LAND OF NO MERCY:
THE INDIAN CHILD WELFARE ACT AFTER
ADOPTIVE COUPLE V. BABY GIRL
Selected excerpts From The Indian Child Welfare Act: Case and Analysis (2013)
C. Steven Hager Oklahoma Indian Legal Services, Inc. 4200 Perimeter Center Suite 222 Oklahoma City, OK 73112 (405) 943-6457 [email protected]
1 LAND OF NO MERCY: THE INDIAN CHILD WELFARE ACT AFTER ADOPTIVE COUPLE V. BABY GIRL
“We were out in the desert over the summertime, driving to Nevada... and we came upon
this, this house on the side of the road, that this Indian had built... it had a big sign that said:
‘This is the land of peace, love, justice and absolutely no mercy..."
-Bruce Springsteen, 1978
The historical removal of Indian children from their families was an
attempt to destabilize tribal influence and tribal culture; by “killing the Indian,” the dominant society hoped to “save the man.”1 Mandated requirements sought to
“integrate” Indians into a culture openly hostile to them, removing children from
their families and tribes on the thinnest of pretext. This policy did not fade with
time. A 1974 study by the Association of American Indian Affairs showed that 25 to
35 percent of all Indian children had been removed from their families and placed in
foster, adoptive, or institutionalized care at some point in their life.2 The 1970’s saw a national adoption rate for Indian children eight times higher than for non-Indians, with 90 percent of those placements in non-Indian homes.3 Four times more Indian children from Oklahoma were either adopted by non-Indians or in foster care.4 In
New Mexico, twice as many Indian children were in foster care as any other
population group. In Arizona, there were four times as many Indian children in
adoptive placement; in California and Minnesota, the number climbed to eight times
as many; in Washington state, nineteen times as many.5 Tribes were losing the last great battle of the Indian wars: their hope for a viable culture in the future.
In response, Congress passed the Indian Child Welfare Act (ICWA) in
1978.6 The Act was meant to protect the Indian child, family and tribe from
2 unwarranted interference by the dominant society. The Oklahoma Indian Child
Welfare Act (the OICWA) was enacted in 1982 7 to clarify state policies and
procedures regarding the federal law.8 Many other states, such as California, have also passed a state version of the Indian Child Welfare Act. This is not to say that the
ICWA has been warmly and universally embraced. The Act has faced tremendous struggle in courts across the United States. These struggles continue in light of the
Supreme Court’s recent decision of Adoptive Couple v. Baby Girl.9
I. Indian Fathers Need Not Apply: The Quasi- “Existing Indian Family” Exception of Adoptive Couple
Courts have generally rejected constitutionality arguments regarding the
ICWA. These challenges are based on the Fifth and Tenth Amendments.10 The Fifth
Amendment argument claims that the denial of access to state courts, due to race, constitutes invidious racial discrimination. This is prohibited by the due process and equal protection guarantees of the amendment. The Tenth Amendment argument claims that child custody proceedings are traditionally an area of state concern. By federally mandating procedural and evidentiary standards, the argument goes,
Congress intrudes upon rights reserved to the States.11
Perhaps the only positive attribute to the Supreme Court’s Adoptive Couple
v. Baby Girl decision is that the court’s majority did not seriously attack the
constitutionality of the Indian Child Welfare Act, and left in place most of its
protections for most classifications of parents. The Court established, instead, an
“Existing Indian Family Exception” in everything but name that effectively
3 eliminates unwed fathers from ICWA protections in private action adoptions. It
remains to be seen the impact this decision will have in other types of cases. It RE
In order to fully understand the nature of this opinion, the underlying history
of the “Existing Indian Family” exception, and the invidious nature of it, must be
examined. The factors the Supreme Court majority embraces are the same as found
in the “Existing Indian Family” exception first created by the Kansas Supreme Court,
in the case of Baby Boy L, 643 P.2d 168 (Kansas 1982). The Kansas Court found that
the ICWA would not be applied unless two tests were met. First, the ICWA would not
be used unless the persons lived a culturally “Indian” way of life, which would be
determined by the state trial court. This meant that the trial court would have to
determine if the person fulfilled some undefined means test unrelated to tribal
membership as required in 25 U.S.C. §1903. The second test would examine if the
child and parent met a definition of “family” that required prior physical custody. If
the party did not have custody, then the ICWA would not be met since the definition
of the Act was to protect the unwarranted breakup of an Indian family.
The Baby Boy L. court found that the unwed father, a member of the
Comanche Nation of Oklahoma, failed on both tests. They found that he did not live a
sufficiently cultural life. They also found that since he had not lived with the newborn child in question, there was no previous “Indian family.” “Family,” in this definition, meant a married couple living together. The Act would not be applied in any case ICWA with a noncustodial unwed parent.
Variations of the “Existing Indian Family” exception were adopted by several states, notably California, Oklahoma, and Washington. The Oklahoma exception was
4 overruled in Matter of Baby Boy L., 2004 OK 93, 103 P.3d 1099 (Okl, 2004) after the
Oklahoma Indian Child Welfare Act was amended to prevent it. Washington’s exception has also been statutorily eliminated, even though the Court did not seem interested in furthering it. California’s appellate courts are equally divided in the application of the exception, with three favoring it, and three rejecting it, although one of the favoring Courts has issued mixed opinions as to the exception. In any case, California legislative action also dismissed the exception.
The United States Supreme Court did not recognize the exception in the
Holyfield case, thus implicitly striking down the state of Mississippi’s finding of an exception. Based upon Holyfield, South Dakota reversed its exception in the Badde case. Washington, as noted, seems to have limited its exception to the rather unusual facts of one case, Matter of Adoption of Crews, 825 P.2d 305 (Wash. 1992).
The Oklahoma court in Baby Boy L. found that the 10th Circuit decision of Morrow v.
Winslow, 94 F.3d 1386 (10th Cir. 1996) implicitly rejects the basis of the exception, and that the legislative fix is definitive.
Nevada, In The Matter of Parental Rights As To N.J., 221 P.3d 1255 (Nev.
2009), Louisiana, in Barbry v. Dauzat, 576 So.2d 1013 (La. App. 1991), Missouri, in
Interest of T.C.T., et al., 165 S.W. 3d 529 (Mo. App. 2005), and C.E.H. v. L.M.W., 837
S.W. 2d 947 (Mo. 1992), Alabama, in S.A. v. E.J.P., 571 So.2d 1187 (Ala. App. 1990),
Indiana, in In Re T.R.M., 525 N.E. 2d 298 (Ind. 1988), and Kentucky, in Rye v. Weasel,
934 S.W.2d 257 (Ky. 1996), have upheld the “Existing Indian Family Exception” or some variation of it. Tennessee, in the unpublished opinion of Matter of K.L.D.R.,
2009 WL 1138130 (Tenn. App. 2009), has also supported the exception.
5 Other states, including Alaska, Oregon, South Dakota, Texas, Montana, New
York and Michigan, have explicitly rejected the reasoning of the exception. Oregon’s
Appellate Court noted in a footnote in Quinn v. Walters, 845 P.2d 206 (Oregon
1993), that “Engrafting a new requirement into ICWA that allows the dominant society to judge whether the parent’s cultural background meets its view of what
‘Indian culture’ should be puts the state courts right back into the position from which Congress has removed them.” Alabama has limited its exception to that of illegitimate Indian children in the custody of their mother being placed for adoption.
(Ex Parte C.L.J., 946 So.2d 880 (Ala. 2006), which certainly appears to be in line with the reasoning of the Supreme Court’s majority.
While the Supreme Court does not define their ruling as an “Existing Indian
Family Exception,” it is essentially the same. The majority mentions the blood quantum of the child three times in their opinion, but only grudgingly admit that the father is a citizen of the Cherokee Nation of Oklahoma (which would make the child a Cherokee citizen as well, and an “Indian Child” under 25 U.S.C. § 1903 of the Act).
The majority defines “custody” with the same terminology the Kansas court did;
Dustin Brown would not fall under the ICWA because he did not have physical custody of the child in utero and after birth, a status that no unwed (or wed, for that matter) father can likely reach.
What is interesting is that the court that first created the exception recently rejected it. In Matter of A.J.S., 204 P.3d 543 (Kan. 2009), Kansas revisited the
Existing Indian Family Exception, and found that the exception was, simply put, a bad bit of legal reasoning. Using an unlimited review standard for statutory
6 construction, the Kansas Supreme Court roundly condemned the reasoning that had
led it to the original decision. They found:
1. Holyfield did not favor the Existing Indian Family Exception;
2. Culturally, the exception worked against Indian tribes;
3. Most states that considered the EIF Exception rejected
It as directly contrary to the Act;
4. Other states that had adopted the Exception had abandoned it;
5. The Exception is at direct odds with the ICWA;
6. Parts of the Baby Boy L. opinion were illogical; and
7. The extensive criticism of the decision from other courts.
Almost none of these decisions were mentioned in Justice Alito’s majority
opinion. He began his opinion with a limited recitation of the case facts. Literally, the
first thing he notes is the child’s blood quantum.12 He then states that the child was
removed from her adoptive parents at 27 months and given to her father, “who had
attempted to relinquish his parental rights and had no prior contact with the
child.”13 The Court recognized the ICWA was enacted to protect Indian families from
unwarranted child removals, and that it established minimum federal standards for
removal.14 The majority then defines the three provisions of the ICWA to be
reviewed: 25 U.S.C. § 1912 (d), 25 U.S.C. § 1912 (f), and 25 U.S.C. § 1915. The
majority chose not to review 25 U.S.C. § 1903, choosing instead to merely assume
for the sake of argument that the father was a “parent” under the ICWA.15
7 The Court first examined Section 1912 (f), which establishes the
requirements of termination of parental rights. The court focuses on two words in
the provision: “No termination of parental rights may be ordered in such proceeding
in the absence of a determination, supported by evidence beyond a reasonable
doubt, including testimony of qualified expert witnesses, that the continued
custody of the child by the parent or Indian custodian is likely to result in serious
emotional or physical damage to the child.”16
It is these two words that define the argument of the majority. Justice Alito argues that “continued custody” “plainly refers to a pre-existing state.”17 He cites
several dictionaries to prove his point, one that both Justices Scalia and Sotomayor
will have significant issues with. 18 The majority then finds that since the father has never had custody, the clear language of ICWA requires a finding that it is not applicable to this case.19 Justice Alito explains that his reading of the ICWA would comport with the “primary mischief” the ICWA was designed to counteract: “the unwarranted removal [court’s italics] of Indian children from Indian families due to the cultural insensitivity and biases of social workers and state courts.”20 In this
case, Alito argues that “... when as, here, the adoption of an Indian child is voluntary
and lawfully initiated by a non-custodial parent with sole custodial rights, the
ICWA’s primary goal of preventing the unwarranted removal of Indian children and
the dissolution of Indian families is not implicated.”21 Because the father never had
physical custody of the child, and because a non-Indian unwed father would not
have legal custody in South Carolina or Oklahoma, then section 1912 (f) does not
apply to this case.22
8 It should be noted at this point that the Court chooses not examine the statutory requirements of 10 O.S. § 40.3, which says:
“B. 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.
Under the clear and unambiguous terms of this provision, the father had all rights to the protections of the ICWA in Oklahoma. Furthermore, Oklahoma law requires that the Oklahoma Indian Child Welfare Act be applied even if an Indian child is placed for adoption outside of the state under the Interstate Compact on the
Placement of Children, as was in this case.23 No mention of the ICPC or Cherokee
Nation v. Normura was made in the majority opinion. 24
Justice Alito then turned to the requirements of 25 U.S.C. § 1912 (d), which
require that “Any party seeking to effect a foster care placement of, or termination
of parental rights to, an Indian child under State law shall satisfy the court that
active efforts have been made to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian family (court’s emphasis)
and that these efforts have proved unsuccessful.” The majority found that “when an
Indian parent abandons an Indian child prior to birth and that child has never been
in the parent’s legal or physical custody, there is no “relationship” that would be
“discontinue[d]” – and no “effective entity” that would be “end[ed]” – by the
termination of the Indian parent’s rights. In such a situation, the “breakup of the
Indian family” has long since occurred, and § 1912 (d) is inapplicable.”25 The Court
9 found that this interpretation was consistent with the Congressional purpose to
provide certain standards for the removal of Indian children, and was not meant to
“facilitate the transfer of the child to an Indian parent.”26 Justice Alito found that this interpretation should be read in harmony with the “continued custody” requirement.27 The majority found that statutory interpretation was a “holistic endeavor” in which the overall provisions of the ICWA would not create parental rights where no such rights existed.28 They found that Section 1912 (d) is a sensible requirement when applied to state social workers, but makes little sense in adoptions. The court found that making adoptive parents provide those measures would “surely dissuade some of them from seeking to adopt Indian children.”29
Finally, the majority opinion found that 25 U.S.C. § 1915 was not applicable in
part because no other party sought adoption. In the Court’s interpretation, the
preferences of the ICWA do not come into play unless two parties seek to adopt the
same child. Until that happens, the preferences have no meaning.30
Justice Thomas concurred. His opinion was that the ICWA was not tied to
commerce, and so the Indian Commerce Clause would not be valid. As such, he
would find that the ICWA was unconstitutional.31 Justice Breyer also concurred, and while supporting the majority opinion, recognizes that other factors could well create a different opinion.32
Both Justice Scalia and Justice Sotomayor wrote dissents. Both are scathing.
Justice Scalia points out “there is no reason that “continued” must refer to custody
in the past rather than custody in the future. “I read the provision as requiring the
court to satisfy itself (beyond a reasonable doubt) not merely that initial or
10 temporary custody is not “likely to result in serious emotional or physical damage to
the child,” but that continued custody is not likely to do so.”33 Justice Scalia
concludes with an important thought:34
“The Court’s opinion, it seems to me, needlessly demeans the right of parenthood. It has been the constant practice of the common law to respect the entitlement of those who bring a child into the world to raise that child. We do not inquire whether leaving a child with his parents is “in the best interests of the child.” It sometimes is not; he would be better off raised by someone else. But parents have their rights, no less than children do. This father wants to raise his daughter, and the statute amply protects his right to do so. There is no reason in law or policy to dilute that protection.”
Justice Sotomayor bluntly found that the majority’s opinion was significantly,
obviously, flawed.35 She begins what can only be called a dissection by noting that
the majority hangs its entire opinion on just two words: “continued custody.”36 The dissent notes the majority’s reticence in recognizing that 25 U.S.C. § 1903(9) makes biological fathers “parents” under the Act only unless that father has a basis for legal custody.37 The dissent uses the “holistic interpretation” raised by the majority and briskly points out the weaknesses in the majority’s opinion.38 Justice Sotomayor notes that the Holyfield decision clearly found that Congress intended for the
definitions of the ICWA to have uniform federal definitions – something the majority opinion effectively ignores.39 The dissent notes that “termination of parental rights “
includes “any action resulting in the termination of the parent-child relationship.” By
ignoring these vital definitions, the majority can avoid giving the father the
protections he is entitled to receive under the ICWA. These protections would
include the right for transfer to tribal court; the requirement that consent be given
in a court and executed before a judge (not, as the majority says with a straight face,
by text message); and the right to revoke that consent. 40 The dissent examines the
11 protections of Section 1912 in this context, and finds that notice, the right to review
record are “consonant with the principle, recognized in our cases, that the biological
bond between parent and child is meaningful.”41 Justice Sotomayor finds the majority’s logic lacking: “Nothing in the text of subsection (d) indicates that this blood relationship should be excluded from the category of familial relationships that the provision aims to save from “discontinuance.”42 As to the majority finding that there is no relationship to be discontinued when an Indian parent has had no legal or physical custody, Justice Sotomayor replies bluntly, “Says who? Certainly, not the statute.”43
The dissent examined the structure of Section 1912, finding that provisions
(e) and (f) are very similar, and work in tandem with § 1912 (d). The dissent finds it incredulous that the majority chooses not to recognize the text’s plain meaning:
“ All this, and still the most telling textual evidence is yet to come: The text of the subsection begins by announcing, “no termination of parental rights may be ordered,” unless the specified evidentiary showing is made. To repeat, a “termination of parental rights” includes “any action resulting in the termination of the parent-child relationship,” including the relationship Birth Father, as an ICWA “parent,” has with Baby Girl.”
“The entire foundation of the majority’s argument that subsection (f) does not apply is the lonely phrase “continued custody.” It simply cannot bear the interpretive weight the majority would place on it.”44
The dissent finds that a holistic interpretation of Section 1912 creates a
structural framework in which “custody” means something more than state-defined
legal custody, but rather refers to a relationship.45 Justice Sotomayor notes that the
majority’s view requires state standards to be the only basis for the rights of fathers
left out of their interpretation.46 There is no reason, she stresses, to believe that this
was Congress’ intent.47
12 Justice Sotomayor dismisses several straw man arguments used by the
majority. For example, the majority argued that it is “bizarre” to require the
adoptive parents to make active efforts to reunify the father, and show that those
efforts failed.48 Justice Sotomayor points out that there is no requirement that the
adoptive couple conduct the efforts; they must merely show that those efforts have
been made, and could be conducted by the tribe or other social service programs.49
Similarly, the majority argues that the ICWA gives “uncaring” biological
fathers an “undeserved windfall” in their ability to override the child’s best
interests.50 But as Justice Sotomayor points out: “...this supposed anomaly is illusory.
In fact, the law of at least 15 states did precisely that at the time ICWA was passed.
And the law of a number of states still does so.”51 It would stand to reason, the dissent points out, that the ICWA would not make a father’s right to his child as fragile as the law of South Carolina would do, but rather would establish a robust protection of it.52 Justice Sotomayor is particularly puzzled by the majority’s stated concern that a contrary result would interfere with future adoptions of Indian children by non-Indian parents.53 This, she points out, is a key tenet of the ICWA.54
Justice Sotomayor argues that it is not up to the majority to determine what a
“primary goal” of Congress would be, as opposed to their “secondary goal;” it is to give effect to the entire statute as written.55
Finally, Justice Sotomayor discussed the Equal Protection threat raised by the
majority in the conclusion of its opinion. Justice Alito, along with Justice Thomas’
concurrence, suggested that this was not a real ICWA case because of the child’s low
blood quantum. Justice Sotomayor has no sympathy for this argument:56
13 “It is difficult to make sense of this suggestion in light of our precedents, which squarely hold that classifications based on Indian tribal membership are not impermissible racial stereotypes. [citations omitted] The majority’s repeated, analytically unnecessary references to the fact that Baby Girl is 3/256 Cherokee by ancestry do nothing to elucidate its intimation that the statute may violate the Equal Protection Clause as applied here.... I see no ground for this Court to second-guess the membership requirements of federally-recognized Indian Tribes, which are independent political entities. [citations omitted] I am particularly averse to doing so when the Federal Government requires Indian tribes, as a prerequisite for official recognition, to make “descent from a historical Indian tribe” a condition of membership. [25 CFR §83.7 (e) (2012)].
The majority’s treatment of this issue, in the end, does no more than create a lingering mood of disapprobation of the criteria for membership adopted by the Cherokee Nation that, in turn, make Baby Girl an “Indian Child” under the statute. Its hints at lurking constitutional problems are, by its own account, irrelevant to its statutory analysis, and accordingly need not detain us any longer.”
The dissent clearly anticipates the future litigation that the majority’s poorly considered opinion will likely raise. Justice Alito spends a significant amount of space in his relatively short opinion denying these concerns. When considering the analytical weaknesses of the majority’s opinion, it remains to be seen if he believes his own protestations, or if he simply does not care.
States that have statutory Indian Child Welfare Acts will likely have little impact from this decision. States that lack statutory ICWA limits will have to revisit their previous rulings. California, in particular, will be an interesting case study. The six appellate divisions have split on the Existing Indian Family Exception. Two of the six divisions of the California Appellate Court have recognized this argument, three have outright rejected it, and one is unclear. Meanwhile, the California legislature passed a state Indian Child Welfare Act, which was promptly rejected by the one of the courts that had created the exception. It is likely that California’s Courts may well prove to be the bellwether of the effect of this opinion.
14
II. 25 USC 1903: Definitions in the ICWA
Often definitions are overlooked in the daily grind of legal work. This is
always a mistake; with the ICWA, it could be fatal. The terms of the Act are vital to a
true understanding of the protections and their application. 57
The first term to be defined in Section 1903 is a child custody proceeding.
There are four sub-definitions. “Foster care placement” is defined as any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or placement in the home of a guardian or conservator.58
These are placements in which the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated,59 such
as state removals, private guardianship or conservator actions. An involuntary
proceeding cannot be considered a voluntary action under Section 1913 just
because a parent stipulates to a proceeding; an agreement that the state can prove
its basis for the child custody proceeding does not change the case type.60 Texas has found that a conservatorship action that also determines paternity, and in which a biological mother and a stepfather are named co-custodians of their biological child, as well as her child from another relationship, is not a “child custody proceeding” under the ICWA.61
The definition of “termination of parental rights” is any action resulting in the
termination of the parent-child relationship. “Preadoptive placement,” the third
definition, is the temporary placement of an Indian child in a foster home or
institution after the termination of parental rights, but prior to or in lieu of adoptive
15 placement. “Adoptive placement” is defined as the permanent placement of an
Indian child for adoption, including any action resulting in a final decree of adoption.
An area that has not been explored is an adoption that includes a hearing seeking to waive parental consent (the “adoption without consent” or AWOC proceeding).
Case law in Oklahoma states that the AWOC proceeding is not a termination
proceeding and does not interrupt a parent-child relationship.62
The “child custody proceeding” definitions include two of the three direct legislative exceptions to the ICWA. The Act does not apply to a placement based upon an act, which, if committed by an adult, would be deemed a crime.63 This exception does not include “status” crimes, such as truancy or curfew, which are only crimes if the perpetrator is a minor. Some state codes also extend ICWA protections beyond the status crimes exception. For example, California’s juvenile laws are generally exempt from ICWA statues. There would be different levels of compliance in different types of delinquency cases. Cases involving juveniles convicted of a crime that would still be a crime if committed by an adult require no
ICWA compliance. Status-related delinquency cases, such as curfew or truancy, require ICWA compliance only if a ward would be removed from the family home for the actual crime. Juvenile delinquents removed from their family home due to family issues must be given full ICWA protections.64
The second exception is an award of custody to a parent during a divorce proceeding.65 This has been defined to include custodial dispute between proven
biological parents, as those disputes are not generally foster care placements,
terminations, preadoptive or adoptive placements.66 It does not include persons
16 other than biological parents, such as grandparents, 67 or third-party actions.
California’s courts have divided as to whether the ICWA is required in a child
protection case if custody is given to the other parent, with the courts reaching
exactly opposite decisions.68 One Court found the key to this decision to be where the child could be placed, not the actual placement; the other found that placement with a parent was not listed under the definition of a “child custody proceeding.”
CASE NOTES: THIRD PARTY CUSTODY IN DIVORCES
The ICWA applies in divorces if the custody of the Indian child goes to a third party. The protections of the Act are mandatory in Oklahoma under 12 O.S. Ch. 2, App. Rules - District Court 8.2, which requires that all divorce decrees giving custody of an Indian child to a third party contain a finding of compliance with the ICWA. Alaska has also found that the ICWA should be applied in the event of third party custody.69
The law or custom of the Indian child’s tribe defines “Extended family
members.” If none exist, the ICWA defines it as a person eighteen years or older and
who is the Indian child's grandparent, aunt or uncle, brother or sister, brother-in-
law or sister-in-law, niece or nephew, first or second cousin, or stepparent.70 Tribal
elders or historians may be able to demonstrate that a person is or is not an
extended family member (i.e. “Indian grandmother”).71 Tribal relationships are
often complex and may not be directly tied to blood, but to clan or band. The tribe
should be consulted to determine the nature of the tribal community and family.
California has found that “de facto” parents (a non-related caretakers of an Indian
child in a relationship with a biological parent) would be considered extended
family members under this provision. 72
17 More recent California and Washington decisions find that the ICWA would apply to custody disputes between a biological parent and a de facto caretaker.73
Montana has held that an adoptive placement for an older sibling would be
considered extended family for a placement of the younger siblings, based on the
importance of sibling relationships.74
The Act defines an “Indian” as any person who is a member of an Indian
tribe, or who is an Alaska Native and a member of a Regional Corporation as defined
in section 1606 of Title 43.75 An “Indian child” is defined as any unmarried person, under age of eighteen,76 who is either a tribal member or eligible for membership in
a tribe and is the biological child of a member of an Indian tribe.77 Determining if a
child is an “Indian child” under the Act is a prerequisite to termination or permanent
placement.78
Neither of these definitions requires “enrollment” or any other specific
membership requirement.79 “Member” is a flexible term that is more extensive than tribal enrollment or Certificate Degree of Indian Blood (“CDIB”) cards.80 The state
court systems have developed a relatively unified definition of who is a “member”
for ICWA purposes. These definitions generally seek to establish a common-sense
level of understanding.
Tribes are the penultimate arbiters of membership.81 If a tribe determines
that a person is a member of the tribe, the trial court cannot disturb that
determination.82 The lack of a tribal determination of membership is not conclusive proof that a child is not a member of the tribe. 83 Courts have found that
“membership” may include children outside of the definition of “Native” in the
18 Alaska Native Claims Act;84 children whose Indian ancestry is uncertain;85 and children whose tribes fail to make conclusive determinations of eligibility for membership.86
California’s Third Appellate Court has held that assertions of Indian heritage without specific tribal affiliation required notice to the BIA, but vague allegations do not.87 If the BIA does not respond, and the family alleging Indian heritage cannot indicate what tribe they may be related to, the Act will not be invoked.88 The Fifth
District in California has held that a failure to inquire of the mother’s potential
heritage required remand, even when the father stated that the child was not
Indian.89 However, the Second District Court of Appeals in California has held that familial information past that of the great-grandparents is not necessary under the
Act.90
Under New Mexico law, if children eligible for tribal membership are in state custody, the state must take action to ensure their tribal membership, including seeking enrollment. The trial court has an affirmative obligation to require the state comply with this law prior to any termination of parental rights.91
In Utah, the Federal District Court examined membership in the context of
the Cherokee Nation Membership Act, which conveys 240 days of automatic tribal
membership to all newborn descendants of the Dawes Commission enrollees.92 The
Court found that while the Cherokee law was not binding on the Court, tribal
determinations of membership were entitled to “great deference.”93 Utah has also held that claims of “spiritual affiliation” to a tribe are not sufficient to trigger the protections of the ICWA.94
19 Other Courts have ruled that without proof of “membership,” people cannot
be considered Indians under the ICWA.95 Without such proof, a failure to inquire
into the ICWA’s application is harmless error.96
In Iowa, the state ICWA expanded the definition of “Indian Child” to include children who were not members of the tribe, but of descent to the tribe. In the case of A.W. and S.W., the Iowa Supreme Court found that this was an unconstitutional
violation of the Equal Protection Clause of the United States Constitution.97 The
Court found that the expanded definition was based on ethnic heritage, not political
membership, and could not be tied to a rational or compelling state interest.98
Colorado and Michigan have found that without evidence that the child is an
“Indian Child,” the higher burdens of proof of the ICWA should not be used.99
California’s 2nd Appellate District Court has looked at a similar issue, and found that a more expansive definition of an Indian child under state law is a valid exercise of authority.100
Six states, including Oklahoma and South Dakota, have held that the information regarding proof of membership must be offered at the trial court level.101 If it is not, it will not be considered on appeal.102
The definition of an Indian child's “tribe” includes eligibility for membership in multiple tribes. For example, a child whose father is Kiowa and whose mother is
Creek and Cherokee may be eligible for membership in any of the three tribes. In this situation, the ICWA looks to the tribe with the closest ties to the child.103
The ICWA defines an “Indian custodian” as an Indian person who has legal
custody of an Indian child under tribal law, custom, or under State law; or to whom
20 temporary physical care, custody, and control has been transferred by the parent of
the child. This broad definition offers the protections of the Act to almost any Indian
person who has legitimate physical custody of a child.104 The custodian must be a
member of a tribe; mere heritage is not sufficient.105 Alaska has found that a person in prison cannot maintain his status as an Indian custodian.106 Alaska also found that the revocation of Indian custodian status by the custodial parent effectively halts the involvement of the custodian in a child custody proceeding.107 Similarly,
Washington state has held that a parent’s rights will be considered to be superior to
that of an Indian custodian under state law.108 Utah found that if an Indian child is in the custody of a biological parent, the rights of the Indian custodian are mooted.109
Utah found that an Indian custodian must be offered his or her own service plan, and cannot be terminated based on the biological mother’s failure to complete her plan four years earlier.110 A noncustodial grandparent may qualify as an Indian
custodian under tribal custom, but still has to demonstrate that the child was
actually within their care in order to be considered as one under the ICWA.111
Foster care placements do not rise to the level of custodian. In the case of
People in Interest of J.J., 454 N.W.2d 317 (S.D. 1990), the grandmother of the minor
Indian children did not qualify as an "Indian custodian" for the purpose of
termination proceedings. The court found that the grandmother did not have legal
custody under tribal law or custom or under state law. The children had been placed
with her by the state’s Department of Social Services, but the Department retained
legal custody. The Court found that an Indian custodian must have a legal right to
custody, not mere physical possession.112 California’s 4th District has held that a
21 parent can revoke the Indian custodian status of another person (in this case, a
grandmother) during a dependency case, even if the parent was not a custodial
parent at the beginning of the proceeding.113
An “Indian tribe” is defined as any Indian tribe, band, nation, or other
organized group or community of Indians recognized as eligible for the services
provided to Indians by the Secretary because of their status as Indians, including
Alaskan Native villagers.114 The tribe must be eligible for services from the federal government, which eliminates Mexican and Canadian tribes from consideration.115
Native Hawaiians are also excluded from the protections of the ICWA.116 However, there may be some flexibility in transnational tribes, such as the Kickapoo, the
Tohono O’odham, and the Six Nations tribes.117 State-recognized tribes are also
exempt from the protection of the ICWA.118 “Indian organizations” are defined as any group, association, partnership, corporation, or other legal entity owned or controlled by Indians, or a majority of whose members are Indians. Both definitions are broadly written.
The definition of a “Parent” is important to understand. All biological parents of an Indian child are included in this term. The parent does not have to be Indian in order to invoke the ICWA protections. A non-Indian parent of an Indian child is protected to the same degree as an Indian parent of the same child.
In addition to the biological mother and father, “parent” includes an Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. This definition does not include a non-Indian who has adopted an
Indian child. This is the only difference between Indian and non-Indian parents for
22 the purposes of the Act. “Parent” specifically excludes unwed fathers if their
paternity has not been acknowledged or established, in the third and final express
exception to the Act. 119 If a putative father acknowledges paternity and demonstrates tribal membership for the child, further custodial or adoptive actions must comply with the ICWA.120 A “de facto” parent, that is, someone who has raised
the child and may have certain rights in California or Washington, is not included in
the ICWA and the Act will not apply to those proceedings.121
For ICWA purposes, “reservation” includes Indian country as defined in 18
U.S.C. §1151, including trust and restricted land. A “Tribal Court” is defined as a
Court of Indian Offenses, a court established and operated under the code or custom
of an Indian tribe, or other administrative body of a tribe vested with authority over
child custody proceedings. This provision does not waive the basic jurisdictional
requirements of the tribal court. Courts that have limited in rem jurisdiction by tribal law cannot use the ICWA as an independent basis of jurisdiction.
III. 25 USC 1911: Jurisdiction and Indian Land
Under the provisions of Section 1911 (a), the tribal court has exclusive
jurisdiction over child custody proceedings involving an Indian child domiciled or
residing on a reservation. Once a child is a ward of a tribal court, the Court retains
jurisdiction even if the child is moved off the reservation.122 The United States
Supreme Court has found that “domicile” is defined by federal common law, as should be any other crucial term not specifically defined by the Act.123
23 South Dakota has examined the jurisdiction of a tribal court over an Indian
child who was domiciled off-reservation.124 The Indian mother and non-Indian
father of the child shared custody under a South Dakota custody decree, with the
mother having primary custody but with limitations on relocating out of state. When
the mother was killed in a car accident, the child was visiting her grandparents on
the reservation.
The grandparents did not tell the father of the accident, but sought a
guardianship over the child in tribal court. The father filed for custody in the state
court that had previously heard the parental custody proceeding. The tribal
guardianship was granted the same day that the state court gave custody to the
father. After several tribal court hearings, the grandparents sought to have the tribal
court order domesticated in the state court. That court found that the child had not
become domiciled on the reservation in the six days following his mother’s death,
and awarded custody to the father.125
On appeal, the South Dakota Supreme Court rejected the tribal court’s jurisdictional basis. The court found that while domicile and residence were different legal concepts, neither one could be applied to the child, who parents were both legally domiciled in South Dakota. The tribe could not claim exclusive jurisdiction based on the child’s visit.126
The Kentucky Supreme Court rebutted § 1911 (a) tribal jurisdiction in what
only can be described as an odd decision that I enjoy mainly because of the name. In
Rye v. Weasel, a child became a ward of the Standing Rock Sioux tribal court in
1984. 127 The child was placed with the Weasel family as tribal foster parents. Years
24 passed without tribal action. The Weasels lived in Wyoming, Delaware and New
Hampshire before moving to Kentucky, where they separated nine years later. After
the tribe was notified of the custody action, they intervened and sought exclusive
jurisdiction over the child. The Kentucky trial court refused to recognize the
previous tribal court case and awarded custody of the tribal foster child to Ms. Rye,
a non-Indian.
The Kentucky Appellate Court ordered transfer to the tribal court, properly
interpreting the provisions of § 1911 (a).128 The Kentucky Supreme Court reversed.
The Court found that the child had no connection to her tribe other than being in
tribal custody and had not been raised in an “Indian” family.129 The Court found an
“Existing Indian Family Exception” in the case and ruled that the foster mother should keep the child. 130
Kentucky Justice Baker strongly dissented. He pointed out that this issue was not who should have custody of the child, “but what court should make that determination.“131 Justice Baker warned that the desire to reach a certain goal must
not outweigh the proper interpretation of law:
“It is very tempting for Kentucky courts which otherwise would have jurisdiction to ignore the exclusive jurisdiction vested by Congress in the tribal courts to adjudicate Indian child custody matters. Congress has chosen to place this responsibility with the Indian tribal court. With due respect for the primacy of federal law, Kentucky must transfer the custody determination...” 132
In a similar vein, Nebraska found that Indian children in tribal custody were
no longer wards of the tribe after they were placed with the mother living off
reservation.133 In Dakota L., the mother had only physical custody when her children
25 were removed by the state, since the children were already wards of the Omaha
tribe.134 The court found that the state court had concurrent jurisdiction because the tribe did not intervene and assert jurisdiction. The court required others to argue for tribal custody since they did not send notice to the tribal court.135
Section 1911 (b) provides for concurrent jurisdiction between the tribal
court and state court.136 There is a judicial presumption that the proceeding should be heard in tribal court.137 The preference for tribal court, called the “jurisdictional
heart” of the ICWA by California’s 4th Appellate Court,138 requires that upon a proper petition to transfer made by either parent, the Indian custodian, or the tribe, the state court must transfer to the tribal court unless either parent objects or good cause exists not to transfer.139 Nebraska has held that a finding not to transfer should be reviewed on appeal for an abuse of discretion.140
An objection by either parent prevents transfer.141 The absence of parental
objection to a transfer cannot be found unless a parent is given an opportunity to
object, which would include an attorney to explain transfer’s effects.142 Montana has ruled that the tribe is not required to join in a motion to transfer; after a jurisdictional hearing, the matter should be transferred absent parental objection or a rejection by the tribal court.143
Oklahoma courts have produced what may be the definitive examinations of
transfer under the ICWA. In Matter of M.S. and K.S., the Oklahoma Supreme Court
examined a request for transfer from the Puyallup Tribe of Washington State of two
of their tribal children, in state placement after their parents’ rights were
terminated. A planned placement with a tribal relative in Florida was challenged by
26 the current foster placement, which resulted in placement being made with the
foster parents in Oklahoma. 144 The Court of Civil Appeals upheld the lower court’s decision, because the tribe did not request transfer during the foster care placement or termination proceeding of the case.145
The Supreme Court found this interpretation too narrow to fulfill the intent of the ICWA.146 They held that §1911(b) could not be read as Congressional intent to
exclude transfers falling outside of foster care placement or termination
proceedings and the blanket rejection of the tribal request to transfer was
improper.147
The court went on to find that a denial of transfer would be affirmed only if
there was a finding of “good cause to the contrary” supported by clear and
convincing evidence.148 The court specifically noted that a lesser standard of proof
would permit a state court to “sever the relationship between a child and tribe and
to determine the future course of Indian children’s lives without consideration of
the “unique values of Indian culture” being reflected in their placement.”149
The trial court had denied transfer based on three factors: the length of time the case had been in Oklahoma, the children’s relationship with the Oklahoma foster parents, their attorney, and social workers, and most of the relevant evidence being located in Oklahoma.150 The Supreme Court found that issue of timeliness was
sufficient to reverse the appeals court.151 The court noted that the case began in
September, 2004, but sought reunification with the parents through March, 2006.152
The tribe had intervened within ninety days of the beginning of the case, and had an
agreement for a Puyallup placement if reunification failed. The trial court eliminated
27 this agreement after consideration of placement.153 While the lower courts had seen the entire timeline as a continual opportunity for transfer, the Supreme Court found that this interpretation penalized the tribe for cooperating with the state agencies and appearing in Oklahoma courts: 154
“...We see the Tribe’s actions in a different light. We see delays caused through circumstances outside the Tribe’s control. Supporting the State’s reunification efforts should not result in allegations of a Tribe’s lack of diligence in requesting transfer. [Emphasis added]”
This significant opinion requires transferring an Indian child at any time in
the case history. Without a clear showing of good cause to void transfer, the tribal
court should be the forum for the child’s case. This opinion should emphasize to
tribes that early intervention in ICWA cases only supports their legal rights.
In a previous case called Adoption of S.W. and C.S., 2002 OK CIV APP 26, 41
P.3d 1003 (Okl. App. 2002), the Court of Appeals laid out a clear framework for
transfer to tribal court. S.W. involved two sibling children in two deprived actions in
Tulsa County, Oklahoma. The Cherokee Nation, which was involved in the case from
the beginning, favored a placement with the adoptive family of half-siblings of the
two children. Before this placement could be considered, the foster parents filed to
adopt the children. The tribe then filed motions to transfer the juvenile cases, but
did not include the adoption case. The court hearing the adoption removed both
deprived actions to his docket, consolidated all three cases, denied transfer, and
proceeded with the adoption. An appeal soon followed.
The Court of Appeals said that when Indian children resided outside of
Indian country, jurisdiction between the tribal and state court was “concurrent but
28 presumptively tribal.”155 The Court found transfer required an examination of
factors, which included the Bureau of Indian Affairs ICWA guidelines, the best
interests of the child, and the individual circumstances of the case.156 Other factors
may be considered as part of the broad panoply of the protections of the Indian
Child Welfare Act.
A party requesting transfer must make a timely written application that
includes the facts that support the transfer.157 After the application, the trial court
must take testimony on the issue, including tribal experts on Indian culture, with
special attention paid to what would be the best interest for the Indian child.158 The
Court specifically found that a “best interests” test under the requirements of the
ICWA must be considered, along with a modified forum non-conveniens review.159
The Court noted that “good cause” is both personal and extra-personal.160
Personal good cause goes to the individual child, and “when Indian children are
involved, exposure to and cultivation of the social and cultural aspects of Indian life,
their Indian culture and Indian heritage” are required elements.161 Extra-personal
best interests are the means, resources and procedures available to protect the
personal best interests of the child, including forum non-conveniens arguments of
distance and time.162 The testimony of a qualified expert witness is beneficial at this stage.163
The Court also examined the requirements necessary to make a forum non- conveniens argument under the law. The ICWA reverses the normal burden of proof in transfer to the party opposing the transfer, rather than the party proposing it.
Those opposing must demonstrate that the transfer would be against the child’s
29 best interests. Oral testimony is required if the party’s opposition goes beyond geography or time and into the personal best interests of the child. They must prove
their case by “clear and convincing” evidence with expert testimony as defined under the BIA Guidelines.164 These two cases set a high burden for any party, other
than a parent, who opposes transfer to a tribal court.
Other states have found that what is good cause to deny transfer is largely
determined by the individual facts of the case. Nebraska has found that the types of
hearings listed in 1911 (b) must be considered separately, which requires the court
to consider transfer for the case proceeding before them, not the continual case
history.165 The party opposing the transfer carries the burden of establishing the
existence of good cause to deny the transfer by a clear and convincing standard of
evidence.166 The absence of a tribal court may constitute good cause, although the tribe may have a council or other tribal method to determine custody proceedings.167 When a tribal court system does exist, the adequacy of the system,
as perceived by the state court, cannot be considered.168
Courts have found good cause not to transfer a proceeding if the petition to transfer is untimely and the proceeding has already reached an advanced stage; if the child involved is over the age of twelve and objects to a transfer; if the child has had little or no contact with the tribe or its members; or if the evidence necessary to decide the case could not be presented in tribal court without undue hardship to the parties or witnesses.169 The Washington Appellate Court and the Texas Court of
Appeals have held that the determination to transfer is subjective and requires a balancing of the state’s, tribe’s and child’s rights.170 The Iowa Supreme Court found
30 against such a balancing test. The court held that the state’s ICWA provides no valid
objection to transfer based on timeliness, estoppel, laches, or forfeiture.171 The
Court also found the party opposing transfer must demonstrate undue hardship by
showing that necessary evidence would not be available in a tribal court forum.172
Nebraska has held that a “best interests” test is not a basis for finding good cause
not to transfer to tribal court, noting that the very nature of the test would require a
state court to determine if a tribal court was trustworthy.173
Although the legislative history of the Act and the BIA guidelines indicate
that the undue hardship consideration applies only to Indian parties and witnesses,
some states have invoked the doctrine of forum non-conveniens to deny transfer
when it would inconvenience a state agency.174 Others have found that undue hardship should not be easily granted. In Matter of the Guardianship of J.C.D., the
South Dakota Supreme Court found that traveling 225 miles, from Vermillion, South
Dakota to the Crow Creek Sioux Tribe at Fort Thompson, South Dakota, would not
create an undue hardship for the witnesses in the case. The court noted that “under
the trial court’s and the paternal grandparent’s reasoning, almost every case
involving a child not residing on a reservation could be denied transfer.”175 The
court said that inconvenience is not the same as hardship; in order to deny transfer,
a significant impact must be shown.176 Minnesota’s Appellate Court has stated that a
finding of good cause is not the end of the court’s duties: without good cause,
transfer must occur; if good cause exists, the court may still transfer if it determines
that the best interests of the case require it to do so.177
31 Alabama and Montana have ruled that there should be a jurisdictional hearing before the state court grants or denies a petition to transfer.178 Nebraska found that a failure to consider a timely motion to transfer until after termination occurred is an abuse of discretion.179 The motion to transfer should be considered as
soon as practically possible.180
If a tribal court declines jurisdiction over a proceeding transferred from
state court, the state court then reassumes jurisdiction over the proceeding.181 This usually happens if extenuating circumstances limit the effectiveness of tribal assistance. A middle approach may be tribal court jurisdiction using state services for the child. The Indian Child Welfare Act Handbook author and tribal court judge
B.J. Jones has argued for this approach, which would give tribal courts decision-
making power over Indian children that would otherwise tax the tribal social
services programs.
In Interest of C.Y., Kansas reviewed a lower court decision rejecting
voluntary transfer of a termination proceeding to a tribal court.182 The basis for the
rejection of the mother’s motion to transfer was a letter from the tribe stating that
the tribe would object to any motion to transfer to tribal court.
The Kansas Appellate Court found that the tribe did not have the right to
reject transfer in §1911 (b). The Court noted that “tribe” and “tribal court” were
defined independently in Section 1903. Under 1911 (b), only the tribal court could
reject transfer. The state court should transfer to allow the tribal court to decide if
they wanted to decline the case, or the state court should make a specific finding of
why there was good cause to deny transfer.183
32 What type of child custody proceedings can be transferred has been raised in Matter of A.P. In this case, Montana Supreme Court agreed with Oklahoma’s
position in the now-reversed Matter of J.B.184 and found that transfer was only
appropriate in cases involving foster care placements and terminations before the
termination of parental rights is complete.185 The Montana Court found that while a tribe may intervene at any time in a case, it could only transfer prior to termination.186 The Minnesota Supreme Court has also prohibited transfer after termination.187
Another issue regarding 1911(b) is whether a child who lives outside of
Indian country is within the original jurisdiction of the tribal court without a prior state action being filed. It is axiomatic that tribal courts have concurrent jurisdiction
over non-reservation tribal members, but it is unclear as to whether this means that
tribes can exercise jurisdiction without the preconditions of 1912 (b).188 While
South Dakota and Indiana have both answered this question in the negative,189 some courts have hinted that such original jurisdiction may rest with tribes. For example,
California’s 5th District Court of Appeals said in dicta that if a tribe seeking transfer had wanted to have a member child in tribal custody, the tribe should have taken the child into custody before the state did so.190
Under 1911 (c), The child's Indian custodian and the child's tribe have a right to intervene at any point in a proceeding for a foster care placement or the termination of parental rights.191 The Oklahoma Supreme Court has held that a denial of intervention is reversible error and any party may raise the issue on appeal.192 Florida has found that intervention cannot be denied because a tribe is
33 appearing pro se in court and represented only by its social worker.193 Washington
has found that courts cannot infer a waiver of the right to intervene through the
actions of a single social worker. Only an authorized individual or body can take a
legally binding position for the tribe.194 Once a tribe has intervened, the tribe is
entitled to notice of all further proceedings, including notice of appeals.195
The tribe’s right to intervene is guaranteed in involuntary ICWA cases,196
but the law in voluntary proceedings is less clear.197 The Oklahoma Indian Child
Welfare Act permits intervention in either type of case.198 Nevada ruled that a tribe
can intervene in a voluntary adoption proceeding independently of the parent’s
rights.199 Arizona and Washington have found that tribal intervention in voluntary actions, including adoptive or preadoptive placements, is a matter of discretion for the trial court.200 Some states have held that while tribes have no right to notice in voluntary proceedings, intervention is different and should be allowed.201 North
Dakota has held that an order permitting a tribe’s intervention is not an appealable order.202
Section 1911 (d) provides for full faith and credit to all public acts, records, and judicial proceedings of any Indian tribe applicable to any Indian child custody proceeding, to the same extent full faith and credit is given by the tribe to any other entity.203 This is mandatory and applicable whether tribal jurisdiction is exclusive
or concurrent with the state.204 However, “full faith and credit” is not absolute.205
The courts must look to the totality of the circumstances in all cases.
34 IV. 25 USC 1912: Involuntary Cases and the Protections of the ICWA
In involuntary proceedings, the state court must make reasonable effort to determine if the case involves an “Indian child.”206 If so, certain steps must be taken
to provide notice to parents and tribes, or the Bureau of Indian Affairs, if the tribe is
unknown.207 The party seeking foster care or termination must notify the parent,
Indian custodian and the Indian child's tribe (or the BIA if the tribe is unknown) at
least ten days prior to hearing.208 This notice must be by registered mail, return receipt requested.209 At a minimum, the court record should include the notice as
sent to the tribe, the return receipt, and the date of service of the notice.210 The
failure to provide this notice to the tribe or parents will invalidate any action taken
by the court, or require remand for correction.211
This requirement does not hinge on parental participation. Parents cannot
waive notice to the tribes.212 As one California court observed, “The ICWA… is designed to protect Indian children and tribes notwithstanding the parents’ inaction.”213 The onus of notice is on the court, not the parents.214 Notice sent to the
wrong tribe or address is invalid.215 Similarly, notice to a single tribe when there are
other, related tribes, has been held to be inadequate.216
All other protections flow from effective notice.217 Problems occur when parties are not sure if a child is Indian, the tribe is unresponsive, or only evidence
submitted are vague allegations (“Grandma was a Cherokee princess”).218 Parents
sometimes wait until late in the court case to raise the possibility of tribal
membership. This is usually recognized as a last-ditch effort to halt termination
proceedings.219
35 Courts have tried to set the parameters for investigation. In a thoughtful
examination of the issue, the Michigan Supreme Court held that the “reason to
know” language of 1912 (a) sets a permissive standard for notice.220 Any indication that a child may be an “Indian child” under the Act is sufficient to require notice. A failure to provide that notice results in a conditional reversal until proper notice is completed.221
California’s Fourth District Appellate Court held that under the California
ICWA, allegations of Indian heritage are enough to trigger further investigation.222
Only a definitive statement from the tribe that the child is not a member is sufficient
to find that the ICWA does not apply.223 California courts require that notice must
contain enough information for the tribe to determine if the child is a member. This
includes the child’s name, birthdate, and birthplace; the child’s tribal affiliation; a
copy of the dependency petition; the petitioner’s name; a statement of the right of
the tribe to intervene; and as much information about the child’s parents,
grandparents, and ancestors, that could be useful in identifying tribal
membership.224 However, California’s Third and Second District Appellate Courts
have held that a mere allegation is insufficient to trigger the ICWA; there must be
some level of proof.225 The Second District also held that familial information past that of the great-grandparents is not required under the Act.226
California, Colorado and Michigan have held that termination without proper
notice requires a limited reversal.227 If the tribe does not respond after proper notice, then the lower court’s order stands.228 Limited reversal does not permit the court to consider any change of condition or new evidence that has arisen since the
36 initial order was entered; this could mean that a parent could reverse previously destructive behaviors, but not be able to introduce any proof without a tribe responding to the notice.229
Failure of notice is a serious problem nationally, but has been particularly significant in California. Nationally, of 222 unpublished ICWA opinions in 2012, 155 were from California. Fifty-two of those 155 dealt with notice, nearly third of all case issues. The Second District Appellate Court expressed weariness at the deliberate failures to follow the ICWA:
“The responsibility for compliance with ICWA falls squarely and affirmatively on the court and the Department [of Children and Family Services]. When notice is required but not properly given, the dependency court’s orders are voidable. This case must be reversed for the limited purpose to, and remanded with directions to the juvenile court to assure that the required notices are properly given and, based on the results, determine whether E. and I. are Indian children under ICWA.
We are growing weary of appeals in which the only error is the Department’s failure to comply with ICWA. [Citation omitted that notes 14 published opinions from 2002 through 2005, and 72 unpublished opinions in 2005 alone for noncompliance with ICWA]. Remand for the limited purpose of the ICWA compliance is all too common. ICWA’s requirements are not new. Yet the prevalence of inadequate notice remains disturbingly high. This case presents a particularly egregious example of the practice of flouting ICWA. The Department concedes it sent no notices, notwithstanding the juvenile court’s specific order that it do so. And, we have been given no indication that the Department has attempted to mitigate the dame it caused in failing to attend to ICWA’s dictates by sending notices while this proceeding was pending. [Citation omitted] Delays caused by the Department’s failure to assure compliance with the law are contrary to the stated purpose of the dependency laws, to promptly resolve cases and to provide dependent children with protection, safety, and stability.”230
California requires ICWA written notice containing complete information to be sent to the tribe and filed with the trial court, as opposed to mere testimony that social services gave notice to the tribes.231 Courts have held that improper notice is harmless error unless it is demonstrated that the Act would have applicable and the information that was left out would have changed the tribe’s determination.232
37 Kansas held that a technical failure of notice to a tribe already participating
in the case was not a violation of the ICWA.233 Iowa found that giving notice to the
wrong tribe (the Seneca-Cayuga Tribe of Oklahoma, rather than the Seneca Nation of
New York) required the lower court to send corrected notice.234 Colorado has found
that even if a tribe does not respond to an earlier notice in a dependency case, it
does not release the state from providing notice regarding a termination. 235
If there is likelihood that the child is a tribal member, Oklahoma requires that
notice be written in clear and understandable language. Notice must be provided to
the tribes and the Bureau of Indian Affairs by certified (not registered) mail.236
The notice must include the following information:
-- the name and tribal affiliation of the Indian child;
-- a copy of the petition by which the proceeding was initiated;
-- a statement of the rights of the biological parents or Indian custodians, and the Indian tribe:
- to intervene in the proceeding, - to petition the court to transfer the proceeding to the tribal court of the Indian child, and - to request an additional twenty (20) days from receipt of notice to prepare for the proceeding; further extensions of time may be granted with court approval;
-- a statement of the potential consequences of an adjudication on the future custodial rights of the parents or Indian custodians;
-- a statement that if the parents or Indian custodians are unable to afford counsel, counsel will be appointed to represent them; and
-- a statement that tribal officials should keep confidential the information contained in the notice.237
If the tribe is unknown, the Secretary of the Interior is notified by mailing to
the nearest regional office of the Bureau of Indian Affairs. The Secretary then has
fifteen days to provide the notice to the parent and/or the tribe.238 California’s First
38 District Court of Appeals has found that notice to the Secretary corrects any errors
in tribal notices.239
If the parents and tribe are known, at least ten days must pass after receipt of
the notice before a hearing is conducted.240 This does not include emergency
hearings. Upon request, any party must be granted an additional twenty (20) days
to prepare for the hearing. 241 Improper notice is a jurisdictional error, and termination of parental rights without proper notice requires reversal.242 If the tribe
doesn’t respond after notice, the burden shifts to the parent asserting Indian
heritage to preserve the issue for appeal.243 If a tribe determines that the child is not
a member, the ICWA does not apply.244
The Oklahoma ICWA requires that the Court seek a determination of Indian status in both voluntary and involuntary proceedings, regardless of whether the children involved are in the physical custody of a parent at the time state proceedings are initiated.
The circumstances of such a determination include:
-- The court has been informed by an interested party, an officer of the court, a tribe, an Indian organization, or a public or private agency that the child is an Indian child; or
-- The child who is the subject of the proceeding gives the court reason to believe he is an Indian child; or
-- The court has reason to believe the residence or domicile of the child is a predominantly Indian community.245
This burden is on the Court and the attorneys involved in the case, not the parents. A failure of an attorney to notify the Court of even suspected Indian status could result in malpractice, sanctions or contempt proceedings.246
39 Oklahoma has held that an Oklahoma child being adopted out of state is also
subject to the higher requirements of notice under Section 40.3.247 In Cherokee
Nation v. Nomura, a Cherokee child born in Oklahoma was placed for adoption in
Florida. The Florida Court found that the matter was a voluntary adoption and
notice to the tribe was not required under 25 U.S.C. § 1912 (a).
The Cherokee Nation sought a temporary restraining order to prevent
Michael Nomura, the Oklahoma administrator of the Oklahoma Interstate Compact
on the Placement of Children, from issuing a form 100-A that would permit the
Florida case to go forward. Nomura then sought a declaratory judgment as to his
responsibilities under the ICPC.248 The court found that the Oklahoma Indian Child
Welfare Act must be followed, a position upheld by the Oklahoma Supreme Court.249
The Court cited the Baby Boy L. and Holyfield decisions for the proposition
that the state ICWA was constitutionally supported.250 The Court found that the
Oklahoma standard of notice did not go beyond the ICWA but rather enhanced it.251
The Court noted that the tribe has the right to intervene in any adoption proceeding,
and that this would be rendered difficult if notice was not provided.252 The Court also found that the provisions of 10 O.S. § 40.6 regarding placement preferences must also be followed by the Florida Court.253 The Court’s logic and reasoning
strongly echo the U.S. Supreme Court in Holyfield, in that an Indian tribe’s rights
could not be defeated by the actions of individual tribal members.254 It is interesting
to note that the Adoptive Couple court did not even consider this issue or the
underlying Nomura decision. It is unclear, in light of Adoptive Couple, if a decision
like Nomura will have future validity.
40 This burden is on the Court and the attorneys involved in the case, not the parents. A failure of an attorney to notify the Court of even suspected Indian status could result in malpractice, sanctions or contempt proceedings.255
If a court determines that the parent or Indian custodian is unable to afford an attorney, the court must appoint counsel under 1912 (b).256 If state law does not
provide for court-appointed counsel, the Act still requires appointment. The Court
could either appoint pro bono counsel, or pay for an attorney and seek
reimbursement from the Secretary of the Interior.257 The right to counsel applies in
all removal, placement and termination proceedings.258 It does not depend upon a
specific request. If the state court determines indigence, failure to appoint an
attorney is reversible error, unless there is a valid and knowing waiver of that
right.259 However, a valid waiver of the right to counsel cannot be made “knowingly
and intelligently” unless the parent has an opportunity to consult with independent
counsel.260 The court may also appoint an attorney for the child, but this is not
specifically required in the ICWA.261 The counsel appointed for the parent must be
competent and should understand the Indian Child Welfare Act. Oregon found that
an attorney misinforming the court that the ICWA did not apply for his client was by
definition inadequate counsel.262 His incompetence required remand.263
Section (c) provides for the examination of all records in a foster care
placement or termination of parental rights proceeding. Parents, custodians and
tribes have the right to examine all reports or other documents filed with the
court.264 The Alaska Supreme Court has held that this provision provides an exception to the hearsay rule. The Court found that documentary evidence of
41 doctors' evaluations of an Indian mother was admissible, even when the doctors
themselves did not testify. 265 Oklahoma’s ICWA requires DHS to maintain
placement records for all Indian children in their care. These records must be
produced within seven days upon a tribe’s or the BIA’s request.266
Section 1912 (d) encompasses a difficult series of requirements. Any party
seeking a foster care placement of, or the termination of parental rights to, an Indian
child must first satisfy the court that (1) active efforts have been made to provide
remedial services; (2) that rehabilitative efforts were designed to prevent the
breakup of the family; and (3) that these programs were unsuccessful.267 This requirement includes state actors, private parties and Indian custodians.268 Many
courts have found it difficult to interpret this stringent section in a consistent
manner when faced with the varied cases that are brought before them and
therefore determine active efforts on a case-by-case basis.269
In certain cases, the protections of § 1912 (d) will not be followed.270 The
Supreme Court has determined that private adoption actions against unwed noncustodial fathers are not required to follow the protections of this law. Similarly, the protections of §§ 1912 (e) and (f) are not required to be followed against unwed noncustodial fathers of Indian children. However, this opinion must be considered in view of state ICWA statutes, which may have more stringent requirements as to the protections of fathers. Any former state precedent will necessarily have to consider the impact of the Adoptive Parents and its impact in the individual state
before its use.271
Another area of concern is the burden of proof required for Section 1912.272
42 Two major positions have been taken. The first ties the entire burden of proof from
1912 to the underlying cause of action: clear and convincing if a foster care
placement is being sought and beyond a reasonable doubt for termination. This
creates a separate standard for ICWA cases, and requires the state court to proceed
under the higher burdens for all elements of the case. This group includes Colorado,
Indiana, Iowa, Minnesota, Montana, New Mexico, Oregon, and South Dakota.273 The
second group bifurcates the burden and applies the standards found in state law,
generally clear and convincing evidence, for the state elements of the case. After the
state elements are met under state standards, active efforts and the attendant
danger to the child must be shown under the ICWA’s higher burdens of proof. This
group includes Alaska, Arizona, Arkansas, California, Idaho, Oklahoma, Maine,
Michigan, Nebraska, North Dakota, Washington, and Wisconsin.274 Ultimately, in all cases, there must be a finding of serious emotional or physical damage “beyond a reasonable doubt” to the child.275 While this would appear to be a simpler process,
it actually becomes more complex. For example, In order to terminate a parent
under the ICWA, an Alaska court must find:
(1) by clear and convincing evidence that “the child has been subjected to conduct or conditions described in AS 47.10.011”; (2) by clear and convincing evidence that the parent “has not remedied the conduct or conditions in the home that place the child at substantial risk of harm,” or “has failed, within a reasonable time, to remedy the conduct or conditions in the home that place the child at substantial risk of physical or mental injury”;
(3) by clear and convincing evidence that “active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful”;
(4) by evidence beyond a reasonable doubt that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child; and
43 (5) by a preponderance of the evidence that termination of parental rights is in the best interests of the child.276
The bifurcated system requires all three standards of proof to be used in every ICWA case in Alaska. The standard of “clear and convincing evidence” is applied for state termination requirements and active efforts; the ICWA standard of
“beyond a reasonable doubt” is required to demonstrate future serious emotional or physical damage to the child; and the base “preponderance of evidence” is required to demonstrate a best interests test.
This is clearly the developing trend in ICWA law. The problem is that this
leads to different standards in different states.277 The Supreme Court accepts
separate state standards by their reasoning in Adoptive Couple v. Baby Girl.278
States may choose to use whatever standard they believe is best.
Once the burden of proof is selected, the court must determine active efforts in the case. “Active efforts” is not merely an empty phrase that is parroted in the trial court’s orders; active efforts must be determined by the actions of the parties within the case.279
The Alaskan Supreme Court has been one of the primary courts in seeking a common-sense definition of active efforts, recently saying that “active efforts require that the State actually help the parent develop the skills required to keep custody of the children, rather than merely develop a case plan for the parent to follow.” 280 The Court has ruled on several interesting cases involving what
constitutes active efforts. In Roland L. v. State, a parent not offered services for three
months of a two-year period was terminated. The Alaskan Supreme Court found the
44 entire period of the case must be examined for active efforts; the totality of the
history will determine compliance.281 In K.N. v. State, the Court found that active
efforts are determined on an individual basis, and may vary from case to case
depending upon the parent’s condition and ability.282 In Dale H. v. State, the Court
found that active efforts determinations should include the parent’s efforts, or lack
thereof.283 In J.A. v. Alaska, the court found that the Act does not require any
culturally specific rehabilitative services, but rather services that address the issues of the case.284
In A.A. v. Alaska,285 A.A. was arrested and convicted of first-degree murder
during the pregnancy of his girlfriend, an Alaskan Native. His paternity was not
determined until the child was nearly 18 months old. (The child was removed at
birth from the mother due to her drug use and the sexual abuse of older children in her home.) A.A.’s parental rights were eventually terminated.
In A.A.’s appeal, he argued that his rights had been violated under the Indian
Child Welfare Act because the state failed to make “active efforts“ to assist in his rehabilitation. The court cited Craig Dorsey, a noted ICWA commentator, on the difference between active efforts and passive efforts:286
“Passive efforts are where a plan is drawn up and the client must develop his or her own resources towards bringing it to fruition. Active efforts, the intent of the drafters of the Act, is where the state caseworker takes the client through the steps of the plan rather than requiring that the plan be performed on its own. For instance, rather than requiring that a client find a job, acquire new housing, and terminate a relationship with what is perceived to be a boyfriend who is a bad influence, the Indian Child Welfare Act would require that the caseworker help the client develop job and parenting skills necessary to retain custody of her child.”
45 The court discussed the difficulty in administering active efforts, noting that
“no pat formula” exists to determine if the efforts are sufficient. Rehabilitation should be determined on a case-by-case basis.287 The court found rehabilitation is
even more problematic while the client is incarcerated. While neither incarceration
nor doubtful prospects for rehabilitation relieved the state of its obligations for
rehabilitative efforts, imprisonment is a significant factor in determining if the
state’s efforts are adequate.288 While the court specifically criticized Alaska for failing to prepare a specific case plan for the father, it nonetheless found that, under the facts of the case, active efforts occurred.289 The Court cited A.M. v. Alaska,290
which had considered a similar problem. In A.M., the father was in a state-
sponsored drug treatment facility until he was removed for failing to follow
treatment requirements. The Supreme Court upheld his termination, but was
“troubled” by the state’s passive rehabilitative efforts. The court based their finding on the harsh facts of the case: the father failed to attempt even the most basic rehabilitative services.
The later Court found that A.A. had failed in this very same way.291 Noting his dangerous and aggressive behavior, the Court concluded his failure to complete whatever programs were offered fell within the A.M. discussion.292
From this history, Alaska eventually held that some specific fact patterns are
not entitled to active efforts at all. In J.S. v. Alaska, the Court ruled that parents
convicted of sexual abuse of their children were not entitled to a service plan, and
found that Congressional policies as put forth in the Adoption and Safe Families Act
did not support such protections. The court said,
46 “Although this case is not governed by ASFA, that act is useful in providing guidance to congressional policy on child welfare issues. It suggests that in situations of adjudicated devastating sexual abuse, such as this one, a person’s fundamental right to parent is not more important than a child’s fundamental right to safety. Therefore, we hold that active efforts to reunify the abusing parent are not required in a situation after there has been a judicial determination that the parent has subjected the child to sexual abuse.”293
Oklahoma found in a similar manner in Matter of T.H., M.B., and J.M.B.294 In
this case, a mother continually renewed a relationship with a convicted child rapist
until an Oklahoma court terminated her for endangering her children. The court did
not require “active efforts” or a service plan. Testimony revealed that previous service plans in Texas had been ineffective. There appeared to be no effective plan that would not endanger the children. Without the possibility of a safe home, the
Court did not feel that active efforts were beneficial or necessary.
The lower court also found that the mother’s actions were heinous and shocking, because the mother voluntarily took her children to live with a child molester.295 The Appeals Court upheld the decision. The Court based their decision upon the mother’s previous failure to successfully complete her Texas service plan and her continued endangerment of the children.296 Efforts to reunify the family
could not protect the children; so, with the tribe in agreement, the Court found a
heinous and shocking exception to the active efforts provision of the Act.297
Colorado similarly ruled that previous active efforts eliminated the need to
offer a new plan before moving to termination.298 Michigan found recent active efforts negated the need for new continued efforts, but refused to establish a
“futility test” in future cases.299 California’s 4th Appellate Court did adopt a “futility
47 test” in examining active efforts or to a convicted incestual child sex abuser.300
California’s 1st Appellate Court found that the death of an older sibling was sufficient
to bypass reunification efforts.301 New Mexico found that the abuse of a sibling is not sufficient to terminate parental rights to another child in and of itself, but is a very significant factor.302
Utah found that prior actions invalidate the requirement for rehabilitative
services. In Interest of C.D., A.D., J.T. and S.T., the Court found that a current Indian
custodian could not be piggybacked onto the biological mother’s failure to complete
a service plan four years earlier.303 However, the Court found that the Indian
custodian was not entitled to services, because he was a former state social worker,
and was already well versed in the proper treatment of children.304
Alaska has held that a child born to parents already working a deprived plan will not be considered in isolation, but rather in context to the parents’ work in the ongoing case.305 California similarly found that a physically abusive mother was not entitled to a separate service plan for her newest child.306 The appeals court found
the mother’s lack of participation in efforts for more than a year meant that nothing had changed in her ability to care for a child.307 The court did not specifically find an
exception to the requirements of 1912 (d), but found that the lower court’s actions
were proper.308
However, South Dakota’s Supreme Court found that the broader provisions
of the Adoption and Safe Families Act could not control the active efforts provision
of the ICWA. 309 The Court cited three reasons as to why ICWA protections could not be overcome by the Adoption and Safe Families Act. First, the ICWA has no
48 exceptions to the active efforts requirement, and ASFA does not state that its lesser
burden should be applied to the ICWA; in fact, ASFA does not mention ICWA at all.310
The Court said, “It would seem illogical that ASFA would implicitly leave unchanged
certain ICWA provisions, like notice to tribes, intervention, and transfer to tribal
courts, while modifying others.”311 The Court notes in a footnote that the agency in
charge of enforcement of the Adoption and Safe Families Act shares this opinion
when they state, “we can affirm that states must comply with ICWA and that nothing
in this regulation supersedes ICWA requirements…”312
Second, the Court states that the rules of statutory construction require that
the more specific act control the more general. In this matter, the ICWA is more
specific, as it deals with a “discrete segment of our population, Native American
families, whom Congress found were best served by maintaining their relationship
with their tribes and extended families.”313 The higher standards imposed by the
ICWA would therefore trump the more general standards of ASFA. Third and finally,
the Court found that statutes that deal with Indians must be liberally construed in
favor of Indians, with ambiguous provisions interpreted to their benefit.314
J.S.B., Jr. could be considered a clarification of D.B., III, which found that
ASFA’s “aggravating circumstances” justified the discontinuation of services to an
Indian parent.315 However, that court fulfilled the ICWA burdens even with the ASFA
finding.316 Similarly, Montana has found that a court’s finding of active efforts will be upheld if a reasonable person could make the same finding beyond a reasonable doubt. 317 Of all of these cases, J.S.B., Jr. most closely follows Indian law
jurisprudence.
49 Nebraska has examined the requirements for active efforts, and found that
no precise formula existed that would obviate individual case review.318 The Court found that “It is well-established that the “active efforts” standard requires more than the ‘reasonable efforts’ standard applicable in non-ICWA cases, and at least
some of the efforts should be ‘culturally relevant’.” 319 The Court found the South
Dakota line of reasoning persuasive, holding that the ICWA did not authorize the waiver of rehabilitative services because of aggravating circumstances in the parents’ underlying offense.320
Arizona found that active efforts do not require the state to “provide every imaginable service or program designed to prevent the breakup of an Indian family.”321 Rather, it should determine if the appropriate active efforts were offered
and if the parents were given “time and opportunity to participate” in those
programs.322
Oklahoma looked at the difference between “active efforts” and “reasonable efforts,” and found that the terms were not synonymous. Active efforts, said the
Court, required a higher effort.323 The Court of Appeals stated,
“…The trial court’s interpretation of what constitutes ‘active efforts’ is revealed in its ruling at trial:
‘It was in the effort of all parties to be part of the process to do active efforts. And in a case like this, it’s not the old saying that “you can lead a horse to water, but you can’t make him drink.” Well, we’re not even here to lead the parent to the water. It’s we point in the direction and leave it up to the drive, the determination, and what should be the actions of the parents to demonstrate their care and concern for their children.’
This interpretation is contrary to the plain and ordinary language in §1912(d) and thereby undermines congressional policy. To use the trial court’s metaphor, ‘active efforts’ requires ‘leading the horse to water.’” 324
50
The South Dakota Supreme Court requires “active efforts” over “reasonable
efforts.”325 The Court was uncertain if there was any difference between the two terms, since courts have unanimously required that either “active” or “reasonable” efforts have to be more than “passive” efforts.
In cases of first impression, two courts have ruled if active efforts must be ongoing. Alaska questioned whether a previous custody proceeding required new efforts.326 In Danielle A., the Court found that an extension of custody required a
finding as to ongoing active efforts and placement.327 Oregon found that the policies
of the Act afford parents an opportunity to seek reunification at every hearing that
might contribute to the permanent removal of a child.328 If the case outcome is
changed, or if change is considered, courts must make a new finding as to “active
efforts” and their success or failure at the current stage of the case. If the intended
outcome is unchanged from the previous hearing, the court must find the
circumstances regarding reunification have remained the same.329
The South Dakota Supreme Court found that offering visitation was sufficient
“active efforts” when the Indian mother ignored that offer. In People in Interest of
S.R., evidence at the trial court showed that the Indian mother's paint-sniffing
addiction rendered her unable to function in the most minimal fashion as a parent;
that she spurned help, refused visitation and denied her addiction. These factors
were sufficient on appeal to support the trial court’s finding of “active efforts” before
the termination of the mother's parental rights.330
Illinois held that the relevant question for an incarcerated parent is whether
51 the services offered are appropriate under the circumstances. In the case of Cari
B.,331 the father was incarcerated out of state and refused to sign releases to permit
social services to have access to his prison records. The appellate court held that the
social services efforts were sufficient to show active efforts even though they were
limited to letters to the father and efforts to monitor out-of-state services.332
Under the Adoptive Couple precedent, the ICWA does not apply to private
adoptions with unwed noncustodial Indian fathers.333 California had already found that if the Court applied the “Indian Child Exception,” it is not required to consider all parts of the ICWA in determining active efforts.334 Although not accepting the exception, Alaska has ruled in a similar fashion.335 Adoptive Couple makes it clear
that in any private action, no effort will be required.336 For example, Iowa found that a mother who had attempted to maintain contact between a father and child constituted active efforts when the father spurned those attempts. 337 California
found that a mother seeking a stepparent adoption against a father who was in
prison for violent crimes against her was not required to attempt further contact
with her abuser in order to prove active efforts.338 These cases, of course, only refer
to the federal ICWA. State jurisdictions may require their ICWAs to apply to any type
of Indian child case and to any type of party.
Both California and Montana have found that rehabilitative services are not required prior to the disposition of a child custody proceeding.339 In the case of In
Re K.B., the 4th District Appellate Court found that such services would be futile
given a father’s extensive child sexual abuse background, and the mother’s
unwillingness to address it.340 In Matter of G.S., Jr. and S.S.,341 the Montana Supreme
52 Court discussed a case in which the parents claimed that services should have been provided before removal of the children. They found it impractical, given the contingencies of child welfare work.342 An opposite result was reached in In Re
M.P.M. and A.R.M.343 The Supreme Court of Montana held that section 1912 (d)
required the state at least contact with the Indian father prior to the removal of his
children from their mother's home. Because the state did not offer him rehabilitative
or remedial services, the Act was not followed. The Court also found that social
workers with no particular expertise in Indian culture did not meet the
requirements of 1912 (e).344
New Mexico found the adjudicatory hearing is the first where for section
1912 protections are required. Adjudication is the point where all parties have been given notice and an opportunity to understand the case posture.345
Sometimes the placement of the children is influential in determining if a violation of § 1912(d) has occurred. In Matter of Dougherty,346 the non-Indian father
of three Sault Ste. Marie Chippewa children pled guilty to raping his children. The
state terminated his parental rights, leaving the children with their Indian mother.
He appealed the termination, alleging that his rights under the ICWA had been
violated because he had not been given remedial services designed to prevent the
breakup of the Indian family. The Michigan Appellate Court found that the Indian
family was not broken up: the Indian children were living with their Indian mother
while he served four to ten years in prison. The "Indian family" remained intact
despite the father’s sexual abuse; therefore, the remedial services of 1912 (d) were
not required. The Court differentiated the burdens of 1912 (d) and 1912 (f), finding
53 that the two subsections operated independently of each other. Since no “Indian family” was broken, termination was proper.347
Courts have found that placement of a child with an extended family member
constitutes a remedial measure designed to prevent the breakup of the family.348
The effort must be attempted and unsuccessful before termination of parental rights
can be considered.349 The Arizona Supreme Court has found that the “active efforts”
requirement is applicable when a parent attempts to withdraw consent to a
voluntary adoptive placement and termination proceedings are initiated on grounds
of abandonment.350 Reunification must be shown to have failed.351
Subsection (e) of 25 U.S.C. § 1912 establishes minimum evidentiary
requirements for an Indian child’s foster care placement. It cannot be ordered in the
absence of a determination by clear and convincing evidence, including the
testimony of at least one qualified expert witness, that the continued custody of the
child by the parent or Indian custodian is likely to result in serious emotional or
physical damage to the child.352
It must be remembered that under Adoptive Couple v. Baby Girl, the
provisions of sections (e) and (f) will not be applied in private cases involving
noncustodial fathers of Indian children.353CASE NO
In Oklahoma and Nebraska, a finding that a mother and child had not bonded and foster care placement would be in the "best interest" of the child did not meet the clear and convincing evidence standard required by this section.354 Arizona has
found that the heightened burden of proof and expert testimony furthers the
protections of the ICWA by keeping courts from removing Indian children from their
54 homes too quickly.355 Montana held there is no requirement for expert testimony
prior to the removal of a child or in an emergency situation. 356
Washington grappled with the effects of a long-term private guardianship placement where the grandmother refused to return the children to their mother.
The mother had suffered from long-term alcohol and drug problems, and had placed the children with their father’s mother while she addressed her issues. She managed to break her addictions and was sober for over eight years. After innumerable delays, the trial court ruled that the children could remain with the grandmother as long as they desired.357 The Appeals Court reversed because there was no finding of
emotional or physical danger to the children.358
The Washington Supreme Court overruled this decision. The court, obviously
sympathetic to the grandmother who had raised the children for most of their
lives,359 found that the parent’s current situation would not be considered and the
requirements of 1912(e) would not be enforced, including qualified expert
testimony and clear and convincing evidence of danger to the children.360 Instead, the court ruled that state law should prevail but offered no real justification for this position.361 This is a progenative finding to Adoptive Couple; in this case, however,
the Court simply found that they did not wish to do so.
Subsection (f) keeps the same requirements for a termination proceeding,
but with a higher burden of proof. Parental rights cannot be terminated in the
absence of a determination,362 supported by evidence beyond a reasonable doubt,
including testimony of qualified expert witnesses, that the continued custody of the
child by the parent or Indian custodian is likely to result in serious emotional or
55 physical damage to the child.363 The child does not have to be in the custody of the
parent in order for the burden of proof to be applied.364 Evidence beyond a
reasonable doubt has been defined by Nebraska as “proof so convincing that one
would rely and act upon it without hesitation in the more serious and important
transactions of life.”365
This evidential standard of proof is one of the most appealed areas of the
Act.366 The “beyond a reasonable doubt” standard must be applied to terminations.
The termination proceeding must show by this standard that the continued parental
custody will result in serious emotional or physical damage to the child.367 Any burden other than “reasonable doubt” for the ICWA requirements is reversible error.368 If the state is applying a bifurcated burden of proof, the state requirements
may be presented at the lower burden, as long as it is clearly differentiated as such,
and as long as reasonable doubt is demonstrated for the ICWA requirements.
A court using the proper burden of proof does not have to define the burden
if it is demonstrable from the decision.369 The court’s order should be determined
from a totality of the factors present, including the judgment and the underlying
record.370 Oklahoma has found that while a parent of an Indian child can be terminated by default for failing to appear at trial, the court’s order must reflect that the state demonstrated the requirements of the Act.371
Expert testimony is an absolute requirement. A qualified expert witness must
have more than the usual social worker training if their testimony examines a
lifestyle or cultural choice.372 While the ICWA says “witnesses,” the federal rules of
construction interpret that to mean that a single expert is sufficient.373 The expert
56 should possess special knowledge of social and cultural aspects of Indian life,
preferably the child’s tribe.374 The expert should learn as much information about the family as possible before testifying.375 Interviews with as many parties in the case are recommended, but some courts have found this is not an absolute requirement.376 The purpose of expert testimony is to provide the court with knowledge of the social and cultural aspects of Indian life, to diminish the risk of any cultural bias.377 The expert’s testimony should be forward-looking as to harm to the
child.378 Montana found that the state cannot terminate parental rights unless the
expert states explicitly that continued custody of the child by the parent would
result in serious emotional or physical damage.379
The witness does not have to be a member of the tribe in question or even an
Indian in order to be found an expert.380 Someone who is a member of a tribe is not
automatically considered an expert. 381 The BIA Guidelines suggest that tribal
members who appear as experts must first be recognized by the tribe as such.382
Pennsylvania and Montana have held that an expert witness’s finding of
whether termination is appropriate will be sustained if a reasonable person could
find the evidence justified the conclusion.383 The expert’s duties are to inform the court of the tribe’s culture and laws; their recommendation is not essential. 384
The failure to inquire about specific qualifications may be a basis for reversing a state court's decision.385 The expert need not parrot the language of the
ICWA in his or her testimony.386 Testimony of an expert is only a part of the
information that the court uses to reach a decision. It is not controlling.387 The
expert is not required to conduct an investigation into the causes of dependency.388
57 This includes interviewing the parents when the expert deems it unnecessary.389
The Fourth District of California has found that an Indian parent could waive
the protections of the Act for themselves, such as expert testimony and the higher
standard of proof.390 The parent cannot waive the protections for the other parent, the tribe or the child.391
Montana has ruled that the parent must have sufficient opportunity to object
to the determination that a witness is an expert.392 California has found that changing custody from a custodial parent to the noncustodial parent as the result of a deprived case does not require expert testimony or the increased burden of §
1912.393
Several states have held that testimony from an expert witness without
special knowledge of Indian life may be used if cultural bias is not implicated.394 In
obvious sexual or physical abuse cases, expert testimony as to tribal culture is
unlikely to have a significant impact on the court’s decision.
Oklahoma requires all orders include a mandatory finding of compliance with the ICWA.395 A failure to do so is not grounds for new proceedings, but requires
a corrected order.396
V. 25 USC 1913: Voluntary Termination of Rights
Voluntary placements and adoptions bring a basic conflict of the Act to the
forefront: the rights of the parents versus the rights of the tribe. If Indian parents
desire to place their child outside of the tribal culture, do they have the right to do
so? The mother’s right to do so, even over the objection of the father, was
58 resoundingly approved of by a majority of the Supreme Court in Adoptive Couple v.
Baby Girl.397 A custodial parent of an Indian child is able to place their child with any
placement they desire, and it appears that neither the tribe nor the noncustodial
unwed father can prevent it under the ICWA.398
This does not necessarily mean that the Tribe is not entitled to notice and to
make its position known. The Supreme Court had previously indicated, in
Mississippi Band of Choctaw Indians v. Holyfield, that the tribe was an equal partner
under the Act and entitled to notice and the opportunity to present its position.399
The new decision does not overrule Holyfield. The Oklahoma Indian Child Welfare
Act requires that the tribe be given notice in both voluntary and involuntary
proceedings.400 Other states have held that the tribe is not entitled to notice in
voluntary proceedings.401
Valid consent by Indian parents or custodians to foster placements or
termination of parental rights requires four distinct elements:
1. the consent must be in writing;
2. the consent must be executed and recorded before a judge of a court of competent jurisdiction;
3. the consent must be accompanied by the presiding judge's certificate, stating that:
a. the terms and consequences of the consent were fully explained and understood; and that
b. the parent or Indian custodian fully understood the explanation in English or that the explanation was interpreted into a language the parent understood; and
4. any consent given prior to, or within ten days after the birth of the child, is invalid.402
59
State laws can strengthen, but not lessen, these requirements. 403 The
provisions of §1913(a) are minimal requirements for consent in voluntary actions.404 A simple power of attorney is not sufficient consent for a guardianship or adoption. Consent must be given in front of a judge.405
After consent has been properly executed, the parents or Indian custodians
may withdraw it.406 This withdrawal may be done for any reason.407 In a foster care placement, the child should then be returned to the parent or Indian custodian.408 If the Court requires hearings to determine if return is in the child’s best interests, those proceedings must follow the ICWA, including testimony of expert witnesses regarding serious emotional or physical damage to the child by parental custody.409
Even if adoption was the ultimate objective, the parent may withdraw consent in a
foster care placement at any time.410 Courts have held that the tribe has an
independent jurisdictional basis to argue that parental consent was invalid.411
In any voluntary proceeding for termination of parental rights to, or adoptive placement of, an Indian child, the parent may withdraw consent at any time prior to the entry of a final decree of termination or adoption, as the case may be.412 In that
situation, the child should again be returned to the parent.413 Most states have held that a hearing must first be conducted in order to determine if the return to the parent’s custody is in the best interests of the child.414
The withdrawal of consent in a termination or adoption has a significant
limitation. A parent's right to withdraw consent to termination of parental rights
expires with the entry of a final order terminating parental rights, which may be
60 immediately.415 If a parent gives a waiver of consent to an adoption, their rights will not expire until the final decree of adoption is entered.416
The reason for this variation lies in the nature of the consent. Consent for an
adoption is given anticipating a future action that will then result in a new parent-
child relationship established while simultaneously disestablishing the birth
relationship. Consent to termination, or relinquishment, is consent to the end of the
parent-child relationship at that time.417 Parents, their counsel, and the tribe should
be entirely clear on the nature of the consent parties are giving.418
After termination, parents may withdraw their consent in certain types of
cases. If the consent was obtained through fraud or duress, a parent may withdraw
their consent and petition for the vacation of the final decree. The state court must
vacate such a decree and return the child to the parent if fraud or duress occurred.
This action must be brought within two years of the fraud or duress.419 After that time has expired, the Act offers no further relief.420
Alaska has ruled that the ICWA incorporates state statutes of limitations except for the two-year statute of limitation contained in this provision.421 Under
Holyfield, the Supreme Court expressed a great deal of concern that the ICWA
should have the same impact in every state. Other states have also used various
standards to set procedures for ICWA cases. Permitting the states to set case procedures that vary, such as the statute of limitations, may run afoul of congressional intent.422 However, the Court in Adoptive Child seemed very willing to
allow the states great latitude in ICWA cases.423
61 One area of new controversy is whether a consent or stipulation to a
dependency proceeding transforms the case into a voluntary proceeding.424 In this situation, the state alleged that because the parent consented to an agreed order of dependency, the case was not a “child custody proceeding” under Section 1903, but rather a consensual placement under Section 1913. New Mexico, Montana and
Washington courts have all rejected this notion, pointing out that the parent’s rights under a Section 1903 proceeding are very different from the parent’s rights under
1913, and the parent could not choose the protections they desired the trial court to apply.425 Considering the obviously different intent under the provisions, the Courts found that a parent’s actions after the initiation of an involuntary proceeding could not change the nature of that case.426
In an interesting case regarding fees and expenses in an ICWA adoption, the
Oklahoma Supreme Court remanded a trial court award of attorney’s costs that
exceeded $147,000.427 The trial court had felt that the case was an extraordinarily difficult proceeding, and had approved expenses that included $13,000.00 to hire a private investigator to watch the biological Cherokee father who had initially objected to the adoption.428 The Court noted that Oklahoma has a strong anti-
trafficking law designed to prevent the purchase of adoptive children,429 and the case was “closer to a routine adoption than a complex legal contest.”430 This analysis
was, unfortunately, not reviewed in the Adoptive Couple decision.
In an interesting case regarding fees and expenses in an ICWA adoption, the
Oklahoma Supreme Court remanded a trial court award of attorney’s costs that
exceeded $147,000.431 The trial court had felt that the case was an extraordinarily
62 difficult proceeding, and had approved expenses that included $13,000.00 to hire a
private investigator to watch the biological Cherokee father who had initially
objected to the adoption.432 The Court noted that Oklahoma has a strong anti-
trafficking law designed to prevent the purchase of adoptive children,433 and the case was “closer to a routine adoption than a complex legal contest.”434
VI. 25 USC 1915: Placement Preferences Under the ICWA
Section 1915 gives the tribes ability to control their children’s placements even if the case remains in state court. The Supreme Court in Holyfield called the
preferences “the most important substantive requirement imposed on state
courts.”435 However, the Supreme Court in Adoptive Couple found that placement
was not an issue in private adoptive proceedings against noncustodial unwed Indian fathers unless two separate adoptions were being considered simultaneously in the same court.436 It is unclear how courts will examine placement if the case involves
state actors.
Alaska requires use of the “clear and convincing” standard of proof in
placement determinations, rather than the “preponderance of the evidence”
standard.437 They have also considered whether placement preferences impact
upon the “active efforts” requirement of 25 U.S.C. § 1912 (d).438 The Court found that preferences are generally distinct from rehabilitative services and are not automatically linked.439
The tribe has the right to set the placement priorities for the state to use in
foster care and permanency placement. Without this specific instruction, the Indian
63 Child Welfare Act requires state courts to follow certain placement rules. These
placement preferences have different standards for different cases. In adoptions,
and Indian child should be placed, absent good cause to the contrary, with:
1. a member of the child's extended family; 2. other members of the Indian child's tribe; or 3. other Indian families.440
Foster care placements are more expansive. The child must be placed in the
least restrictive setting that approximates his or her family and in which any special
needs of the child may be met. The child should be placed within reasonable
proximity to his home, taking the special needs of the child into account.441 In any
foster care or preadoptive placement, a preference is given, absent good cause, to:
1. a member of the Indian child's extended family; 2. a foster home licensed, approved, or specified by the Indian child's tribe; 3. an Indian foster home licensed or approved by an authorized non- Indian licensing authority; or 4. an institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child's needs.442
A placement with the child’s tribe that presents a geographical barrier to
visitation is presumptively not within reasonable proximity to the child’s home, as
required by California’s Indian Child Welfare Act.443 Even if the tribe desires the
placement, the court must make a placement that provides the family with the
opportunity to reunify.444 Preferences should be considered as soon as possible.
64 Utah has ruled that the placement preferences must be put in place immediately
upon a case opening, but did not require a hard and fast deadline.445 The court required review of placement no later than the dispositional hearing.446
The major difficulty in placement lies in courts determining what is “good
cause to the contrary” to avoid the preferences. It is clear that Congress intended a
certain amount of latitude for the trial courts;447 it is just as clear that Congress wanted Indian children remaining with Indian families.448 States have proceeded on
a case-by-case basis.449 Washington found placement is a discretionary function and can only be overturned as an abuse of discretion.450 South Dakota reviews only for abuse of discretion, with a “clear and convincing” burden of proof.451 Alaska found
that a failure to object to placement at trial limits appellate review to clear error.452
Nebraska has held that the Court must provide a written order explaining any good
cause deviation.453 Illinois held that failure to object to placement waives appellate
review altogether.454
California’s Fifth District has ruled that Congress intended to provide state
courts with flexibility, but it must be fairly balanced.455 Anyone seeking to invoke
the good cause exception bears the burden of proof, and a decision finding good cause will be reviewed for “substantial evidence.”456 The same Appellate Court
faced an issue of first impression when the Tula Tribe sought to invalidate one
placement under the ICWA in favor of a different placement under the Act.457 The children suffered from reactive attachment disorder, and testimony indicated that a move could be detrimental.458 The court found that “good cause to the contrary” was present given the risk a move posed to the children’s emotional needs.459
65 That case was cited with approval by California’s 4th Circuit in In Re T.S.460
The Court found that even though the ICWA favored tribal placement preferences,
the state court must make an independent assessment of detriment to the child
before accepting the placement.461 California also held that “active efforts” to place a child with a preferential placement can be found where family members were considered and rejected for serious issues, resulting in the child being placed in a non-family Indian adoptive home.462
Good cause to avoid the preferences has been found for severe medical conditions, trauma, the wishes of parents, and the risk of emotional trauma to the
child.463 Alaska has held that three factors should be considered before deviation from the preferences: (1) the extraordinary physical and emotional needs of the child, as determined by a qualified expert witness; (2) the unavailability of suitable families for placement under the preferences, determined after a diligent search has been conducted; and (3) a parent’s desire to deviate from the preferences.464
Arizona recognized that a child would have an easier time assimilating his Navajo
culture in a Navajo home, but found that the child’s bonding with his placement was
a significant impediment to removal.465 The court also found that the tribe’s failure
to become involved in the case in a significant time frame was a factor that could be
considered by the trial court.466
The Supreme Court found in Adoptive Couple that the ICWA preferences
were not applicable in cases in which an unwed father of an Indian child has not had
“continued custody” of the child, including when the child was in utero.467 It would appear that the placement preferences of a tribe will have no bearing upon a private
66 adoption action unless there is an underlying state placement protection, such as
Oklahoma’s 10 O.S. 40.6. The Adoptive Couple majority spoke approvingly of state
standards in ruling against father’s rights. It is unclear if they would approve if
states increased those standards, rather than eliminated them.
Alaska found that a non-Indian boyfriend of a deceased Indian mother is better suited to care for her Indian child than the child’s maternal grandmother, when the mother specified the boyfriend in her will and where the child desired to remain with him.468 The Iowa Appellate Court ruled that courts do not have to follow the preferences at all, in that there is no punitive enforcement mechanism for the section.469 However, in the later case of Interest of A.E., J.E., S.E., and X.E., the
Iowa Supreme Court supported placement preferences, finding good cause to be a
fact determinative exercise that examined many elements, including the best
interests of the children, the testimony of expert witnesses, the length of the
placement, the wishes of the parents, the suitability of the placement, and the child’s
ties to the tribe.470
Other courts require strict adherence to the preferences absent
extraordinary circumstances. 471 California found that state agencies making
discretionary placements should be guided by the ICWA.472 The Montana Supreme
Court likewise found that the ICWA placement preferences have a presumption in favor of Indian placement.473 The Court found that any party challenging that presumption must demonstrate “extraordinary physical or emotional needs” that would justify a placement outside of preferences.474 Montana also determined that an adoptive placement for an older child would be considered extended family for
67 the younger siblings, based upon the importance of a continuing sibling
relationship.475
The Minnesota Appeals Court found that the ICWA presumes that a child's
interests are best served by placement with extended family members. 476 To
overcome this preference, a party must factually demonstrate good cause to the
contrary.477 The court also held efforts to prevent the breakup of an Indian family
must include the extended family of the child.478
California applied its “de facto parent” doctrine to the ICWA and placed an
Indian child with his two half-brothers and former stepfather over the objection of
his Indian mother. The court found it significant that the tribe specifically endorsed
this placement in two separate pleadings.479
California has also held that a parent cannot use the “good cause to the contrary” placement language of Section 1915 to avoid the protections of the Act in the process of a stepparent adoption.480
Oklahoma’s ICWA requires that any person, agency, or state agency seeking
to place an Indian child for adoption must first consult with the child’s tribe.481 The
state law also eliminated requests for anonymity. After notice, the tribe has twenty
days to intervene and demonstrate its tribal resources and placements that would
protect the request for anonymity.482 The Supreme Court, in Adoptive Couple, did
not discuss this Oklahoma law.
Under §1915(c), the Indian child’s tribe may change the placement
preferences. This provision has been cited to demonstrate the deference with which
Congress intended tribes to have under the ICWA.483 The tribe must establish any
68 different order of preference by resolution in their governing body. The court
making the placement must then follow the tribal preference if it is the least
restrictive setting appropriate to the particular needs of the child. Where
appropriate, the preference of the Indian child or parent should be considered.484
Section 1915(d) provides that the standards to be applied in meeting the placement preferences are the prevailing social and cultural standards of the Indian community in which the parent or extended family resides or maintains social and cultural ties.485 Alaska ruled a tribal definition of extended family that included
second cousins, once removed, was a valid exercise and would be used in determining placement preferences.486
Section 1915(e) requires that a record of placement must be maintained by
the state in which the placement is made. The record must include the efforts made
to comply with the placement preferences. It is available at any time upon the
request of the Secretary of Interior or the Indian child's tribe.487 An April, 2005
Government Accounting Office report found that states’ efforts in this regard was
seriously lacking.
69 Endnotes
1 Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597 104 L.Ed.2d 29 (1989). “Kill the Indian, save the man,” was the sentiment expressed by Captain Richard H. Pratt, the founder of the U.S. Training and Industrial School at Carlisle Barracks, Pennsylvania, during a speech at an 1892 convention of educators of Indian children.
2 Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597 104 L.Ed.2d 29 (1989).
3 Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597 104 L.Ed.2d 29 (1989).
4 See H.R. Rep. No. 95-1386, Page 9 (1978); U.S. Code Cong. & Admin. News 1978, Pages 7530 - 7531.
5 See H.R. Rep. No. 95-1386, Page 9 (1978); U.S. Code Cong. & Admin. News 1978, Pages 7530 - 7531.
6 25 U.S.C. §1900 et seq.
7 10 O.S. §40 et seq.
8 10 O.S. §40.1 states:
“The purpose of the Oklahoma Indian Child Welfare Act is the clarification of state policies and procedures regarding the implementation by the State of Oklahoma of the federal Indian Child Welfare Act, P.L. 95-608. It shall be the policy of the state to recognize that Indian tribes and nations have a valid governmental interest in Indian children regardless of whether or not said children are in the physical or legal custody of an Indian parent or Indian custodian at the time state proceedings are initiated. It shall be the policy of the state to cooperate fully with Indian tribes in Oklahoma in order to ensure that the intent and provisions of the federal Indian Child Welfare Act are enforced.”
9 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2556, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
10 The Fifth Amendment of the United States Constitution states: "No person shall be... deprived of life, liberty, or property, without due process of law..."
The Tenth Amendment of the United States Constitution states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
11 Basic Indian law supports the constitutionality of the Indian Child Welfare Act. In several defining opinions, the Supreme Court had already rejected arguments that legislation favoring Indian tribal
70 members violated the Fifth Amendment. Morton v. Mancari, 417 U.S. 535 (1974), the Court upheld the Indian Reorganization Act providing an employment preference for qualified Indians in the Bureau of Indian Affairs. The legislation was defined by the Court as political, not racial, in nature. If a preference "can be tied rationally to the fulfillment of Congress' unique obligation toward the Indians, such legislative judgments will not be disturbed." (Id.) The Court found the purpose of the preference was "...to give Indians a greater participation in their own self-government; to further the Government's trust obligation toward the Indian tribes; and to reduce the negative effect of having non-Indians administer matters that affect Indian tribal life." In Fisher v. District Court, 424 U.S. 382 (1976), the Supreme Court reversed the decision of the Montana Supreme Court found that "[t]he exclusive jurisdiction of the Tribal Court does not derive from race of the plaintiff but rather from the quasi-sovereign status of the tribe."
The ICWA withstood similar constitutional attacks. Wyoming found that the ICWA is not an equal protection violation, but is rationally tied to Congress’ unique obligation toward Indians [Matter of Termination to KMO, DMO, CM0, AKO, DK0, ABO, EEO, and JBO, 2012 WY 99, 280 P.3d 1203 (Wyo. 2012)]. Washington found that while a “de facto” parent might have standing to raise a constitutional attack, the ICWA was rationally tied to Congress’s constitutional obligations to Indian families and tribes [In the Matter of Samantha Beach, 246 P.3d 845 (Wash. App. 2011)]. Kansas considered and rejected an equal protection argument in Interest of A.A., finding that the political status of the tribe and its members is the reason for the ICWA’s different burden of proof [Interest of A.A., 176 P.3d 237 (Kan. App. 2008)].
In Angus v. Joseph, Angus v. Joseph, 655 P.2d 208 (1982), pet. den. 660 P.2d 683, cert. den. 418 U.S. 830 (1983), the Oregon appellate court held that the ICWA did not violate equal protection under the Fifth Amendment. The Court found that the protection of the integrity of Indian families is a permissible goal, rationally tied to the fulfillment of Congress’s unique trust obligation toward Indians. The Supreme Court of South Dakota upheld the constitutionality of the Act at In Re D.L.L. and C.L.L., 291 N.W.2d 278 (S.D. 1980). The Court found that the Act is not an impermissible infringement upon the rights reserved to the states by the Tenth Amendment. The court held “there can be no greater threat to tribal relations and to the tribal power of self-government that to interfere in questions of custody of tribal members.”11
The courts in Oklahoma have consistently ruled that the ICWA is constitutional and does not violate equal protection. [Cherokee Nation v. Nomura, et al., 2007 OK 40, 160 P.3d 967 (Okl. 2007); In Re Baby Boy L., 2004 OK 93, 103 P.3d 1099 (Okl. 2004); In the Matter of M.K. and L.K., 1998 OK CIV APP 118, 964 P.2d 241 (Okl. App. 1998); In the Matter of B.N.B., C.M.B., J.J. and R.D.J., 959 P.2d 989 (Okl. App. 1998), In the Matter of L.A.Y., 1998 OK CIV APP 76, 959 P.2d 23 (Okl. App. 1998)].
The Oklahoma Supreme Court, in Matter of B.N.B., 959 P.2d 989 at 992 (Okl. App. 1998), points out that the political and cultural realities of Indian tribes provides a rational basis for the Indian Child Welfare Act that permits the higher standard of proof. In Matter of M.K. and L.K., 1998 OK CIV APP 118 at ¶ ¶ 7 and 8, 964 P.2d 241 (Okl. App.1998), the Court cited with favor In Application of Angus, which applied the rational basis test of Morton v. Mancari.
12 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2556, ___ U.S. ___, ___ L.Ed. 2d ___ (2013). The court only grudgingly admits that both the father and child are enrolled members of the Cherokee Nation of Oklahoma [Footnote 1]. Blood quantum is not a factor in Cherokee membership; rather, ancestry in Dawes Commission rolls is. It has long been established that Tribes are the arbiters of their
71 membership; the Court’s innuendo expresses a great deal of hostility to this, and raises the specter of a legal means testing of determining “Indianess.”
It should be noted without comment that the Native American Rights Fund filed a motion to reconsider the Court’s decision because both Justices Alito and Thomas are adoptive parents who have been involved in adoption rights organizations. Neither Justice felt their personal history was sufficient to lead to recusal.
13 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2556, ___ U.S. ___, ___ L.Ed. 2d ___ (2013). The court’s decision to define the father this way does him a grave injustice. The father had never relinquished his parental rights under the ICWA or otherwise. Furthermore, the father had sought custody of the child when she was four months old; the adoptive parents had delayed and appealed the case for 23 months. These issues were all discussed in the South Carolina Supreme Court opinion, which had noted that the adoptive attorneys had in fact tricked him into signing a waiver, and were not kind in their description of this and other ethical issues. The majority opinion completely embraced the facts offered by Adoptive Couple, even when those facts had been discounted the court appealed from.
It is also interesting to note that the Court ignores the father’s service to the nation. During the pendency of the case, the father, Dustin Brown, was a soldier four days from deployment in Iraq when the adoptive parents served him with the adoption. Under the Soldiers and Sailors Relief Act, 50 U.S.C. App. § 501 et seq.,he may have had rights that were never addressed in any litigation and may have circumvented the South Carolina law that the Supreme Court embraced in eliminating his parental rights.
The majority is very careful to avoid any mention of the father’s service. Where the South Carolina opinion states that the father sought advice from the U.S. Judge Advocate General’s (JAG) Corps, the Supreme Court opinion merely notes that he “contacted a lawyer.” Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2558.
14 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2557, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
15 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2560, ___ U.S. ___, ___ L.Ed. 2d ___ (2013). There would appear to be an ulterior motive in not examining Section 1903. The definition of “parent” contains an exception that states that the definition does not include “... an unwed father whose paternity has not been acknowledged or established.” This clearly indicates that Congress intended that the ICWA protections should be used in cases involving fathers who have acknowledged their paternity. This exception is inapposite to the majority’s assumptions regarding the intent of Congress. By “assuming” the father is a parent, the majority is able to ignore the more accepted interpretation of the statutes urged by the dissenting opinion.
16 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2560, ___ U.S. ___, ___ L.Ed. 2d ___ (2013). It is puzzling to note that the court left out the phrase “...including testimony of qualified expert witnesses...” in their description of § 1912 (f). It is possible that the Court was well aware that all ICWA expert testimony in this case was provided by the father’s witnesses, and it had all favored custody to him, except for a psychologist who never spoke to the father or family, never saw the child, and has since
72 recanted her testimony.
17 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2561, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
18 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2561, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
19 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2561, ___ U.S. ___, ___ L.Ed. 2d ___ (2013). Justice Alito also calls “absurd” the father’s argument that the majority’s position would create the odd situation in which a person with no custody could not be terminated. It is unclear if Justice Alito is deliberately being obtuse with his protestation, or if he truly does not understand that his “continued custody” embraces the very ridiculousness he decries.
20 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at2561, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
21 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2561, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
22 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2562, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
23 Cherokee Nation v. Nomura, 2000 OK 40, 160 P.3d 967 (Okl. 2013). “The dispositive issue in this adoption proceeding is whether the Oklahoma Act must be applied to every adoption of Indian children born to an Oklahoma Indian parent, even if the Indian parent chooses out of state non-Indian adoptive parents. We hold that it must and affirm the trial court's declaratory judgment.”
24 The South Carolina Supreme Court had questioned if the Interstate Compact contained perjured statements, but left that to Oklahoma Courts to determine.
25 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2562, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
26 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2563, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
27 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2563, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
28 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2563, ___ U.S. ___, ___ L.Ed. 2d ___ (2013), citing United Savings Association of Texas v. Timbers of Inwood Forest Associates, 484 U.S. 365, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988).
The majority did not explain how this interpretation might have included the language of § 1903, which clearly does consider noncustodial fathers within the definition of parent.
29 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2563, ___ U.S. ___, ___ L.Ed. 2d ___ (2013). Ironically, the Court does not seem to recognize that the protections of 1912 (d) may have been designed to dissuade would-be adoptive parents.
30 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2564, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
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31 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2570-2571, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
32 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2571, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
33 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2571, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
34 Adoptive Couple v. Baby Girl, 133 S. Ct. 2572 at 2562, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
35 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2572, ___ U.S. ___, ___ L.Ed. 2d ___ (2013). Among Justice Sotomayor’s comments:
“... in truth, however, the path from the text of the Indian Child Welfare Act of 1978 (ICWA) to the result the Court reaches is anything but clear, and its result anything but right.”
“The reader’s first clue that the majority’s supposedly straightforward thinking is flawed...”
“... nor are they all willing to accept the consequences it will necessarily have beyond the specific factual scenario confronted here...”
“...the majority begins its analysis by plucking out of context a single phrase from the last clause of the last subsection of the relevant provision, and then builds its entire argument upon it. This is not how we ordinarily read statutes.”
“...the majority openly professes its aversion to Congress’ explicitly stated purpose in enacting the statute.”
“Policy disagreement with Congress’ judgment is not a valid reason for this Court to distort the provisions of the Act.”
“Unlike the majority I cannot adopt a reading of ICWA that is contrary to both its text and its stated purpose.”
These are merely the comments in her introduction. Her dissent is much more extensive.
36 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2572, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
“Because there are apparently no limits on the contaminating power of this single phrase...”
37 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2573, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
38 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2573, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
39 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2574, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
74
40 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2574, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
41 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2574, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
42 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2575, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
43 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2576, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
44 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2577, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
45 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2578, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
46 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2579, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
47 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2579, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
48 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2580, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
49 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2580, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
50 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2581, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
51 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2581, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
52 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2583, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
53 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2583, ___ U.S. ___, ___ L.Ed. 2d ___ (2013). “This claim is the most perplexing of all.”
54 Adoptive Couple v. Baby Girl, 133 S. Ct. 2583 at 2562, ___ U.S. ___, ___ L.Ed. 2d ___ (2013). “The majority may consider this scheme unwise. But no principle of construction licenses a court to interpret a statute with a view to averting the very consequences Congress expressly stated it was trying to bring about.”
55 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2584-2585, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
56 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2585, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
57 Oklahoma Indian Child Welfare Act: 10 O.S. § 40.2. Definitions
For the purposes of the Oklahoma Indian Child Welfare Act:
1. "Indian" means a person who is a member of an Indian tribe;
75
2. "Indian child" means any unmarried or unemancipated person who is under the age of eighteen (18) and is either:
a. a member of an Indian tribe, or b. is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe;
3. "Indian custodian" means any Indian person who has legal custody of an Indian child under tribal law or custom or under state law or to whom temporary physical care, custody and control has been transferred by the parent of such child; and
4. "Indian tribe" means any Indian tribe, band, nation or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary of the Interior because of their status as Indians.
58 In Gerber v. Eastman, 673 N.W.2d 854 (Minn. App. 2004), the court refused to apply the Act to a proceeding in which a biological father sought a return of custody from a custodial maternal grandmother, noting that there was no intent to place the child into a temporary custodial situation or foster placement. The Court found that any other interpretation of the Act would result in a parent receiving less protection than a third party, which was not the intent of the Act. See also J.W. v. R.J., 951 P.2d 1206 (Alaska 1998).
59 J.W. v. R.J., 951 P.2d 1206 (Alaska 1998); see also In Interest of J.R.H., 358 N.W.2d 311 (Iowa 1984). The Court ruled that a proceeding to determine whether children are in need of assistance due to mother's unfitness could result in temporary foster home placement of Indian children. This clearly fell under this chapter. But see Comanche Nation v. Fox, 128 S.W. 3d 745 (Tex. App. 2004), which holds that a modification of a conservator decree, even one that eliminates the biological mother as a conservator, is not a “child custody proceeding” under the Act.
60 In the Matter of Esther V., 248 P.3d 863, 2011 -NMSC- 005 (N.M. 2011); see also In Re Welfare of M.G., 201 P.3d 354 (Wash. App. 2009).
61 Interest of E.G.L., 378 S.W.3d 542 (Tex. App. 2012).
62 Adoption of G.D.J., 2011 77, 261 P.3d 1159 (Okl. 2011), citing Merrell v. Merrell, 712 P.2d 35 (Okla. 1985); Matter of the Adoption of B.R.H., 823 P.2d 383 (Okla. App. 1991).
63 In Re Alejandro A., 74 Cal. Rptr. 3d 44 (Cal. App. 4th 2008); In Re Enrique O., 40 Cal. Rptr. 3d 570 (Cal. App. 5th 2006).
64 In Re W.B. Jr., 144 Cal. Rptr.3 843 (Cal. 2012); R.R. v. Superior Court, 103 Cal. Rptr. 3d 110 (Cal. App. 3rd 2009).
65 Kelly v. Kelly, 2009 ND 20, 759 N.W. 2d 721 (N.D. 2009).
76
66 Schirado v. Foote, 2010 ND 136, 785 N.W.2d 235 (N.D. 2010); Garcia v. Gutierrez, 2009 –NMSC- 044, 217 P.3d 591 (N.M. 2009); In Re Holly B., 92 Cal Rptr. 3d 80 (Cal. App. 3rd 2009); Kelly v. Kelly, 2009 ND 20, 759 N.W. 2d 721 (N.D. 2009); McLean v. Bell, 35 A.D.3d 744 (N.Y. App. 2006); John v. Baker, 982 P.2d 738 (Alaska 1999); Walksalong v. Mackey, 549 N.W. 2d 384 (Neb. 1996); Dement v. Oglala Sioux Tribal Court, 874 F.2d 510 (8th Cir. 1989); Adoption of M. v. Navajo Nation, 832 P.2d 518 (Wash. 1992); Confederated Tribes of Colville Reservation v. Superior Court of Okanongan County, 945 F.2d 1138 (Wash. 1991); Harris v. Young, 473 N.W.2d 141 (S.D. 1991); In Re Custody of Sengstock, 477 N.W.2d 310 (Wis. 1991); Matter of Adoption of Baade, 462 N.W.2d 485 (S.D. 1990); In Re Custody of S.B.R., 719 P.2d 154 (Wash. 1986).
It does not matter if the parent is Indian or non-Indian for purposes of the ICWA.
67 Starr v. George, 175 P.3d 50 (Alaska 2008).
68 In Re Jennifer A., 103 Cal.App.4th 692, 127 Cal.Rptr.2d 54 (Cal. App. 4th Dist. 2002); In Re J.B., 100 Cal. Rptr. 3d 679 (Cal. App. 5th 2009).
69 See Jordan v. Jordan, 983 P.2d 1258 (Alaska 1999).
70 25 U.S.C. § 1903.
71 In J.W. v. R.J., 951 P.2d 1206 (Alaska 1998), a stepfather fighting a biological father for custody of an Indian child argued on appeal that he was the Indian custodian of the child, and as such, was entitled to the higher protections of the Act. The Supreme Court found that the ICWA applied to the case, and remanded to the trial court for a determination of the custodian issue. The Court also ruled that if the stepfather did qualify as an Indian custodian, the Alaskan standard for a custody dispute between a parent and a non-parent, rather than the ICWA, would apply to the case. This common sense approach would seem to reflect the parental dispute reflection within § 1903.
72 In Re Brandon M., 54 Cal.App.4th 1387, 63 Cal. Rptr.2d 671 (Cal.App.4th 1997).
73 In the Matter of Samantha Beach, 246 P.3d 845 (Wash. App. 2011); Erika K. v. Brett D., 75 Cal. Rptr. 3d 152 (Cal. App. 1st 2008).
74 Matter of M.B., E.B., and B.B., 2009 MT 97, 204 P.3d 1242 (Mont. 2009). It is important to note in this decision that the ICWA was applied to a state-recognized tribe in Montana.
75 Interest of H.D., 729 P.2d 1234 (Kansas App. 1986); Juvenile Dept. of Lane County v. Tucker, 710 P.2d 793 (Or. App. 1985); Application of Angus, 655 P.2d 208 (Oregon App. 1982), pet. den. 660 P.2d 683; cert. den. 418 U.S. 830.
76 California has held that a developmentally disabled person over the age of 18 cannot fall under the ICWA. In Re Melissa R., 98 Cal. Rptr.3d 794 (Cal. App. 1st 2009).
77 California has held that this definition may include adopted children who the tribe determines
77 will be considered members; the court did not find that a biological relationship was necessary under the ICWA. In Re B.R., et al., 97 Cal.Rptr.3d 890 (Cal. App. 1st 2009). See also In Re M.C.P., 871 A.2d 627 (Vt. 1989).
78 In re the Matter of A.G., W.G., T.A., J.A., 2005 MT 81, 109 P.3d 756 (Mont. App. 2005).
79 D.B. v. Superior Court, 89 Cal. Rptr. 3d 566 (Cal. App. 1st 2009); In Re William K., 73 Cal. Rptr. 3d 737 (Cal. App. 3rd 2008).
But See Matter of M.R.L., et al., 239 P.3d 255 at 257 (Or. App. 2010), in which the court noted that the children were “enrolled or eligible for enrollment.” This is problematic since “membership” is construed as a legally broader term than “enrollment.”
80 In the Matter of the Adoption of C.D.K., 620 F. Supp. 1258 (D. Utah, 2009); Interest of H.D., 729 P.2d 1234 (Kansas App. 1986); Juvenile Dept. of Lane County v. Tucker, 710 P.2d 793 (Or. App. 1985); Application of Angus, 655 P.2d 208 (Oregon App. 1982), pet. den. 660 P.2d 683; cert. den. 418 U.S. 830;
But see Matter of L.S., 2012 S.D. 22, 812 N.W.2d 505 (S.D. 2012), which holds that a non- member Indian mother cannot have an Indian child based on the enrollment requirements of the Tribe.
81 In Re J.M., 206 Cal. Rptr.3d 375 (Cal. App. 2nd 2012); In Re Jack C., III, 122 Cal. Rptr. 3d 6 (Cal. App. 4th 2010); In Re B.S., 921 N.E.2d 320, 2009 -Ohio- 5497 (Ohio App. 2009); In the Matter of the Adoption of C.D.K., 620 F. Supp. 1258 (D. Utah, 2009); In Re B.R.,, et al., 97 Cal.Rptr.3d 890 (Cal. App. 1st 2009); D.B. v. Superior Court, 89 Cal. Rptr. 3d 566 (Cal. App. 1st 2009); In Re Miracle M., 73 Cal. Rptr. 3d 24 (Cal. App. 2nd 2008); Phillips A.C. II v. Central Council of the Tlingit and Haida Tribes of Alaska, 149 P.3d 51 (Nev. 2006); Interest of X.H., 138 P.3d 299 (Colo. 2006); Matter of S.M.H., and L.M.H., 103 P.3d 976 (Kan. App. 2005); Matter of C.R. and S.R., 2003 OK CIV APP 14, 63 P.3d 573 (Okl. App. 2003). Matter of N.E.G.P., 626 N.W.2d 921 (Mich. App. 2001); In Re Dependency of A.L.W., 32 P.3d 297 (Wash. App. 1 2001; Dependency of E.S. and C.S., 964 P.2d 404 (Wash. App. 1st 1998); Matter of A.P., 962 P.2d 1186 (Montana 1998); Interest of H.A.M., J.F.D., and W.D.M., 961 P.2d 716 (Kan. App. 1998); In Re J.T. and C.T., 693 A.2d 283 (Vt. 1997); In the Interest of C.H., 510 N.W.2d 119 (S.D. 1993); In the Interest of J.W., 498 N.W.2d 417 (Iowa App. 1993); In Re Interest of J.L.M., 451 N.W.2d 377 (Neb. 1990); Application of Angus, 655 P.2d 208 (Or. App. 1982), pet. den. 660 P.2d 683; cert. den. 418 U.S. 830.
The reverse is also applicable. When a tribe says that a person is not a member, the court will not apply the ICWA. In Re B.S., 921N.E. 2d 320, 2009 –Ohio- 5497 (Ohio App. 2009); Matter of Welfare of C.B., C.R.B., and T.A.B., 143 P.3d 846 (Wash. App. 2006).
82 In Re J.M., 206 Cal. Rptr.3d 375 (Cal. App. 2nd 2012); In the Matter of the Adoption of C.D.K., 620 F. Supp. 1258 (D. Utah, 2009), the federal court noted that Section 1914 required a court of competent jurisdiction to determine if the ICWA applied, which would include determinations of membership.
See Also In Re H.E., 86 Cal. Rptr. 3d 820 (Cal. App. 1st 2008); Phillips A.C. II v. Central Council of the Tlingit and Haida Tribes of Alaska, 149 P.3d 51 (Nev. 2006); Welfare of S.N.R., 617 N.W. 2d 674 (Minn. App. 2000), Application of Angus, 655 P.2d 208 (Or. App. 1982), pet. den. 660 P.2d 683; cert. den. 418
78
U.S. 830.
But see In the Matter of the Adoption of C.D., 2008 ND 128, 751 N.W. 2d 236 (N.D. 2008). In this case, the North Dakota Supreme Court attempts to differentiate between an “ethnic Indian” and a “tribal Indian.” Only a “tribal Indian,” in their view, is entitled to the protections of the Act. Unfortunately, the opinion is very nearly nonsensical in the dicta attempt to justify this difference. The tribe claimed that the parent was a member, but not yet enrolled; that the parent received services from the federal government, and that the parent lived in a reservation community. The court made absurd gyrations to say that this was not enough; while not requiring enrollment, they basically said that they would require enrollment. The “ethic Indian” argument my turn out to be the next attempt to claim the “Existing Indian Family” exception’s mantle – a way to defeat the Act by changing the basis of being Indian.
83 Interest of D.T., Jr., 667 N.W.2d 694 (S.D. 2003); Matter of T.J.H., J.H., J.L., and A.L., 2003 MT 352, 81 P.3d 504 (Montana 2003); Matter of A.P., 962 P.2d 1186 (Montana 1998); Matter of Baby Boy Doe, 849 P.2d 925 (Id. 1993); Matter of Adoption of a Child of Indian Heritage, 543 A.2d 925 (N.J. 1988); Interest of H.D., 729 P.2d 1234 (Kan. App. 1986); and Juvenile Dept. of Lane County v. Tucker, 710 P.2d 793 (Or. App. 1985).
But see Arizona Dept. of Economic Security v. Bernini, 48 P.3d 512 (Ariz. App. 2002), in which the court found that the ICWA was not to be applied in a case until the child’s tribe is determined.
In Interest of D.T., Jr., the tribe had responded that the child was not eligible for enrollment, which the court found to be insufficient; membership, not enrollment, was the issue that the tribe needed to address.
84 Juvenile Dept. of Lane County v. Tucker, 710 P.2d 793 (Or.App. 1985).
85 In Re J.T. and C.T., 693 A.2d 283 (Vt. 1997); Matter of Adoption of a Child of Indian Heritage, 543 A.2d 925 (N.J. 1988).
86 In Re Trever I., 2009 ME 59, 973 A.2d 752 (Maine 2009); Matter of Baby Boy Doe, 849 P.2d 925 (Id. 1993).
87 In the Interest of Esmeralda S., 80 Cal. Rptr. 3d 585 (Cal. App. 4th 2008); In Re E.H., 46 Cal. Rptr. 3d 787 (Cal. App. 4th 2006); Nicole K. v. Superior Court, 53 Cal. Rptr.3 251 (Cal. App. 3rd 2006); In Re Levi U., 78 Cal.App.4th 191, 92 Cal.Rptr.2d 648 (Cal. App. 3rd 2000). But see In Re C.C., 932 N.E.2d 360 (Ohio App. 2010); In Re Jeremiah G., 92 Cal Rptr. 3d 203 (Cal. App. 3rd 2009); In Re O.K., 130 Cal.Rptr.2d 276 (Cal. App. 3rd 2003), which require more than a vague allegation of Indian descendancy to trigger the Act.
88 In Re Levi U., 78 Cal.App.4th 191 at 198, 92 Cal.Rptr.2d 648 (Cal. App. 3rd 2000).
89 In Re J.N., 41 Cal. Rptr. 3d 494 (Cal. App. 5th 2006). See also In Re William K., 73 Cal. Rptr. 3d 737 (Cal. App. 3rd 2008), which discussed the new requirements of the California ICWA notice, which requires “membership” inquiries, rather than “enrollment” inquiries to be made of the tribes and the BIA.
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90 In Re J.M., 206 Cal. Rptr.3d 375 (Cal. App. 2nd 2012).
91 New Mexico v. Marsalee P., 2013-NMCA-062, ---P.3d---(N.M. App. 2013).
92 In the Matter of the Adoption of C.D.K., 620 F. Supp. 1258 (D. Utah, 2009).
93 In the Matter of the Adoption of C.D.K., 620 F. Supp. 1258 at 1262 (D. Utah, 2009).
94 In the Interest of M.J. and S. J., 2011 UT App 398, 266 P.3d 850 (Utah App. 2011).
95 Hall v. Arkansas Dept. of Human Services, 2012 Ark. App. 245 (Ark. App. 2012); In Re Anaya J.G., 932 N.E.2d 1192 (Ill. App. 2010); In Re Cain Keel L., 78 A.D. 3d 541 (N.Y. Sup. App. 1st 2010); In Re C.C., 932 N.E.2d 360 (Ohio App. 2010); Matter of Termination of the Parent-Child Relationship of S.L.H.S., 885 N.E. 2d 603 (Ind. 2008). In Re Shane G., 83 Cal. Rptr. 3d 513 (Cal. App. 4th 2008); In the Interest of Esmeralda S., 80 Cal. Rptr. 3d 585 (Cal. App. 4th 2008); In Re N. M., 74 Cal. Rptr. 3d 138 (Cal. App. 2nd (2008); Matter of the Children of M.L.A. and J.J.K., 730 N.W.2d 54 (Minn. App. 2007); Interest of R.M.W., J.M.W., and C.A.W., 188 S.W. 3d 831 (Tex. App. 2006); In Re E.H., 46 Cal. Rptr. 3d 787 (Cal. App. 4th 2006); In Re Aaron R., 29 Cal. Rptr. 3d 921 (Cal. App. 1st 2005); Interest of A.L. and J.L., 623 N.W.2d 418 (N.D. 2001) In Re Derek W., 86 Cal. Rptr. 2d 742, 73 Cal. App. 4th 828 (2nd Cal. Ct. App.1999); Guardianship of J.O, S.O., S.O., K.O., K.O., S.O. and S.O., 743 A. 2d 341 (N.J. Super. A.D. 2000); In Re M.S., 706 N.E. 2d 524 (Ill. App.1999); Interest of J.D.B., E.D.B., E.C.V. and J.J.B., 584 N.W. 2d 577, (Iowa App. 1998); Matter of Adoption of Baby Boy W., 831 P.2d 643 (Okl. 1992); Matter of J.B., 643 P.2d 304 (Okl. 1982); Matter of Adoption of Crews, 825 P.2d 305 (Wash. 1992); In Re J.L.M., 451 N.W.2d 377 (Neb. 1990); In Re John V., 5 C.A. 4th 1201 (Cal. App. 1992); and In Re Blake C., 177 C.A.3d 15 (Cal.App. 1986).
96 In Re N. M., 74 Cal. Rptr. 3d 138 (Cal. App. 2nd (2008).
97 Interest of A.W. and S.W., 741 N.W.2d 793 (Iowa 2007).
98 Interest of A.W. and S.W., 741 N.W.2d 793 at 812 - 813 (Iowa 2007).
99 In Re Morris, --- N.W.2d --- (Mich. App. 2013); Interest of L.O.L., 197 P.3d 291 (Colo. App. 2008).
100 In Re Jack C., III, 122 Cal. Rptr. 3d 6 (Cal. App. 4th 2010).
101 Interest of D.H., 688 N.W. 2d 491 (Iowa App. 2004); ). ); Matter of C.N., 752 N.E.2d 1030 (Ill. 2001); Interest of A.L. and J.L., 623 N.W.2d 418 (N.D. 2001); Hofmann v. Anderson, 31 P.3d 510 (Or. App. 2001). Matter of A.S., 614 N.W.2d 383, 2000 SD 94 (S.D., 2000); Adoption of Baby Boy W., 831 P.2d 643 (Okl. 1992); Matter of J.B., 643 P.2d 304 (Okl. 1982).
102 Id.
103 Matter of the Welfare of the Children of J.B., T.A.C. and T.F.H., 693 N.W. 2d 237 (Minn. App. 2005); In Interest of J.W., 498 N.W.2d 417 (Iowa App. 1993).
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104 In Re Adoption of J.T., 2002 OKL CIV APP 2, 38 P.2d 245 (Okl. App. 2002).
105 David S. v. State of Alaska, 270 P.3d 767 (Alaska 2012).
106 Gilbert M. v. Alaska, 139 P.3d 581 (Alaska 2006).
107 Ted W. v. State of Alaska, 204 P.3d 333 (Alaska 2009). In this case, the father’s parental rights had been terminated, but the mother placed the child with him. After Alaskan social services took custody, the father claimed that he had standing in that case based upon his custody. Both the mother and social services revoked his status, and the Supreme Court held that the father could no longer be considered an Indian custodian with that consent.
108 In Re Custody of C.C.M., 202 P.3d 971 (Wash. App. 2009). The court found that while the ICWA may make the two categories coequal, the Act also permits states to establish higher legal standards than the federal law. Under state law, the right of a parent would be higher than that of a custodian. See also D.J. v. P.C., 36 P.3d 663 (Alaska 2001); J.W. v. R.J., 951 P.2d 1206 (Alaska 1998).
109 Guardian Ad Litem v. State of Utah, in the interest of C.D., A.D., J.T., and S.T., 2010 UT 66, 245 P.3d 724 (Utah 2010).
110 In the Interest of C.D., A.D., J.T. and S.T., 2008 UT 47, 200 P.3d 194, Utah App. 2008).
111 Pam R. v. State of Alaska, 185 P. 3d 67 (Alaska 2008).
112 People in Interest of J.J., 454 N.W.2d 317 (S.D. 1990). See also Interest of Birdhead, 331 N.W.2d 785 (Neb. 1983); A.B.M. v. M.H., 651 P.2d 1170 (Alaska 1982); Matter of Charloe, 640 P.2d 608 (Or. 1982).
113 In Re G.L., 99 Cal. Rptr. 3d 356 (Cal. App. 4th 2009).
114 In Re K.P., 95 Cal Rptr. 3d 524 (Cal. App. 3rd 2009); Adoption of Christopher, 173 Misc. 851, 662 N.Y.S.2d 366 (New York Family Court 1997).
Federal Recognition is a function of the executive branch of government. Agua Caliente Band of Cahuilla Indians v. Superior Court, 52 Cal. Rptr. 3d 659 (Cal. App. 4th 2006).
115 In Re K.P., 95 Cal Rptr. 3d 524 (Cal. App. 3rd 2009); Matter of Fried, 702 N.W. 2d 102 (Mich. App. 2005); In Re Aaron R., 29 Cal. Rptr. 3d 921 (Cal. App. 1st 2005); Matter of C.H., S.H., and D.H., 2003 MT 308, 79 P.3d 822 (Montana 2003); In Re A.J., 733 A.2d 36 (Vermont, 1999); In Re Bridget R., 41 Cal. App. 4th 1483, 49 Cal. Rptr.2d 507 (Cal. App. 2nd 1996); Matter of T.I.S., 586 N.E.2d 690 (Ill.App. 1991).
116 In the Interest of the “A” Children: N.A., M.A. (1), M.A. (2), and L.A., and In the Interest of J.A., 193 P.3d 1228 (Hawai’I Intermediate App. Ct., 2008).
117 An interesting question involves the Six Nations tribes located in Canada that are the successors in interest to the Jay Treaty of 1794. This treaty allows members of signatory tribes to freely cross the
81
U.S.- Canadian border. In Adoption of Linda J.W., 682 N.Y.S.2d 565 (N.Y. Family Ct. 1998), New York ruled that members of these tribes have rights under the ICWA. However, In Matter of T.I.S., 586 N.E.2d 690 (Ill. App. 1991), the Illinois Appellate Court determined that an Indian parent had the obligation to demonstrate that her tribe was currently eligible for services from the United States, and that the tribe’s statement that it was not currently eligible waived any issue under the Jay Treaty.
For a further discussion of the Jay Treaty rights, see McCandless v. U.S., 25 F.2d 71 (3rd Cir. 1928) and U.S. v. Garrow, 88 F.2d 318 (Ct. Customs and Patent Appeals 1937). See also Interest of P.A.M., 961 P.2d 588 (Colo. App. 1998); and Adoption of Christopher, 173 Misc. 851, 662 N.Y.S.2d 366 (New York Family Court 1997).
118 Adoption of A.M.C., 368 Ark. 269 (Ark. 2007); Matter of A.D.L., J.S.L., C.L.L., 612 S.E.2d 639 (N.C. App. 2005); Adoption of Christopher, 173 Misc. 851, 662 N.Y.S.2d 366 (New York Family Court 1997).
119 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2560, ___ U.S. ___, ___ L.Ed. 2d ___ (2013). The court chose to “assume” that the biological father in this case was a “parent.” There would appear to be an ulterior motive in not examining Section 1903. The definition of “parent” contains an exception for unwed fathers that demonstrated Congress’ intent that the ICWA protections should be used in cases involving fathers who acknowledged their paternity. This exception is inapposite to the majority’s assumptions regarding the intent of Congress. By “assuming” the father is a parent ad not actually using the actual defined term, the majority is able to ignore the more accepted interpretation of the statutes urged by the dissenting opinion.
See Also In Re Daniel M., 1 Cal. Rptr. 3d 897 (Cal. App. 4th Dist. 2003); Adoption of Christopher, 173 Misc. 851, 662 N.Y.S.2d 366 (New York Family Court 1997); State ex. rel. Dept. of Human Services v. Jojola, 660 P.2d 590 (N.M. 1983), cert. den. 464 U.S. 803 (1983); Matter of Adoption of Baby Boy D., 742 P.2d 1059 (Okl. 1985), cert. den. 484 U.S. 1072.
But see In Re Michael J., 325 Ariz. Adv. Rep. 40 at 42 - 43 (Ariz. App. 1st 2000), in which the court finds that an Indian father who appears before the Court and acknowledges paternity and then takes a paternity test established his paternity within the provisions of the ICWA.
120 Adoptive Couple v. Baby Girl, et al., --- S.E.2d ---, 2012 WL 3042287 (S.C. 2012); Jared P. v. Glade T., et al., 209 P.3d 157 (Ariz. App. 2009).
121 In the Matter of Samantha Beach, 246 P.3d 845 (Wash. App. 2011); Erika K. v. Brett D., 75 Cal. Rptr. 3d 152 (Cal. App. 1st 2008). 122 25 U.S.C. §1911 (a).
123 Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989). “Domicile” is established by intent. In Holyfield, it was clear that the biological parents intended to reside on the reservation. In the case of In Re S.G.V.E., 634 N.W.2d 88 (S.D. 2001), The Court found that the mother’s domicile had been established off reservation, so that her return to the reservation could not grant the tribe exclusive jurisdiction under 25 U.S.C. § 1911 (a).
82
124 Merrill v. Altman, 2011 S.D. 94, 807 N.W.2d 821 (S.D. 2011).
125 Id.
126 Merrill v. Altman, 2011 S.D. 94 at Para. 21, 807 N.W.2d 821 (S.D. 2011).
127 Rye v. Weasel, 934 S.W.2d 257 (Ky. 1996).
128 Rye, 934 S.W.2d 257 at 258.
129 Rye at 259 - 263. The Court does not discuss Mr. Weasel’s membership in the Standing Rock Sioux Tribe, which would certainly appear to mean that the child remained in an “Indian” family after her placement.
130 Rye v. Weasel, 934 S.W.2d 257 at 259-263 (Ky. 1996).
131 Rye v. Weasel, 934 S.W.2d 257 at 265 (Ky. 1996).
132 Rye v. Weasel, 934 S.W.2d 257 at 265 (Ky. 1996).
133 Interest of Dakota L., 14 Neb. App. 559 (Neb. App. 2006).
134 Interest of Dakota L., 14 Neb. App. 559 at 561 (Neb. App. 2006).
135 Interest of Dakota L., 14 Neb. App. 559 (Neb. App. 2006). But see In Re Enrique P., 709 N.W. 2d 676 (Neb. App. 2006), in which the court found that a lower court’s use of a lower burden and failure to have expert testimony was harmless error and that the appeals court could review de novo to determine that the proper burdens could have been met.
136 In Re M.A., 40 Cal. Rptr. 3d 439 (Cal. App. 3rd 2006) reviews an attempt by the state of California to defeat concurrent jurisdiction under the provisions of P.L. 280. The state claimed that since the tribe had not sought retrocession of jurisdiction, neither exclusive jurisdiction under 1911 (a) nor concurrent jurisdiction under 1911 (b) could exist. The Court of Appeals found that this argument was not valid, instead holding that in any case, California tribal courts have concurrent jurisdiction with the state court.
137 Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597 at 1601 - 1602, 104 L.Ed.2d 29 (1989); In Re Jack C., III, 122 Cal. Rptr. 3d 6 (Cal. App. 4th 2010); Matter of M.S. and K.S., 2010 OK 46, 237 P.3d 161 (Okl. 2010).
138 In Re Jack C., III, 122 Cal. Rptr. 3d 6 (Cal. App. 4th 2010).
139 Interest of Louis S., 774 N.W.2d 416 (Neb. App. 2009); In Re Larissa G., 43 Cal. App. 4th 505, 51 Cal. Rptr. 2d 16 (Cal. App. 1st 1996); Matter of Welfare of B.W., 454 N.W. 2d 437 (Minn.App. 1990); Matter of GLOC and TJM, 668 P.2d 235 (Mont. 1983); In the Interest of Armell, 550 N.E. 2d 1060 (Ill. App. Dist. 1, 1990); Matter of TS, 801 P.2d 79 (Mont. 1990); In Re Bird Head, 331 N.W.2d 785 (Neb. 1983);
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Matter of NL, 754 P.2d 863 (Okl. 1988); In Re JRH, 358 N.W. 2d 311 (Iowa 1984); Matter of AL, 442 N.W.2d 233 (S.D. 1989); In Re Robert T, 200 Cal.App.3d 657 (Cal. 1988); Matter of Wayne R.N., 757 P.2d 1333 (N.M. 1988); Matter of MEM, 635 P.2d 1313 (Mont. 1981).
140 Interest of Melaya F., 810 N.W.2d 429 (Neb. App. 2011); Interest of Louis S., 774 N.W.2d 416 (Neb. App. 2009); Interest of Lawrence H., 743 N.W.2d 91 (Neb. App. 2007).
141 Interest of K.D., 630 N.W.2d 492 (S.D. 2001); In Re Larissa G., 43 Cal. App. 4th 505, 51 Cal. Rptr. 2d 16 (Cal. App. 1st 1996); Matter of Adoption of Baby Girl S., 690 N.Y.S. 2d 907 (NY Surrogate’s Ct. 1999). In K.D., the court found that the rejection of transfer remained in place even after the parent’s rights were terminated.
The converse is also true: a request to transfer should trigger a transfer hearing. Interest of Shawnda G., 634 N.W.2d 140 (Wis. App. 2001). But see Matter of Andrea Lynn M., 10 P.3d 191 (N.M. App. 2000), in which the New Mexico Court of Appeals found that a trial court’s transfer to Navajo Court over the objection of the father was proper, based upon the current domicile of the parties and the failure of the father to prove that the child was not residing in Indian country at the time of the case; the Court further found that the transfer followed the “congressional intent underlying ICWA.”
142 Matter of GLOC and TJM, 668 P.2d 235 (Mont. 1983); Matter of SZ, 325 N.W.2d 53 (S.D. 1982).
143 Interest of J.W.C., et al., 2011 MT 312, 265 P.3d 1265 (Montana 2011).
144 Matter of M.S. and K.S., 2010 OK 46 at Paragraph 4, 237 P.3d 161 (Okl. 2010).
145 Matter of M.S. and K.S., 2010 OK 46 at Paragraph 9, 237 P.3d 161 (Okl. 2010). The lower court relied upon the decision in Matter of J.B., 1995 OK CIV APP 91, 900 P.2d 1014 (Okl. App. 1995), which found transfer could only occur if it was requested prior to final termination.
146 Matter of M.S. and K.S., 2010 OK 46 at Paragraph 12, 237 P.3d 161 (Okl. 2010).
147 Matter of M.S. and K.S., 2010 OK 46 at Paragraph 14, 237 P.3d 161 (Okl. 2010).
148 Matter of M.S. and K.S., 2010 OK 46 at Paragraph 16-17, 237 P.3d 161 (Okl. 2010).
149 Matter of M.S. and K.S., 2010 OK 46 at Paragraph 19, 237 P.3d 161 (Okl. 2010).
150 Matter of M.S. and K.S., 2010 OK 46 at Paragraph 20, 237 P.3d 161 (Okl. 2010).
151 Matter of M.S. and K.S., 2010 OK 46 at Paragraph 21, 237 P.3d 161 (Okl. 2010).
152 Matter of M.S. and K.S., 2010 OK 46 at Paragraph 22, 237 P.3d 161 (Okl. 2010).
153 Matter of M.S. and K.S., 2010 OK 46 at Paragraph 23, 237 P.3d 161 (Okl. 2010).
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154 Matter of M.S. and K.S., 2010 OK 46 at Paragraph 28, 237 P.3d 161 (Okl. 2010).
155 Adoption of S.W. and C.S., 2002 OK CIV APP 26, 41 P.3d 1003 at 1008 (Okl. App. 2002).
156 Adoption of S.W. and C.S., 2002 OK CIV APP 26, 41 P.3d 1003 at 1009 (Okl. App. 2002).
157 Adoption of S.W. and C.S., 2002 OK CIV APP 26, 41 P.3d 1003 at 1009 (Okl. App. 2002).
158 Adoption of S.W. and C.S., 2002 OK CIV APP 26, 41 P.3d 1003 at 1009 (Okl. App. 2002).
159 Adoption of S.W. and C.S., 2002 OK CIV APP 26, 41 P.3d 1003 at 1010 (Okl. App. 2002).
160 Adoption of S.W. and C.S., 2002 OK CIV APP 26, 41 P.3d 1003 at 1010 (Okl. App. 2002).
161 Adoption of S.W. and C.S., 2002 OK CIV APP 26, 41 P.3d 1003 at 1010 (Okl. App. 2002).
162 Adoption of S.W. and C.S., 2002 OK CIV APP 26, 41 P.3d 1003 at 1011 (Okl. App. 2002).
163 Adoption of S.W. and C.S., 2002 OK CIV APP 26, 41 P.3d 1003 at 1011 (Okl. App. 2002).
164 Adoption of S.W. and C.S., 2002 OK CIV APP 26, 41 P.3d 1003 at 1011 (Okl. App. 2002).
165 Interest of Zylena R. and Adrionna R., 825 N.W.2d 173 (Neb. 2012).
166 Matter of the Welfare of the children of R.M.B. and R.E.R., 735 N.W.2d 348 (Ct. App. Minn. 2007); Interest of T.I. and T.I., 2005 SD 125, 707 N.W. 2d 826 (S.D. 2005); (Interest of Brittany C., 693 N.W.2d 592 (Neb. App. 2005). Dependency of E.S. and C.S., 964 P.2d 404 (Wash. App. 1st 1998); Yavapai- Apache Tribe v. Mejia, 906 S.W.2d 152 (Tex. Ct. App. 1995); Comanche Indian Tribe of Oklahoma v. Hovis, 847 F. Supp. 871 (W.D. Okl. 1994); In the Interest of Eleanor Armell, 550 N.E. 2d 1060 (Ill. 1990); Matter of Appeal in Pima County Juvenile Action No. S-903, 635 P.2d 187 (Ariz. App. 1981), cert. den. 455 U.S. 1007 (1983); Matter of Welfare of B.W., 454 N.W.2d 437 (Minn. App. 1990).
167 Dept. of the Interior ICWA Guidelines, 44 Fed. Reg. 67584-67595 (1979), 44 Fed Reg 67587.
168 Dept. of the Interior ICWA Guidelines, 44 Fed. Reg. 67584-67595 (1979), 44 Fed Reg 67587; Interest of Zylena R. and Adrionna R., 825 N.W.2d 173 (Neb. 2012); Interest of T.I. and T.I., 2005 SD 125, 707 N.W. 2d 826 (S.D. 2005); Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152 (Tex. Ct. App. 1995); In the Interest of Eleanor Armell, 550 N.E. 2d 1060 (Ill. 1990).
169 Interest of T.E.R., 2013 COA 73, -- P.3d – (Colo. App. 2013); Interest of Melaya F., 810 N.W.2d 429 (Neb. App. 2011); Interest of Louis S., 774 N.W.2d 416 (Neb. App. 2009); Interest of Leslie S., et al., 770 N.W.2d 678 (Neb. App. 2009); Matter of T.T.B. and G.W., 724 N.W.2d 300 (Minn. 2006); Interest of T.I. and T.I., 2005 SD 125, 707 N.W. 2d 826 (S.D. 2005); Interest of D.M., R.M. III, and T.B.C., 2004 SD 90, 685 N.W. 2d 768 (S.D. 2004); Interest of D.M., R.M. III, and T.B.C., 2003 S.D. 49, 661 N.W.2d 768 (S.D., 2003); Matter of Lucas, 33 P.3d 1001 (Oregon App. 2001), Interest of A.N.W., 976 P.2d 365 (Colo.App.1, 1999);
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Matter of C.E.H., 837 S.W.2d 947 (Missouri App. 1992); Interest of C.W., M.W., K.W., and J.W., 479 N.W.2d 105 (Nebraska 1992); Barbry v. Dauzat, 576 So.2d 1013 (La. App. 1991); Matter of T.S., 801 P.2d 77 (Montana 1990); Chester County Department of Social Services v. Coleman, 399 S.E.2d 773 (S.C. 1990); People in Interest of J.J., 454 N.W.2d 317 (S.D. 1990); Matter of Dependency and Neglect of A.L., 442 N.W.2d 233 (S.D. 1989); Matter of Wayne R.N., 757 P.2d 1333 (N.M. App. 1988); Matter of N.L., 754 P.2d 863 (Okl. 1988); In Re Robert T., 200 Cal. App. 3d 657, 246 Cal. Rptr. 168 (Cal. App. 1988); Matter of Adoption of T.R.M., 525 N.E.2d 298 (Ind. 1988); In Re J.L.G., 687 P.2d 477 (Colo. App. 1984); Interest of J.R.H. and M.J.H., 358 N.W.2d 311 (Iowa 1984); In Re Bird Head, 331 N.W.2d 785 (Nebraska 1983); Matter of Adoption of Baby Boy L., 643 P.2d 168 (Kansas 1982).
170 Dependency of E.S. and C.S., 964 P.2d 404 (Wash. App. 1st 1998); Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152 (Tex. Ct. App. 1995).
171 Interest of N.V. and P.V., 744 N.W.2d 634 (Iowa 2008).
172 Interest of N.V. and P.V., 744 N.W.2d 634 at 639 (Iowa 2008).
173 Interest of Zylena R. and Adrionna R., 825 N.W.2d 173 (Neb. 2012).
174 In Re M.H., 956 N.E.2d 510 (Ill. App. 2011); Interest of Brittany C., 693 N.W.2d 592 (Neb. App. 2005). Dependency of E.S. and C.S., 964 P.2d 404 (Wash. App. 1st 1998); Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152 (Tex. Ct. App. 1995). But see In Interest of J.L., 2002 SD 144, 654 N.W.2d 786 (S.D. 2002), which examined forum non-conveniens in light of the inconvenience to parties for either side regardless of transfer, and found it to be a “neutral factor” insufficient to justify denial of transfer.
175 Matter of the Guardianship of J.C.D., 2004 SD 96, 686 N.W. 2d 647 at 649 - 650 (South Dakota 2004). See also Interest of Lawrence H., 743 N.W.2d 91 (Neb. App. 2007).
176 Id.
177 Matter of the Welfare of the children of R.M.B. and R.E.R., 735 N.W.2d 348 (Ct. App. Minn. 2007).
178 Ex Parte C.L.J., 946 So.2d 880 (Ala. 2006); Matter of T.S., 801 P.2d 77 (Montana 1990); Matter of G.L.O.C., T.J.M., 668 P.2d 235 (Montana 1983).
179 Interest of Lawrence H., 743 N.W.2d 91 (Neb. App. 2007).
180 Interest of Lawrence H., 743 N.W.2d 91 (Neb. App. 2007).
181 Under 1911 (b) the tribal court has the right to decline the transfer of the case.
182 Interest of C.Y., 925 P.2d 941 (Ks. App. 1996).
183 Interest of C.Y., 925 P.2d 941 at 447 (Ks. App. 1996).
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184 Matter of J.B., 1995 OK CIV APP 91, 900 P.2d 1014 (Okl. App. 1995); reversed by Matter of M.S. and K.S., 2010 OK 46, 237 P.3d 161 (Okl. 2010).
185 Matter of A.P., 962 P.2d 1186 at 1189 (Montana 1998).
186 Matter of A.P., 962 P.2d 1186 at 1190 (Montana 1998).
187 Matter of the Welfare of the Child of R.S. and L.S., 805 N.W.2d 44 (Minn. App. 2011).
188 Mississippi Band of Choctaw Indians v. Holyfield, 109 S.Ct. 1597 (1989); John v. Baker, 982 P.2d 738 (Alaska 1999); In re Marriage of Shane Skillen and Stacey Menz, 956 P.2d 1 (Mont. 1998); Fletcher v. State of Florida, 858 F.Supp. 169 (M.D. Fla. 1994); In Re Adoption of S.S., 622 N.E.2d 832 (Ill. App. 1993); Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152 (Tex. Ct. App. 1995); In the Interest of Eleanor Armell, 550 N.E. 2d 1060 (Ill. 1990); Native Village of Venetie I.R.A. Council v. State of Alaska, 918 F.2d 797 (Alaska 1990); B.R.T. v. Executive Director of Social Service Board, 391 N.W.2d 594 (N.D. 1986); Matter of Appeal in Maricopa County, 667 P.2d 228 (Ariz. App. 1983).
189 Adoption of T.R.M., 525 N.E.2d 298 (Ind. 1988); Matter of J.D.M.C., 2007 SD 97, 739 N.W.2d 796 (S.D. 2007).
190 In Re Laura F., 99 Cal.Rptr.2d 859 (Cal. App. 5th 2000). See also Matter of Andrea Lynn M., 10 P.3d 191 (N.M. App. 2000).
191 25 U.S.C. § 1911(c). See also In the Interest of A.P., 961 P.2d 706 Kan. App. 1998); Interest of C.Y., 925 P.2d 941 (Ks. App. 1996).
192 Matter of the Guardianship of Q.G.M., 808 P.2d 684 (Okl. 1991). See also Phillips A.C. II v. Central Council of the Tlingit and Haida Tribes of Alaska, 149 P.3d 51 (Nev. 2006), which finds that a tribe may intervene in a case independent of the parent to raise issues of voluntary consent to an adoption.
193 J.P.H. v. Florida Dept. of Children and Families, 30 So.3d 560 (Fla. App. 2010). See also Interest of N.N.E., 752 N.W. 2d 1 (Iowa 2008), which permits representation by a social worker rather than requiring a licensed attorney.
194 In Re Custody of C.C.M., 202 P.3d 971 at 977-978 (Wash. App. 2009).
195 Matter of B.C. and I.C. et al., 2010 S.D. 59, 786 N.W.2d 350 (S.D. 2010).
196 In the Interest of A.P., 961 P.2d 706 Kan. App. 1998).
197 Holyfield indicates that intervention should be permitted in voluntary actions. See 109 S.Ct. 1597 at 1608 - 1610 (1989).
198 10 O.S. §40.3 (B).
87
199 Phillips A.C. II v. Central Council of the Tlingit and Haida Tribes of Alaska, 149 P.3d 51 (Nev. 2006).
200 In Re Appeal In Maricopa County, 667 P.2d 228 (Ariz. App. 1983). See also Custody of S.B.R., 719 P.2d 154 (Wash. App. 1986). However, cases have generally favored permitting intervention since 1986.
201 Catholic Social Services, Inc. v. C.A.A. and Cook Inlet Tribal Counsel, 783 P.2d 1159 (Alaska 1989); Matter of Adoption of Baby Boy L., 643 P.2d 168 (Kansas 1982). It should be noted that both of these decisions were decided prior to the Holyfield case, which strongly supports the tribal right to intervene, and no subsequent case from either jurisdiction has raised the same argument.
202 In Re A.B. and M.B., 2005 ND 75, 707 N.W. 2d 75 (N.D. 2005).
203 Native Village of Venetie I.R.A. Counsel v. State of Alaska, 944 F.2d 548 (9th Cir. C.A., 1991); Interest of C.W., M.W., K.W., and J.W., 479 N.W.2d 105 (Nebraska 1992); Matter of Adoption of T.R.M., 525 N.E.2d 298 (Ind. 1988).
204 Native Village of Venetie I.R.A. Counsel v. State of Alaska, 944 F.2d 548 (9th Cir. C.A., 1991).
205 In Gerber v. Eastman, 673 N.W.2d 854 (Minn. App. 2004); In re Custody of Sengstock v. San Carlos Apache Tribe, 477 N.W.2d 310 (Wis. App. 1991). See also Kiowa Tribe of Oklahoma v. Lewis, 777 F.2d 587 (10th Cir. C.A.1985); Matter of Adoption of T.R.M., 525 N.E.2d 298 (Ind. 1988).
206 Oklahoma Indian Child Welfare Act: 10 §40.3. Application of act -- Exemptions -- Determination of Indian status
A. The Oklahoma Indian Child Welfare Act, in accordance with the federal Indian Child Welfare Act, applies to all child custody proceedings involving any Indian child except the following:
1. A child custody proceeding arising from a divorce proceeding; or
2. A child custody proceeding arising from an adjudication of delinquency, unless there has been a request for termination of parental rights.
B. 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.
C. The court shall seek a determination of the Indian status of the child in accordance with the preceding standard in the following circumstances:
1. The court has been informed by an interested party, an officer of the court, a tribe, an Indian organization or a public or private agency that the child is Indian; or
88
2. The child who is the subject of the proceeding gives the court reason to believe he is an Indian child; or
3. The court has reason to believe the residence or domicile of the child is a predominantly Indian community.
D. The court shall seek verification of the Indian status of the child from the Indian tribe or the Bureau of Indian Affairs. A determination of membership by an Indian tribe shall be conclusive. A determination of membership by the Bureau of Indian Affairs shall be conclusive in the absence of a contrary determination by the Indian tribe.
E. The determination of the Indian status of a child shall be made as soon as practicable in order to ensure compliance with the notice requirements of section 40.4 of this title.
Oklahoma Indian Child Welfare Act: 10 § 40.4. Indian child custody proceedings – Notice
In all Indian child custody proceedings of the Oklahoma Indian Child Welfare Act, including voluntary court proceedings and review hearings, the court shall ensure that the district attorney or other person initiating the proceeding shall send notice to the parents or to the Indian custodians, if any, and to the tribe that is or may be the tribe of the Indian child, and to the appropriate Bureau of Indian Affairs area office, by certified mail return receipt requested. The notice shall be written in clear and understandable language and include the following information:
1. The name and tribal affiliation of the Indian child;
2. A copy of the petition by which the proceeding was initiated;
3. A statement of the rights of the biological parents or Indian custodians, and the Indian tribe:
a. to intervene in the proceeding, b. to petition the court to transfer the proceeding to the tribal court of the Indian child, and c. to request an additional twenty (20) days from receipt of notice to prepare for the proceeding; further extensions of time may be granted with court approval;
4. A statement of the potential legal consequences of an adjudication on the future custodial rights of the parents or Indian custodians;
5. A statement that if the parents or Indian custodians are unable to afford counsel, counsel will be appointed to represent them; and
6. A statement that tribal officials should keep confidential the information contained in the notice.
G.L. v. Florida Dept. of Children and Families, 80 So3d 1065 (Fla. App. 2012); In Re I.W., et al., 180 Cal. Rptr. 3d 1517 (Cal. App. 6th 2009); Interest of T.M.W. and S.A.W., 208 P.3d 272 (Colo. App. 2009); In Re J.O., 100 Cal. Rptr. 3d 276 (Cal. App. 2nd 2009); In Re Custody of C.C.M., 202 P.3d 971 (Wash.
89
App. 2009); In Re Damian C., 100 Cal. Rptr. 3d 110 (Cal. App. 4th 2009); Interest of J.C.C. and A.M.C., 302 S.W. 3d 896 (Tex. App. Waco 2009); D.B. v. Superior Court, 89 Cal. Rptr. 3d 566 (Cal. App. 1st 2009); In Re Rayna N., 77 Cal. Rptr. 3d 628 (Cal. App. 2nd 2008); In Re Cody B., 63 Cal. Rptr. 3d 652 (Cal. App. 4th 2007); In Re Mary G., 59 Cal. Rptr. 3d 703 (Cal. App. 4th 2007); Interest of Walter W., 719 N.W.2d 304 (Neb. App. 2006); In Re I.G., 35 Cal. Rptr. 3d 427 (Cal. App. 1st 2005); Matter of R.E.K.F., 698 N.W.2d 147 (Iowa 2005); In Re Elizabeth W., 16 Cal. Rptr. 3d 514 (Cal. App. 2nd Dist. 2004). In the Interest of T.D. and D.D., 890 So.2d 473 (Fla. App. 2nd Dist. 2004); In Re C.D., 1 Cal. Rptr. 3d 578 (Cal. App. 2nd Dist. 2003); In Re Jennifer A., 103 Cal.App.4th 692, 127 Cal.Rptr.2d 54 (Cal. App. 4th Dist. 2002); In Re Samuel P., 99 Cal.App.4th 1259, 121 Cal.Rptr.2d 820 (Cal. App. 4th 2002), In Re Jeffrey A., 103 Cal.App.4th 1103, 127 Cal.Rptr.2d 314 (Cal. App. 3rd Dist. 2002); Dwayne P. v. Superior Court, 103 Cal. App. 4th 247, 126 Cal.Rptr.2d 639 (Cal. App. 4th Dist. 2002); In Re Suzanna L., 104 Cal. App. 4th 223, 127 Cal.Rptr.2d 860(Cal. App. 4th Dist. 2002), In Re Marinna J., 109 Cal. Rptr. 2d 267 (Cal. App. 3rd 2001); In Re Desiree F., 99 Cal.Rptr.2d 688 (Cal. App. 5th 2000); Matter of Maynard, 589 N.W.2d 439 (Mich. App. 1999); In the Interest of M.N.W. and P.B.S.W., 577 N.W.2d 874 (Iowa 1998); In Re Pedro N., 41 Cal.Rptr.2d 819 (Cal. 1995); People ex rel. South Dakota Dept. of Social Services, in Interest of C.H., 510 N.W.2d 119 (S.D. 1993); In Interest of J.W., 498 N.W. 2d 417 (Iowa App. 1993); In re Kahlen W., 233 C.A.3d 1414 (Cal. 1991); Matter of D.S., 577 N.E.2d 572 (Ind. 1991); People in Interest of J.J., 454 N.W.2d 317 (S.D. 1990); In re M.C.P., 871 A.2d 627 (Vt. 1989); Matter of N.A.H., 418 N.W.2d 310 (S.D. 1988); In Interest of H.D., 729 P.2d 1234 (Kan. App. 1986); Matter of L.A.M., 727 P.2d 1057 (Alaska 1986); State ex rel. Juvenile Dept. of Lane County v. Tucker, 710 P.2d 793 (Or. App. 1985); Duncan v. Wiley, 657 P.2d 1212 (Okl. 1982).
Some courts have held that no notice is required in voluntary cases. See In Re R.S., 101 Cal. Rptr. 3d 910 (Cal. App. 1st 2009); Navajo Nation v. Superior Court of the State of Washington for Yakima County, 47 F. Supp. 2d 1233 (E.D. Wash. 1999); Matter of S.C., 833 P.2d 1249 (Okl. 1992); Catholic Social Services, Inc. v. C.A.A., 783 P.2d 1159 (Alaska 1989); Matter of Dependency and Neglect of A.L., 442 N.W.2d 597 (S.D. 1989); Matter of Appeal in Maricopa County, 667 P.2d 228 (Ariz. App. 1983); Matter of B.J.E., 422 N.W.2d 597 (S.D. 1988); Matter of S.Z., 325 N.W.2d 53 (S.D. 1982).
See also In The Matter of Parental Rights As To S.M.M.D. and T.A.D.,272 P.3d 126 (Nev. 2012), which holds that actual notice is sufficient under the ICWA.
207 Id; but see In Re Alice M., 74 Cal. Rptr. 3d 863 (Cal. App. 6th 2008), which holds that the duty to give notice occurs when a clear indication of tribal membership is given, as opposed to a duty to inquire when a general statement of possible heritage is raised; see also In Re Jaclyn S., 63 Cal. Rptr. 3d 297 (Cal. App. 1st 2007).
Some courts have ruled that an interested party must notify the court of the possibility of Indian heritage in order to trigger the inquiry. See In the Interest of M.N.W. and P.B.S.W., 577 N.W.2d 874 (Iowa 1998); Interest of A.G.-G., 899 P.2d 319 (Colo. App. 1995); Interest of A.M., 455 N.W.2d 572 (Neb. 1990).
208 Id; see also In the Interest of C.F., C.F., and R.F., 218 S.W. 3d 22 (Mo. App. 2007); In Re Alexis H., 33 Cal. Rptr. 3d 242 (Cal. App. 2nd 2005).
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209 Matter of R.E.K.F., 698 N.W.2d 147 (Iowa 2005); In Re Jennifer A., 103 Cal. App. 4th 692, 127 Cal.Rptr.2d 54 (Cal. App. 4th Dist. 2002); In Re Desiree F., 99 Cal. Rptr. 2d 688 (Cal. App. 5th 2000); Matter of Maynard, 589 N.W.2d 439 (Mich. App. 1999); In Interest of C.H., 510 N.W.2d 119 (S.D. 1993); Matter of D.S., 577 N.E.2d 572 (Ind. 1991); Matter of N.A.H., 418 N.W.2d 310 (S.D. 1988); Matter of L.A.M., 727 P.2d 1057 (Alaska 1986); State ex rel. Juvenile Dept. of Lane County v. Tucker, 710 P.2d 793 (Or. App. 1985).
But see Matter of Welfare of M.S.S., 936 P.2d 36 (Wash. App. 1997), which permits substantial compliance of notice by overnight mail rather than registered mail. See also Matter of Dependency and Neglect of A.L., 442 N.W.2d 597 (S.D. 1989); Matter of Appeal in Maricopa County, 667 P.2d 228 (Ariz. App. 1983), and In Re TM 628 N.W.2d 570 (Mich. App. 2001).
Under Oklahoma’s 10 O.S. §40.4, notice must be sent by certified, not registered, mail.
210 In Re C.L. Morris; In Re J.L. Gordon, 815 N.W.2d 62 (Mich. 2012).
211 Matter of M.R.L., et al., 260 P.3d 537 (Or. App. 2011) and State v. N.L. 239 P.3d 255 (Or. App. 2010); See also In Re C.L. Morris; In Re J.L. Gordon, 815 N.W.2d 62 (Mich. 2012); In Re C.B., 117 Cal. Rptr. 3d 846 (Cal. App. 6th 2010); In Re Custody of C.C.M., 202 P.3d 971 (Wash. App. 2009); Interest of J.C.C. and A.M.C., 302 S.W.3d 896 (Tex. App. Waco 2009); Interest of R.R., Jr. and V.R., 294 S.W.3d 213 (Tex. App. Fort Worth 2009); In Re B.R.,, et al., 97 Cal.Rptr.3d 890 (Cal. App. 1st 2009); Interest of N.D.C., 210 P.3d 494 (Colo. App. 2009); In Re Rayna N., 77 Cal. Rptr. 3d 628 (Cal. App. 2nd 2008); In Re G.S.R., 72 Cal. Rptr. 3d 398 (Cal. App. 2nd 2008); In Re Robert A., 55 Cal. Rptr. 3d 774 (Cal. App. 4th 2007); In the Interest of C.F., C.F., and R.F., 218 S.W. 3d 22 (Mo. App. 2007); Interest of Walter W., 719 N.W.2d 304 (Neb. App. 2006); Interest of S.R.M., 153 P.3d 438 (Colo. App. 2006); Matter of the Dependency of T.L.G. and C.L.G., 108 P.3d 156 (Wash. App. 2005). In Re Karla C., 6 Cal. Rptr. 3d 205 (Cal. App. 4th 2003); In Re Jennifer A., 103 Cal. App. 4th 692, 127 Cal.Rptr.2d 54 (Cal. App. 4th Dist. 2002); In Re Asia L., 107 Cal. App. 4th 498 (Cal. App. 1st Dist. 2003); In Re Johnathan D., 111 Cal.Rptr.2d 628 (Cal. App. 3rd 2002); see also S.H. and T.H. v. Calhoun County Dept. of Human Services, 798 So.2d 684 (Ala. Civ. App. 2001), which holds that in cases involving Indian children, a state court must strictly construe the requirements of the ICWA, especially prior to termination proceedings. See also Interest of S.R.M., which holds that notice must be given prior to termination hearings, despite the tribe’s failure to respond to an earlier notice about a dependency action.
But see Welfare of the Children of S.W., M.M. and J.A., 727 N.W. 3d 144 (Minn. App. 2007), which holds that earlier notice errors does not invalidate a years-later termination proceeding that followed the ICWA, and In Re K.B., 93 Cal Rptr. 3d 751 (Cal. App. 4th 2009) and In Re Antoinette S., 104 Cal. App. 4th 1401, 129 Cal.Rptr.2d 15 (Cal. App. 4th 2002), which find that notice failures are not jurisdictional in nature, but may be either harmless or prejudicial error depending on the facts of the case.
Many courts have also found that a failure to provide notice is a correctable error, requiring remand. However, the orders previously entered will remain in force and effect until and unless the child is found to be Indian; if the child is not Indian. For an example, see Matter of the Dependency of T.L.G.
91 and C.L.G., 108 P.3d 156 (Wash. App. 2005). See also Interest of M.B. and A.B., 176 P.3d 977 (Kan. App. 2008), which held that the failure to give notice until after termination did not require remand because of the actions after the tribe became involved.
212 Id.
213 Dwayne P. v. Superior Court, 103 Cal. App. 4th 247, 126 Cal.Rptr.2d 639 (Cal. App. 4th Dist. 2002). However, there must be some basis to believe that a child is Indian; if not, there is no duty on the court to continue to investigate, or to search, for that information. In Re Aaliyah G., 135 Cal. Rptr.2d 680 (Cal. App. 2nd Dist. 2003). But See Interest of A.R.Y.-M., 230 P.3d 1259 (Colo. App. 2010), which finds notice errors harmless due to the mother’s failure to provide additional information requested by the tribe to determine membership.
214 In Re Damian C., 100 Cal. Rptr. 3d 110 (Cal. App. 4th 2009); Interest of J.C.C. and A.M.C., 302 S.W.3d 896 (Tex. App. Waco 2009); Interest of X.H., 138 P.3d 299 (Colo. 2006); Matter of the Dependency of T.L.G. and C.L.G., 108 P.3d 156 (Wash. App. 2005). See also In re the Matter of A.G., W.G., T.A., and J.A., 2005 MT 81, 109 P.3d 756 (Mont. App. 2005), which finds that a failure to make an conclusive determination as to the application of the Act requires reversal. See also Interest of Walter W., 719 N.W.2d 304 (Neb. App. 2006), which finds that the parent of an Indian child has standing to raise the issue of a lack of notice to the tribe.
215 In Re Mary G., 59 Cal. Rptr. 3d 703 (Cal. App. 4th 2007); Nicole K. v. Superior Court, 53 Cal. Rptr.3 251 (Cal. App. 3rd 2006); Matter of R.E.K.F., 698 N.W.2d 147 (Iowa 2005).
216 In Re S.B., 79 Cal. Rptr. 3d 449 (Cal. App. 4th 2008). But see In Re S.B., 94 Cal Rptr. 3d 645 (Cal. App. 4th 2009), which found that a failure to file return receipts (green cards) to certified mailing would not be construed as inadequate service when 9 of the 12 tribes noticed responded; the court relied on an evidentiary presumption that “official duty has been regularly performed.”
217 Interest of Nery V., 832 N.W.2d 909 (Neb. App. 2013); In Re K.T., --- N.E.2d --- (Ill. App. 2013); In Re Custody of C.C.M., 202 P.3d 971 at 977 (Wash. App. 2009): “Without notice, the Tribe’s rights under the ICWA are meaningless, making remand necessary.”
See also In Re C.B., 117 Cal. Rptr. 3d 846 (Cal. App. 6th 2010); In Re Jonah D., 116 Cal. Rptr. 3d 545 (Cal. App. 2nd 2010).
218 In the case of In Re Shane G., 83 Cal. Rptr. 3d 513 (Cal. App. 4th 2008), the child’s grandmother alleged that the child’s great-great-great grandmother had been a “Comanche princess.” However, the child’s sister had already been determined to be a nonmember, so the Court found that the allegation, without any further evidence, would not require ICWA notice.
See also In Re Trever I., 2009 ME 59, 973 A.2d 752 (Maine 2009), where a father initially denied any application of the ICWA, then at termination three years later claimed that he may have had Cherokee heritage. The Court found that this was not persuasive and did not trigger the Court’s obligations under 1912 (a). In In Re E.G., 88 Cal. Rptr. 3d 871 (Cal. App. 3rd 2009), in which a mother
92 claimed error when notice was not provided to tribes in which a putative father claimed heritage. The father was genetically eliminated from parentage, and the court found there was no basis for notice to his tribes under the ICWA. In Matter of Interest of D.M., 2007 ND 62, 730 N.W.2d 604 (N.D. 2007), the Court found that when a tribe does not respond to “repeated efforts to engage and contact” that the ICWA would not be applied absent definitive information of tribal membership.
Also see In Re C.P.N.C., 641 S.E. 2d 13 (N.C. App. 2007), and In Re Arianna R.G., 2003 WI 11, 657 N.W.2d 363 (Wis. 2003).
219 In Re Joseph P., 45 Cal. Rptr. 3d 591 (Cal. App. 4th 2006) finds that notice to the BIA earlier in the proceedings meant that a last-minute attempt to claim a new tribal membership would not prevent termination, since notice had already been issued and the BIA had responded negatively as to tribal membership.
See also In Re S.B., 30 Cal. Rptr. 3d 726 (Cal. App. 4th 2005); Guardianship of J.O, S.O., S.O., K.O., K.O., S.O. and S.O., 743 A.2d 341 (N.J. App. 2000).
220 In Re C.L. Morris; In Re J.L. Gordon, 815 N.W.2d 62 (Mich. 2012).
221 In Re C.L. Morris; In Re J.L. Gordon, 815 N.W.2d 62 (Mich. 2012).
222 In Re Antoinette S., 104 Cal. App. 4th 1401, 129 Cal.Rptr.2d 15 (Cal. App. 4th 2002). See also In Re Edward H., Jr., 100 Cal App. 4th 1, 122 Cal. Rptr.2d 242 (Cal. App. 4th 2002), which held that notice to two of three possible Choctaw tribes and the BIA was sufficient when the parents could not provide any information beyond a tribal name and an erroneous state location; In Re G.S.R., 7 2Cal. Rptr. 3d 398 (Cal. App. 2nd 2008); Nicole K. v. Superior Court, 53 Cal. Rptr.3 251 (Cal. App. 3rd 2006) and In Re Arianna R.G., 2003 WI 11, 657 N.W.2d 363 (Wis. 2003).
223 In Re Damian C., 100 Cal. Rptr. 3d 110 (Cal. App. 4th 2009); In Re Christopher I., 106 Cal.App.4th 533, 131 Cal.Rptr.2d 122 (Cal. App. 4th Dist. 2003).
224 In Re L.J., 157 Cal. Rptr.3d 197 (Cal. App. 3rd 2013); Guardianship of H.C., 130 Cal. Rptr. 3d 316 (Cal. App. 1st 2011); In Re Louis F., 12 Cal. Rptr. 3d 110 (Cal. App. 4th 2004); See also In Re A.G., 139 Cal.Rptr.3d 727 (Cal. App.1st 2012).
225 In Re S.E., ---Cal. Rptr.3d --- (Cal. App. 2nd 2013); In Re L.J., 157 Cal. Rptr.3d 197 (Cal. App. 3rd 2013); In Re Jonah D., 116 Cal. Rptr. 3d 545 (Cal. App. 2nd 2010); In Re Jeremiah G., 92 Cal Rptr. 3d 203 (Cal. App. 3rd 2009); In Re O.K., 130 Cal.Rptr.2d 276 (Cal. App. 3rd 2003).
226 In Re J.M., 206 Cal. Rptr.3d 375 (Cal. App. 2nd 2012).
227 In Re C.B., 117 Cal. Rptr. 3d 846 (Cal. App. 6th 2010); In Re Damian C., 100 Cal. Rptr. 3d 110 (Cal. App. 4th 2009); Justin L. v. Superior Court, 81 Cal. Rptr. 3d 884 (Cal. App. 2nd 2008). See also In Re Welfare of L.N.B.-L., 237 P.3d 944 (Wash. App. 2010); Interest of N.D.C., 210 P.3d 494 (Colo. App. 2009).
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228 In Re C.L. Morris; In Re J.L. Gordon, 815 N.W.2d 62 (Mich. 2012); In Re Damian C., 100 Cal. Rptr. 3d 110 (Cal. App. 4th 2009); Justin L. v. Superior Court, 81 Cal. Rptr. 3d 884 (Cal. App. 2nd 2008); In Re Miracle M., 73 Cal. Rptr. 3d 24 (Cal. App. 2nd 2008); In Re Veronica G., 68 Cal. Rptr. 3d 465 (Cal. App. 1st 2007); In Re Terrance B., 50 Cal. Rptr.3d 815 (Cal. App. 4th 2006); In Re Francisco W., 43 Cal. Rptr. 3d 171 (Cal. App. 4th 2006); Interest of X.H., 138 P.3d 299 (Colo. 2006).
229 In Re C.L. Morris; In Re J.L. Gordon, 815 N.W.2d 62 (Mich. 2012); In Re Terrance B., 50 Cal. Rptr.3d 815 (Cal. App. 4th 2006); Interest of X.H., 138 P.3d 299 (Colo. 2006).
230 Justin L. v. Superior Court, 81 Cal. Rptr. 3d 884 (Cal. App. 2nd 2008).
231 Guardianship of H.C., 130 Cal. Rptr. 3d 316 (Cal. App. 1st 2011); In Re G.S.R., 72 Cal. Rptr. 3d 398 (Cal. App. 2nd 2008); In Re Jaclyn S., 68 Cal. Rptr. 3d 321 (Cal. App. 1st 2007); In Re Brooke C., 25 Cal. Rptr. 3d 590 (Cal. App. 2nd 2005); In Re Gerardo A., Jr. 14 Cal. Rptr. 3d 798 (Cal. App. 5th Dist. 2004); In Re S.M., 13 Cal. Rptr. 3d 606 (Cal. App. 4th Dist. 2004); In Re Merrick V., 19 Cal. Rptr, 3d 490 (Cal. App. 4th Dist. 2004); In Re Louis F., 12 Cal. Rptr. 3d 110 (Cal. App. 4th 2004); In Re S.M., 13 Cal. Rptr. 3d 606 (Cal. App. 4th Dist. 2004); In Re Elizabeth W., 16 Cal. Rptr. 3d 514 (Cal. App. 2nd Dist. 2004); In Re Kenneth M., 19 Cal. Rptr. 752 (Cal. App. 3rd 2004); In Re Louis S., 12 Cal. Rptr. 3d 110 (Cal. App. 4th Dist. 2004); In Re D.T., 5 Cal. Rptr. 3d 893 (Cal. App. 3rd Dist. 2003); In Re Asia L., 107 Cal. App. 4th 498 (Cal. App. 1st Dist. 2003); In Re Nikki R., 106 Cal.App.4th 844, 131 Cal. Rptr.2d 256 (Cal. App. 4th Dist. 2003); In Re Jennifer A., 103 Cal.App.4th 692, 127 Cal.Rptr.2d 54 (Cal. App. 4th Dist. 2002); In Re H.A., 103 Cal.App.4th 1206, 128 Cal.Rptr.2d 12 (Cal.App. 5th Dist. 2002). See also Alicia B. v. Superior Court, 11 Cal. Rptr. 3d 1 (Cal. App. 4th Dist. 2004)., which holds that proper notice that was not filed with the trial court but was filed during the pendency of a writ to the appeals court was admissible and disposed of the notice issue.
But see In the Interest of C.F., C.F., and R.F., 218 S.W. 3d 22 (Mo. App. 2007), finding that oral testimony as to the notice provided to the tribes was sufficient, although introduction of the physical documents would have been preferred.
See also In Re X.V., 33 Cal. Rptr. 3d 893 (Cal. App. 4th 2005), which holds that a parent’s failure to object to the adequacy of ICWA notice during a second special hearing on ICWA compliance will waive the ability to object to that notice on appeal.
But see In Re O.K., 130 Cal.Rptr.2d 276 (Cal. App. 3rd Dist. 2003), which finds the statement that the father “may have Indian in him” insufficient to trigger notice under ICWA and In Re L.B., 3 Cal. Rptr. 3d 16 (Cal. App. 3rd Dist. 2003), which finds that notice was not required to be filed with the court in order for the ICWA requirements to be met.
See also In Re Isayah C., 13 Cal. Rptr. 3d 198 (Cal. App. 4th Dist. 2004), which holds in a footnote that the ICWA notice requirements could not be raised by the non-Indian father because the child was placed with a family member who shared the child’s Indian heritage; since the intervention of the tribe would have made the father’s success less likely, the court would not consider the notice argument.
See also In Re Miracle M., 73 Cal. Rptr. 3d 24 (Cal. App. 2nd 2008), which finds that improper ICWA notice to a parent will not be a basis for reversal if the tribes determine that the children are not
94 tribal members. See also In Re N.E., 73 Cal. Rptr. 3d 123 (Cal. App. 4th 2008), which finds that a parent alleging violation of notice provisions must demonstrate prejudice in the case as a result of those errors; merely stating that ICWA notice was improper without arguing that the child is an Indian child under the Act will not be considered.
Finally, see In Re K.M., 90 Cal Rptr. 3d 692 (Cal. App.3rd 2009), which finds that notice to all tribes the family indicated was sufficient under the Act. The court found that social services was not required to interview distant relatives in the hope that they might know other tribes to send notice to; the hostility of the family rendered the attempts at service sufficient.
232 In Re Cheyanne F., 79 Cal. Rptr. 3d 189 (Cal. App. 4th 2008); Jennifer T. v. Superior Court, 71 Cal. Rptr.3d 293 (Cal. App. 2nd 2007); In Re N.E., 73 Cal. Rptr. 3d 123 (Cal. App. 4th 2008). See also In Re E.W., 88 Cal. Rptr. 3d 338 (Cal. App. 4th 2008), which found harmless error in failing to provide notice to the specified service agent at the tribe, but where the tribe responded to the notice and stated that the child was not a member. The court also found harmless error in sending the notice about one sibling but not the other, where the children had the same parents and the tribe found that the child notice was sent about was not eligible for tribal membership.
233 Interest of J.J.G., 83 P.3d 1264 (Ks. App. 2004).
234 Matter of R.E.K.F., 698 N.W.2d 147 (Iowa 2005).
235 Interest of S.R.M., 153 P.3d 438 (Colo. App. 2006).
236 10 O.S. § 40.4. Notice to both the tribe and the BIA by certified, rather than registered, mail goes beyond the requirements of 25 U.S.C. §1912 (a), but is permitted under §1921, which permits a higher state standard.
237 10 O.S. § 40.4.
238 In Re C.D., 1 Cal. Rptr. 3d 578 (Cal. App. 2nd Dist. 2003).
239 In Re Jaclyn S., 63 Cal. Rptr. 3d 297 (Cal. App. 1st 2007).
240 Interest of Walter W., 719 N.W.2d 304 (Neb. App. 2006); In Re S.C., 41 Cal. Rptr. 3d 453 (Cal. App. 3rd 2006); Matter of Welfare of M.S.S., 936 P.2d 36 (Wash. App. 1997); Matter of L.A.M., 727 P.2d 1057 (Alaska 1986); D.E.D. v. State, 704 P.2d 774 (Alaska 1985).
241 Interest of N.N.E., 752 N.W. 2d 1 (Iowa 2008); Matter of Welfare of M.S.S., 936 P.2d 36 (Wash. App. 1997); Matter of L.A.M., 727 P.2d 1057 (Alaska 1986); D.E.D. v. State, 704 P.2d 774 (Alaska 1985).
242 In Re Desiree F., 99 Cal.Rptr.2d 688 (Cal. App. 5th 2000); Matter of Welfare of M.S.S., 936 P.2d 36 (Wash. App. 1997); In Re Pedro N., 41 Cal.Rptr.2d 819 (Cal. 1995); In Interest of J.W., 498 N.W. 2d 417 (Iowa App. 1993); Matter of D.S., 577 N.E.2d 572 (Ind. 1991); Matter of N.A.H., 418 N.W.2d 310 (S.D. 1988); In Interest of H.D., 729 P.2d 1234 (Kan. App. 1986); Matter of L.A.M., 727 P.2d 1057 (Alaska
95
1986); Duncan v. Wiley, 657 P.2d 1212 (Okl. 1982).
But see In the Interest of H.A.M., J.F.D. and W.D.M., 961 P.2d 716 (Kan. App. 1998), in which the Kansas Appellate Court rules that failure to give notice initially can be remedied by providing notice to the tribe and by involving the tribe in future proceedings. See also Adoption of Arnold, 741 N.E.2d 456 (Mass. App. Ct. 2001), which follows the same reasoning.
See also Interest of J.D.B., E.D.B., E.C.V. and J.J.B., 584 N.W. 2d 577, (Iowa App. 1998), which holds that, if timely and proper notice and inquiry is made to the tribe, and the tribe fails to respond, the Act will not be applied to a case until such time membership is established. The facts of this case are hideous; the Rosebud Sioux Tribe failed to demonstrate that the children were tribal members, nor did they take other actions, despite notice for fourteen hearings. The Court found that the ICWA would not apply to the 18 or so months of hearing prior to the tribe producing the membership information.
243 In Re Morris, --- N.W.2d --- (Mich. App. 2013); In Re Jacob S., 12 Cal. Rptr. 3d 118 (Cal. App. 5th Dist. 2004).
244 Matter of Welfare of C.B., C.R.B., and T.A.B., 143 P.3d 846 (Wash. App. 2006).
245 10 O.S. § 40.3. For interpretation in a non-Oklahoma jurisdiction, see Matter of Welfare of M.S.S., 936 P.2d 36 (Wash. App. 1997).
246 Adoption of Baby Girl B., 2003 OK CIV APP24 at Para. 81, 67 P.3d 359 (Okl. App. 2003), finds that “...Every attorney involved in matter concerning Indian children subject to the Indian Child Welfare Act is under an affirmative duty to insure full and complete compliance with these Acts.” Failure to do so could result in bar sanctions.
See also Doe v. Hughes, Thorsness, Gantz, Powell & Brundin, 838 P.2d 804 (Alaska 1992), which finds that a failure to inform the court of the mere possibility of the ICWA applying to the case is malpractice.
See also In the Matter of Megan S. and Randi S., 916 P.2d 228 (N.M. 1996), in which the New Mexico Supreme Court discusses contempt sanctions and fines for an Oklahoma Cherokee grandfather who took his grandchildren from the supervision of New Mexico’s child services on an authorized visit to Oklahoma. Once in Oklahoma, the Cherokee tribal court entertained emergency jurisdiction and ordered the children to remain - in the family’s care. The New Mexico court ordered various financial sanctions against the grandfather, only some of which the Supreme Court approved.
247 Cherokee Nation v. Nomura, et al., 2007 OK 40, 160 P.3d 967 (Okl. 2007).
248 Cherokee Nation v. Nomura, et al., 2007 OK 40 at Para. 7.
249 Cherokee Nation v. Nomura, et al., 2007 OK 40 at Para. 27 – 28.
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250 Cherokee Nation v. Nomura, et al., 2007 OK 40 at Para. 18 – 26.
251 Cherokee Nation v. Nomura, et al., 2007 OK 40 at Para. 25.
252 Cherokee Nation v. Nomura, et al., 2007 OK 40 at Para. 23.
253 Cherokee Nation v. Nomura, et al., 2007 OK 40 at Para. 29.
254 Cherokee Nation v. Nomura, et al., 2007 OK 40 at Para. 25, citing Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 at 49, 109 S.Ct. 1597 104 L.Ed.2d 29 (1989).
255 Adoption of Baby Girl B., 2003 OK CIV APP24 at Para. 81, 67 P.3d 359 (Okl. App. 2003), finds that “...Every attorney involved in matter concerning Indian children subject to the Indian Child Welfare Act is under an affirmative duty to insure full and complete compliance with these Acts.” Failure to do so could result in bar sanctions.
See also Doe v. Hughes, Thorsness, Gantz, Powell & Brundin, 838 P.2d 804 (Alaska 1992), which finds that a failure to inform the court of the mere possibility of the ICWA applying to the case is malpractice.
See also In the Matter of Megan S. and Randi S., 916 P.2d 228 (N.M. 1996), in which the New Mexico Supreme Court discusses contempt sanctions and fines for an Oklahoma Cherokee grandfather who took his grandchildren from the supervision of New Mexico’s child services on an authorized visit to Oklahoma. Once in Oklahoma, the Cherokee tribal court entertained emergency jurisdiction and ordered the children to remain - in the family’s care. The New Mexico court ordered various financial sanctions against the grandfather, only some of which the Supreme Court approved.
256 Matter of the Welfare of the Child of S.L.J., 782 N.W.2d 549 (Minn. 2010); affirming Matter of the Welfare of the Child of S.L.J. 722 N.W.2d 833 (Minn. App. 2009).
257 Matter of the Welfare of the Child of S.L.J., 782 N.W.2d 549 (Minn. 2010) held that the ICWA did not require a public defender, but rather an attorney appointed by the court and paid for by the county in which the proceeding was held. It should be noted that 25 U.S.C. § 1912 (b) requires the Secretary of Interior to pay reasonable fees and expenses out of funds that may be appropriated pursuant to section 13 of the Act. No funds have ever been appropriated for this purpose.
258 In re custody of A.K.H., 502 N.W.2d 790 (Minn. App. 1993); Matter of S.C., 833 P.2d 1249 (Okl. 1992); Matter of Bluebird, 411 S.E.2d 820 (N.C. App. 1992); State ex rel. Juvenile Dept. of Multnomah County v. Charles, 688 P.2d 1354 (Or. App. 1984); Matter of M.E.M., 635 P.2d 1313 (Mont. 1981). However, the right to counsel may not apply to voluntary proceedings. B.R.T. v. Executive Director of Social Service Board, 391 N.W.2d 594 (N.D. 1986).
259 Matter of J.W., 742 P.2d 1171 (Okl. App. 1987); Matter of M.E.M., 635 P.2d 1313 (Mont. 1981).
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260 Matter of M.E.M., 635 P.2d 1313 (Mont. 1981).
261 Oklahoma requires that a Guardian Ad Litem be appointed in adoption proceedings. See In Re The Adoption of F.R.F., Jr., and D.B.F., 870 P.2d 799 (Okl. 1994); and In The Matter of the Adoption of D.R.W., 875 P.2d 433 (Okl. 1994). Once appointed, a GAL is an interested party, and may act broadly in the child’s best interests. The Utah Appeals Court has found that this includes the right to file termination petitions against parents. State ex rel. S.D.C., 36 P.3d 540 (Utah App. 2001).
262 Matter of M.R.L., et al., 239 P.3d 255 (Or. App. 2010).
263 Matter of M.R.L., et al., 239 P.3d 255 at 261 - 263 (Or. App. 2010).
264 25 U.S.C. § 1912 (c).
265 Matter of J.R.B., 715 P.2d 1170 (Alaska 1986).
266 10 O.S. § 40.9.
267 Interest of Shayla H., 764 N.W.2d 119 (Neb. App. 2009); Welfare of the Children of S.W., M.M. and J.A., 727 N.W. 3d 144 (Minn. App. 2007); In re Interest of Phoebe S. and Rebekah S., 664 N.W.2d 470 (Neb. App. 2003); Matter of T.L. and L.N., 2003 OK CIV APP 49 (Okl. App. 2003); D.J. v. P.C., 36 P.3d 663 (Alaska 2001); State ex rel. S.D.C., 36 P.3d 540 (Utah App. 2001); In Re Cari B., 763 N.E.2d 917 (Ill. 2002); S.H. v. State of Alaska, 43 P.3d 1119 (Alaska 2002). Matter of J.W., 921 P.2d 604 (Alaska 1996); Matter of M.S.S., 465 N.W.2d 412 (Minn. App. 1991); Multnomah County v. Woodruff, 816 P.2d 623 (Or. App. 1991); In Re L.N.W., 457 N.W.2d 17 (Iowa App. 1990); Matter of Kreft, 384 N.W.2d 843 (Mich. App. 1986); Department of Social Services v. Morgan, 364 N.W.2d 754 (Mich. App. 1985).
Nebraska has held that these allegations must be affirmatively pled in either the initial or amended petition in order to be successful.
268 D.J. v. P.C., 36 P.3d 663 (Alaska 2001).
269 Lucy J. v. State of Alaska, 244 P.3d 1099 (Alaska 2010); Dale H. v. State of Alaska, 235 P.3d 203 (Alaska 2010); Interest of Jamyia M., 791 N.W.2d 343 (Neb. App. 2010); Interest of Walter W., 744 N.W.2d 55 (Neb. 2008); People in Interest of E.M., 466 N.W.2d 168 (S.D. 1991); Matter of Adoption of T.R.M., 525 N.E.2d 298 (Ind. 1988); People in Interest of S.R., 323 N.W.2d 885 (S.D. 1982); In re Smith, 731 P.2d 1149 (Wash. App. 1987); State ex rel. Juvenile Dept. of Multnomah County v. Charles, 688 P.2d 1354 (Or. App. 1984).
270 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2562, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
271 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2574, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
272 The burden of proof refers the level of proof needed to reach a decision: preponderance, clear and convincing, or beyond a reasonable doubt. This should not be confused with the standard of review,
98 which defines the appellate level of examination of the lower court decision. Generally, legal issues within an appeal are reviewed de novo, meaning a new examination; factual questions are reviewed for clear error. In the Matter of Esther V., 248 P.3d 863, 2011 -NMSC- 005 (N.M. 2011); Matter of Roe, 281 Mich. App. 88 (Mich. App. 2008); Interest of N.N.E., 752 N.W. 2d 1 (Iowa 2008); Karrie B. and Crystal B. v. Catherine J., 181 P.3d 177 (Alaska 2008); Wilson W. v. State of Alaska, 180 P.3d 94 (Alaska 2008); Maisy W. v. State of Alaska, 175 P.3d 1263 (Alaska 2008); Empson-LaViolette v. Crago, 760 N.W. 2d 793 (Mich. App. 2008); Interest of N.V. and P.V., 744 N.W.2d 634 (Iowa 2008); Matter of J.D.M.C., 2007 SD 97, 739 N.W.2d 796 (S.D. 2007); Interest of P.E.M., 734 N.W. 2d 487 (Iowa App. 2007); Cutright v. State, 244 S.W.3d 702 97 Ark. App. 70 (Ark. App. 2006); Interest of Walter W., 719 N.W.2d 304 (Neb. App. 2006); Gilbert M. v. Alaska, 139 P.3d 581 (Alaska 2006); Adoption of Sara J., 123 P.3d 1017 (Alaska 2005); A.M. v. Alaska, 945 P.2d 296 (Alaska 1997), are merely a selection of cases holding de novo review.
273 In the Interest of R.L., 961 P.2d 606 (Colo. App. 1998); Welfare of M.S.S., 465 N.W.2d 412 (Minn. App. 1991); Interest of S.R., 323 N.W.2d 885 (S.D. 1982); Matter of D.S., 577 N.E.2d 572 (Ind. 1991); Interest of D.S., 806 N.W.2d 458 (Iowa App. 2011); In Re L.N.W., 457 N.W.2d 17 (Iowa App. 1990); New Mexico v. Arthur C., 251 P.3d 729, 2011 -NMCA- 022 (N.m. App. 2011); Matter of K.L.D., K.I.D. and T.D.D., 207 P.3d 423 (Or. App. 2009); and Matter of A.N. and M.N., 2005 MT 19, 106 P.3d 556 (Montana 2005).
274 Yvonne L. v. Arizona Department of Economic Security, 258 P.3d 233 (Ariz. App. 2011); Roland L. v. State of Alaska, 206 P.3d 453 (Alaska 2009); Maisy w. v. State of Alaska, 175 P.3d 1263 (Alaska 2008); K.N. v. Alaska, 856 P.2d 468 (Alaska 1993); Valerie M. v. Arizona Department of Economic Security, 198 P.3d 1203 (Ariz. 2009); Timmons v. Arkansas Dept. of Human Services, 2010 Ark. App. 419 (Ark. App. 2010); In Re H.J., 2006 OK CIV APP 153, 149 P.3d 1073 (Okl. App. 2006); Matter of J.S. and M.C., 2008 OK CIV APP 15, 177 P.3d 590 (Okl. App. 2008); Adoption of R.L.A., 2006 OK CIV APP 138, 147 P.3d 306 (Okl. App. 2006); Matter of Roe, 281 Mich. App. 88 (Mich. App. 2008) [overruling Matter of Kreft, 384 N.W.2d 843 (Mich. App. 1986)]; Interest of Louis S., 774 N.W.2d 416 (Neb. App. 2009); Interest of Walter W., 744 N.W.2d 55 (Neb.2008); In re Interest of Phoebe S. and Rebekah S., 664 N.W.2d 470 (Neb. App. 2003); In Re Annette P., 589 A.2d 924 (Me. 1991); In Re A.M., 22 P.3d 828 (Wash. App. 2001); Interest of J.P. and D.P., 2004 ND 25, 674 N.W.2d 273 (N.D. 2004), Interest of T.F. and T.F., 2004 ND 127, 681 N.W.2d 786 (N.D. 2004); . In Re The Termination of Parental Rights to Vaughn R., 2009 WI App 109, 770 N.W.2d 795 (Wis. App. 2009); In Re D.S.P., 480 N.W. 2d 234 (Wis. 1992); In Re Daniel R.S., 706 N.W. 2d 269 (Wis. 2005); and In Re M.S., 624 N.W. 2d 678 (N.D. 2001); Matter of Baby Boy Doe, 902 P.2d 477 (Idaho 1995); In Re Barbara R., 40 Cal. Rptr. 3d 687 (Cal. App. 4th 2006); and In Re Michael G., 74 Cal. Rptr. 2d 642 (Cal. App. 4th Dist. 1998).
275 Maisy w. v. State of Alaska, 175 P.3d 1263 (Alaska 2008).
276 Josh L. v. State of Alaska, 276 P.3d 457 (Alaska 2012); David S. v. State of Alaska, 270 P.3d 767 (Alaska 2012); Neal M. V. State of Alaska, 214 P.3d 284 (Alaska 2009); Jon S. v. State of Alaska, 212 P.3d 756 (Alaska 2009).
277 In Matter of K.L.D., K.I.D. and T.D.D., 207 P.3d 423 (Or. App. 2009), the Court found that state law set the highest burden for all elements; they noted the possibility that the Oregon Legislature, in establishing the higher burden, may not have understood that other jurisdictions have found a bifurcated burden. See also New Mexico v. Arthur C., 251 P.3d 729, 2011 -NMCA- 022 (N.m. App. 2011);
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Matter of A.N. and M.N., 2005 MT 19, 106 P.3d 556 (Montana 2005).
278 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2562-64, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
279 Matter of K.B. and T.B., 2013 MT 133, 301 P.3d 836 (Mont. 2013); Matter of D.S.B. and D.S.B., 2013 MT 112, 300 P.3d 702 (Mont. 2013); In Re Nicole B. and Max B., 976 A.2d 1039 (Maryland App. 2009); Interest of J.S.B., Jr., 2005 SD 3, 691 N.W.2d 611 (S.D. 2005).
280 John Doe v. State of Alaska, 272 P.3d 1014 (Alaska, 2012).
281 Roland L. v. State of Alaska, 206 P.3d 453 (Alaska 2009). See also Christina J. v. State of Alaska, 254 P.3d 1095 (Alaska 2011); Maisy w. v. State of Alaska, 175 P.3d 1263 (Alaska 2008) and Interest of Walter W., 744 N.W.2d 55 (Neb. 2008).
282 Sandy B. v. State of Alaska, 216 P.3d 1180 (Alaska 2009); K.N. v. State, 856 P.2d 468 (Alaska 1993).
283 Dale H. v. State of Alaska, 235 P.3d 203 (Alaska 2010); See also Christopher C. v. State of Alaska, 303 P.3d 465 (Alaska 2013); Martha S. v. State of Alaska, 268 P.3d 1066 (Alaska 2012).
284 J.A. v. Alaska, 50 P.3d 395 at 403 (Alaska 2002). It should be noted that Oklahoma has found that expert witnesses are not required to be “Indian” to be an expert under the ICWA. Matter of M.J.J., et al., 2003 OK CIV APP 43 (Okl. App. 2003); Matter of N.L., 1988 OK 39, 754 P.2d 863 (Okl. 1988).
285 A.A. v. Alaska, 10 P.3d 1156 (Alaska 2000). See also Ben M. v. State of Alaska, 204 P.3d 1013 (Alaska 2009); T.F. v. State, 26 P.3d 1089 (Alaska 2001) and S.H. v. State, 43 P.3d 1119 (Alaska 2002), and N.A. v. Alaska 19 P.3d 597 (Alaska 2001).
286 A.A. v. Alaska, 10 P.3d 1156 at 1159-60 (Alaska 2000); see also Dale H. v. State of Alaska, 235 P.3d 203 (Alaska 2010); In Re K.B., 93 Cal Rptr. 3d 751 (Cal. App. 4th 2009); In Re JL, 770 N.W.2d 853 (Mich. 2009); Neal M. v. State of Alaska, 214 P.3d 284 (Alaska 2009); Thomas H. v. State of Alaska, 184 P.3d 9 (Alaska 2008); and Carson P., et al., v. Heineman, et al., 240 F.R.D. 456, (D. Neb. 2007).
287 A.A. v. Alaska, 10 P.3d 1156 (Alaska 2000); see also Josh L. v. State of Alaska, 276 P.3d 457, (Alaska 2012); David S. v. State of Alaska, 270 P.3d 767 (Alaska 2012); Interest of Jamyia M., 791 N.W.2d 343 (Neb. App. 2010); In Re K.B., 93 Cal Rptr. 3d 751 (Cal. App. 4th 2009); In Re JL, 770 N.W.2d 853 (Mich. 2009); In Re Nicole B. and Max B., 976 A.2d 1039 (Maryland App. 2009); Interest of Louis S., 774 N.W.2d 416 (Neb. App. 2009); Sandy B. v. State of Alaska, 216 P.3d 1180 (Alaska 2009); In the Interest of C.D., A.D., J.T. and S.T., 2008 UT 47, 200 P.3d 194, Utah App. 2008); Thomas H. v. State of Alaska, 184 P.3d 9 (Alaska 2008); Carson P., et al., v. Heineman, et al., 240 F.R.D. 456 (D. Neb. 2007); T.F. v. State, 26 P.3d 1089 (Alaska 2001); C.J. v. State, 18 P.3d 1214 (Alaska 2001); S.H. v. State, 43 P.3d 1119 (Alaska 2002); and N.A. v. Alaska, 19 P.3d 597 (Alaska 2001).
288 A.A. v. Alaska, 10 P.3d 1156 at 1161 (Alaska 2000); see also Josh L. v. State of Alaska, 276 P.3d 457 (Alaska 2012); David S. v. State of Alaska, 270 P.3d 767 (Alaska 2012); John Doe v. State of Alaska, 272
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P.3d 1014 (Alaska, 2012); Thomas H. v. State of Alaska, 184 P.3d 9 (Alaska 2008), which holds that a parent’s frequent incarceration and long-term drug and alcohol problems rendered active efforts difficult; and Wendell C., II v. Alaska 118 P.3d 1 (Alaska 2005), which holds that a father’s proposed but rejected plan that would have removed the requirement of abstinence from alcohol was not a basis to find that active efforts had not been made; the father admitted that the children needed sober parents and had been harmed by his alcoholism. See also Interest of D.G., 2004 SD 54, 679 N.W. 2d 497 (S.D. 2004), which states that a parent’s incarceration is a “major limiting factor” in rehabilitation and reunification.
289 A.A. v. Alaska, 10 P.3d 1156 at 1161 (Alaska 2000).
290 A.A. v. Alaska, 10 P.3d 1156 at 1161 (Alaska 2000).
291 A.A. v. Alaska, 10 P.3d 1156 at 1161 (Alaska 2000).
292 A.A. v. Alaska, 10 P.3d 1156 (Alaska 2000); see also Matter of J.W., 921 P.2d 604 (Alaska 1996).
293 J.S. v. Alaska, 50 P.3d 388 at 392 (Alaska, 2002). See also Wilson W. v. State of Alaska, 180 P.3d 94 (Alaska 2008), in which a violent father flatly refused services, then sought to claim that active efforts had not been made. The court found that active efforts were made and were sufficient to support termination, but indicated in discussion that services would not be required in cases in which violence was threatened against social services.
294 Matter of T.H., M.B. and J.M.B., 2005 Ok. Civ. App. 5, 105 P.3d 354 (Okl. App. 2005).
295 Matter of T.H., M.B. and J.M.B., 2005 Ok. Civ. App. 5, 105 P.3d 354 at 357 (Okl. App. 2005).
296 Matter of T.H., M.B. and J.M.B., 2005 Ok. Civ. App. 5, 105 P.3d 354 at 358 (Okl. App. 2005).
297 Id.
298 Interest of K.D., 155 P.3d 634 (Colo. App. 2007); see also Adoption of Hannah S., 48 Cal. Rptr. 3d 612 (Cal. App. 4th 2006).
299 In Re JL, 770 N.W.2d 853 (Mich. 2009).
300 In Re K.B., 93 Cal Rptr. 3d 751 at 763 (Cal. App. 4th 2009).
301 In Re S.H., 129 Cal. Rptr. 3d 796 (Cal. App. 1st 2011).
302 New Mexico v. Arthur C., 251 P.3d -729, 2011 -NMCA- 022 (N.m. App. 2011).
303 In the Interest of C.D., A.D., J.T. and S.T., 2008 UT 47 at Para. 26-28, 200 P.3d 194, Utah App. 2008).
304 In the Interest of C.D., A.D., J.T. and S.T., 2008 UT 47 at Para. 6-38, 200 P.3d 194, Utah App.
101
2008).
305 Sandy B. v. State of Alaska, 216 P.3d 1180 (Alaska 2009).
306 In Re Brandon T., 80 Cal. Rptr. 3d 287 (Cal. App. 3rd 2008); See also Letitia V. v. Superior Court of Orange County, 81 Cal. App. 4th 1009, 97 Cal. Rptr. 2d 303 (Cal. 4th App. 2000).
307 In Re Brandon T., 80 Cal. Rptr. 3d 287 at 299 (Cal. App. 3rd 2008).
308 In Re Brandon T., 80 Cal. Rptr. 3d 287 at 299 (Cal. App. 3rd 2008).
309 Interest of J.S.B., Jr., 2005 SD 3, 691 N.W.2d 611 (S.D. 2005).
310 Interest of J.S.B., Jr., 2005 SD 3 at P21, 691 N.W.2d 611 (S.D. 2005).
311 Id.
312 Interest of J.S.B., Jr., 2005 SD 3 at footnote 7, 691 N.W.2d 611 (S.D. 2005), citing Title IV-E Foster Care Eligibility Reviews and Child and Family Services State Plan Reviews, 65 Fed Reg 4020 at 4029 (Jan. 25, 2000).
See Also In Re JL, 770 N.W.2d 853 (Mich. 2009), which states: “Because the ICWA establishes minimum Federal standards for the removal of Indian children from their families, and nothing in the ASFA indicates a congressional intent to supersede the ICWA, neither the ASFA nor its state law analogues relieve the DHS from the ICWA's “active efforts” requirement, or from the burden of establishing beyond a reasonable doubt “that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” [citations omitted]
313 Interest of J.S.B., Jr., 2005 SD 3 at P. 21, 691 N.W.2d 611 (S.D. 2005).
314 Interest of J.S.B., Jr., 2005 SD 3 at P 21, 691 N.W.2d 611 (S.D. 2005), citing Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 105 S.Ct. 2399, 85 L.Ed. 2d 753 (1985). A similar case is Interest of J.I.H. and J.I.H., 2009 SD 52, 768 N.W.2d 168 (S.D. 2009), in which the Supreme Court found that the lower court had failed to demonstrate that active efforts had failed; there, the decision noted that the father had shown improvement in his relationship with the children, even though he was in jail at the time.
315 Interest of D.B., III, 670 N.W.2d 67 (S.D. 2003).
316 Interest of D.B., III, 670 N.W.2d 67 at 73 (S.D. 2003).
317 Matter of A.N. and M.N., 2005 MT 19, 106 P.3d 556 (Montana 2005).
318 Interest of Jamyia M., 791 N.W.2d 343 (Neb. App. 2010); Interest of Walter W., 744 N.W.2d 55 (Neb. 2008); See also In Re D.D., Jr., S.D., and C.D., 897 N.E. 2d 917 (Ill. App. 2008).
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319 Interest of Jamyia M., 791 N.W.2d 343 (Neb. App. 2010), quoting Interest of Walter W., 744 N.W.2d 55 at 60 (Neb. 2008).
320 Interest of Jamyia M., 791 N.W.2d 343 at 351 (Neb. App. 2010).
321 Yvonne L. v. Arizona Department of Economic Security, 258 P.3d 233 at Para. 34 (Ariz. App. 2011).
322 Yvonne L. v. Arizona Department of Economic Security, 258 P.3d 233 at Para. 34 (Ariz. App. 2011).
323 In the Interest of K.P. and K.P., 2012 OK CIV APP 32, 275 P.3d 161 (Okl. App. 2012); Matter of J.S. and M.C., 2008 OK CIV APP 15, 177 P.3d 590 (Okl. App. 2008).
324 Matter of J.S. and M.C., 2008 OK CIV APP 15, 177 P.3d 590 (Okl. App. 2008). See also In the Interest of K.P. and K.P., 2012 OK CIV APP 32, 275 P.3d 161 (Okl. App. 2012); Winston J. v. State of Alaska, 134 P.3d 343 (Alaska 2006); Interest of J.S.B., Jr., 2005 SD 3, 691 N.W.2d 611 (S.D. 2005); and Matter of H.J., 149 P.3d 1073 (Okl. Civ. App. 2006). Other courts have the same level of review in state law, which may be termed “reasonable efforts” but fulfills the requirements of “active efforts.” Matter of the Welfare of the Children of S.W., M.M., and J.A., 727 N.W.2d 144 (Minn. App. 2007); Matter of A.N. and M.N., 2005 MT 19, 106 P.3d 556 (Montana 2005); and Interest of Dakota L., 14 Neb.App. 559 (Neb. App. 2006).
However, some courts have found the two terms should be synonymous. See Adoption of Hannah S., 48 Cal Rptr. 3d 605 (Cal. App. 4th 2005); Interest of K.D., 155 P.3d 634 (Colo. App. 2007); and Long v. Alabama, 527 So.2d 133 (Ala. Civ. App. 1988). Others have recognized the dispute, but not ruled either way. See In Re Nicole B. and Max B., 976 A.2d 1039 (Maryland App. 2009).
In all situations, no matter how the Courts choose to characterize or name the efforts, they are federally required to have the underlying actions be “active.” Actions are more important that labels. In Re Nicole B. and Max B., 976 A.2d 1039 (Maryland App. 2009).
325 Interest of P.S.E., 2012 S.D. 49, 816 N.W.2d 110 (S.D. 2012). See also Matter of K.B. and T.B., 2013 MT 133, 301 P.3d 836 (Mont. 2013).
326 Danielle A. v. State of Alaska, 215 P.3d 349 (Alaska 2009).
327 Danielle A. v. State of Alaska, 215 P.3d 349 at 355 (Alaska 2009). But see Interest of P.S.E., 2012 S.D. 49, 816 N.W.2d 110 (S.D. 2012), which holds that specific findings will not be required as long as the court’s actions clearly demonstrate active efforts.
328 Matter of J.S.B., 214 P.3d 827 (Or. App. 2009), citing the language of 25 U.S.C. §§ 1901 and 1902 as guides.
329 Matter of J.S.B., 214 P.3d 827 at 832 - 833 (Or. App. 2009).
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330 People in Interest of S.R., 323 N.W.2d 885 (S.D. 1982). See also In Re M.S., 674 N.W.2d 678, 2002 ND 78 (N.D. 2001), in which North Dakota held that social services were not required to provide services that “can only be destined for failure.” This line of cases balances the facts of the case with the level of services required, which makes a uniform rule impossible to establish. See also In Re William G., 107 Cal.Rptr.2d 436 (Cal App. 3rd 2001).
331 Several states have recognized that incarceration raises significant issues in the delivery of active efforts, but have held that services will necessarily be adjusted to circumstances to determine if the efforts were sufficient. See Josh L. v. State of Alaska, 276 P.3d 457 (Alaska 2012); Idaho Dept. of Health and Welfare v. Doe, 275 P.3d 23 (Idaho App. 2012); Interest of D.G., 2004 SD 54, 679 N.W. 2d 497 (S.D. 2004); In Re Cari B., 763 N.E.2d 917 (Ill. 2002); A.A. v. Alaska, 982 P.2d 256 (Alaska 1999).
332 Idaho Dept. of Health and Welfare v. Doe, 275 P.3d 23 (Idaho App. 2012).
333 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2562, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
334 In Re. A.A., 84 Cal. Rptr. 3d 841 at 863 (Cal. App. 5th 2008).
335 Josh L. v. State of Alaska, 276 P.3d 457 (Alaska 2012); David S. v. State of Alaska, 270 P.3d 767 (Alaska 2012).
336 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2562, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
337 Interest of C.A.V., 787 N.W.2d 96 (Iowa App. 2010).
338 Adoption of Hannah S., 48 Cal. Rptr. 3d 605 (Cal. App. 3rd 2006).
339 In Re K.B., 93 Cal Rptr. 3d 751 (Cal. App. 4th 2009); Matter of G.S., Jr. and S.S., 2002 MT 245, 59 P.3d 1063 (Montana 2002).
340 In Re K.B., 93 Cal Rptr. 3d 751 at 761 (Cal. App. 4th 2009). This is one step short of a heinous and shocking exception to general active efforts, as discussed earlier.
341 Matter of G.S., Jr. and S.S., 2002 MT 245, 59 P.3d 1063 (Montana 2002).
342 Matter of G.S., Jr. and S.S., 2002 MT 245, 59 P.3d 1063 at 1071 (Montana 2002); see also Matter of A.N. and M.N., 2005 MT 19, 106 P.3d 556 (Montana 2005).
343 In Re M.P.M. and A.R.M., 976 P.2d 988 (Montana 1999).
344 In Re M.P.M. and A.R.M., 976 P.2d 988 (Montana 1999).
345 In the Matter of Esther V., 248 P.3d 863, 2011 -NMSC- 005 (N.M. 2011).
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346 Matter of Dougherty, 590 N.W.2d 772 (Mich. App. 1999).
347 590 N.W.2d 772 at 775.
348 Doty-Jabbaar v. Dallas County Child Protective Services, 19 S.W. 3d 870 (Tx. 2000); Matter of M.S.S., 465 N.W.2d 412 (Minn. App. 1991).
349 Doty-Jabbaar v. Dallas County Child Protective Services, 19 S.W. 3d 870 (Tx. 2000); Matter of M.S.S., 465 N.W.2d 412 (Minn. App. 1991).
350 Matter of Appeal in Pima County, 635 P.2d 187 (Ariz. App. 1981), cert den. 455 U.S. 1007 (1982).
351 Matter of Appeal in Pima County, 635 P.2d 187 (Ariz. App. 1981), cert den. 455 U.S. 1007 (1982).
352 Guardianship of L.N.P., 2013 WY 20, 294 P.3d 904 (Wyo. 2013); In Re Barbara R., 40 Cal. Rptr. 3d 687 (Cal. App. 4th 2006); In Re Mahaney, 20 P.3d 437 (Wash. App. 2001); New York Dept. of Social Services on Behalf of Oscar C., Jr., v. Oscar C., N.Y.S. 2d 957 N.Y.A.D. 2 Dept. 1993); People in Interest of S.R., 323 N.W.2d 885 (S.D. 1982).
353 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2562, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
354 Matter of J.W., 742 P.2d 1171 (Okl. App. 1987); In re Interest of Phoebe S. and Rebekah S., 664 N.W.2d 470 (Neb. App. 2003). But See Interest of Emma J. 782 N.W.2d 330 (Neb. App. 2010), which holds that the burden of proof in an adjudicatory proceeding in Nebraska is a preponderance of evidence.
355 Steven H. and Tammy H. v. Arizona Department of Economic Security, 190 P.3d 180 (Ariz. 2008).
356 Matter of A.S. and T.S., 2011 MT 69, 253 P.3d 799 (Montana 2011).
357 In Re Mahaney, 20 P.3d 437 at 440-441 (Wash. App. 2001).
358 In Re Mahaney, 20 P.3d 437 at 441-444 (Wash. App. 2001). In fact, the Trial Court had commended the mother on her progress. The Appeals Court was also critical of the expert witness for the petitioner, in that they lacked any specialized cultural knowledge and did not examine the issue of whether reunification created a danger to the children.
359 In Re Mahaney, 51 P.3d 776 (Wash. 2002), dissent at 899.
360 In Re Mahaney, 51 P.3d 776 (Wash. 2002).
361 In Re Mahaney, 51 P.3d 776 at 784 (Wash. 2002).
362 The Fourth District Appeals Court of California has held that the determination of parental unfitness must be done prior to or at termination; finding that termination is the result of a “multi-step
105 review process,” there is no requirement to repeat the 25 U.S.C § 1912 (d) finding once it has been made in a proceeding. At termination, however, there must be a determination that the basis for termination remains valid. In Re Barbara R., 40 Cal. Rptr. 3d 687 (Cal. App. 4th 2006); In Re Matthew Z., 80 Cal. App.4th 545, 95 Cal.Rptr.2d 343 (Cal. Ct. App. 4th 2000).
363 Steven H. v. Arizona Dept. of Economic Security, 173 P.3d 470 (Ariz. App. 2008); Matter of Byrd, 150 P.3d 439 (Or. App. 2006); Matter of T.L. and L.N., 2003 OK CIV APP 49, 71 P.3d 43 (Okl. App. 2003);A.J. v. Alaska, 62 P.3d 609 (Alaska 2003); V.S.B. v. Alaska, 45 P.3d 1198 (Alaska 2002); Matter of A.L.R., A.A.R., and T.C.R., 2002 MT 183, 54 P.3d 17 (Mont. 2002); Alaska v. M.L.L., 61 P.3d 438 (Alaska 2002); In the Interest of F.M., S.M., D.M. and C.M., 2002 UT 340, 57 P.3d 1130 (Utah App. 2002); Matter of M.D.M., 2002 MT 305, 59 P.3d 1142 (Montana 2002). In Re W.D.H., 43 S.W.3d 30 (Tx. App. 2001), Matter of Adoption of H.M.O., 962 P.2d 1191 (Montana 1998); E.M. v. Alaska, 959 P.2d 766 (Alaska 1998); In the Interest of A.P., 961 P.2d 706 (Kan. App. 1998); In the Interest of R.L., 961 P.2d 606 (Colo. App. 1998). In the Interest of B.S., a/k/a B.A.M., 566 N.W.2d 446 (S.D. 1997); Social Services v. Boyd, 554 N.W.2d 232 (Mich. App. 1996); Matter of Baby Boy Doe, 902 P.2d 477 (Idaho 1995); People in Interest of A.R.P., 519 N.W.2d 56 (S.D. 1994); K.N. v. State, 856 P.2d 468 (Alaska 1993); In Re Interest of D.S.P., 480 N.W.2d 234 (Wis. 1992); C.E.H. v. L.M.W., 837 S.W.2d 947 (Mo. App. W.D. 1992); Matter of Bluebird, 411 S.E.2d 820 (N.C. App. 1992); In re Interest of C.W., 479 N.W.2d 105 (Neb. 1992); Matter of N.S., 474 N.W.2d 96 (S.D. 1991); Matter of D.S., 577 N.E.2d 572 (Ind. 1991); In re Interest of J.L.M., 451 N.W.2d 377 (Neb. 1990); People in Interest of J.J., 454 N.W.2d 317 (S.D. 1990); Matter of S.D., 402 N.W.2d 346 (S.D. 1987); Matter of B.R.B., 381 N.W.2d 283 (S.D. 1986); Matter of J.R.B., 715 P.2d 1170 (Alaska 1986); D.W.H. v. Cabinet for Human Resources, 706 S.W.2d 840 (Ky. App. 1986); People in Interest of P.B., 371 N.W.2d 366 (S.D. 1985); People in Interest of C.A.J., 709 P.2d 604 (Colo. 1985); D.E.D. v. State, 704 P.2d 774 (Alaska 1985); Matter of Morgan, 364 N.W.2d 754 (Mich. App. 1985); Matter of R.M.B., 689 P.2d 281 (Mont. 1984); People in Interest of S.R., 323 N.W.2d 885 (S.D. 1982); Matter of J.L.H., 316 N.W.2d 650 (S.D. 1982); Matter of R.M.M., 316 N.W.2d 538 (Minn. 1982); Matter of K.A.B.E., 325 N.W.2d 840 (S.D. 1982); People in Interest of S.R., 323 N.W.2d 885 (S.D. 1982); Matter of J.L.H., 299 N.W.2d 812 (S.D. 1980); Matter of J.R.B., 715 P.2d 1170 (Alaska 1986).
364 In Re The Termination of Parental Rights to Vaughn R., 2009 WI App 109, 770 N.W.2d 795 (Wis. App. 2009).
365 In re Interest of Phoebe S. and Rebekah S., 664 N.W.2d 470 (Neb. App. 2003). But see In Re G.F., 2007 VT 11, 923 A.2d 578 (Vt. 2007), which holds harmless the failure to follow the ICWA in light of overwhelming proof of parental unfitness. The court found harmless error beyond a reasonable doubt in that had the Act been followed, the same result would have occurred.
See also In Re Enrique P., 709 N.W. 2d 676 (Neb. App. 2006), which holds that a court on appeal can review the lower court record to determine if the burdens have been met. Even if the lower court fails to specify or follow those requirements, the appeals court reviews de novo and can decide that the evidence is such that the burden could have been met.
The standard of review on appeal will generally be for abuse of discretion or clear error for factual issues, de novo for legal ones. See Interest of P.E.M., 734 N.W. 2d 487Iowa App. 2007); Cutright v. State, 244 S.W.3d 702, 97 Ark. App. 70 (Ark. App. 2006); Matter of the Adoption of B.G.J., 133 P.3d 1
106
(Kan. 2006); Matter of the Adoption of B.G.J., 111 P.3d 651 (Kan. App. 2005); Adoption of Sara J., 123 P.3d 1017 (Alaska 2005); Matter of M.R.G., 2004 MT 172 (Montana 2004); Matter of S.R., R.R., and G.R., Jr., 2004 MT 227, 97 P.3d 559 (Montana 2004); Interest of T.F. and T.F., 2004 ND 126, 681 N.W. 2d 786 (N.D. 2004).
366 Stephens v. Arkansas Dept. of Human Services, --- S.W.3d ---, 2013 Ark. App. 249 (Ark. App. 2013); In Re T.C., S.C. and H.C., 2009 PA Super 222, 984 A.2d 549 (Pa. Sup. 2009); Matter of Byrd, 150 P.3d 439 (Or. App. 2006); A.J. v. Alaska, 62 P.3d 609 (Alaska 2003); V.S.B. v. Alaska, 45 P.3d 1198 (Alaska 2002); Matter of A.L.R., A.A.R., and T.C.R., 2002 MT 183, 54 P.3d 17 (Mont. 2002); Alaska v. M.L.L., 61 P.3d 438 (Alaska 2002); In the Interest of F.M., S.M., D.M. and C.M., 2002 UT 340, 57 P.3d 1130 (Utah App. 2002); Matter of M.D.M., 2002 MT 305, 59 P.3d 1142 (Montana 2002). In Re W.D.H., 43 S.W.3d 30 (Tx. App. 2001), Matter of Adoption of H.M.O., 962 P.2d 1191 (Montana 1998); E.M. v. Alaska, 959 P.2d 766 (Alaska 1998); In the Interest of A.P., 961 P.2d 706 (Kan. App. 1998); In the Interest of R.L., 961 P.2d 606 (Colo. App. 1998). In the Interest of B.S., a/k/a B.A.M., 566 N.W.2d 446 (S.D. 1997); Social Services v. Boyd, 554 N.W.2d 232 (Mich. App. 1996); Matter of Baby Boy Doe, 902 P.2d 477 (Idaho 1995); People in Interest of A.R.P., 519 N.W.2d 56 (S.D. 1994); K.N. v. State, 856 P.2d 468 (Alaska 1993); In Re Interest of D.S.P., 480 N.W.2d 234 (Wis. 1992); C.E.H. v. L.M.W., 837 S.W.2d 947 (Mo. App. W.D. 1992); Matter of Bluebird, 411 S.E.2d 820 (N.C. App. 1992); In re Interest of C.W., 479 N.W.2d 105 (Neb. 1992); Matter of N.S., 474 N.W.2d 96 (S.D. 1991); Matter of D.S., 577 N.E.2d 572 (Ind. 1991); In re Interest of J.L.M., 451 N.W.2d 377 (Neb. 1990); People in Interest of J.J., 454 N.W.2d 317 (S.D. 1990); Matter of S.D., 402 N.W.2d 346 (S.D. 1987); Matter of B.R.B., 381 N.W.2d 283 (S.D. 1986); Matter of J.R.B., 715 P.2d 1170 (Alaska 1986); D.W.H. v. Cabinet for Human Resources, 706 S.W.2d 840 (Ky. App. 1986); People in Interest of P.B., 371 N.W.2d 366 (S.D. 1985); People in Interest of C.A.J., 709 P.2d 604 (Colo. 1985); D.E.D. v. State, 704 P.2d 774 (Alaska 1985); Matter of Morgan, 364 N.W.2d 754 (Mich. App. 1985); Matter of R.M.B., 689 P.2d 281 (Mont. 1984); People in Interest of S.R., 323 N.W.2d 885 (S.D. 1982); Matter of J.L.H., 316 N.W.2d 650 (S.D. 1982); Matter of R.M.M., 316 N.W.2d 538 (Minn. 1982); Matter of K.A.B.E., 325 N.W.2d 840 (S.D. 1982); People in Interest of S.R., 323 N.W.2d 885 (S.D. 1982); Matter of J.L.H., 299 N.W.2d 812 (S.D. 1980); Matter of J.R.B., 715 P.2d 1170 (Alaska 1986).
367 Id. See particularly Matter of Adoption of H.M.O., 962 P.2d 1191 (Montana 1998); E.M. v. Alaska, 959 P.2d 766 (Alaska 1998); In the Interest of B.S., a/k/a B.A.M., 566 N.W.2d 446 (S.D. 1997) and Matter of J.R.B. and T.W.G., 715 P.2d 1170 (Alaska 1986).
368 Matter of Adoption of H.M.O., 962 P.2d 1191 (Montana 1998); E.M. v. Alaska, 959 P.2d 766 (Alaska 1998); In the Interest of B.S., a/k/a B.A.M., 566 N.W.2d 446 (S.D. 1997) and Matter of J.R.B. and T.W.G., 715 P.2d 1170 (Alaska 1986).
369 Matter of M.R.G., 2004 MT 172, 97 P.3d 1085 (Montana 2004).
370 Allen v. Arkansas Dept. of Human Services, 2010 Ark. App. 608 (Ark. App. 2010).
371 Matter of I.F.A. and V.M.T., 2012 OK CIV APP 60, 278 P.3d 1067 (Okl. App. 2012).
372 In Re Welfare of L.N.B.-L., 237 P.3d 944 (Wash. App. 2010); In Re The Termination of Parental Rights to Vaughn R., 2009 WI App 109, 770 N.W.2d 795 (Wis. App. 2009).In Re D.D., Jr., S.D., and C.D.,
107
897 N.E. 2d 917 (Ill. App. 2008); Welfare of the Children of S.W., M.M. and J.A., 727 N.W. 3d 144 (Minn. App. 2007); Interest of D.G., 2004 SD 54, 679 N.W. 2d 497 (S.D. 2004); Matter of M.R.G., 2003 MT 60, 66 P.3d 312 (Mont. 2003), State v. Amador, 30 P.3d 1223 (Or. App. 2001); Doty-Jabbaar v. Dallas County Child Protective Services, 19 S.W. 3d 870 (Tx. 2000); Matter of Adoption of H.M.O., 962 P.2d 1191 (Montana 1998); In re B.W., 454 N.W.2d 437 (Minn. App. 1990).
373 In Re Welfare of L.N.B.-L., 237 P.3d 944 (Wash. App. 2010); In Re Brandon T., 80 Cal. Rptr. 3d 287 (Cal. App. 3rd 2008); Interest of D.G., 2004 SD 54, 679 N.W. 2d 497 (S.D. 2004).
374 In Re D.D., Jr., S.D., and C.D., 897 N.E. 2d 917 (Ill. App. 2008); Welfare of the Children of S.W., M.M. and J.A., 727 N.W. 3d 144 (Minn. App. 2007); In the Interest of O.S., 2005 SD 86, 701 N.W. 3d 421 (S.D. 2005); In re Interest of Phoebe S. and Rebekah S., 664 N.W.2d 470 (Neb. App. 2003). State v. Amador, 30 P.3d 1223 (Or. App. 2001); Doty-Jabbaar v. Dallas County Child Protective Services, 19 S.W. 3d 870 (Tx. 2000); Juvenile Dept. of Multnomah County v. Charles, 688 P.2d 1354 (Or. App. 1984). But see Matter of K.S., D.S., and C.S., 2003 MT 212, 75 P.3d 325 (Montana 2003), which holds that specific tribal knowledge is not required as long as the expert has other qualifications.
375 Ben M. v. State of Alaska, 204 P.3d 1013 (Alaska 2009); In Re T.C., S.C. and H.C., 2009 PA Super 222, 984 A.2d 549 (Pa. Sup. 2009); and C.J. v. State, 18 P.3d 1214 (Alaska 2001).
376 Ben M. v. State of Alaska, 204 P.3d 1013 (Alaska 2009).
377 Matter of N.L., 754 P.2d 863 (Okl. 1988); see also J.J. v. State of Alaska, 38 P.3d 7 (Alaska 2001), which requires expert witnesses testifying about the family interaction of to have actually interviewed members of that family first.
378 Steven H. and Tammy H. v. Arizona Department of Economic Security, 190 P.3d 180 (Ariz. 2008).
379 Matter of K.B. and T.B., 2013 MT 133, 301 P.3d 836 (Mont. 2013).
380 Thea G. v. State of Alaska, 291 P.3d 957 (Alaska 2013); Brenda O. v. Arizona Department of Economic Security, 244 P.3d 574 (Ariz. App. 2010); In Re D.D., Jr., S.D., and C.D., 897 N.E. 2d 917 (Ill. App. 2008); Matter of M.J.J., J.P.L. and J.P.G., 2003 OK CIV APP 43 (Okl. App. 2003).
381 Interest of Ramon N., 789 N.W.2d 272 (Neb. App. 2010).
382 Interest of Ramon N., 789 N.W.2d 272 at 280 (Neb. App. 2010).
383 In Re T.C., S.C. and H.C., 2009 PA Super 222, 984 A.2d 549 (Pa. Sup. 2009); Matter of A.N. and M.N., 2005 MT 19, 106 P.3d 556 (Montana 2005).
384 Interest of D.S., 806 N.W.2d 458 (Iowa App. 2011).
385 Matter of Adoption of H.M.O., 962 P.2d 1191 (Montana 1998); Matter of D.S., 577 N.E.2d 572
108
(Ind. 1991).
386 Steven H. and Tammy H. v. Arizona Department of Economic Security, 190 P.3d 180 (Ariz. 2008).
387 Ben M. v. State of Alaska, 204 P.3d 1013 (Alaska 2009); Steven H. and Tammy H. v. Arizona Department of Economic Security, 190 P.3d 180 (Ariz. 2008).
388 In Re M.B., 107 Cal. Rptr. 3d 107 (Cal. App. 4th 2010).
389 In Re M.B., 107 Cal. Rptr. 3d 107 at 113 (Cal. App. 4th 2010).
390 In Re Jennifer A., 103 Cal.App.4th 692, 127 Cal.Rptr.2d 54 at 65 (Cal. App. 4th Dist. 2002), citing In Re Riva M., 235 Cal.App.3d 403, 286 Cal. Rptr. 592 (Cal.App. 4th Dist. 1991).
391 Id.
392 Matter of K.H. and K.L.E., 981 P.2d 1190, 1999 MT 128 (Montana 1999); Matter of Adoption of H.M.O., 962 P.2d 1191 (Montana 1998).
393 In Re J.B., 100 Cal. Rptr. 3d 679 (Cal. App. 5th 2009).
394 Christina J. v. State of Alaska, 254 P.3d 1095 (Alaska 2011); Sandy B. v. State of Alaska, 216 P.3d 1180 (Alaska 2009); Marcia V. v. State of Alaska, 201 P.3d 496 (Alaska 2009); Matter of M.C.M., J.K.M. and P.M.F., 2008 OK CIV APP 29, 180 P.3d 688 (Okl. App. 2008); Interest of K.D., 155 P.3d 634 (Colo. App. 2007); In Re M.S., 674 N.W.2d 678, 2002 ND 78 (N.D. 2001); Matter of Lucas, 33 P.3d 1001 (Oregon App. 2001); Burks v. Arkansas Dept. of Human Resources, 61 S.W.3d 184 (Ark. App. 2001); Interest of A.N.W., 976 P.2d 365 (Colo.App.1, 1999); Matter of Baby Boy Doe, 902 P.2d 477 (Idaho 1995); State ex rel. Children's Services Div. v. Campbell, 857 P.2d 888 (Or. App. 1993); In re Interest of C.W., 479 N.W.2d 105 (Neb. 1992); Matter of J.S., 828 P.2d 1252 (Ariz. 1991); Long v. State Department of Human Services, 527 So.2d 133 (Ala. Civ. App. 1988), Matter of N.L., 754 P.2d 863 (Okl. 1988); State ex rel Juv. Dept. v. Tucker, 710 P.2d 793 (Or. App. 1985).
395 Matter of M.C.M., J.K.M. and P.M.F., 2008 OK CIV APP 29, 180 P.3d 688 (Okl. App. 2008); Matter of T.L. and L.N., 2003 OK CIV APP 49 (Okl. App. 2003); Matter of M.D.R., 2002 OK CIV APP 75, 50 P.3d 1160 (Okl. App. 2002).
396 Id.
397 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2564, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
398 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
399 Mississippi Band of Choctaw Indians v.Holyfield, 109 S.Ct. 1597 at 1608 – 1609, 490 U.S. 30, 104 L.Ed.2d 29 (1989).
109
400 10 O.S. §§40.3 (B) and 40.4.
401 Catholic Social Services, Inc. v. C.A.A., 783 P.2d 1159 (Alaska 1989); see also Matter of Adoption of Baby Girl S., 690 N.Y.S. 2d 907 (NY Surrogate’s Ct. 1999). This issue also impacts on the question of intervention and transfer.
402 25 U.S.C. §1913 (a).
403 Adoption of Kenton H., 725 N.W.2d 548 (Neb. 2007).
404 Matter of Baby Boy Doe, 902 P.2d 477 (Idaho 1995).
405 It should be noted that while the Adoptive Couple majority opinion claims the father gave up his parental rights, once by text message and once by subterfuge, no consent under section 1913 was done. Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2556, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
406 Empson-LaViolette v. Crago, 760 N.W. 2d 793 (Mich. App. 2008).
407 Empson-LaViolette v. Crago, 760 N.W. 2d 793 (Mich. App. 2008); B.R.T. v. Exec. Director of Social Service Board of N.D., 391 N.E. 2d 594 (N.D. 1986); In Re Adoption of K.L.R.F., 515 A.2d 33 (Pa. Sup. 1986); A.B.M. v. M.H. and A.H., 651 P.2d 1170 (Alaska 1982).
408 25 U.S.C. § 1913 (b); see also In Re Adoption of K.L.R.F., 515 A.2d 33 (Pa. Sup. 1986).
409 Matter of the Welfare of the Child of E.A.C., 812 N.W.2d 165 (Minn. App. 2012).
410 In re Adoption of K.L.R.F., 515 A.2d 33 (Pa. Super. 1986).
411 Phillips A.C. II v. Central Council of the Tlingit and Haida Tribes of Alaska, 149 P.3d 51 (Nev. 2006).
412 25 U.S.C. § 1913 (c).
413 25 U.S.C. § 1913 (c); see also A.B.M. v. M.H. and A.H., 651 P.2d 1170 (Alaska 1982).
414 Harvick v. Harvick, 828 P.2d 769 (Alaska 1992); Matter of C.E.H., 837 S.W.2d 947 (Mo. App. 1992); but see A.B.M. v. M.H. and A.H., 651 P.2d 1170 (Alaska 1982).
415 In Re Dependency of M.D., 42 P.3d 424 (Washington App. 1, 2002), Matter of Kiogima, 472 N.W.2d 13 (Mich. App. 1991); B.R.T. v. Executive Director Of Social Service Board, 391 N.W.2d 594 (N.D. 1986); Matter of J.R.S., 690 P.2d 10 (Alaska 1984).
416 Interest of Nery V., 832 N.W.2d 909 (Neb. App. 2013); In Re Dependency of M.D., 42 P.3d 424 (Washington App. 1, 2002), Matter of Kiogima, 472 N.W.2d 13 (Mich. App. 1991); B.R.T. v. Executive Director Of Social Service Board, 391 N.W.2d 594 (N.D. 1986); Matter of J.R.S., 690 P.2d 10 (Alaska 1984);
110
Matter of Appeal in Pima County, 635 P.2d 187 (Ariz. App. 1981).
417 Interest of Nery V., 832 N.W.2d 909 (Neb. App. 2013).
418 Doe v. Hughes, Thorsness, Gantz, Powell and Brundin, 838 P.2d 804 (Alaska 1992).
419 Adoption of Kenton H., 725 N.W.2d 548 (Neb. 2007). However, as with all provisions of the ICWA, the state may extend this time limit beyond the federal two years.
420 V.J.l. v. RED and DDD, 2002 WY 25, 39 P.3d 1110 (Wy. 2002), examines a case in which a biological mother sought to increase visitation under an open adoption agreement. The case recognizes the underlying issues of the Indian child, but finds that the mother failed to present sufficient authority to justify the appeal. As such, the ICWA was not addressed, but simply lurked around the edges. Would the ICWA apply to a parent seeking to extend visitation to an Indian child nine years after the adoption?
421 Adoption of Erin G., 140 P.3d 886 (Alaska 2006); Matter of Adoption of T.N.F., 781 P.2d 973 (Alaska 1989), cert. den. 110 S.Ct. 1480.
422 Holyfield at 109 S.Ct. 1605 - 1607: “First, and most fundamentally, the purpose of the ICWA gives no reason to believe that Congress intended to rely on state law for the definition of a critical term; quite the contrary. It is clear from the very text of the ICWA, not to mention its legislative history and the hearings that led to its enactment, that Congress was concerned with the rights of Indian families and Indian communities vis-à-vis state authorities.”
This standard is still correct, except for unwed noncustodial fathers in private actions. Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
423 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2562, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
424 In the Matter of Esther V., 248 P.3d 863, 2011 -NMSC- 005 (N.M. 2011); Matter of J.M., 2009 MT 332, 218 P.3d 1215 (Montana 2009); In Re Welfare of M.G., 201 P.3d 354 (Wash. App. 2009).
425 In the Matter of Esther V., 248 P.3d 863, 2011 -NMSC- 005 (N.M. 2011); Matter of J.M., 2009 MT 332, 218 P.3d 1215 (Montana 2009); In Re Welfare of M.G., 201 P.3d 354 (Wash. App. 2009).
426 In the Matter of Esther V., 248 P.3d 863, 2011 -NMSC- 005 (N.M. 2011); Matter of J.M., 2009 MT 332, 218 P.3d 1215 (Montana 2009); In Re Welfare of M.G., 201 P.3d 354 (Wash. App. 2009).
427 Matter of Adoption of Baby Boy A., 2010 OK 39, 236 P.3d 116 (Okl. 2010).
428 Matter of Adoption of Baby Boy A., 2010 OK 39 at Para. 41-43, 236 P.3d 116 (Okl. 2010).
429 Matter of Adoption of Baby Boy A., 2010 OK 39 at Para. 21, 236 P.3d 116 (Okl. 2010).
430 Matter of Adoption of Baby Boy A., 2010 OK 39 at Para. 49, 236 P.3d 116 (Okl. 2010).
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431 Matter of Adoption of Baby Boy A., 2010 OK 39, 236 P.3d 116 (Okl. 2010).
432 Matter of Adoption of Baby Boy A., 2010 OK 39 at Para. 41-43, 236 P.3d 116 (Okl. 2010).
433 Matter of Adoption of Baby Boy A., 2010 OK 39 at Para. 21, 236 P.3d 116 (Okl. 2010).
434 Matter of Adoption of Baby Boy A., 2010 OK 39 at Para. 49, 236 P.3d 116 (Okl. 2010).
435 Mississippi Band of Choctaw Indians v. Holyfield, 109 S.Ct. 1597 (U.S. Supreme Court 1989); Josh L. v. State of Alaska, 276 P.3d 457 (Alaska 2012).
Oklahoma Indian Child Welfare Act: 10 §40.6. Placement preferences
The placement preferences specified in 25 U.S.C. Section 1915, shall apply to all preadjudicatory placements, as well as preadoptive, adoptive and foster care placements. In all placements of an Indian child by the Oklahoma Department of Human Services (DHS), or by any person or other placement agency, DHS, the person or placement agency shall utilize to the maximum extent possible the services of the Indian tribe of the child in securing placement consistent with the provisions of the Oklahoma Indian Child Welfare Act. This requirement shall include cases where a consenting parent evidences a desire for anonymity in the consent document executed pursuant to Section 60.5 of this title. If a request for anonymity is included in a parental consent document, the court shall give weight to such desire in applying the preferences only after notice is given to the child's tribe and the tribe is afforded twenty (20) days to intervene and request a hearing on available tribal placement resources which may protect parental confidentiality, provided that notice of such hearing shall be given to the consenting parent.
436 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2564, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
437 Native Village of Tununak v. State of Alaska, 303 P.3d 431 (Alaska 2013).
438 Roy S. v. State of Alaska, 278 P3d 886 (Alaska 2012); Josh L. v. State of Alaska, 276 P.3d 457 (Alaska 2012); David S. v. State of Alaska, 270 P.3d 767 (Alaska 2012); John Doe v. State of Alaska, 272 P.3d 1014 (Alaska 2012).
439 Roy S. v. State of Alaska, 278 P3d 886 (Alaska 2012); Josh L. v. State of Alaska, 276 P.3d 457 (Alaska 2012); David S. v. State of Alaska, 270 P.3d 767 (Alaska 2012); John Doe v. State of Alaska, 272 P.3d 1014 (Alaska 2012).
440 25 U.S.C. § 1915 (a); Matter of J.C.T., 176 P.3d 726 (Colo. 2007).
441 In Re Anthony T., 146 Cal.Rptr.3d124 (Cal. App. 4th 2012). 442 25 U.S.C. § 1915 (b).
443 In Re Anthony T., 146 Cal.Rptr.3d124 (Cal. App. 4th 2012).
444 In Re Anthony T., 146 Cal.Rptr.3d124 (Cal. App. 4th 2012).
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445 In the Interest of C.D., A.D., J.T. and S.T., 2008 UT 47 at Para. 46 - 49, 200 P.3d 194, Utah App. 2008).
446 In the Interest of C.D., A.D., J.T. and S.T., 2008 UT 47 at Para. 46 - 49, 200 P.3d 194, Utah App. 2008).
447 In Re Anthony T., 146 Cal.Rptr.3d124 (Cal. App. 4th 2012); Navajo Nation v. Arizona Department of Economic Security, 284 P.3d 29 (Ariz. App. 2012); Matter of J.C.T., 176 P.3d 726 (Colo. 2007); Carson P., et al., v. Heineman, et al., 240 F.R.D. 456 (D. Neb. 2007); Matter of the Adoption of B.G.J., 111 P.3d 651 (Kan. 2005); In the Interest of A.E., J.E., S.E., and X.E., 572 N.W.2d 579 (Iowa 1997); Matter of Baby Boy Doe, 902 P.2d 477 (Idaho 1995).
448 In Re Anthony T., 146 Cal.Rptr.3d124 (Cal. App. 4th 2012); In the Interest of C.D., A.D., J.T. and S.T., 2008 UT 47 at Para. 26, 200 P.3d 194, Utah App. 2008).
449 In Re Anthony T., 146 Cal.Rptr.3d124 (Cal. App. 4th 2012); Navajo Nation v. Arizona Department of Economic Security, 284 P.3d 29 (Ariz. App. 2012); In Re N.M., 94 Cal Rptr. 3d 220 (Cal. App. 3rd 2009); Carson P., et al., v. Heineman, et al., 240 F.R.D. 456 (D. Neb. 2007); In Re Dependency of Z.F.S., 51 P.3d 170 (Wash. App. 1st Div. 2002); In the Interest of C.G.L. 63 S.W.3d 693 (Mo. App. Southern 2002); C.L. v. P.C.S., 17 P.3d 769 (Alaska 2001). In the Interest of A.E., J.E., S.E., and X.E., 572 N.W.2d 579 (Iowa 1997); In Re Brandon M., 54 Cal.App.4th 1387, 63 Cal. Rptr.2d 671 (Cal.App.4th 1997); Matter of Baby Boy Doe, 902 P.2d 477 (Idaho 1995); In the Interest of J.W., B.W., T.W., K.W.-H., and R.W.-H., 528 N.W. 2d 657 (Iowa App. 1995); Adoption of N.P.S., 868 P.2d 934 (Alaska 1994); Interest of C.W., M.W., K.W., and J.W., 479 N.W.2d 105 (Nebraska 1992); Chester County Department of Social Services v. Coleman, 399 S.E.2d 773 (S.C. 1990); Matter of Adoption of T.R.M., 525 N.E.2d 298 (Ind. 1988); In Re Robert T., 200 Cal. App. 3d 657, 246 Cal. Rptr. 168 (Cal. App. 1988); State Ex. Rel. Juv. Dept. of Lane County v. Tucker, 710 P.2d 793 (Oregon App. 1985); In Re Appeal In Maricopa County, 667 P.2d 228 (Ariz. App. 1983); Matter of Adoption of Baby Boy L., 643 P.2d 168 (Kansas 1982).
There is an interesting question as to whether a failure to follow the preferences is a punishable violation of law. In Navajo Nation v. Superior Court of the State of Washington for Yakima County, 47 F. Supp. 2d 1233 (E.D. Wash. 1999), a federal court ruled that the ICWA contained no remedy and thus no punishment was possible. The federal court in the Northern District of California approved this position in Doe v. Mann, 285 F. Supp. 2d 1229 (N.D. Cal. 2003).
450 In Re Dependency of Z.F.S., 51 P.3d 170 (Wash. App. 1st Div. 2002). See also Matter of D.W., 2011 S.D. 8, 795 N.W.2d 35 (S.D. 2011).
451 Matter of D.W., 2011 S.D. 8 at Para 22, 795 N.W.2d 35 (S.D. 2011); See also In Re Adoption of Baby Girl B., 2003 OK CIV APP 24, 67 P.3d 259 (Ok. Civ. App. 2003); In Re Custody of S.E.G., 507 N.W. 2d 872 (Minn. App. 1993).
452 Paula E. v. State of Alaska, 276 P.3d 457 (Alaska 2012).
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453 Interest of Enrique P., 813 N.W.2d 513 (Neb. App. 2012).
454 In Re M.H., 956 N.E.2d 510 (Ill. App. 2011).
455 Fresno County Department of Children and Family Services v. Superior Court, 19 Cal. Rptr. 3d 155 at 158 (Cal. App. 5th Dist. 2004); see also Matter of the Adoption of B.G.J., 111 P.3d 651 (Kan. 2005).
456 Id. See also B.G.J., which finds that deviation from the preferences would be reviewed for “substantial abuse of discretion.”
457 In Re. A.A., 84 Cal. Rptr. 3d 841 at 872 (Cal. App. 5th 2008).
458 In Re. A.A., 84 Cal. Rptr. 3d 841 at 872 (Cal. App. 5th 2008).
459 In Re. A.A., 84 Cal. Rptr. 3d 841 at 872 (Cal. App. 5th 2008).
460 In Re T.S., 96 Cal Rptr. 3d 706 (Cal. App. 3rd 2009).
461 In Re T.S., 96 Cal Rptr. 3d 706 at 712 (Cal. App. 3rd 2009); see also In Re N.M., 94 Cal Rptr. 3d 220 (Cal. App. 3rd 2009).
462 In Re K.B., 93 Cal Rptr. 3d 751 at 765 (Cal. App. 4th 2009).
463 Navajo Nation v. Arizona Department of Economic Security, 284 P.3d 29 (Ariz. App. 2012); Adoption of Baby Boy J., 944 N.Y.S.2d 871 (NY Sur. Ct. 2012); Interest of N.N.E., 752 N.W. 2d 1 (Iowa 2008); Carson P., et al., v. Heineman, et al., 240 F.R.D. 456 (D. Neb. 2007); In Re Dependency of Z.F.S., 51 P.3d 170 (Wash. App. 1st Div. 2002); In the Interest of C.G.L. 63 S.W.3d 693 (Mo. App. Southern 2002); C.L. v. P.C.S., 17 P.3d 769 (Alaska 2001). In the Interest of A.E., J.E., S.E., and X.E., 572 N.W.2d 579 (Iowa 1997); In Re Brandon M., 54 Cal.App.4th 1387, 63 Cal. Rptr.2d 671 (Cal.App.4th 1997); Matter of Baby Boy Doe, 902 P.2d 477 (Idaho 1995); In the Interest of J.W., B.W., T.W., K.W.-H., and R.W.-H., 528 N.W. 2d 657 (Iowa App. 1995); Adoption of N.P.S., 868 P.2d 934 (Alaska 1994); Interest of C.W., M.W., K.W., and J.W., 479 N.W.2d 105 (Nebraska 1992); Chester County Department of Social Services v. Coleman, 399 S.E.2d 773 (S.C. 1990); Matter of Adoption of T.R.M., 525 N.E.2d 298 (Ind. 1988); In Re Robert T., 200 Cal. App. 3d 657, 246 Cal. Rptr. 168 (Cal. App. 1988); State Ex. Rel. Juv. Dept. of Lane County v. Tucker, 710 P.2d 793 (Oregon App. 1985); In Re Appeal In Maricopa County, 667 P.2d 228 (Ariz. App. 1983); Matter of Adoption of Baby Boy L., 643 P.2d 168 (Kansas 1982).
See also Interest of C.W., M.W., K.W., and J.W., 479 N.W.2d 105 (Nebraska 1992), where the court found that the placement of the children in a non-Indian home by the mother constituted a factor in favor of avoiding the preferences. The court noted the length of time the children had been with the foster parents and found that this bonding was sufficient to justify avoidance of the placement preferences.
464 Matter of Adoption of Keith M.W., 79 P.3d 623 (Alaska 2003); see also Matter of Adoption of
114
Sara J., 123 P.3d 1017 (Alaska 2005).
465 Navajo Nation v. Arizona Department of Economic Security, 284 P.3d 29 (Ariz. App. 2012).
466 Navajo Nation v. Arizona Department of Economic Security, 284 P.3d 29 (Ariz. App. 2012).
467 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 at 2564, ___ U.S. ___, ___ L.Ed. 2d ___ (2013).
468 Adoption of N.P.S., 868 P.2d 934 (Alaska 1994).
469 In the Interest of J.W., B.W., T.W., K.W.-H., and R.W.-H., 528 N.W. 2d 657 (Iowa App. 1995). But see the later decision of In the Interest of A.E., J.E., S.E., and X.E., 572 N.W.2d 579 (Iowa 1997), which takes a more careful analysis of section 1915.
See also B.R.T. v. Exec. Director of Social Service Board of N.D., 391 N.E. 2d 594 (N.D. 1986).
470 In the Interest of A.E., J.E., S.E., and X.E., 572 N.W.2d 579 at 583 - 586 (Iowa 1997). It is interesting to note that the California courts have interpreted this decision as establishing the “Existing Indian Family” exception in Iowa. This court does no such thing and makes a specific finding that the children are Indian children under the ICWA. They merely express that placement on a reservation in another state is not required under the Act until and unless permanency placements are examined.
See also Interest of A.N.W., 976 P.2d 365 (Colo.App.1, 1999).
471 Matter of Adoption of Riffle, 922 P.2d 510 (Montana 1996); Matter of L.F. and D.F., 880 P.2d 1365, (Montana 1994); In re M.T.S., 489 N.W.2d 285 (Minn. App. 1992); Matter of M.S.S., 465 N.W.2d 412 (Minn. App. 1991); Matter of N.L., 754 P.2d 863 (Okl. 1988); In re Smith, 731 P.2d 1149 (Wash. App. 1987); Interest of J.R.H. and M.J.H., 358 N.W.2d 311 (Iowa 1984); In Re Bird Head, 331 N.W.2d 785 (Nebraska 1983).
472 In Re Jullian B., 82 Cal.App.4th 1337 at 1350, 99 Cal. Rptr.2d 241 (Cal. App. 3rd 2000).
473 Matter of C.H., 997 P.2d 776 (Montana 2000).
474 Matter of C.H., 997 P.2d 776 at 784 (Montana 2000).
475 Matter of M.B., E.B., and B.B., 2009 MT 97, 204 P.3d 1242 (Mont. 2009).
476 In re M.T.S., 489 N.W.2d 285 (Minn. App. 1992).
477 In re M.T.S., 489 N.W.2d 285 (Minn. App. 1992).
478 Matter of M.S.S., 465 N.W.2d 412 (Minn. App. 1991).
479 In Re Brandon M., 54 Cal.App.4th 1387, 63 Cal. Rptr.2d 671 (Cal.App.4th 1997).
115
480 Adoption of Hannah S., 48 Cal. Rptr. 3d 605 (Cal. App. 3rd 2006).
481 10 O.S. 40.6.
482 10 O.S. § 40.6. See also Matter of N.L., 754 P.2d 863 (Okl. 1988), in which a foster care placement is reversed due to a failure to consult with the tribes regarding their placement resources.
483 Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597 at 1600 - 1602, 104 L.Ed.2d 29 (1989). See also Matter of J.R.S., 690 P.2d 10 (Alaska 1984).
But see In Re Laura F., in which the California case refuses to apply a tribal standard in an adoption proceeding, finding that full faith and credit did not apply to legislative acts when a valid state interest was at stake. This “tipping point,” as described by Professor Judith Royster of the University of Tulsa, would seem to limit the effectiveness of § 1915 (c) and (d).
484 25 U.S.C. § 1915 (c).
485 25 U.S.C. § 1915 (d).
486 Matter of the Adoption of Bernard A., 77 P.3d 4 (Alaska 2003); C.L. v. P.C.S., 17 P.3d 769 (Alaska 2001).
487 25 U.S.C. § 1915 (e); 10 O.S. 40.9.
116 THE FEDERAL INDIAN CHILD WELFARE ACT
25 U.S.C. §1901. Congressional findings
Recognizing the special relationship between the United States and the Indian tribes and their members and the Federal responsibility to Indian people, the Congress finds --
(1) that clause 3, section 8, article I of the United States Constitution provides that "The Congress shall have Power To regulate Commerce with Indian tribes" and, through this and other constitutional authority, Congress has plenary power over Indian affairs;
(2) that Congress, through statutes, treaties, and the general course of dealing with Indian tribes, has assumed the responsibility for the protection and preservation of Indian tribes and their resources;
(3) that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members or are eligible for membership in an Indian tribe;
(4) that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and
(5) 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.
25 U.S.C. §1902. Congressional declaration of policy
The Congress hereby declares that it is the policy of this Nation to 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, and by providing for assistance to Indian tribes in the operation of child and family service programs.
25 U.S.C. §1903. Definitions
For the purposes of this chapter, except as may be specifically provided otherwise, the term-
(1) "child custody proceeding" shall mean and include -
(i) "foster care placement" which shall mean any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated;
(ii) "termination of parental rights" which shall mean any action resulting in the termination of the parent-child relationship;
(iii) "preadoptive placement" which shall mean the temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but prior to or in lieu of adoptive placement; and
(iv) "adoptive placement" which shall mean the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption.
Such term or terms shall not include a placement based upon an act which, if committed by an adult, would be deemed a crime or upon an award, in a divorce proceeding, of custody to one of the parents.
(2) "extended family member" shall be as defined by the law or custom of the Indian child's tribe or, in absence of such law or custom, shall be a person who has reached the age of eighteen and who is the Indian child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent;
(3) "Indian" means any person who is a member of an Indian tribe, or who is an Alaska Native and a member of a Regional Corporation as defined in section 1606 of Title 43;
(4) "Indian child” means any unmarried person who is under age of eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe;
(5) "Indian child's tribe" means (a) the Indian tribe in which an Indian child is a member or eligible for membership or (b), in the case of an Indian child who is eligible for membership in more than one tribe, the Indian tribe with which the Indian child has the more significant contacts;
(6) "Indian custodian" means any Indian person who has legal custody of an Indian child under tribal law or custom or under State law or to whom temporary physical care, custody, and control has been transferred by the parent of such child;
(7) "Indian organization" means any group, association, partnership, corporation, or other legal entity owned or controlled by Indians, or a majority of whose members are Indians;
(8) "Indian tribe" means any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary because of their status as Indians, including any Alaska Native village as defined in section 1602(c) of Title 43;
(9) "Parent” means any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include an unwed father where paternity has not been acknowledged or established;
(10) "Reservation" means Indian country as defined in section 1151 of Title 18 and any lands, not covered under such section, title to which is either held by the United States in trust for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to a restriction by the United States against alienation;
(11) "Secretary” means the Secretary of the Interior; and
(12) "Tribal court" means a court with jurisdiction over child custody proceedings and which is either a Court of Indian Offenses, a court established and operated under the code or custom of an Indian tribe, or any other administrative body of a tribe which is vested with authority over child custody proceedings.
SUBCHAPTER I - CHILD CUSTODY PROCEEDINGS
25 U.S.C. §1911. Indian tribe jurisdiction over Indian child custody proceedings
(a) Exclusive jurisdiction
An Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law. Where an Indian child is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child.
(b) Transfer of proceedings; declination by tribal court
In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe.
(c) State court proceedings; intervention
In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe shall have a right to intervene at any point in the proceeding.
(d) Full faith and credit to public acts, records, and judicial proceedings of Indian tribes
The United States, every State, every territory or possession of the United States, and every Indian tribe shall give full faith and credit to the public acts, records, and judicial proceedings of any Indian tribe applicable to Indian child custody proceedings to the same extent that such entities give full faith and credit to the public acts, records, and judicial proceedings of any other entity.
25 U.S.C. §1912. Pending court proceedings
(a) Notice; time for commencement of proceedings; additional time for preparation
In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary: Provided, That the parent or Indian custodian or the tribe shall, upon request, be granted up to twenty additional days to prepare for such proceeding.
(b) Appointment of counsel
In any case in which the court determines indigency, the parent or Indian custodian shall have the right to court-appointed counsel in any removal, placement, or termination proceeding. The court may, in its discretion, appoint counsel for the child upon a finding that such appointment is in the best interest of the child. Where State law makes no provision for appointment of counsel in such proceedings, the court shall promptly notify the Secretary upon appointment of counsel, and the Secretary, upon certification of the presiding judge, shall pay reasonable fees and expenses out of funds which may be appropriated pursuant to section 13 of this title.
(c) Examination of reports or other documents
Each party to a foster care placement or termination of parental rights proceeding under State law involving an Indian child shall have the right to examine all reports or other documents filed with the court upon which any decision with respect to such action may be based.
(d) Remedial services and rehabilitative programs; preventive measures
Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.
(e) Foster care placement orders; evidence; determination of damage to child
No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
(f) Parental rights termination orders; evidence; determination of damage to child
No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
25 U.S.C. §1913. Parental rights, voluntary termination
(a) Consent; record; certification matters; invalid consents
Where any parent or Indian custodian voluntarily consents to a foster care placement or to termination of parental rights, such consent shall not be valid unless executed in writing and recorded before a judge of a court of competent jurisdiction and accompanied by the presiding judge's certificate that the terms and consequences of the consent were fully explained in detail and were fully understood by the parent or Indian custodian. The court shall also certify that either the parent or Indian custodian fully understood the explanation in English or that it was interpreted into a language that the parent or Indian custodian understood. Any consent given prior to, or within ten days after, birth of the Indian child shall not be valid.
(b) Foster care placement; withdrawal of consent
Any parent or Indian custodian may withdraw consent to a foster care placement under State law at any time and, upon such withdrawal, the child shall be returned to the parent or Indian custodian.
(c) Voluntary termination of parental rights or adoptive placement; withdrawal of consent; return of custody
In any voluntary proceeding for termination of parental rights to, or adoptive placement of, an Indian child, the consent of the parent may be withdrawn for any reason at any time prior to the entry of a final decree of termination or adoption, as the case may be, and the child shall be returned to the parent.
(d) Collateral attack; vacation of decree and return of custody; limitations
After the entry of a final decree of adoption of an Indian child in any State court, the parent may withdraw consent thereto upon the grounds that consent was obtained through fraud or duress and may petition the court to vacate such decree. Upon a finding that such consent was obtained through fraud or duress, the court shall vacate such decree and return the child to the parent. No adoption which has been effective for at least two years may be invalidated under the provisions of this subsection unless otherwise permitted under State law.
25 U.S.C. §1914. Petition to court of competent jurisdiction to invalidate action upon showing of certain violations
Any Indian child who is the subject of any action for foster care placement or termination of parental rights under State law, any parent or Indian custodian from whose custody such child was removed, and the Indian child's tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of sections 1911, 1912, and 1913 of this title.
25 U.S.C. §1915. Placement of Indian children
(a) Adoptive placements; preferences
In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child's extended family; (2) other members of the Indian child's tribe; or (3) other Indian families.
(b) Foster care or preadoptive placements; criteria; preferences
Any child accepted for foster care or preadoptive placement shall be placed in the least restrictive setting which most approximates a family and in which his special needs, if any, may be met. The child shall also be placed within reasonable proximity to his or her home, taking into account any special needs of the child. In any foster care or preadoptive placement, a preference shall be given, in the absence of good cause to the contrary, to a placement with -
(i) a member of the Indian child's extended family;
(ii) a foster home licensed, approved, or specified by the Indian child's tribe;
(iii) an Indian foster home licensed or approved by an authorized non- Indian licensing authority; or
(iv) an institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child's needs.
(c) Tribal resolution for different order of preference; personal preference considered; anonymity in application of preferences
In the case of a placement under subsection (a) or (b) of this section, if the Indian child's tribe shall establish a different order of preference by resolution, the agency or court effecting the placement shall follow such order so long as the placement is the least restrictive setting appropriate to the particular needs of the child, as provided in subsection (b) of this section. Where appropriate, the preference of the Indian child or parent shall be considered; Provided, That, where a consenting parent evidences a desire for anonymity, the court or agency shall give weight to such desire in applying the preferences.
(d) Social and cultural standards applicable
The standards to be applied in meeting the preference requirements of this section shall be the prevailing social and cultural standards of the Indian community in which the parent or extended family resides or with which the parent or extended family members maintain social and cultural ties.
(e) Record of placement; availability
A record of each such placement, under State law, of an Indian child shall be maintained by the State in which the placement was made, evidencing the efforts to comply with the order of preference specified in this section. Such record shall be made available at any time upon the request of the Secretary or the Indian child's tribe.
25 U.S.C. §1916. Return of custody
(a) Petition; best interests of child
Notwithstanding State law to the contrary, whenever a final decree of adoption of an Indian child has been vacated or set aside or the adoptive parents voluntarily consent to the termination of their parental rights to the child, a biological parent or prior Indian custodian may petition for return of custody and the court shall grant such petition unless there is a showing, in a proceeding subject to the provisions of section 1912 of this title, that such return of custody is not in the best interest of the child.
(b) Removal from foster care home; placement procedure
Whenever an Indian child is removed from a foster care home or institution for the purpose of further foster care, preadoptive, or adoptive placement, such placement shall be in accordance with the provisions of this chapter, except in the case where an Indian child is being returned to the parent or Indian custodian from whose custody the child was originally removed.
25 U.S.C. §1917. Tribal affiliation information and other information for protection of rights from tribal relationship; application of subject of adoptive placement; disclosure by court
Upon application by an Indian individual who has reached the age of eighteen and who was the subject of an adoptive placement, the court which entered the final decree shall inform such individual of the tribal affiliation, if any, of the individual's biological parents and provide such other information as may be necessary to protect any rights flowing from the individual's tribal relationship.
25 U.S.C. §1918. Reassumption of jurisdiction over child custody proceedings
(a) Petition; suitable plan; approval by Secretary
Any Indian tribe which became subject to State jurisdiction pursuant to the provisions of the Act of August 15, 1953 (67 Stat. 588), as amended by title IV of the Act of April 11, 1968 (82 Stat. 73, 78), or pursuant to any other Federal law, may reassume jurisdiction over child custody proceedings. Before any Indian tribe may reassume jurisdiction over Indian child custody proceedings, such tribe shall present to the Secretary for approval a petition to reassume such jurisdiction which includes a suitable plan to exercise such jurisdiction.
(b) Criteria applicable to consideration by Secretary; partial retrocession
(1) In considering the petition and feasibility of the plan of a tribe under subsection (a) of this section, the Secretary may consider, among other things:
(i) whether or not the tribe maintains a membership roll or alternative provision for clearly identifying the persons who will be affected by the reassumption of jurisdiction by the tribe;
(ii) the size of the reservation or former reservation area which will be affected by retrocession and reassumption of jurisdiction by the tribe;
(iii) the population base of the tribe, or distribution of the population in homogeneous communities or geographic areas; and
(iv) the feasibility of the plan in cases of multitribal occupation of a single reservation or geographic area.
(2) In those cases where the Secretary determines that the jurisdictional provisions of section 1911 (a) of this title are not feasible, he is authorized to accept partial retrocession which will enable tribes to exercise referral jurisdiction as provided in section 1911 (b) of this title, or, where appropriate, will allow them to exercise exclusive jurisdiction as provided in section 1911 (a) of this title over limited community or geographic areas without regard for the reservation status of the area affected.
(c) Approval of petition; publication in Federal Register; notice; reassumption period; correction of causes for disapproval
If the Secretary approves any petition under subsection (a) of this section, the Secretary shall publish notice of such approval in the Federal Register and shall notify the affected State or States of such approval. The Indian tribe concerned shall reassume jurisdiction sixty days after publication in the Federal Register of notice of approval. If the Secretary disapproves any petition under subsection (a) of this section, the Secretary shall provide such technical assistance as may be necessary to enable the tribe to correct any deficiency which the Secretary identified as a cause for disapproval.
(d) Pending actions or proceedings unaffected
Assumption of jurisdiction under this section shall not affect any action or proceeding over which a court has already assumed jurisdiction except as may be provided pursuant to any agreement under section 1919 of this title.
25 U.S.C. §1919. Agreements between States and Indian tribes
(a) Subject coverage
States and Indian tribes are authorized 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.
(b) Revocation; notice; actions or proceedings unaffected
Such agreements may be revoked by either party upon one hundred and eighty days' written notice to the other party. Such revocation shall not affect any action or proceeding over which a court has already assumed jurisdiction unless the agreement provides otherwise.
25 U.S.C. §1920. Improper removal of child from custody; delineation of jurisdiction; forthwith return of child; danger exception
Where any petitioner in an Indian child custody proceeding before a State court has improperly removed the child from custody of the parent or Indian custodian or has improperly retained custody after a visit or other temporary relinquishment of custody, the court shall decline jurisdiction over such petition and shall forthwith return the child to his parent or Indian custodian unless returning the child to his parent or custodian would subject the child to a substantial and immediate danger or threat of such danger.
25 U.S.C. §1921. Higher State or federal standard applicable to protect rights of parent or Indian custodian of Indian child
In any case where State or Federal law applicable to a child custody proceeding under State or Federal law provides a higher standard of protection to the rights of the parent or Indian custodian of an Indian child than the rights provided under this subchapter, the State or Federal court shall apply the State or Federal standard.
25 U.S.C. §1922. Emergency removal or placement of child; termination; appropriate action
Nothing in this subchapter shall be construed to prevent the emergency removal of an Indian child who is a resident of or is domiciled on a reservation, but temporarily located off the reservation, from his parent or Indian custodian or the emergency placement of such child in a foster home or institution, under applicable State law, in order to prevent imminent physical damage or harm to the child. The State authority, official, or agency involved shall insure that the emergency removal or placement terminated immediately when such removal or placement is no longer necessary to prevent imminent physical damage or harm to the child and shall expeditiously initiate a child custody proceeding subject to the provisions of this subchapter, transfer the child to the jurisdiction of the appropriate Indian tribe, or restore the child to the parent or Indian custodian, as may be appropriate.
25 U.S.C. §1923. Effective date
None of the provisions of this subchapter except sections 1911 (a), 1918, and 1919 of this title, shall affect a proceeding under State law for foster care placement, termination of parental rights, preadoptive placement, or adoptive placement which was initiated or completed prior to one hundred and eighty days after November 8, 1978, but shall apply to any subsequent proceeding in the same matter or subsequent proceedings affecting the custody or placement of the same child.
SUBCHAPTER II - INDIAN CHILD AND FAMILY PROGRAMS
25 U.S.C. §1931. Grants for on or near reservation programs and child welfare codes
(a) Statement of purpose; scope of program
The Secretary is authorized to make grants to Indian tribes and organizations in the establishment and operation of Indian child and family service programs on or near reservations and in the preparation and implementation of child welfare codes. The objective of every Indian child and family service program shall be to prevent the breakup of the Indian families and, in particular, to insure that the permanent removal of an Indian child from the custody of his parent or Indian custodian shall be a last resort. Such child and family service programs may include, but are not limited to -
(1) a system for licensing or otherwise regulating Indian foster and adoptive homes;
(2) the operation and maintenance of facilities for the counseling and treatment of Indian families and for the temporary custody of Indian children;
(3) family assistance, including homemaker and home counselors, day care, afterschool care, and employment, recreational activities and respite care;
(4) home improvement programs;
(5) the employment of professional and other trained personnel to assist the tribal court in the disposition of domestic relations and child welfare matters;
(6) education and training of Indians, including tribal court judges and staff, in skills relating to child and family assistance and service programs;
(7) a subsidy program under which Indian adoptive children may be provided support comparable to that for which they would be eligible as foster children, taking into account the appropriate State standards of support for maintenance and medical needs;and
(8) guidance, legal representation, and advice to Indian families involved in tribal, State, or Federal child custody proceedings.
(b) Non-Federal matching funds for related Social Security or other Federal financial assistance programs; assistance for such programs unaffected; State licensing or approval for qualification for assistance under federally assisted program
Funds appropriated for use by the Secretary in accordance with this section may be utilized as non-Federal matching share in connection with funds provided under titles IV-B and XX of the Social Security Act [42 U.S.C. § 620 et seq., § 1397 et seq.] or under any other Federal financial assistance programs which contribute to the purpose for which such funds are authorized to be appropriated for use under this chapter. The provision or possibility of assistance under this chapter shall not be a basis for the denial or reduction of any assistance otherwise authorized under Titles IV-B and XX of the Social Security Act or any other federally assisted program. For purposes of qualifying for assistance under a federally assisted program, licensing or approval of foster or adoptive homes or institutions by an Indian tribe shall be deemed equivalent to licensing or approval by a State.
25 U.S.C. § 1932. Grants for off-reservation programs for additional services
The Secretary is also authorized to make grants to Indian organizations to establish and operate off-reservation Indian child and family service programs which may include, but are not limited to –
(1) a system for regulating, maintaining, and supporting Indian foster and adoptive homes, including a subsidy program under which Indian adoptive children may be providedsupport comparable to that for which they would be eligible as Indian foster children,taking into account the appropriate State standards for support for maintenance and medical needs;
(2) the operation and maintenance of facilities and services for counseling and treatment of Indian families and Indian foster and adoptive children;
(3) family assistance, including homemaker and home counselors, day care, afterschool care, and employment, recreational activities, and respite care; and
(4) guidance, legal representation, and advice to Indian families involved in child custody proceedings.
25 U.S.C. §1933. Funds for on and off reservation programs
(a) Appropriated funds for similar programs of Department of Health and Human Services; appropriation in advance for payments
In the establishment, operation, and funding of Indian child and family service programs, both on and off reservation, the Secretary may enter into agreements with the Secretary of Health and Human Services, and the latter Secretary is hereby authorized for such purposes to use funds appropriated for similar programs of the Department of Health and Human Services; Provided, That authority to make payments pursuant to such agreement shall be effective only to the extent and in such amounts as may be provided in advance by appropriation Acts.
25 U.S.C. §1934. "Indian" defined for certain purposes
For the purposes of sections 1932 and 1933 of this title, the term "Indian" shall include persons defined in section 1603 (c) of this title.
SUBCHAPTER III - RECORDKEEPING, INFORMATION AVAILABILITY, AND TIMETABLES
25 U.S.C. § 1951. Information availability to and disclosure by Secretary
(a) Copy of final decree or order; other information; anonymity affidavit; exemption from Freedom of Information Act
Any State court entering a final decree or order in any Indian child adoptive placement after November 8, 1978, shall provide the Secretary with a copy of such decree or order together with such other information as may be necessary to show -
(1) the name and tribal affiliation of the child;
(2) the names and addresses of the biological parents;
(3) the names and addresses of the adoptive parents; and
(4) the identity of any agency having files or information relating to such adoptive placement.
Where the court records contain an affidavit of the biological parent or parents that their identity remain confidential, the court shall include such affidavit with the other information. The Secretary shall insure that the confidentiality of such information is maintained and such information shall not be subject to the Freedom of Information Act (5 U.S.C. 552, as amended).
(b) Disclosure of information for enrollment of Indian child in tribe or for determination of member rights or benefits; certification of entitlement to enrollment
Upon the request of the adopted Indian child over the age of eighteen, the adoptive or foster parents of an Indian child, or an Indian tribe, the Secretary shall disclose such information as may be necessary for the enrollment of an Indian child in the tribe in which the child may be eligible for enrollment or for determining any rights or benefits associated with that membership. Where the documents relating to such child contain an affidavit from the biological parent or parents requesting anonymity, the Secretary shall certify to the Indian child's tribe, where the information warrants, that the child's parentage and other circumstances of birth entitle the child to enrollment under the criteria established by such tribe.
25 U.S.C. §1952. Rules and regulations
Within one hundred and eighty days after November 8, 1978, the Secretary shall promulgate such rules and regulations as may be necessary to carry out the provisions of this chapter.
SUBCHAPTER IV - MISCELLANEOUS PROVISIONS
25 U.S.C. §1961. Locally Convenient Day Schools
(a) Sense of Congress
It is the sense of Congress that the absence of locally convenient day schools may contribute to the breakup of the Indian families.
(b) Report to Congress, Contents, etc.
The Secretary is authorized and directed to prepare, in consultation with appropriate agencies in the Department of Health and Human Services, a report on the feasibility of providing Indian children with schools located near their homes, and to submit such report to the Select Committee on Indian Affairs of the United States Senate and Insular Affairs of the United States House of Representatives within two years of November 8, 1978. In developing this report the Secretary shall give particular consideration to the provision of educational facilities for children in the elementary grades.
25 U.S.C. §1962. Copies to the States
Within sixty days after November 8, 1978, the Secretary shall sent to the Governor, chief justice of the highest court of appeal, and the attorney general of each State a copy of this chapter, together with the committee reports and an explanation of the provisions of this chapter.
25 U.S.C. §1963: Severability of Provisions
If any provision of this chapter or the applicability thereof is held invalid, the remaining provisions of this chapter shall not be affected thereby.
OKLAHOMA INDIAN CHILD WELFARE ACT
10 O.S. §40. Short Title
Sections 1 through 10 of this act shall be known as the "Oklahoma Indian Child Welfare Act".
10 O.S. §40.1. Purpose -- Policy of state
The purpose of the Oklahoma Indian Child Welfare Act is the clarification of state policies and procedures regarding the implementation by the State of Oklahoma of the federal Indian Child Welfare Act, P.L. 95-608. It shall be the policy of the state to recognize that Indian tribes and nations have a valid governmental interest in Indian children regardless of whether or not said children are in the physical or legal custody of an Indian parent or Indian custodian at the time state proceedings are initiated. It shall be the policy of the state to cooperate fully with Indian tribes in Oklahoma in order to ensure that the intent and provisions of the federal Indian Child Welfare Act are enforced.
10 §40.2. Definitions
For the purposes of the Oklahoma Indian Child Welfare Act:
1. "Indian" means a person who is a member of an Indian tribe;
2. "Indian child" means any unmarried or unemancipated person who is under the age of eighteen (18) and is either:
a. a member of an Indian tribe, or
b. is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe;
3. "Indian custodian" means any Indian person who has legal custody of an Indian child under tribal law or custom or under state law or to whom temporary physical care, custody and control has been transferred by the parent of such child; and
4. "Indian tribe" means any Indian tribe, band, nation or other organized group or community of Indians recognized as eligible for the services provided to Indian by the Secretary of the Interior because of their status as Indians.
10 §40.3. Application of act -- Exemptions -- Determination of Indian status
A. The Oklahoma Indian Child Welfare Act, in accordance with the federal Indian Child Welfare Act, applies to all child custody proceedings involving any Indian child except the following:
1. A child custody proceeding arising from a divorce proceeding; or
2. A child custody proceeding arising from an adjudication of delinquency, unless there has been a request for termination of parental rights.
B. 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.
C. The court shall seek a determination of the Indian status of the child in accordance with the preceding standard in the following circumstances:
1. The court has been informed by an interested party, an officer of the court, a tribe, an Indian organization or a public or private agency that the child is Indian; or
2. The child who is the subject of the proceeding gives the court reason to believe he is an Indian child; or
3. The court has reason to believe the residence or domicile of the child is a predominantly Indian community.
D. The court shall seek verification of the Indian status of the child from the Indian tribe or the Bureau of Indian Affairs. A determination of membership by an Indian tribe shall be conclusive. A determination of membership by the Bureau of Indian Affairs shall be conclusive in the absence of a contrary determination by the Indian tribe.
E. The determination of the Indian status of a child shall be made as soon as practicable in order to ensure compliance with the notice requirements of section 40.4 of this title.
10 §40.4. Indian child custody proceedings -- Notice
In all Indian child custody proceedings of the Oklahoma Indian Child Welfare Act, including voluntary court proceedings and review hearings, the court shall ensure that the district attorney or other person initiating the proceeding shall send notice to the parents or to the Indian custodians, if any, and to the tribe that is or may be the tribe of the Indian child, and to the appropriate Bureau of Indian Affairs area office, by certified mail, return receipt requested. The notice shall be written in clear and understandable language and include the following information:
1. The name and tribal affiliation of the Indian child;
2. A copy of the petition by which the proceeding was initiated;
3. a statement of the rights of the biological parents or Indian custodians, and the Indian tribe:
a. to intervene in the proceeding,
b. to petition the court to transfer the proceeding to the tribal court of the Indian child, and
c. to request an additional twenty (20) days from receipt of notice to prepare for the proceeding; further extensions of time may be granted with court approval;
4. A statement of the potential legal consequences of an adjudication on the future custodial rights of the parents or Indian custodians;
5. A statement that if the parents or Indian custodians are unable to afford counsel, counsel will be appointed to represent them; and
6. A statement that tribal officials should keep confidential the information contained in the notice.
10 §40.5. Emergency removal of Indian child from parent or custodian -- Order
A. When a court order authorizes the emergency removal of an Indian child from the parent or Indian custodian of such child in accordance with 25 U.S.C. Section 1922, the order shall be accompanied by an affidavit containing the following information:
1. The names, tribal affiliations, and addresses of the Indian child, the parents of the Indian child and Indian custodians, if any;
2. A specific and detailed account of the circumstances that led the agency responsible for the removal of the child to take that action; and
3. A statement of the specific actions that have been taken to assist the parents or Indian custodians so that the child may safely be returned to their custody.
B. No pre-adjudicatory custody order shall remain in force or in effect for more than thirty (30) days without a determination by the court, supported by clear and convincing evidence and the testimony of at least one qualified expert witness, that custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. However, the court may, for good and sufficient cause shown, extend the effective period of such order for an additional period of sixty (60) days.
10 §40.6. Placement preferences
The placement preferences specified in 25 U.S.C. Section 1915, shall apply to all preadjudicatory placements, as well as preadoptive, adoptive and foster care placements. In all placements of an Indian child by the Oklahoma Department of Human Services (DHS), or by any person or other placement agency, DHS, the person or placement agency shall utilize to the maximum extent possible the services of the Indian tribe of the child in securing placement consistent with the provisions of the Oklahoma Indian Child Welfare Act. This requirement shall include cases where a consenting parent evidences a desire for anonymity in the consent document executed pursuant to Section 60.5 of this title. If a request for anonymity is included in a parental consent document, the court shall give weight to such desire in applying the preferences only after notice is given to the child's tribe and the tribe is afforded twenty (20) days to intervene and request a hearing on available tribal placement resources which may protect parental confidentiality, provided that notice of such hearing shall be given to the consenting parent.
10 §40.7. Agreements with Indian tribes for care and custody of Indian children
The Director of the Department of Human Services is authorized to enter into agreements with Indian tribes in Oklahoma regarding care and custody of Indian children as authorized by the Federal Indian Child Welfare Act, 25 U.S.C. § 1919.
10 §40.8. Payment of foster care expenses under certain circumstances
A. In the event the Department of Human Services has legal custody of an Indian child, and that child is placed with a tribally licensed or approved foster home, the state shall pay the cost of foster care in the same manner and to the same extent the state pays the costs of foster care to state-licensed or state-approved foster homes, provided that the tribe shall have entered into an agreement with the state pursuant to Section 8 herein, which shall require tribal cooperation with state plans required by federal funding laws.
B. The state shall pay the costs of foster care of a child placed with a tribally licensed or approved foster home where the placement is made by a tribe having jurisdiction of the proceeding, provided that the tribe shall have entered into an agreement with the state pursuant to Section 8 herein, which shall require tribal cooperation with state plans required by federal funding laws.
10 §40.9. Records
The Department of Human Services shall establish a single location where all records of every involuntary foster care, pre-adoptive placement and adoptive placement by the courts of any Indian child in the custody of the Department of Human Services or under Department of Human Services supervision will be available within seven (7) days of a request by the tribe of the Indian child or by the Secretary of Interior. The records shall include, but not be limited to, all reports of the state caseworker, including a summary of the efforts to rehabilitate the parents of the Indian child, a list of the names and addresses of families and tribally approved homes contacted regarding placement, and a statement of reason for the final placement decision.
12 O.S. Ch. 2, App., Rule 8.2
All decrees of adoption, divorce or separate maintenance where custody of a minor Indian child or children is given to a third party, all orders of adjudication in juvenile proceedings, termination of parental rights and all final orders in Habeas Corpus and guardianship of the person proceedings resulting in the adjudication of status, custody or wardship of minor children, shall contain a finding of compliance with 25 U.S.C.A. 1901 et seq. (Indian Child Welfare Act of 1978), 10 O.S. § 1601 et seq. (Uniform Child Custody Jurisdiction Act).
The trial court shall in all such proceedings make findings of fact as to the child’s correct, full legal name and date of birth and all instruments memorializing such decrees, orders and judgments as required by 12 O.S. 32.2 shall recite the findings required hereby.
12 O.S. §728
A. This act affirms the power of the Supreme Court of the State of Oklahoma to issues standards for extending full faith and credit to the records and judicial proceedings of any court of any federally recognized Indian nation, tribe, band or political subdivision thereof, including courts of Indian offenses.
B. In issuing any such standard the Supreme Court of the State of Oklahoma may extend such recognition in whole or in part to such type or types of judgments of the tribal courts as it deems appropriate where tribal courts agree to grant reciprocity of judgments of the courts of the State of Oklahoma in such tribal courts.
Rule 30 to the Rules for District Courts of Oklahoma, 12 O.S. Supp. 1994, Ch. 2, App. on May 26, 1994.
Rule 30(B):
“The district courts of the State of Oklahoma shall grant full faith and credit and cause to be enforced any tribal judgment where the tribal court that issued the judgment grants reciprocity to judgments of the courts of the State of Oklahoma, provided, a tribal court judgment shall receive no greater effect or full faith and credit under this rule than would a similar or comparable judgment of a sister state."