American family. Indeed, the only person contesting the termination is the non-Native American parent, Dawn. In addition, the foster family that is taking care of N.J. plans on adopting N.J. and is committed to educating her about her heritage. Those factors lead us to conclude that in this circumstance, the application of the EIF doctrine is appropriate because, while it is an exception to the ICWA, in such scenarios it serves to advance the ICWA’s goal to protect the best interests of Native American children. Because we conclude that the EIF doctrine is applicable, we need not reach the issue of whether DCFS made active efforts, pursuant to the ICWA, see 25 U.S.C. § 1912(d), to reunite Dawn and N.J., as application of the EIF doctrine negates the necessity of that inquiry.
Kathryn E. Fort has posted her paper, “The Cherokee Conundrum: California Courts and the Indian Child Welfare Act,” on SSRN. Here is the abstract:
This article was prepared for presentation at the American Indian Identity Conference held at Michigan State University, October 16-17, 2008. After classifying a year of Indian Child Welfare Act (ICWA) cases in state courts, it became apparent that California had both the highest number of ICWA cases and that most of these cases were because of noncompliance with the notice provision of ICWA. In addition, it became clear that the majority of California cases involved parents claiming Cherokee affiliation. This article concludes there could be many reasons for this, including an informal exercise of the Existing Indian Family doctrine at the social worker level.
And Matthew Fletcher posted “The Indian Child Welfare Act: A Survey of the Legislative History” on SSRN. Here is the abstract:
This paper is prepared for the University of Michigan Law School Native American Law Students Association’s annual Indian Law Day, April 10, 2009. The materials in this paper derive from an early draft of an amicus brief filed by the American Indian Law Section of the State Bar of Michigan in the Michigan Supreme Court case, In re Lee. The paper focuses on the legislative history of the Indian Child Welfare Act, with particular emphasis on Michigan.
In In re A.J.S., the Kansas Supreme Court overruled In re Baby Boy L., the first case to adopt the existing Indian family doctrine. Here is the court’s syllabus (thanks to Aliza for the tip):
1. The threshold question of whether the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. (2000), applies to a termination of parental rights or adoption proceeding in Kansas raises a question of statutory interpretation or construction, i.e., a question of law over which an appellate court exercises unlimited review. The related question of whether common-law precedent set by In re Adoption of Baby Boy L., 231 Kan. 199, 643 P.2d 168 (1982), should stand is a question for the Kansas Supreme Court.
2. The Indian Child Welfare Act, 25 U.S.C. § 1901 et seq., applies to Kansas proceedings to terminate the parental rights of an Indian child’s unmarried natural father, who is Indian, and to allow the child’s adoption by the unmarried natural mother’s family, who is non-Indian. The existing Indian family doctrine, first adopted in In re Adoption of Baby Boy L., 231 Kan. 199, 643 P.2d 168 (1982), is abandoned.
3. In a state child custody proceeding governed by the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq., an affected tribe is permitted to intervene.
Here are two relatively recent law review articles on the Indian Child Welfare Act. First, Prof. Solangel Madonado published “Race, Culture, and Adoption: Lessons from Mississippi Band of Choctaw Indians v. Holyfield” in the Columbia Journal of Gender & Law. Prof. Maldonado is also the author of a chapter on Holyfield in Family Law Stories, from West. Here is an excerpt:
While the idea of allowing individuals to choose their racial, ethnic, or cultural identity based on their activities rather than biology has a certain appeal, it is difficult to imagine a court telling a person of African American descent that she is not really African American simply because she does not live in an African American neighborhood, have African American friends, or show interest in political issues that concern the African American community. Although political pundits and private citizens have suggested that Justice Clarence Thomas is “not really Black,” it is quite another thing for lawmakers to imply the same. Instead, we allow individuals to self-identify regarding race and ethnicity, regardless of their contact with the relevant community.
And another:
The willingness of Congress in enacting ICWA and the Court in Holyfield to consider social prejudices might also signal that antidiscrimination norms are much weaker in cases involving tribal Indians. The Supreme Court has held that, while societal biases might cause children emotional harm, the law cannot consider these biases when determining children’s best interests. However, ICWA’s drafters and the Holyfield court might have unwittingly given effect to such biases when they considered white communities’ rejection of Native American children and the potential psychological harm as a reason to keep them in Indian communities.
Another paper, by Daniel Albanil Adlong, called “The Terminator Terminates Terminators: Governor Schwarzeneggar’s Signature, SB 678, and How California Attempts to Abolish the Existing Indian Family Exception and Why Other States Should Follow“, published in the Appalachian Journal of Law, also discusses ICWA. Here is an excerpt:
Turtle Talk 