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.