THE INDIAN CHILD WELFARE ACT OF 19 78
Lydia A . Mangold
Indian Law
Professor Wunder
November 2 3 , 1982
INTRODUCTION
Congress
declared i t s purpose i n passing
the Indian Child W e l f a r e Act"*"
to be one o f protection of Indian children and the promotion and
viability
of American Indian f a m i l i e s
and t r i b e s .
Act s e t t l e some previous j u r i s d i c t i o n a l
for s t a t e
courts in any of
continued
The p r o v i s i o n s
of
the
questions and set minimum standards
the d e l i n e a t e d custody proceedings
i n v o l v i n g an
3
Indian
child.
Tiie Act only applies
placement and adoptive placement. 1 ^
custody determinations
that
to removal from the home,
Divorce proceedings and i t s
are not covered by this A c t . ^
the unique cultural
values
and customs of
foster
care
concomitant
Congress has
mandated
tribal l i f e should play a
more important role in making threshhold determinations o f when state
action
i s necessary,
place-
as well as subsequent j u d i c i a l
ment o f an I n d i a n c h i l d . ^
preceding
the A c t . ' '
tribal
customs,
The Congressional
particularly
Hearings on the percentages of
children as opposed to those of
the heightened
roles of
case h i s t o r i e s ,
removal of an I n d i a n c h i l d . ^
however,
the extended
of the w e l f a r e of the c h i l d . ®
tator has noted the high i n c i d e n c e of the use of the
to j u s t i f y
the presence in
Furthermore, on due process grounds,
once
data on
family,
One commen-
the
the home of a grandparent or other
absence of the parent."*"®
a child,
non-Indian
On closer a n a l y s i s of
Apparently,
Frequently,
state
neglect-abandonment
r e l a t i v e was discounted.
other i n e q u i t i e s .
the years
that state s o c i a l workers were not using relevant
when making t h e i r determinations
category
regarding
This p a r t i c u l a r problem was rampant i n
i n t e r v e n t i o n and removal of I n d i a n
children i n d i c a t e d
determinations
the case workers only focused upon the
there were
the state had asserted j u r i s d i c t i o n
the Indian p a r e n t ( s ) were not afforded counsel,
00499
over
even when they were
-2-
indigent.Finally,
Indian
i t was also suggested that non-Indian f a m i l i e s
f o s t e r children in order to o b t a i n f e d e r a l subsidy payments
as unpaid farm or household l a b o r . 1 2
of s t a t e interventions
accepted
as w e l l
Thus, because of the p e r c e i v e d
in matters of this k i n d ,
Congress passed
the
inequity
Indian
Child Welfare Act.
This paper w i l l
trace
the unique status o f
problems preceding passage o f the A c t ,
Act and the regulations promulgated
and the questions that
I.
the American I n d i a n s ,
the substantive p r o v i s i o n s of
thereunder,
state
remain unanswered four years
after its
THE UNIQUE STATUS OF T11E AMERICAN
Beginning with the c o l o n i z a t i o n of North America,
an obstacle
to the a r r i v i n g s e t t l e r s .
s e t t l e r s were e a s i l y
numbers,
defeated,
responses
to
the
the
the Act,
passage.
INDIAN
the I n d i a n s
presented
T h e i r claims to land desired by
f i r s t by armed c o n f l i c t and i n c r e a s i n g
and l a t e r by treaties and j u d i c i a l
decisions.
superior
The creation o f
reservation system was hoped to be a resolution of many of the
the
difficulties
13
involved.
of
However,
the I n d i a n s '
and the I n d i a n s '
uncertainty
and
status
fight
the clash among s t a t e ' s
as "domestic
rights,
the j u d i c i a l
dependent n a t i o n s , " 1 ^
for sovereignty have
federal
jurisdiction
resulted in an endless morass of
contradictions.
Of p a r t i c u l a r importance
to the ramifications
Act i s the i n t e r p l a y between t r i b a l sovereignty
l e g i s l a t i v e enactments
and j u d i c i a l
decisions,
of the I n d i a n C h i l d Welfare
and state i n t e r v e n t i o n .
a system of concurrent
e x c l u s i v e j u r i s d i c t i o n has been carved out that l i m i t s state
Congressional
declaration
control over the Indian
power to regulate commerce w i t h
and has been interpreted
tribes stems from the
the Indian
tribes i n A r t i c l e
By
and
jurisdiction.^
Constitutional
I,
section
to give Congress power over most matters
8,
affecting
-3-
Indians.
tion,
-j
£
Furthermore,
this e x e r c i s e o f power extends outside
17
' and to Indians not formally e n r o l l e d as a member of a
the
tribe.
T r i b a l sovereignty has operated as a s h i e l d against state law
into I n d i a n country.
Chief J u s t i c e Marshall f i r s t c l a s s i f i e d the
i n Cherokee Nation v .
Georgia^
from o t h e r s ,
as " a d i s t i n c t p o l i t i c a l society
capable of managing i t s own a f f a i r s
The next year i n Worcester v .
Georgia
Marshall
reserva18
intruding
Cherokees
separated
and governing i t s e l f .
.
.
."
further commented on the
91
I n d i a n nations
while holding
as " d i s t i n c t ,
independent,
political
communities.
.
.
,"
that Georgia laws were of no force nor e f f e c t in Cherokee
ter-
97
ritory.
This
McBratney^
rule was modified some f i f t y years l a t e r in United States
to allow s t a t e j u r i s d i c t i o n over crimes committed by non-Indians
9/
against non-Indians i n I n d i a n
Lee,2^
I n Williams v .
country.
decided i n 1 9 5 9 ,
the Supreme Court h e l d that state
law could only intrude i n the absence of " e s s e n t i a l
The test
vation Indians
to make t h e i r own laws and be governed by
I n the years p r e c e d i n g
the passage of
tribe i n domestic
r
e
l
a
t
i
a d i s t r i c t court h e l d that
o
n
s
.
I
n
reser-
them."
the I n d i a n C h i l d Welfare
Quiver 2 ®
Act,
ceding j u r i s d i c t i o n
Wisconsin Potowatomies,
the Indian
Etc.
v.
despite
to the
Houston,^®
tribe had e x c l u s i v e j u r i s d i c t i o n
to
the permanent custody of three orphaned I n d i a n children who were
domiciled on the r e s e r v a t i o n .
case law
relations."^
routinely e x e r c i s e d j u r i s d i c t i o n over c h i l d custody cases
the p o l i c y announced i n United States v.
determine
tribal
thus became "whether state a c t i o n i n f r i n g e d on the right of
27
most states
v.
T h i s was a radical
departure
from e s t a b l i s h e d
that quickly found i t s way into other j u r i s d i c t i o n s and eventually
31
the United States
Supreme Court in Fisher v .
p e r curiam o p i n i o n ,
the Court found:
(1)
District
Court
in 1 9 7 6 .
the e x e r c i s e o f state
In a
court j u r i s -
d i c t i o n over a c h i l d custody proceeding i n t e r f e r e d w i t h the t r i b e ' s
right
-4-
to self-government under Williams
plenary
power over the Indian
instance;
(3)
v. Lee;
tribes
tne denial of access
based on membership
of the
proceedings;
II.
Congress had not e x e r c i s e d
to allow s t a t e j u r i s d i c t i o n
to state
courts i n adoption
in a tribe was a permissible
the e x c l u s i v e j u r i s d i c t i o n of the t r i b a l
status"
(2)
t r i b e . T h i s
however,
racial
in
this
proceedings
discrimination
court stemmed from the
since
"quasi-sovereign
was a watershed case in the area o f
Fisher did not resolve a l l
its
child
custody
the problems.
PROBLEMS PROMPTING PASSAGE OF THE INDIAN CHILD WELFARE ACT
A.
As previously noted in
Disparity
in Placement
the i n t r o d u c t i o n ,
Rates
there was a considerable
disparity
33
between placement
veys
rates for Indian
conducted i n 1969 and 1974
children and non-Indian c h i l d r e n .
by the A s s o c i a t i o n on American I n d i a n
found 25 to 35 percent of a l l I n d i a n children had been separated
families
more,
Sur-
and placed i n foster homes,
Affairs-^
from their
35
J
adoptive homes, or i n s t i t u t i o n s .
in s i x t e e n states surveyed i n 1 9 6 9 ,
fully
85 percent of a l l
ren placed in foster care were placed in non-Indian h o m e s . ^
Further-
Indian
In Minnesota,
37
percent o f the permanent adoptive placements were i n non-Indian homes.
magnitude of the state i n t e r v e n t i o n
did not reveal
subsequent d i s c u s s i o n of the j u r i s d i c t i o n a l
B.
Jurisdictional
The j u r i s d i c t i o n a l
Determinations
standards
separate
state
doctrines with incongruous
courts subscribed
states.
results.
to the presence
j u r i s d i c t i o n when the child was w i t h i n
the
test;
The
as the
demonstrate.
the passage of
the
Indian
Presence
and domicile were two
Arizona,
Michigan and Montana
namely,
the state
the state but o f f
time suit was i n s t i t u t e d in the state
90
and the Effect of Judgments
i n force before
Child Welfare Act varied among the
the e n t i r e s t o r y ,
anomalies w i l l
child-
courts.39
could
exercise
the reservation
Thus,
the Probate
at
Court
-5-
for Menominee County i n i t i a l l y
asserted j u r i s d i c t i o n over the three
orphaned
I n d i a n c h i l d r e n in Wisconsin Potowatomies based on their presence o f f
reservation when the tragedy
court i n that case sanctioned
ence w i t h i n
in substance in
finding
that the c h i l d r e n ' s
The p e r e g r i n a t i o n s
the state but o f f
for j u r i s d i c t i o n
real domicile was
the reservation would be a s u f f i c i e n t
the Indian Child Welfare
Arizona went one step further in i t s
Act.
u t i l i z a t i o n of the presence
to terminate parental
the i n d i v i d u a l
establishing
that
the
reservation
reservation.^
until passage of the I n d i a n Child Wel-
t r i b e s had l i t t l e or no monetary a s s i s t a n c e
t r i b a l operated
test.
could exer-
rights of
I n d i a n s when the children had been placed in f o s t e r homes o f f
I t must be stressed at this point
basis
rationale has been adopted
the Arizona Supreme Court held that the state
cise j u r i s d i c t i o n over proceedings
fare A c t ,
district
of the opinion suggested that pres-
in an emergency s i t u a t i o n . T h i s
In In re D u r y e a ^
the
this assertion of j u r i s d i c t i o n under the emer-
gency powers of the state w h i l e
on the r e s e r v a t i o n . ^
I n t e r e s t i n g l y enough,
o c c u r r e d . ^
the
foster homes or other j u v e n i l e
for
facilities.
i f no one from the extended family immediately stepped forward to take
o f an I n d i a n c h i l d orphaned while o f f
its
emergency powers to take custody
home or i n s t i t u t i o n
and continue
Under the A r i z o n a approach,
the r e s e r v a t i o n ,
and place
the i n i t i a l
by d e f i n i t i o n ,
from the r e s e r v a t i o n ,
results.Also,
courts,
determination of
r e s i d i n g on the
jurisdiction
reservation.
rested on the absence of the
forum shopping was encouraged with widely
as well as the harm to the i n d i v i d u a l
Basically,
tribal
though by far imperfect,
i t protected
foster
basis.^
00503
if
state
governments
doctrine was the
the tribal i n t e r e s t
child
divergent
the tribal views of parenthood were ignored in the
A more e q u i t a b l e ,
test.
state j u r i s d i c t i o n
custody
could use
the c h i l d in a state
i t s j u r i s d i c t i o n on that
had far reaching e f f e c t s over I n d i a n parents
Since,
the state
Thus,
domicile
the c h i l d was
domiciled
-6-
to
on the r e s e r v a t i o n .
insufficient
ever,
°
Temporary absences from the reservation would be
to confer j u r i s d i c t i o n on the state
could only
defeat state j u r i s d i c t i o n when
the actual i n t e n t i o n
to permanently
how-
forum shopping,
it s t i l l
Although
frequently
ideas of parenthood by i m p l i c i t l y
had
recognizing
the confines
of
reservation.^1
To f u r t h e r exemplify
diction,
the gravity of the s t a t e
consider the l e g a l
courts' e x e r c i s e of
tests and c h a r a c t e r i z a t i o n o f the p a r t i e s
the r e s u l t i n g burdens o f proof and presumptions w i t h i n p r a c t i c e
courts.
As a case in p o i n t ,
Court of Appeals
ceedings
are i n i t i a l l y
I n Doe,
the best
years,
Custody
courts,
pro-
and the New Mexico
who l i v e d o f f
the adoption.
58
the
v o l u n t a r i l y placed the c h i l d with the
cc
father
The t r i a l
courts
°
cus-
reser-
Both the
three
(not married to the mother) i n t e r v e n e d to
court dismissed t h e i r p e t i t i o n s
The N a v a j o s ,
also responsible
family.
or
Chaparral
for the preceding
Had the c h i l d been on the r e s e r v a t i o n ,
have had j u r i s d i c t i o n .
state
interests of the c h i l d test in determining
stop the adoption.
Here,
state
with whom the child had l i v e d
and the b i o l o g i c a l
" p a r e n t " who is
decided in 1 9 7 6 .
Services f o r adoption by a Caucasian
grandfather,
with
the decision of the New Mexico
s?
the mother was a full-blood Navajo
Home and Adoption
in
juris-
as parent-parent, parent-stranger,
Also,
v a t i o n with her f a t h e r . S h e
maternal
us review
characterized
53
conflicts.
i n this case, apply
tody.
let
in In re Adoption of Doe,
stranger-stranger
dren.
ties,
the c u s t o d i a l parent had
the right o f child-rearing as of preeminence only w i t h i n
the
Tribal
reside on the reservation.-^
the domicile method did not encourage
the e f f e c t o f ignoring c u l t u r a l
courts.^9
by t r i b a l
the t r i b a l
custom,
and
court would
deem a grandparent a
for the care and custody of a l l of
the grandfather would have been c h a r a c t e r i z e d
the c o n f l i c t would have been a parent-stranger o n e . ^ O
00504
finalized
the
chil-
as a p a r e n t ,
thus
in a parent-stranger
-7-
conflict,
the parent has the prima f a c i e
has the burden o f r e f u t i n g
However,
i n state
right
to c u s t o d y . T h e
stranger
that presumption by showing the parent
court,
the grandfather was not a " p a r e n t "
to be
unfit.^
but was
instead a stranger and thus lost any presumptions in h i s f a v o r . W i t h
this
type of c o n f l i c t ,
This
test
the best i n t e r e s t s
of the c h i l d test was e m p l o y e d . ^
took into consideration both the psychological and the material
o f the c h i l d . ^
tneir typically
Consequently,
low socioeconomic s t a t u s . ^
removed these considerations
cussed
or lack t h e r e o f ,
t r i b a l court.
quently
from the state
due to
The Indian C h i l d W e l f a r e
c o u r t ' s inquiry
Act
as w i l l be
dis-
infra.
Another d e f i c i e n c y in
effect,
many Indians were at a disadvantage
welfare
the system p r i o r to the A c t ' s passage was the
of any judgment
In j u r i s d i c t i o n s
adjudicated
rendered in e i t h e r a state or a
utilizing
the rights of
the presence
reservation
Indians.
test,
the courts
fre-
The problem was
the
fi
enforcement o f the state c o u r t ' s judgment on the reservation.
child's
temporary
jurisdiction,
able.^®
absence
from the reservation was s u f f i c i e n t
h i s return to the reservation
On the other hand,
the I n d i a n
states nor as f o r e i g n countries
to e i t h e r f u l l
courts
tribes'
did not e n t i t l e
their t r i b a l
69
ceeding on i t s presence j u r i s d i c t i o n
domicile j u r i s d i c t i o n ,
two judgments,
and the t r i b a l
court
time.
00 0->
sister
judgments
Conceivably,
state
the situ-
court pro-
court proceeding on
with enforcement only b e i n g e f f e c t e d wherever
happened to be at any given point in
state
Therefore,
the state
the
unenforce-
curious p o s i t i o n not as
t r i b a l court judgments.
a t i o n could have a r i s e n where there were
to confer
rendered the judgment
f a i t h and credit nor comity in many s t a t e s .
did not have to enforce
Although
the
its
child
-8-
III.
THE INDIAN CHILD WELFARE ACT
A.
I t s Goals and
Provisions
The major provisions of the Act are as
(a)
follows:
A grant o f e x c l u s i v e j u r i s d i c t i o n i s given over Indian
reside or a r e domiciled on the r e s e r v a t i o n ,
jurisdiction
ceedings
under federal law,
in state
courts
on the reservation
tribes.^®
It e s t a b l i s h e s
termination of parental
court,
residing
the I n d i a n p a r e n t ,
or
child.^
a right of intervention
in state court
f o s t e r care or
rights proceedings on the part of an Indian
t r i b e or I n d i a n custodian.
to state
The t r a n s f e r of pro-
children not domiciled or
can be demanded by the t r i b a l
the I n d i a n custodian of the
(b)
and not otherwise s u b j e c t
to the Indian
regarding Indian
children who
child's
79
^
( c ) T r i b a l court judgments,
law,
and records must be accorded
full
faith
73
and
credit.
(d)
It e s t a b l i s h e s
dian and the
an Indian
(e)
c h i l d is i n v o l v e d . ^
In
notice should be given
custo-
notice
the absence o f knowledge of the
I n d i a n custodian or t r i b e ,
that
identity
to the Secre-
Interior.^
It provides
for court-appointed
termination of parental
(f)
to the parent or Indian
tribe when the state court has actual or constructive
o f the p a r e n t s ,
tary of
a requirement of notice
counsel
for i n d i g e n t parents
rights or c h i l d removal or placement
It establishes
minimum e v i d e n t i a r y
(g)
It e s t a b l i s h e s
minimum standards
(h)
It provides
standards
in any
proceedings.^
for voluntary
proceed-
ings . ^
for voluntary
proceedings.^®
for the establishment of placement p r e f e r e n c e s
preadoptive or adoptive
placements.^
00506
for
foster,
-9-
(i)
I t creates
a system of
recordkeeping with the a v a i l a b i l i t y
mation regarding t r i b a l a f f i l i a t i o n s
upon the request of an I n d i a n
of
infor-
adoptee
over the age of 18 years.®®
(j)
It authorizes
the award of grants to tribes and I n d i a n
f o r the purposes of e s t a b l i s h i n g
organizations
and operating Indian c h i l d and family
service
programs.81
Almost a l l of the perceived problems surrounding I n d i a n c h i l d
preceding
the Act are addressed by i t s p r o v i s i o n s .
address which p a r t i e s w i l l be s u b j e c t
B.
First,
only
child
f i r s t inquiry
Apply?
custody proceedings i n v o l v i n g f o s t e r c a r e ,
to a divorce is expressly e x c l u d e d ,
Proceedings
defined
preadoptive
to award custody
as are i n t r a f a m i l i a l
care placement i s
should
provisions.
When Does the Act
or adoptive placement are i n c l u d e d . ® 2
decision.Foster
to i t s
The
placements
to include
disputes,
pursuant
by
judicial
any removal of an
I n d i a n c h i l d from its parent or I n d i a n custodian for temporary placement without
termination o f parental r i g h t s . P r e a d o p t i v e
the termination of parental
placement is placement
rights but before or i n l i e u of
after
adoption.Adopts £
tive placement refers
Secondly,
to the permanent adoption o f an Indian
Congress deferred to t r i b a l
customs and laws in
o f which children are Indian f o r purposes of the A c t .
who i s a member o f an Indian
tribe,
child.
or who i s
the
An I n d i a n i s "any
an Alaska Native
member of an I n d i a n
and is
child's
tribe or ( b )
the b i o l o g i c a l
tribe refers
under age eighteen
is eligible
An Indian
and is e i t h e r
tribe."®®
An
tribe
Indian
to any t r i b e in which the c h i l d e i t h e r is or is
00507
(a) a
for membership in an I n d i a n
c h i l d of a member of an Indian
person
and a member of
a Regional Corporation as d e f i n e d in section 1606 of T i t l e 4 3 . " ® ' '
c h i l d is "any unmarried person who is
determination
eligible
-10-
to be a m e m b e r ^ o r ,
eligible
if
the c h i l d is of mixed blood,
to be a member in more than one t r i b e ,
with which
tribe
The Act
the c h i l d has
takes s p e c i a l
I n d i a n custodian in that,
law,
that is
that state
the "more s i g n i f i c a n t
deference
to t r i b a l
customs in i t s
It i s noteworthy
imately the same rights
Interestingly,
to
decide
definition
custody
for the care and custody o f the child
law or custom or to whom such control has been temporarily
parent i s i n c l u d e d . ^ 1
court is
is
con tacts.
besides any Indian having legal
any Indian responsible
a member or
that the Indian
the d e f i n i t i o n of parent expressly
under state
under
tribal
t r a n s f e r r e d by the
custodian has
and controls over the proceedings
of
approx-
as the parents
excludes
unwed
have.^'
fathers
QO
who have not acknowledged t h e i r p a t e r n i t y .
i n that many tribes
for membership in
of the state
are p a t r i l i n e a l
the f a t h e r ' s
courts.
and the c h i l d ' s membership or
tribe may not be e s t a b l i s h e d to the
Furthermore,
d e a l i n g with an I n d i a n
This may be a source of
the court may not even r e a l i z e
child subject
The real heart of the Act is
conflict
eligibility
satisfaction
that it
is
to this A c t .
its j u r i s d i c t i o n p r o v i s i o n s .
By
vesting
e x c l u s i v e j u r i s d i c t i o n over any Indian c h i l d domiciled or r e s i d i n g on the
reservation^
and i n c l u d i n g a p r o v i s i o n whereby
d i c t i o n over an I n d i a n
creases
the
tribal
child not domiciled on the
courts'
state court j u r i s d i c t i o n
or Indian
powers.
the state
Pursuant
r e s e r v a t i o n ^
relating
to s e c t i o n 1 9 5 2 ,
rules
.
greatly
in-
to t r a n s f e r of
child's
tribe.96
However,
can object
to the
the t r i b a l
court
transfer.91
court is not forced to transfer j u r i s d i c t i o n i f
.
juris-
upon the request of e i t h e r the parents
and e i t h e r parent
"good cause to the contrary.
to promulgate
The p r o v i s i o n
is mandatory
custodian or the I n d i a n
can decline j u r i s d i c t i o n
Also,
the tribe can obtain
there
is
."98
the Secretary
under this A c t .
99y
of the I n t e r i o r has the power
The Secretary has e s t a b l i s h e d
mm:
criteria
-11-
for the "good
cause"
standard that is
foremost reason for state courts
lack o f a t r i b u n a l
u t i l i z e d by the state
refusing
to t r a n s f e r i t
to.-*-®!
to transfer j u r i s d i c t i o n
For i n s t a n c e ,
have been made to allow a reassumption of j u r i s d i c t i o n
which P u b l i c Law 83-280"'-®2 has ceded j u r i s d i c t i o n
However,
there i s a p o s s i b i l i t y
that
tribal
jurisdiction."'"®^*
The second reason j u s t i f y i n g a state
is
court r e t a i n i n g j u r i s d i c t i o n
for
in
if
is
transfer
filing."'"®"'
that the child i s over twelve years o l d and
to the t r a n s f e r . S i m i l a r l y ,
in
hence there may not be a
f i l e d and the p e t i t i o n e r had timely notice but was dilatory
Another j u s t i f i c a t i o n
provisions
i n those states
that the proceeding is at an advanced stage whe n the p e t i t i o n
is
the
the conditions may not have been com-
the S e c r e t a r y ,
to accept or d e c l i n e
other
is
The
to the s t a t e courts.-*-®-^
p l i e d with to the s a t i s f a c t i o n of
court
courts.-'-®®
the parents of a child over five
objects
years
o f age are not a v a i l a b l e and the c h i l d has had l i t t l e or no contact with
tribe or i t s members,
criterion is
in
that
the t r i b a l
1
nesses.
Congress
the state
court can r e t a i n jurisdiction.-'-®^
the necessary evidence could not be adequately
court without
undue hardship
to eith er the p a r t i e s
The
the
final
presented
or the wit—
AO
This l a s t j u s t i f i c a t i o n
to permit
the state courts
is a corollary
to the avowed i n t e n t of
to apply a " m o d i f i e d doctrine of
forum
.,109
non
conveniens.
At least one commentator has noted that the use of a forum non
doctrine
could create problems."'--''®
amount of d i s c r e t i o n
versed.
The i n i t i a l
for a p a r t i c u l a r
Act.
under this
Generally,
court has
doctrine and these decisions
determination
that a state court is
c h i l d custody proceeding
Other solutions
a trial
are a v a i l a b l e ,
a large
are rarely
the proper
could defeat the purposes o f
such as having
i n the same place in which the s t a t e proceedings
§0
conveniens
the t r i b a l
are held.-'--'-2
court
This
reforum
the
convene
type of
-12-
arrangenient could be negotiated between
pursuant to s e c t i o n 1919 of the
the i n d i v i d u a l
tribes
and the
state
Act.11^
The l a s t important j u r i s d i c t i o n a l
provision pertains
to the states
which the s t a t e has assumed p a r t i a l or total j u r i s d i c t i o n over t h e i r
in
Indian
114
tribes pursuant
to P u b l i c Law 2 8 0 .
The reaction of the i n d i v i d u a l
to the Act w i l l be discussed i n f r a .
f o r the tribes
that P u b l i c Law 280 did not deprive
j u r i s d i c t i o n but i n s t e a d conferred
the
tribes
are actually
a s u i t a b l e plan
to exercise
to use in approval of
the t r i b e s
of
concurrent j u r i s d i c t i o n on the state courts.
1 1 fS
reassuming
tribes must submit a p e t i t i o n
is
the Act provides a method
to reassume j u r i s d i c t i o n over child custody p r o c e e d i n g s . ^ ^
One regulation states
Thus,
Basically,
states
their e x c l u s i v e j u r i s d i c t i o n .
to the Secretary of the I n t e r i o r which
their j u r i s d i c t i o n . 1 1 ' '
The c r i t e r i a
the
The
includes
Secretary
these plans are set forth in section 1 9 1 8 ( b )
of
the
118
Act.
In summary form these a r e :
(1)
the maintenance of t r i b a l
r o l l s or alternate methods f o r a s c e r t a i n i n g
(2)
ed;
the s i z e of the r e s e r v a t i o n ,
1 Tfl
(3)
the population of
the a r e a ; 1 2 1
and
(4)
tribes occupy a s i n g l e
authorized
Furthermore,
Secretary
allows only a p a r t i a l
retrocession,
to assert
referral jurisdiction
under the t r a n s f e r
the Secretary should not approve
to correct
a petition,
the i d e n t i f i e d
As aforementioned,
affectwithin
different
the Secretary
retrocession or allow exclusive j u r i s d i c t i o n
123
d e l i n e a t e d areas outside a d e s i g n a t e d r e s e r v a t i o n .
the tribe
dispersal
o f the p l a n " where s e v e r a l
reservation or a r e a . 1 2 2
to grant p a r t i a l
which i s to be
the tribe and their geographic
the " f e a s i b i l i t y
tribej11^
the membership of the
or former r e s e r v a t i o n ,
membership
the tribes w i l l only be able
Also,
he must provide a s s i s t a n c e
lie
deficiency.
if
to
^
the types o f c h i l d custody proceedings
under the Act are foster care,
over
In a case where the
provisions.12^
involved
preadoptive and adoptive placements
is
and the
-13-
termination of parental r i g h t s . ^ ^
the s t a t e ,
petitioning
the state
termination of parental
jn
first
analysis,
any p a r t y ,
usually
courts for a f o s t e r care placement or the
rights must s a t i s f y
the court that continued
to correct
the problem or problems i n the home have been
Subchapter
I I of
the Act provides
efforts
unsuccessful.^^
for the establishment o f programs and serine
vices
designed to counsel and a i d Indian fami l i e s .
The grants under these
provisions are to the tribes or Indian organizations
to minimize
state
in-
] 29
volvement at this p h a s e ,
as w e l l .
Before a court can place a child in f o s t e r care,
and convincing evidence
that continued
parents or custodian i s " l i k e l y
1 '-to
damage to the c h i l d . "
custody of the c h i l d by his
to result
Moreover,
in serious emotional or
for there to be clear and
evidence,
there must be q u a l i f i e d expert witnesses
ject.
The regulations
expert witnesses
strates
housing,
delineate
1 32
under the A c t .
alcohol
evidence
abuse or "non-conforming s o c i a l b e h a v i o r "
In
to
physical
convincing
be
qualified
inadequate
does not
133
c l e a r and convincing evidence o f emotional or p h y s i c a l harm.
that is l i k e l y
Indian
that only demon-
overcrowded or otherwise
the evidence must show a nexus between p a r t i c u l a r
clear
t e s t i f y i n g on this sub-
types of persons who w i l l
Furthermore,
community or family poverty,
there must be
conditions
In
constitute
addition,
and the harm
result.
the instances where f o s t e r care was voluntarily
I n d i a n parents or Indian c u s t o d i a n ,
consented to by the
that consent may be withdrawn
at any.
1 35
time.
The consent p r o v i s i o n ,
i n a t i o n of parental
to be v a l i d .
X 36)
cute a c e r t i f i c a t e
to both f o s t e r care and the term-
rights imposes several
First,
judge of a court of
applying
r e s t r i c t i o n s b e f o r e it i s
deemed
i t must be executed 1 in
37 w r i t i n g and recorded before a
competent j u r i s d i c t i o n .
J/
Second,
the judge must exe-
that the terms of the consent were f u l l y e x p l a i n e d
§0511
comprehended by the parent or c u s t o d i a n . ^ ®
Third,
and
the judge must also
certify
-14-
that
the e x p l a n a t i o n was f u l l y
tongue o f the Indian parent or
if
given w i t h i n
ten days o f
The e v i d e n t i a r y
different
c u s t o d i a n .
the birth of
standards
in a proceeding
understood in e i t h e r English or the n a t i v e
1^9
Finally,
the Indian
a consent is
child.
as well as the rules
regarding consent
rights.1^1
to terminate parental
invalid
First,
are
the evi-
dence must be beyond a reasonable doubt that the continued custody by
I n d i a n parent or custodian is l i k e l y
to result i n serious emotional
p h y s i c a l harm to the c h i l d . Q u a l i f i e d
required to testify
expert witnesses are
as in foster care placements.
^
parental
rights may be withdrawn for any reason at any time up to the f i n a l
fraud or duress in o b t a i n i n g
l i m i t a t i o n s period a f t e r
provides
a
longer time
the decree is
to p e t i t i o n any court of
two y e a r s ,
the Indian
child,
of the tribe or the Indian custodian in a proceeding
147
ment or termination of parental
rights;
full
law
action
rights
for f o s t e r care
place-
faith and c r e d i t ;
time l i m i t a t i o n s ;
the right to appointed counsel;
the evidentiary
an
or
the i n t e r v e n t i o n
the e x c l u s i v e j u r i s d i c t i o n of the t r i b e ;
ments on f i l e w i t h the c o u r t s ;
custodian,
to i n v a l i d a t e
to t r i b a l c o u r t s ;
access
standards;
the
the notice
transfer
and
to reports and docuand the
requisites
consent. 1 "^®
The s t a t e
unless a t r i b a l
placements,
The o u t s i d e
unless state
parent,
competent j u r i s d i c t i o n
which v i o l a t e d any of the provisions p e r t a i n i n g to:
of a v a l i d
r
the consent is shown.
final is
vacated
period.1^
A catch-all provision allows
tribe
decree.^^
consent may be withdrawn and the decree
•> /
if either
or
similarly
The consent i n a voluntary proceeding f o r the termination o f
Even a f t e r the f i n a l decree,
the
courts must follow
the statutory preferences for placements
"I AQ
resolution establishes
the preferences
a different order.
are as f o l l o w s :
#0512
(1)
In
a member o f the
adoptive
child's
-15-
extended f a m i l y ,
tribe;
i n c l u d i n g unmarried members;
( 3 ) other Indian f a m i l i e s . I n
placement,
the courts must follow
of the c h i l d ' s
extended I n d i a n
approved or s p e c i f i e d by
( 2 ) other members of the
determining
this o r d e r :
family;
the t r i b e ;
(2)
foster care or preadoptive
( 1 ) placement with a member
placement in a foster home
authority;
for children approved by an I n d i a n
ated by an I n d i a n o r g a n i z a t i o n which has a program s u i t a b l e
n e e d s A
is
further l i m i t a t i o n
that i t should be in
in
the " l e a s t
licensed,
( 3 ) placement in an I n d i a n f o s t e r home
l i c e n s e d or approved by an authorized non-Indian l i c e n s i n g
placement i n an i n s t i t u t i o n
child's
or
(4)
tribe or oper-
to meet
the
child's
the f o s t e r care or preadoptive
placement
restrictive
approximates
a family and the c h i l d ' s s p e c i a l n e e d s . " 1 5 2
s e t t i n g which most
Also,
proximity
to the
child's
1S3
home i s
J J
desired.
Finally,
the Act determines
these preferences
prevailing
are
that the standards
to be those cultural
i n the t r i b e . T h e
record i s a v a i l a b l e
Emphasis
for making each placement
should be placed on the notice
the state
know that an I n d i a n child is involved,
court knows or has
the party seeking
return receipt
requested,
custodian or tribe
the S e c r e t a r y . ^ ®
notify
JO
The Secretary has
the I n d i a n p a r t i e s . ^ " ' "
fifteen
1912 ( a ) .
reason
the action
and must i d e n t i f y
cannot be a s c e r t a i n e d ,
e i t h e r of
if
notice is
the type of
the
Indian
to be sent
to
days to conduct h i s own search and
The proceedings
©0513
to
shall
cannot continue
until
days a f t e r receipt of notice by the parent or custodian and t r i b e . 1 6 2
ever,
155
This notice must be by
action b e i n g considered and then i n t e r v e n t i o n r i g h t s . 1 5 9
parents,
each
determination.
requirements o f section
the parent or custodian and the t r i b e . 1 5 8
registered mail,
currently
upon request by the Secretary o r the t r i b e .
In an involuntary proceeding where
notify
and s o c i a l standards
court must also maintain a record of
placement with the underlying reasons
This
to be applied i n meeting
the Indian p a r t i e s may request
and must be granted an
ten
How-
-16-
additional
twenty
days for p r e p a r a t i o n .
ings b e g i n by the c h i l d ' s
hold the
removal,
c h i l d for up to thirty
f u n c t i o n i n g immediately
°
Since many involuntary
this p r o v i s i o n means that
days,
providing
upon the c h i l d ' s
the j u d i c i a l
services,
These p r o v i s i o n s
through s u b s i d i e s
Indian
this tine
It i s s i g n i f i c a n t
under t i t l e s
machinery
begins
and funding of
for I n d i a n
tribal i n t e r e s t in operating
to the tribes
children.
these
themselves or other
-jhe exact status o f these programs i s
that as o f August 1 9 7 9 ,
I I ,
facilities
qualifying
difficult
funds are to be
Therefore,
accomplished,
IV.
Recently,
to the A c t . 1 ^
but e f f o r t s are
the goal of having
still
administered
IV-B and XX o f the S o c i a l Security Act or o t h e r f e d e r a l
assistance programs.
to
policies.
many of these programs were
section 1931(b)
and control of these services before
fully
can
due to the present a d m i n i s t r a t i o n ' s economic
Subchapter
u n f u n d e d . ^ 6 6
the
and grants
o r g a n i z a t i o n s . ' - 6 5
a s c e r t a i n at
cial
and f o s t e r homes or i n s t i t u t i o n s
recognize
the state
removal.
Subchapter I I o f the Act deals with the establishment
programs,
proceed-
tribal
finan-
input
the state can intervene has not been
continuing,
1 ftfi
STATE RESPONSES TO THE INDIAN CHILD WELFARE ACT
the American I n d i a n Law Center diagrammed the s t a t e
Many states have v i r t u a l l y ignored the A c t .
states have made a f f i r m a t i v e steps
responses
However,
to e f f e c t u a t e provisions o f
several
the Act by
engaging i n n e g o t i a t i o n with t r i b e s w i t h i n
their j u r i s d i c t i o n and modifying
state
court rules
The following is
those
efforts.
to comply w i t h
the A c t .
There are at least eighteen states
tribes within
no response
that do not have f e d e r a l l y
their geographic b o u n d a r i e s . 1 ™
to the Act w h a t s o e v e r . 1 ^ 1
a t i v e and d i l i g e n t i n
their
a discussion
of
recognized
A few other s t a t e s have had
Several s t a t e s have been most cooper-
efforts.
00514
-17-
Alaska,
although
does have plans
rules have not been adopted for t h e i r s t a t e
to so revise
suant to s e c t i o n 1 9 1 9 ,
and S o c i a l S e r v i c e s ,
them in conformance with
the state of A l a s k a ,
has entered
Rim Natives A s s o c i a t i o n
the A c t .
through i t s
Also,
pur-
Department o f Health
into n e g o t i a t i o n s with the North
in order to reach an agreement
courts,
Pacific
to f a c i l i t a t e
commun-
1 io
i c a t i o n s between
Arizona,
to implement
the s t a t e and tribes in c h i l d custody
a P u b l i c Law 280 j u r i s d i c t i o n ,
the A c t .
proceedings.
has engaged i n extensive
T r a i n i n g sessions with
tribal,
Bureau o f
Indian A f f a i r s
and the Arizona Department of Economic Security members have been
sive.
These sessions have i n c l u d e d i d e n t i f i c a t i o n of a l l
currently
of
in s t a t e
f o s t e r home systems,
the j u d i c i a l and administrative
Act,
the Act.
tions
Basically,
educational programs regarding
involved i n these
California
is currently
in
suant
administrative
current plans
Although
to
Arizona
implemented
for a l l
state
proceedings.
However,
since C a l i f o r n i a i s a P u b l i c
can be reached.
procedures are being promulgated.
to adopt state
court
finalized
and the Southern Ute T r i b e .
court r u l e s ,
reserva-
licensing
the state has
of
the tribes w i l l have to reassume j u r i s d i c t i o n pur-
Colorado has already
state
rules,
to section 1 9 1 8 before any f i n a l agreements
interim,
three
the
the process of n e g o t i a t i n g an agreement with
the tribes w i t h i n i t s j u r i s d i c t i o n .
Law 83-280 j u r i s d i c t i o n ,
allowed at l e a s t
the Act and i t s procedures
173
types o f
all
for implementing
f a c i l i t i e s of this k i n d .
has no current plans to adopt state court
workers
responsible
for foster home or i n s t i t u t i o n
allow placement in Indian-operated
children
agreements pursuant to s e c t i o n 1919
these agreements have
to meet s t a t e standards
Indian
comprehen-
p u b l i c a t i o n of a manual l i s t i n g
agencies
and development of tribal-state
endeavors
the
The state has no
rules.^^
agreements with the Ute Mountain
Colorado does not have any plans to
however.^^
In
§0515
Tribe
formulate
-18-
Florida has f i n a l i z e d an agreement with
the Seminole T r i b e .
Likewise,
"17 r
no state court rules have been
formulated.
Idaho executed a pre-Act agreement with the Shoshone-Bannock T r i b e
1977.
The state is
tribes.
also in the process o f n e g o t i a t i n g agreements with
A formal guide to the Act has been issued by the s t a t e ' s
o f Health and W e l f a r e in cooperation with T r i b a l
of Indian A f f a i r s
Minnesota,
that i t
Tribe on s i x reservations
and on
agreements.
uphold these agreements as to j u r i s d i c t i o n .
as of
Nebraska,
recognized
tribes.
be f i n a l i z e d into an
Chippewa
the S i o u x T r i b e .
Hopefully,
However,
the courts
Not-
will
the i s s u e has not been
the notice
has
three
The Omaho tribe has p e t i t i o n e d the Secretary
to the A c t . 1 ^
federally
for
reassump
Nebraska has l e g i s l a t i v e
any n e g o t i a t i o n s with
the tribes
barcan
agreement.
The New Mexico state
jurisdictions
Never-
under the Act and P u b l i c
another P u b l i c Law 83-280 j u r i s d i c t i o n ,
that must be dealt with before
1 81
parallel
The
yet.
tion of j u r i s d i c t i o n pursuant
riers
the Minnesota
three reservations of
1 79
addressed
the p e c u l i a r
excluded in P u b l i c Law 83-280.
Minnesota resolved the i s s u e o f j u r i s d i c t i o n
the tribal-state
is i n
did not take j u r i s d i c t i o n o v e r .
178
the state has entered i n t o agreements with
Law 83-280 in
Department
Social Services and Bureau
another P u b l i c Law 83-280 j u r i s d i c t i o n ,
Red Lake Chippewas were expressly
ably,
other
officials.1^
p o s i t i o n o f also having a tribe
theless,
in
legislature
requirements
has amended i t s
in the A c t .
that has had a l e g i s l a t i v e
the state is n e g o t i a t i n g agreements with
1 82
Apaches and the Navajos.
0051
Children's
Code to
This is one o f the very
response to the A c t .
two of i t s
tribes,
In
few
addition,
the Mescalero-
-19-
Other states have r e a c t e d ,
i f at a l l ,
by negotiations with
and the promulgation of procedures as o u t l i n e d in the s e l e c t e d
the
tribes
jurisdictions
1 QO
abo ve•
Only
the state of Oklahoma has challenged the Act in i t s
but no s i g n i f i c a n t
decisions have been made.^®^
In conclusion,
Act.
some s t a t e s have been very d i l i g e n t in implementing
This w r i t e r suggests
f r u i t i o n u n t i l adequate
attention
that
total implementation w i l l not
funding becomes a v a i l a b l e .
provisions,
this w r i t e r f e e l s
services is
the key to f u l l
the p r o v i s i o n s
counsel and a i d t h e i r own f a m i l i e s ,
V.
By e n a b l i n g the tribe
THE INDIAN CHILD WELFARE A C T — I T S
however,
i n the A c t .
there are a few areas
The main source of c o n f l i c t
DEFICIENCIES
that w i l l
commonly
For the most p a r t ,
that were
it was
that was in fact written i n t o
the Act
the children of an I n d i a n parent and a non-Indian p a r e n t .
dismally s h o r t ,
as w i l l be
arise
overlooked.
have been p u b l i s h e d in the Federal Register that address
they f a l l
to
decreased.
under child custody proceedings
involves
and
the number of tines the state has to
Congress t r i e d to address most of the issues
successful;
the
jurisdictional
regarding the programs
tribal participation.
the
come to
Although most of
the Act has received has been d i r e c t e d towards i t s
intervene w i l l be
courts,
the i s s u e ,
Rules
yet
demonstrated.185
1 Q£
The I n d i a n c h i l d ' s
state court
tribe,
as d e f i n e d i n section 1 9 0 3 ( 5 ) ,
to decide with which t r i b e ,
g i b l e for membership i n ,
the c h i l d " h a s
in
the case of a c h i l d who is
but not an actual member o f ,
187
the more s i g n i f i c a n t
should take into consideration
contacts."
are as
t
directs a
follows:
more than one
eli-
tribe,
The contacts a court
-20-
(1)
the length of time the c h i l d has resided on or n e a r a
and the frequency of contacts with the
(2)
reservation
tribes;
the c h i l d ' s
frequency of p a r t i c i p a t i o n
(3)
the c h i l d ' s
fluency
(4)
any previous
in the a c t i v i t i e s o f each
tribe;
in
the language of each
tribe;
decree on the membership of the c h i l d in a t r i b a l
court;
(5)
residence on or near a reservation by the c h i l d ' s
(6)
the t r i b a l membership of
the c h i l d ' s
relatives;
custodial parent or
Indian
custodian;
(7)
the amount of i n t e r e s t
asserted by each tribe a f t e r r e c e i v i n g
(the court must notify any and a l l
the
tribes of the c h i l d ' s
presence
notice
before
court);
1 88
(8)
now the c h i l d i d e n t i f i e s
Although
this l i s t
appears
itself.
to be exhasutive o f the contacts
i d e n t i f y a child as c u l t u r a l l y and s o c i a l l y belonging
i t w i l l only
single
to a p a r t i c u l a r
apply where the c h i l d is actually e l i g i b l e
more than one t r i b e .
The s i t u a t i o n
that would
tribe,
f o r membership
in
can arise where a c h i l d w i l l have every
contact on that l i s t with a p a r t i c u l a r tribe and not be e l i g i b l e
membership by virtue of a t r i b a l
For example,
ordinance.
the fact s i t u a t i o n
decided by the United States
for
in Santa Clara v.
Martinez,recently
Supreme Court, presented this
that case arose under the I n d i a n C i v i l Rights A c t , i t
for the purposes of showing the deficiency
in
the A c t .
dilemma.
i s very
Although
illustrative
I n that c a s e ,
the
mother was a full-blood Santa Claran Indian l i v i n g on the reservation with
her c h i l d r e n .
ordinance
Iler husband was not a Santa Claran.
r e f l e c t e d the p a t r i l i n e a l
The Santa Claran
custom of the tribe in
>18
that
tribal
the status
-21-
of the f a t h e r determined
children.
tribe;
the e l i g i b i l i t y
for membership i n
There was no a l t e r n a t i v e method for becoming a member of
the i s s u e was closed upon the b i r t h of a c h i l d .
born and r a i s e d on the reservation
be e l i g i b l e
inherit
to vote in
t h e i r mother's
would have to leave
If
the tribe of
as Santa C l a r a n s ,
tribal elections,
they would never
hold o f f i c e w i t h i n
the t r i b e ,
Furthermore,
the reservation upon their mother's
jurisdiction,
nor
they
death. ^ ^
this s i t u a t i o n arose under the I n d i a n C h i l d Welfare A c t ,
would not have e x c l u s i v e
the
These children were
yet
i n t e r e s t i n the t r i b a l l a n d s .
the
the
tribe
transfer or even i n t e r v e n t i o n
rights
1 92
because
the c h i l d r e n would not be Indian c h i l d r e n for purposes of the A c t .
Furthermore,
a state
court could ignore the preferences
the children would only be s u b j e c t
It
could result
maternal
in
f o r placement
to the s t a t e ' s C h i l d r e n or Family
the c h i l d r e n being removed from the reservation
relatives
Code.
and any
they have there i n favor o f the non-Santa Claran
father or any paternal r e l a t i v e s .
193
I n this s i t u a t i o n , the father was actually a Navajo I n d i a n .
eligibility
since
for membership of the children in
The
the Navajo tribe was not
specif-
1 94
i c a l l y addressed in
the M a r t i n e z case.
for membership in the Navajo
have t r a n s f e r j
u r i s d i c t i o n
1
tribe,
^
Assuming
the N a v a j o s ,
t r a n s f e r to the Navajo
tribal
court.
Navajo r e l a t i v e s ,
relatives
other Navajo
unless
d e f i n i n g good cause
would
However,
to refuse a
to place the children with the
force
paternal
families or with the Santa Claran maternal
under the third preference
1915(a)(3),
of the A c t . 1 ^
The mandates o f the Act would
the state court r e t a i n i n g j u r i s d i c t i o n
eligible
not the Santa C l a r a n s ,
under section 1 9 1 1 ( b )
the state court could use the regulations
19 7
the children were
for " o t h e r I n d i a n
there is "good cause to the
00519
families"
contrary."198
in
section
-22-
In other words,
confines o f
courts have wide d i s c r e t i o n even under
the Act i n a s i t u a t i o n
the c h i l d r e n ,
who are c u l t u r a l l y
the Santa Claran
or other I n d i a n
i n v o l v i n g mixed blood c h i l d r e n .
and s o c i a l l y ,
tribe be placed with Navajos,
but not a c t u a l l y ,
non-Indians,
two,
how w i l l
a state
Clarans,
court construe "good cause to the con-
under a placement preference?
does i t n e c e s s a r i l y
that i s ,
Would
members of
Santa
If
the state court follows
l a t i o n s and does not find the r e q u i s i t e number of contacts with
tribe,
the
families?
Furthermore,
trary"
the state
the
regu-
the Navajo
follow that placement preferences number one
and
with a member of the extended Navajo family or another Navajo
1 99
family,
are i g n o r e d , with the children being placed with a Santa
family or t h e i r Santa Claran maternal
is left
to the d i s c r e t i o n of the
feels
that holds
there is
from one another.
for each other.
that " a n I n d i a n
The question remains whether
tions,
are w i t h i n a state
c o u r t ' s purview.
I n d i a n s get along with each o t h e r ,
The
If
that i t
the c h i l d could s u f f e r as a
cannot consider this i s s u e ,
easier
a corollary
for a child
to adapt
active
tribe
to the f i r s t
assumption
false,
the s t a t e c o u r t ' s hands are t i e d
assumption i s
in
considera-
although not patently
may be f a l s e i n a given s i t u a t i o n .
is
Tribes
for the Santa Clarans would not be
the c h i l d .
Secondly,
to.
Many tribes actually have an
the best i n t e r e s t s of
that a l l
the assumption
P l a c i n g a Santa Claran child with another
in general such f e e l i n g s
such as these,
area
the s i l e n c e of the Act
regardless of the tribe one p a r t i c u l a r Indian belongs
vary a great deal
antipathy
First,
This e n t i r e
CONCLUSION
that two assumptions underlie
regarding mixed b l o o d s .
an I n d i a n "
instead?
courts.
VI.
This w r i t e r
relatives
Claran
in
result.
that i t w i l l
to a new I n d i a n culture than to adapt
be
to a new
-2 3-
non-Indian c u l t u r e .
m a n i f e s t a t i o n of this assumption.
ramifications
of p l a c i n g
this
201
202
In fact,
the case of a mixed-blood c h i l d ,
A f t e r four y e a r s ,
On C o n s t i t u t i o n a l
upheld in several j u r i s d i c t i o n s
courts.
the
Act's
the
far-reaching.
are s t i l l not i n .
not implemented the A c t .
higher
In
is
child with another tribe when i t was perhaps
b e i n g raised as a non-Indian are
The results
for other Indian f a m i l i e s 2 ^
The preference
but
several
grounds,
states
the Act has been
there has not been a d e c i s i o n
most of
the l i t i g a t i o n
have
from the
regarding the Act has
20 3
found tnat the Act does not apply
to the proceedings
therein.
One o f two assumptions can be drawn from this f a c t .
courts
and j u d i c i o u s l y
would test
the Act to i t s
reading as
edged sword.
cases
the
state
are handling the cases i n such a manner that their d i s c r e t i o n
cautiously
sive
Either
used or that the s p e c i f i c
l i m i t s has not a r i s e n .
remedial l e g i s l a t i o n
By giving
the state
Giving
courts'
raises i t s
powers
could be a two-
to deal with
specific
On the o t h e r hand,
could lead to i n e q u i t a b l e
by d e f e a t i n g the purposes of the A c t ,
This w r i t e r suggests
ugly head.
that
the Act an expan-
to be construed 2 ®^
the s t a t e courts f l e x i b i l i t y
the spector of abuses
stricting
is
fact s i t u a t i o n
is
results
reeither
or worse y e t , harming an innocent
that regulations
be promulgated that direct
child.
the
s t a t e s and tribes to s p e c i f i c a l l y address the issue of c h i l d r e n with mixed
205
blood i n the tribal-state agreements made pursuant to s e c t i o n 1 9 1 9 ( a ) .
§0521
APPENDIX
Indian Foster Care
(10 Worst States by rate of Indian
Foster care placements
thousand
Placements)
per
Per capita rate
of Indians in
f o s t e r care
compared to
State
Idaho
Maine
Minnesota
Wisconsin
South Dakota
. . .
Utah
North Dakota
. . .
Oregon
Montana
Washington
. . . .
Indian
cnildren
77.5
75.8
58.1
53.5
45.5
37.2
36.1
36.1
35.3
35.0
Non-Indian
children
12.1
4.0
3.5
4.0
2.0
2.5
1.8
4.4
2.8
3J>
non-Indians
(percent)
640
1,910
1,650
1,340
2,240
1,500
2,010
820
1,280
960
Source:
Indian Child Welfare Act o f 1 9 7 7 , Hearings on S . 1212 Before the
S e l e c t Comm. on I n d i a n A f f a i r s , 95th C o n g . , 1st S e s s . 539-40 ( 1 9 7 7 ) .
00522
Senate
FOOTNOTES
1.
25 U . S . C . A .
§§ 1901 e t .
2.
Id.
3.
Id.
4.
Id.;
5.
25 U . S . C . A .
6.
Id.
§ 1901(5).
7.
JLd.
§ 1901(4).
Malaterre v. M a l a t e r r e ,
8.
Id.
9.
Note,
1979).
293 N . W . 2 d 139 ( N . D .
1980).
§ 1902.
H.R.
Rep.
Code Cong.
No.
& Ad.
1386,
95th C o n g . ,
News 7530
10.
Id.
at
1203.
11.
JId. at
1204.
2d S e s s .
[hereinafter
The I n d i a n Child Welfare A c t — T r i b a l
Participation
3,
reprinted
cited as U . R .
Self-Determination
i n C h i l d Custody P r o c e e d i n g s ,
1979 W i s .
L.
Rev.
In
Rep.].
Through
1202.
Id.
13.
See Indian
14.
Cherokee Nation v.
15.
See generally
Reorganization A c t ,
F.
Georgia,
Lee,
375
Worcester v .
(1886);
30 U . S .
358 U . S .
Georgia,
217
591
30 U . S .
(1916);
States v . tiolliday,
515
(1882).
§§ 461 e t .
(5 P e t . )
(1959);
Georgia,
1,
1
17
seq.
(Supp.
(1831).
407
United S t a t e s ,
(6 P e t . )
1979).
515
(1882);
See
118
also
U.S.
Cherokee
(1831).
435 U . S .
United States v.
70 U . S .
Kagama v .
31 U . S .
(5 P e t . )
See United States v. W h e e l e r ,
241 U . S .
25 U . S . C . A .
Cohen, handbook of Federal I n d i a n Law ( 1 9 4 2 ) .
Williams v .
Nation v.
16.
(Supp.
§ 1902.
[1978] U . S .
12.
seq.
313
(1978);
Kagama,
(1866);
United States v .
358 U . S .
Worcester v .
217
(1959);
Georgia,
Nice,
United
31 U . S .
(6
Pet.)
-24-
17
See P e r r i n v .
70 U . S .
18
20
21
441
(5 P e t . )
at
31 U . S .
(6 P e t . )
515
at
478
(1914);
United States v .
ilolliday,
430 U . S .
641
(1977);
Sizemore v .
Brady,
235
(1914).
30 U . S .
Id.
232 U . S .
(1866).
United States v . Antelope,
U.S.
19
407
United S t a t e s ,
16.
(1832).
559.
22
23
24
25
26
104 U . S .
621
(1882).
See also Draper v.
358 U . S .
Ld. at
at
217
United S t a t e s ,
164 U . S .
240
(1896).
(1959).
220.
27
^d.
223.
28
241 U . S .
602
(1916).
29
30
393 F .
Supp.
31
424 U . S .
382
719
(N.D.
Mich.
1973).
(1976).
32
33
H.R.
Rep.
1386,
34
A non-profit o r g a n i z a t i o n ,
Alaskan Natives
35,
Comment,
supra note
7.
founded in 1 9 2 3 ,
to a t t a i n f u l l p o l i t i c a l ,
[hereinafter
Id.
37.
Id.
at
to a i d American Indians
s o c i a l and economic
The American Indian Child Welfare C r i s i s :
First Amendment P r e s e r v a t i o n ,
36
See also Appendix.
cited as Columbia
530.
See a l s o Appendix:
Table
1.
00524
equality.
Cultural Genocide
7 Colum. Human Rights L .
Comment].
and
Rev.
529
(1975)
or
-26-
38.
Comment,
1123
Indian Child W e l f a r e :
(19 79)
at
[hereinafter
39.
Id.
40.
Wisconsin Potowatomies,
41.
_Id. at
43.
115 A r i z .
44.
Id.
45.
Wisconsin Potowatomies,
46.
Arizona
393 F. Supp.
86,
563 P . 2 d
885
Rev.
Comment].
719
(N.D.
Mich.
1973).
(1977).
393 F.
Comment, supra note
" P a r e n t " or " S t r a n g e r " :
(1978-79)
Supp.
38,
at
at 1 1 3 2 ;
730.
see also Note, Navajo
A C h i l d Custody Determination,
[ h e r e i n a f t e r cited as New Mexico
47.
Arizona Comment,
48.
Id.
supra note
49.
j-d. at 1 1 3 2 ;
50.
Arizona
51.
JLd. at
52.
89 N.M.
53.
New Mexico Note,
54.
ni.
55.
Doe,
56.
Id.
57.
Id.
58.
Under the provisions of
38,
at
Comment,
supra note
38,
at
Grandparents—
9 N.M.L.
Rev.
187
Note].
1133.
Wisconsin Potowatomies,
393 F.
Supp.
719
(N.D.
Mich.
1973).
1133.
1134.
606,
555 P . 2 d 9 0 6 ,
cert,
supra note 4 6 ,
denied,
at
90 N . M .
7,
558 P . 2 d 619
(1976).
188.
190.
89 N . M .
607,
606,
555 P . 2 d 906
555 P . 2 d at
New Mexico Note,
(1976).
907.
the Indian Child Welfare A c t ,
would have had j u r i s d i c t i o n .
59.
L.
730.
Id.
at
cited as Arizona
21 A r i z .
1129.
42.
at
A J u r i s d i c t i o n a l Approach,
This
supra note 4 6 ,
at
case predated
190.
00525
the t r i a l
the A c t .
court
-27-
60
61
Id.
at
188.
Id.
at
190.
62
63
64
65
66
Id.
at 1 9 1 .
U.S.
Dept. H . K . W . ,
P ub • Ho.
25,
Study of Selected Soclo-Economic
of Ethnic Minorities Based on the 19 70 Census
housing
(urban) and 44% Indian housing
(rural)
75
(19 7 4 ) .
Fully
is s u b s t a n d a r d ,
Characteristic
19% of
in
that
of the rural Indian housing is without running water and 48% without
As a group,
the Indians
have the lowest median income of any group i n
population.
67
68
69
70
Arizona Comment,
_Id.;
supra note
Santa Clara Pueblo v.
But see Begay v. M i l l e r ,
25 U . S . C . A .
§ 1911(a)
71
Id.
§ 1911(b).
72
_Id.
§ 1911(c).
73,
id.
§ 1911(d).
74,
Id.
§
1912(a).
75,
Ld.
76,
Id.
§
1912(b).
77,
Id.
§§
78,
Id.
§ 1913.
79.
Id.
§§
1915(a),
80,
Id.
§§
1 9 1 5 ( e ) , 1917
81,
Id.
§ 1931.
1912(e),
38,
at
1125.
Martinez,
70 A r i z .
(Supp.
436 U . S .
380,
49,
65 n . 2 1
222 P . 2 d 624
1979).
(f).
(b).
00526
(19 7 8 ) .
(1950).
Indian
67%
toilets.
the
-28-
82.
Id.
83.
A p p l i c a t i o n of B e r t e l s o n ,
84.
25 U . S . C . A .
85.
Id.
§ 1903(1)(iii).
86.
J^.
§ 1903(1)(iv).
87.
Id.
§ 1903(3).
88.
Id.
§ 1903(4)
89.
JLd.
§ 1903(8).
90.
Id.
§ 1903(5).
91.
Id.
§ 1903(6).
92
-
§ 1903(1).
§ 1903(1)(i)
(emphasis
See generally
(Supp.
Ld.
s 1903(9).
94.
Id.
§ 1911(a).
95.
Id.
§ 1911(h).
96.
Jld.
97.
W.
98.
Jjd.
99.
25 U . S . C . A .
See also i n f r a notes
Reg.
§ 1952
67,586
121
(Mont.
1980).
1979).
added).
25 U . S . C . A .
93.
617 P . 2 d
(Supp.
§§ 1901 e t .
seq.
(Supp.
100-09 and accompanying
1979).
text.
1979).
100.
44 Fed.
(1979).
101.
Id.
102.
This statute extended the state j u r i s d i c t i o n of c i v i l and criminal
versies to I n d i a n country in f i v e s t a t e s :
(except
the Red Lake Chippewas)
California,
and W i s c o n s i n .
ye a r s .
103.
25 U . S . C . A .
104.
See i n f r a notes 114-25 and accompanying
105.
44 Fed.
Reg.
§ 1918
67,856
(Supp.
1979).
text.
(1979).
00527
Nebraska,
contro-
Minnesota
Alaska was added w i t h i n
five
-29-
106.
Id.
107.
Id.
108.
Id.
109.
44 Fed.
Reg.
110.
Davles,
Implementing the Indian Child Welfare Act,
67,591
(1979);
H.R.
Rep. No.
1386,
(1982).
111.
Id.
112.
Id.
113.
25 U . S . C . A .
114.
P.L.
115.
25 U . S . C . A .
116.
44 Fed.
117.
25 U . S . C . A .
118.
Id.
119.
Id.
§
120.
Id.
§ 1918(b) ( 1 ) ( i i ) .
121.
Ld.
§ 1918(b)(1)(iii).
122.
Id.
§
1918(b)(1)(iv).
123.
Ld.
§
1918(b)(2).
124.
Id.
125.
Ld.
126.
See supra notes
127.
25 U . S . C . A .
128.
Id.
129.
_Id.
130.
J-d. § 1 9 1 2 ( e ) .
131.
Id.
at
181.
83-280,
Reg.
§ 1918
(Supp.
supra note
§ 1918
102.
(Supp.
45,092
1979).
1979).
(1979).
§ 1918(b)
(1978).
1918(b)(l)(i).
82-86 and accompanying
§ 1912(d)
§ 1931.
(Supp.
1979).
text.
supra note
7, at
21.
16 Clearinghouse
Rev.
179
-30-
132.
44 Fed.
Reg.
45,091,
45,108
133.
44 Fed.
Reg.
67,593
(1979).
134.
Id.
135.
25 U . S . C . A .
136.
Id.
137.
Id.
138.
Id.
139.
Id.
140.
Id.
141.
Id.
§§ 1 9 1 3 ( c ) ,
142.
Id.
§ 1912(f).
143.
Id.
144.
Id.
§ 1913(c).
145.
Id.
§ 1913(d).
146.
W.
147.
_Id.
148.
Id.
149.
Id.
§ 1915(c).
150.
Id.
§ 1915(a).
151.
Id.
§ 1915(b).
152.
Id.
153.
Id.
154.
Id.
§ 1915(d).
155.
Id.
§ 1915(e).
156.
Id.
157.
Id.
158.
_Id.
159.
Id.
§ 1913(b)
(Supp.
§ 1913(a).
§ 1914.
§ 1912(a).
1912(f).
(1979)
1979)
-31-
160.
_Id.
161.
Id.
162.
W.
163.
Id.
164.
Jd.
§§ 1931 e t .
165.
JW.
§ 1931.
166.
Note, The Indian Child Welfare Act of 1 9 7 8 :
S.D.L.
Rev.
98,
seq.
113
25 U . S . C . A .
168.
See 23 C . F . R .
169.
State Implementation of
170.
§ 1931(b)
JLd.
are:
Kentucky;
Rhode I s l a n d ;
171.
J-jJ.
172.
Id.
173.
Id.
174.
U.
175.
Ld.
at
11.
Jjd. at
12.
[hereinafter
Connecticut;
Maryland;
are:
(1982).
Id.
178.
See supra note
Delaware;
Missouri;
179.
Newsletter,
supra note 1 6 9 ,
180.
25 U . S . C . A .
§ 1918
181.
Newsletter,
supra note 1 6 9 ,
182.
Id.
(Supp.
at
14.
1979).
at
14.
Georgia;
New J e r s e y ;
Tennesses;
102.
15 American
Indian
cited as N e w s l e t t e r ] .
Massachusetts;
177.
at 1 5 .
39,978
the Indian Child Welfare A c t ,
South C a r o l i n a ;
These s t a t e s
25
1979).
See also 4 7 Fed. Reg.
(1982)
Indiana;
176.
(Supp.
Law Newsletter 10
These states
and P o l i c y ,
(1980).
167.
§ 23.
Provisions
Vermont;
Ohio;
Hawaii;
Pennsylvania;
Virginia;
Mississippi;
Illinois;
and West
New Hampshire;
Virginia.
and
Texas.
-32-
183
See generally N e w s l e t t e r ,
184
Id.
185
44 Fed.
186
25 U . S . C . A .
at
supra note
169.
16.
Reg.
67,586
(1979).
§ 1903(5)
(Supp.
1979).
187
188
44 Fed.
189
Santa Clara v .
190
82 S t a t .
77,
191
436 U . S .
at
192
See supra notes
193
Martinez,
194
Id.
Reg.
67,586
(1979).
Martinez,
436 U . S .
25 U . S . C . A .
49
§§ 1301 e t .
(1978).
seq.
(1968).
50.
87-88 and accompanying
text.
436 U . S .
at
49.
The p l a i n t i f f
in
that case was challenging the Santa Claran
ordinance
that p r o h i b i t e d her children from being members of the tribe because
fattier was not a Santa Claran.
Eligibility
for membership
tribe by virtue o f the f a t h e r ' s membership was thus
195
the Navajo
reservation.
25 U . S . C . A .
197
See supra notes 100-95 and accompanying
198
Although the court court could refuse
(Supp.
25 U . S . C . A .
200,
Id.
text.
text.
in
i t would
the Act by virtue of
to the A c t .
See supra notes
the
87-93
text.
§§ 1 9 1 5 ( a ) ( 1 ) ,
and accompanying
thus not domiciled on
to transfer j u r i s d i c t i o n ,
ctiildren being I n d i a n c h i l d r e n subject
199,
children
1979).
have to use the placement preferences
and accompanying
the
See supra notes 94-98 and accompanying
196
still
§ 1911(b)
in the Navajo
irrelevant.
The Navajos would not have exclusive j u r i s d i c t i o n because
resided on tne Santa Claran reservation and were
their
(2)
(Supp.
1979).
text.
§ 1915(a)(3).
00531
See also supra notes
98-109
-33-
201.
See supra notes 169-79 and accompanying
202.
See In re Guardianship
In re M . T . ,
203.
Bertelson,
No.
of D . L . L .
JF-79-1121
6 1 7 P . 2 d 121
In re Adoption of Baby Nancy,
597 P.2d 518
(Alaska
See, e . g . , Russell v.
25 U . S . C . A .
§ 1919(a)
Mar.
1980);
6,
291 N . W . 2 d 278
(S.D.
1980);
1980).
In re T . J . D . ,
616 P . 2 d 1 2 6 3
615 P . 2 d
(Wash. App.
212
1980);
(Mont.
In re
1980);
C.L.T.,
1977).
State A c c .
r e v ' d on other grounds,
205.
and C . L . L . ,
(Okla.
(Mont.
text.
Ins.
547 P . 2 d 653,
(Supp.
Fund, 5 6 3 P . 2 d
738 ( O r e .
a f f ' d on remand,
1979).
00532
App.
576 P . 2 d
376
1977),
(1978).