Family Law New Legal Developments

The Best Interest of the Tribe?

hands_146966132Update: On June 26, 2013, the U.S Supreme Court reversed the judgment of the South Carolina Supreme Court and remanded the case for further proceedings based on its holding that 25 USC §1912(f) (part of the Indian Child Welfare Act) doesn’t apply when the parent opposing the adoption never had custody of the Indian child.

An episode of A&E’s series Longmire (“The Dog Soldier”) delved into the complicated world of Indian child fostering and adoption. The show got the law wrong, but that’s not surprising in this complicated area. Although the Supreme Court may offer some clarity in its upcoming decision on the appeal of Adoptive Couple v Baby Girl (SC 2012) 731 SE2d 550, it would take the wisdom of Solomon, invoked wistfully by Justice Kennedy, to fashion a happy outcome for one Indian child.

On the A&E show, a villainous social worker and a group home director schemed to take children from the nearby Indian reservation, fabricating allegations of parental abuse or neglect, then skimming the premium paid to the foster parents. This made for a tension-filled story, but the show’s writers were apparently ignorant of the Indian Child Welfare Act of 1978 (ICWA) in exercising their poetic license.

During the 19th century, the Bureau of Indian Affairs founded boarding schools where Indian children were taught to become assimilated into mainstream American culture. By the early 1970s, as many as 60,000 Indian children were enrolled in such schools, and that, along with the fact that up to 90 percent of Indian children removed from their families were being adopted by non-Indian parents, became cause for concern in Congress.

In response, Congress enacted The Indian Child Welfare Act of 1978 (ICWA) (25 USC §§1901-1963)

[t]o protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum 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.

Unlike other family law matters, which are specifically reserved to the states, ICWA sets federal standards for Indian child custody proceedings including adoption, termination of parental rights, and removal and foster care placement of Indian children residing within their own tribal reservation or otherwise meeting the definition of an “Indian child.”

The case currently before the Supreme Court involves an engaged couple whose relationship deteriorated after the woman became pregnant. The mother arranged for an open adoption with a South Carolina couple, but the father, a member of the Cherokee Nation, opposed it. Following a family court trial, the over two-year-old child was transferred from her adoptive parents to the biological father she had never seen. The South Carolina Supreme Court affirmed the lower court’s decision. Adoptive Couple v Baby Girl (SC 2012) 731 SE2d 550.

This isn’t going to be an easy decision for the Supreme Court. As NPR reported, Justice Kennedy observed that “[w]hat we have here is a question of a federal statute which…displaces the ordinary best interest [of the child] determinations of the state courts.”

We’ll see how Solomonian the Court can be when it decides this case. To understand how ICWA applies to juvenile dependency and adoption cases, turn to CEB’s California Juvenile Dependency Practice, chap 9, and California Child Custody Litigation and Practice, §§5.32-5.37.

Other CEB blog posts you may find interesting:

© The Regents of the University of California, 2013. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

8 replies on “The Best Interest of the Tribe?”

Interesting and distressing, Tom; thanks for the link! Here in California we routinely see appellate courts overturning placements based on failure to comply with ICWA; perhaps we are in a better position here with the tribes’ and the courts’ awareness, as well as access to counsel who are willing to take the cases up, though it’s distressing that the agencies involved keep making the same mistake. I can only hope the Supreme Court decision, when it comes, will do something towards heightening awareness.

Over twenty years ago I argued that the ICWA was unconstitutional under the first amendment, violation of church and state. Viewing Native American culture and religion as preferred over traditional “white man” religion. Let us see if the Supremes finally get it right.

I don’t think there’s an easy answer, but I wouldn’t equate culture with religion, anymore than I would expect all my Jewish friends to be devoutly religious. As a former linguistics student, what appals me most about the prior, paternalistic view that justified the forced “civilization” of the Indian children by removing them to boarding schools where they were forbidden contact with their parents and extended families and use of their native tongue is the near-extinction of many formerly vibrant languages. It’s hard if not impossible to revive those. Some articles I read as a follow-up to the article Tom, above, posted indicate that many of the removals in places like South Dakota were due, not to true abuse by the parents, but to prejudice by social workers.
I have no doubt there would be a huge hue and cry if adoption and child service agencies were to try to match children from other groups to specific ethnicities or religions; it’s the attempt to make up for past wrongs that muddies the waters, though, just as past wrongs are about all that’s left to justify “reverse discrimination” situations.

My big problem with ICWA is that it has two, sometimes inconsistent goals — preserving Indian tribes and protecting Indian children. I dealt with this in probate guardianships, where lawyers would raise the burdensome and expensive ICWA requirements (for which there generally is no money for compliance) to deny Indian children the same protection from abuse or neglect that children of any other race would receive. We have a split in the California courts of appeal. One line (see In re Bridget R. (1996) 41 Cal.App.4th 1483) holds that the child’s interest in the child’s family relationships is paramount, by applying the obscure doctrine of “substantive due process.” I.e., the child’s interest in the child’s family ties is constitutionally entitled to greater protection than the tribe’s interest under ICWA. The other line (see In re Vincent M. (2007) 150 Cal. App. 4th 1247) disdains such constitutional protection, so that ICWA can tear a child from the family where the child is emotionally bonded. Cases holding that Indians can be given greater rights, to compensate for the shameful history of their oppression, are cited to support this racial discrimination against Indian children. South Dakota has a sad history of discrimination against Indians, and I don’t doubt that what was done to some of these children was wrong. On the other hand, the claim that “there’s always a relative who is ready, willing and able to provide for a child” is, sadly, not true. There appears no dispute that the neglect and abuse of these children was so severe that removal from their parents was necessary, and their tribes had not protected them. The closing sentence of the article clarifies the issue. The primary concern of the tribes is the tribes, not what is best for each of the children individually. (P.s. We have many DCA cases finding some breach of the very complex procedural requirements of ICWA, requiring remand. I see few cases where end result is a different placement.)

Thanks for that perspective, Don. In looking at the cases you cite, I see that Bridget R. seems to have prompted the legislature to tackle the “existing Indian family doctrine” and enact Welf. & Inst. C section 360.6 to redefine who is an “Indian child” so that the definition matches up with ICWA’s. In any event, I can certainly recall cases where the tribe did *not* step up to intervene and the foster placement or adoption was permitted to go ahead as originally planned.
This case is interesting in its discussion of the post-Bridget R. and Vincent M. considerations: Erika K. v Brett D. (2008) 161 CA4th 1259. The facts are a little unusual, as the birth mother initially voluntarily gave her daughter to a friend to care for when she felt she could not do it herself, and the dispute arose 4 years later when she wanted the take the child back.
I guess my problem is that I feel both of the “two inconsistent goals” are important, but it’s very hard to see a very young child ripped away from a stable placement and into the home of strangers for the sake of a cultural heritage that may or may not be nourished as a result.

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