KEY:
HISTORIC/LEGISLATIVE HISTORY;
ICWA’S PURPOSE;
POWER OF CONGRESS;
EXISTING INDIAN FAMILY (EIF);
BEST INTERESTS;
TRIBAL PROCEDURAL INVOLVEMENT;
PLACEMENT PREFERENCES;
DEFINING TERMS UNDER ICWA
BRIEF
ARGUMENT 1
ARGUMENT 2
ARGUMENT 3
ARGUMENT 4
AMERICAN INDIAN AFFAIRS,
NATIONAL CONGRESS OF
AMERICAN INDIANS, NATIONAL
INDIAN CHILD WELFARE
ASSOCIATION, INDIAN TRIBES,
AND OTHER INDIAN
ORGANIZATION:
CONGRESS HELD
HEARINGS IN THE 1970S IN
REGARD TO A CRISIS IN
STATE CHILD WELFARE
AND ADOPTION SYSTEMS A CRISIS THAT RESULTED
IN LARGE NUMBERS OF
INDIAN CHILDREN BEING
SEPARATED FROM THEIR
PARENTS, TRIBES AND
EXTENDED FAMILIES AND
PLACED WITH NONINDIANS
CONGRESS RESPONDED
TO THIS CRISIS BY
ENACTING THE INDIAN
CHILD WELFARE ACT TO
ESTABLISH MINIMUM
FEDERAL STANDARDS
FOR THE SEPARATION OF
INDIAN CHILDREN FROM
THEIR FAMILIES AND TO
PROVIDE SPECIFIC
PROTECTIONS TO INDIAN
FAMILIES AND TRIBES
FATHER IS A “PARENT”
WITHIN THE MEANING
OF ICWA AND IS
ENTITLED TO INVOKE ITS
PROTECTIONS AGAINST
TERMINATION OF
PARENTAL RIGHTS
THE APPLICATION OF
ICWA IS NOT DEPENDENT
UPON PRIOR CUSTODY OF
AN INDIAN CHILD BY AN
INDIAN PARENT; THE ACT
IS TRIGGERED BY AN
INDIAN CHILD INVOLVED
IN A CHILD CUSTODY
PROCEEDING AND THE
EXISTING INDIAN FAMILY
EXCEPTION (EIF) SHOULD
BE REJECTED
ICWA IS DESIGNED TO
PREVENT THE SEPARATION
OF INDIAN CHILDREN
FROM THE INDIAN
COMMUNITY THROUGH
VARIOUS CHILD
PLACEMENT PRACTICES,
INCLUDING VOLUNTARY
ADOPTION
ICWA PROTECTS THE
BEST INTERESTS OF
INDIAN CHILDREN BY
ESTABLISHING
PROCEDURAL AND
SUBSTANTIVE
SAFEGUARDS THAT
PROPERLY PROTECT
THEIR CONNECTION TO
INDIAN TRIBES
AMICI'S PRE-ICWA
ADOPTION EXPERIENCES
DEMONSTRATE THAT
MAINTAINING TRIBAL
TIES SERVES THE BEST
INTERESTS OF AN INDIAN
CHILD
CONGRESS ENACTED ICWA
IN ORDER TO PRESERVE
THE CONTINUED
SOVEREIGN, POLITICAL
EXISTENCE OF INDIAN
TRIBES
CONGRESS HAS THE
EXCLUSIVE POWER TO
LEGISLATE WITH RESPECT
TO INDIAN TRIBES
ICWA FALLS WITHIN
CONGRESS'S
CONSTITUTIONAL
POWER AND DOES NOT
VIOLATE EQUAL
PROTECTION PRINCIPLES
THE BEST PRACTICES IN
CHILD WELFARE OF
ENSURING STRONG
SAFEGUARDS BEFORE
SEVERING A CHILD'S TIES
TO AN ACKNOWLEDGED,
INTERESTED, AND FIT
PARENT ARE EMBODIED IN
ICWA
ICWA REFLECTS
CONGRESS'S JUDGMENT
TO ADHERE TO BEST
PRACTICES IN CHILD
WELFARE, NOT AN
INVALID PREFERENCE
HISTORICAL FRAMEWORK
THE POLICY BEHIND THE
INDIAN CHILD WELFARE
ACT
CLICK HERE
ADULT PRE-ICWA INDIAN
ADOPTEES:
CLICK HERE
CURRENT AND FORMER
MEMBERS OF CONGRESS:
CLICK HERE
CASEY FAMILY PROGRAMS,
CHILD WELFARE LEAGUE OF
AMERICA, CHILDREN'S DEFENSE
FUND, DONALDSON ADOPTION
INSTITUTE, NORTH AMERICAN
COUNCIL ON ADOPTABLE
CHILDREN, VOICE FOR
ADOPTION, AND TWELVE
OTHER NATIONAL CHILD
WELFARE ORGANIZATIONS:
CLICK HERE
SEMINOLE NATION OF
OKLAHOMA:
CLICK HERE
THE ICWA PROVIDES THE
NECESSARY MECHANISM
TO ENSURE INDIAN
NATION INVOLVEMENT
IN STATE COURT CHILD
CUSTODY PROCEEDINGS
ARGUMENT 5
INTER TRIBAL COUNCIL OF
ARIZONA, AK-CHIN INDIAN
COMMUNITY, COLORADO RIVER
INDIAN TRIBES, FORT
MCDOWELL YAVAPAI NATION,
HOPI TRIBE, THE PASCUA YAQUI
TRIBE OF ARIZONA, AND
TOHONO O'ODHAM NATION:
TRIBAL PARTICIPATION IS
A FUNDAMENTAL ASPECT
OF ICWA AND SHOULD BE
PROTECTED
ADOPTING THE EXISTING
INDIAN FAMILY
DOCTRINE, OR A STATE
LAW BASED DEFINITION
OF “PARENT,” WOULD
COMPLICATE CHILD
CUSTODY PROCEEDINGS,
INTERFERE WITH THE
TRIBES' RIGHTS TO
NOTICE AND
INTERVENTION, AND
HARM INDIAN CHILDREN
THE ACT APPLIES TO
PROCEEDINGS INVOLVING
AN INDIAN CHILD
REGARDLESS OF THE
CHILD'S MEMBERSHIP IN
AN “EXISTING INDIAN
FAMILY” OR THE PARENT'S
CUSTODIAL STATUS
ALLOWING UNWED
FATHERS OF INDIAN
CHILDREN TO TIMELY
ACKNOWLEDGE OR
ESTABLISH PATERNITY BY
MEANS OTHER THAN
STRICT COMPLIANCE
WITH STATE PATERNITY
LAWS COMPORTS WITH
ICWA'S PURPOSE AND
OBJECTIVES AND
SUPPORTS THE STATES'
GOAL OF EFFICIENT AND
STABLE ADOPTIONS OF
INDIAN CHILDREN
THE INDIAN CHILD
WELFARE ACT
INDIAN CHILD WELFARE
IN MINNESOTA
DHS AND THE
OMBUDSPERSON
ENCOURAGE THE COURT
TO INTERPRET ICWA TO
CONTINUE TO ALLOW
MINNESOTA AGENCIES
THE AUTHORITY TO
EFFECTUATE ICWA'S
GOALS
THE HISTORICAL AND
CULTURAL LANDSCAPE IN
ALASKA IS UNIQUE, AND
ANY NARROWING OF
ICWA WILL BE
DETRIMENTAL TO ALASKA
NATIVE CHILDREN
ALASKA COURTS HAVE
CONSISTENTLY
RECOGNIZED THAT ICWA
IS MEANT TO PROMOTE
TRIBAL CONTROL OVER
CUSTODY DECISIONS
INVOLVING ALASKA
NATIVE CHILDREN
IMPORTANT PROGRESS
IN ALASKA TRIBALSTATE
RELATIONS WOULD BE
UNDERMINED IF THIS
COURT ACCEPTS
PETITIONERS'
ARGUMENTS THAT ICWA
IMPOSES DISTINCTIONS
BASED ON RACE AND
RESIDENCY ON TRIBAL
LANDS
AGGRESSIVE
ENFORCEMENT OF THE
ICWA IS NECESSARY FOR
THE CONTINUING
EXISTENCE OF THE AMICI
ICWA'S LEGISLATIVE
HISTORY
DEMONSTRATES THAT
CONGRESS CONSIDERED
AND REJECTED THE
“EXISTING INDIAN
FAMILY” DOCTRINE
THIS CASE ILLUSTRATES
WHY CONGRESS
ADOPTED THE
PLACEMENT
PREFERENCES IN
SECTION 1915(A)
CLICK HERE
ARIZONA, ALASKA, CALIFORNIA,
COLORADO, CONNECTICUT,
GEORGIA, IDAHO, ILLINOIS,
MAINE, MICHIGAN, MISSISSIPPI,
MONTANA, NEW MEXICO, NEW
YORK, NORTH DAKOTA,
OREGON, WASHINGTON AND
WISCONSIN:
CLICK HERE
MINNESOTA DEPARTMENT OF
HUMAN SERVICES AND
MINNESOTA OMBUDSPERSON
FOR AMERICAN INDIAN
FAMILIES:
CLICK HERE
THE OKLAHOMA INDIAN CHILD
WELFARE ASSOCIATION:
CLICK HERE
TANANA CHIEFS CONFERENCE,
BRISTOL BAY NATIVE
ASSOCIATION, ASSOCIATION OF
VILLAGE COUNCIL PRESIDENTS,
CENTRAL COUNCIL OF TLINGIT
AND HAIDA INDIAN TRIBES OF
ALASKA, ALEUTIAN PRIBILOF
ISLANDS ASSOCIATION, NATIVE
VILLAGE OF BARROW, AND THE
ORUTSARAMIUT NATIVE
COUNCIL:
ICWA IS CONFIGURED TO
PROTECT THE BEST
INTERESTS OF INDIAN
CHILDREN AND TO
PROMOTE THE STABILITY
AND SECURITY OF INDIAN
TRIBES
CLICK HERE
WISCONSIN TRIBES:
CLICK HERE
THE NATIONAL NATIVE
AMERICAN BAR ASSOCIATION:
THE INDIAN CHILD
WELFARE ACT'S SINGULAR
PURPOSE IS TO PROTECT
TRIBES' SOVEREIGN
INTEREST IN THEIR
CITIZENS
ICWA'S PURPOSE TO
PROTECT TRIBES'
INTERESTS IN THEIR
CHILDREN IS DISTINCT
FROM INDIVIDUAL
PARENTAL INTERESTS
CLICK HERE
THE INDIAN CHILD
WELFARE ACT IS A
CONSTITUTIONALLY VALID
EXERCISE OF
CONGRESSIONAL POWER
THAT ESTABLISHES
ESSENTIAL SAFEGUARDS
FOR INDIAN CHILDREN,
PARENTS, AND TRIBES
THE ADOPTION DISPUTE
REGARDING BABY GIRL
FALLS SQUARELY WITHIN
THE SCOPE OF
CONGRESSIONAL
CONCERNS THAT
PROMPTED PASSAGE OF
THE INDIAN CHILD
WELFARE ACT
NATIONAL LATINA/O
PSYCHOLOGICAL ASSOCIATION,
ASIAN-AMERICAN
PSYCHOLOGICAL ASSOCIATION,
ASSOCIATION OF BLACK
PSYCHOLOGISTS, AND SOCIETY
OF INDIAN PSYCHOLOGISTS:
PSYCHOLOGICAL
CONSIDERATIONS MUST
BE APPROPRIATELY
EVALUATED TO
SUCCESSFULLY
DETERMINE CUSTODY OF
A CHILD
THE LOWER COURT
PROPERLY APPLIED AN
APPROPRIATE BEST
INTERESTS ANALYSIS
INFORMED BY THE
CULTURAL PRIORITIES OF
ICWA
ICWA PROVIDES A
PLATFORM OF MINIMUM
STANDARDS UPON WHICH
MINNESOTA WORKS TO
PROTECT THE BEST
INTERESTS OF INDIAN
CHILDREN, THEIR
FAMILIES, AND THEIR
TRIBES
BY FOLLOWING THE
PLAIN LANGUAGE AND
POLICY OF ICWA,
MINNESOTA
STAKEHOLDERS HAVE
ALREADY RESOLVED
THAT ICWA APPLIES
REGARDLESS OF STATELAW PARENTING RIGHTS
BY FOLLOWING THE
PLAIN LANGUAGE AND
POLICY OF ICWA,
MINNESOTA
STAKEHOLDERS HAVE,
LIKE MOST
JURISDICTIONS,
REJECTED THE “EXISTING
INDIAN FAMILY”
EXCEPTION AS
INCONSISTENT WITH
ICWA
THE MINIMUM FEDERAL
PROTECTIONS OF ICWA
REMAIN IMPORTANT TO
INDIAN CHILDREN AND
INDIAN TRIBES IN
MINNESOTA AND SHOULD
BE FOLLOWED
THE CONSTITUTIONALITY
OF ICWA AS APPLIED IN
THIS CASE SHOULD BE
DETERMINED UNDER THIS
COURT'S PRECEDENTS
RECOGNIZING THE WIDE
BREADTH OF CONGRESS'S
CONSTITUTIONAL INDIAN
AFFAIRS POWERS, WHICH
ACCOUNT FOR EQUAL
PROTECTION LIMITATIONS
BECAUSE THE
APPLICATION OF ICWA
BY THE SOUTH CAROLINA
COURTS WAS BASED ON
THE PROTECTION OF
TRIBAL CITIZENSHIP, NOT
RACE, IT MET THE INDIAN
RATIONAL BASIS
STANDARD AND FELL
WITHIN THE CORE
CONGRESSIONAL
POWERS
ACKNOWLEDGED EVEN
BY THE PETITIONERS AND
THE GUARDIAN
THE RESTRICTIVE
THRESHOLD TESTS
ADVANCED BY THE
PETITIONERS AND
GUARDIAN TO AVOID
THE PROPER STANDARD
OF REVIEW ARE NOT
SUPPORTED BY LAW
THE THRESHOLD TESTS
PROPOSED BY THE
GUARDIAN AND THE
PETITIONERS ARE FATALLY
SUBJECTIVE AND WOULD
FORCE COURTS INTO A
POLICYMAKING ROLE
PROPERLY RESERVED FOR
CONGRESS
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THE AMERICAN CIVIL LIBERTIES
UNION AND THE ACLU OF
SOUTH CAROLINA:
THE PURPORTED
EXISTING INDIAN FAMILY
DOCTRINE EXCEPTION TO
ICWA CONFLICTS WITH
ICWA'S PURPOSE OF
PROTECTING TRIBES'
INDEPENDENT
SOVEREIGN INTEREST IN
THEIR CITIZENS
CLICK HERE
LOWER SIOUX INDIAN
COMMUNITY, BOIS FORTE
BAND OF CHIPPEWA, PRAIRIE
ISLAND INDIAN COMMUNITY,
FOND DU LAC BAND OF LAKE
SUPERIOR CHIPPEWA, WHITE
EARTH BAND OF OJIBWE, THE
SHAKOPEE MDEWAKANTON
SIOUX COMMUNITY, THE
GRAND PORTAGE BAND OF
LAKE SUPERIOR CHIPPEWA,
UPPER SIOUX COMMUNITY, THE
LEECH LAKE BAND OF OJIBWE,
THE MILLE LACS BAND OF
OJIBWE, THE RED LAKE NATION,
THE MINNESOTA CHIPPEWA
TRIBE, AND THE INDIAN CHILD
WELFARE ACT LAW CENTER:
CLICK HERE
SEMINOLE TRIBE OF FLORIDA,
ET AL.:
CLICK HERE
THE “EXISTING INDIAN
FAMILY” DOCTRINE
ADVANCED BY THE
PETITIONERS AND THE
GUARDIAN SUFFERS
FROM THE SAME FATAL
FLAWS AS THEIR
THRESHOLD TESTS FOR
CONSTITUTIONALITY
THE HAMLINE UNIVERSITY
SCHOOL OF LAW CHILD
ADVOCACY CLINIC:
CLICK HERE
THE HONORABLE ABBY
ABINANTI, CHIEF JUSTICE OF
THE YUROK TRIBAL COURT:
CLICK HERE
THE NAVAJO NATION:
CLICK HERE
PROFESSORS OF INDIAN LAW:
CLICK HERE
63 CALIFORNIA INDIAN TRIBES:
CLICK HERE
THE UNITED STATES:
CLICK HERE
TO PROTECT THE BEST
INTERESTS OF INDIAN
CHILDREN THE POLICY
GOALS OF THE ICWA
MUST BE FOLLOWED
TO PROTECT THE BEST
INTERESTS OF INDIAN
CHILDREN, GUARDIANS
AD LITEM MUST
CONSIDER THE INDIAN
CHILD WELFARE ACT AND
THE UNIQUE NEEDS OF
INDIAN CHILDREN WHEN
MAKING THEIR
RECOMMENDATIONS
REGARDING THE
ADOPTION OR
PERMANENT
PLACEMENT OF AN
INDIAN CHILD
THE TREATMENT OF THE
CALIFORNIA TRIBAL
PEOPLE BY THE INVADERS
SEARED INTO THE FABRIC
OF OUR RELATIONSHIP A
PERVASIVE ABILITY FOR
THE INVADERS AND THEIR
HEIRS TO “SEE” TRIBAL
PEOPLE AS NOT AS GOOD
HAVING SURVIVED
GENOCIDE IN TRIBAL
HOMELANDS ACROSS
THE COUNTRY, TRIBAL
PEOPLE ARGUE THAT
THIS COURT MUST NOT
CLOAK THIS CENTURY'S
DESIRE FOR TRIBAL
CHILDREN IN FALSE
CLAIMS
RETURNING TO THE TIME
BEFORE THE INDIAN
CHILD WELFARE ACT IS
TO WEAKEN OUR
PEOPLE, OUR NATIONS,
AND TO PLACE US AT THE
MERCY OF THOSE WHO
HAVE AN ONGOING
HISTORY OF JUSTIFYING
KIDNAPPING OUR
CHILDREN
ICWA HAS APPLIED SINCE
THE CHILD'S BIRTH TO ANY
MATTERS RESPECTING
CHILD'S CUSTODY; AND
THE FATHER'S PARENTAL
RIGHTS REMAIN INTACT
“ACKNOWLEDGMENT OR
ESTABLISHMENT” OF
“PATERNITY” TO DEFINE
“PARENT” UNDER ICWA
SHOULD BE DEFINED BY
APPLICABLE TRIBAL LAW
GOVERNING FAMILIAL
RELATIONS, NOT STATE
LAW
THE EIF DOCTRINE
CONTRADICTS ICWA
U.S. POLICY FORMERLY
FAVORED REMOVING
INDIAN CHILDREN FROM
THEIR FAMILIES AS A
MEANS OF “CIVILIZING”
THE INDIANS
U.S. POLICY FORMERLY
FAVORED ERADICATING
INDIAN TRIBES AND
INDIAN CULTURE TO
FACILITATE THE INDIANS'
ASSIMILATION
BECAUSE CONGRESS
INTENDED ICWA TO PUT
A STOP TO THESE
PRACTICES, THE STATUTE
WAS DRAFTED SO THAT
IT MAY BE INVOKED BY
ALL PARENTS, WHETHER
OR NOT CUSTODIAL
THE HISTORY OF THE
TREATMENT OF
CALIFORNIA TRIBES IS
RELEVANT TO THE
PURPOSE AND
IMPLEMENTATION OF THE
ICWA
ALTERING THE SCOPE OF
THE ICWA WILL UPSET
SETTLED CALIFORNIA
LAW
CALIFORNIA TRIBES AND
COUNTIES ARE INVOLVED
IN NUMEROUS
COLLABORATIVE
EFFORTS TO BETTER
IMPLEMENT THE ICWA
ICWA APPLIES TO THIS
CHILD CUSTODY
PROCEEDING
FATHER IS A “PARENT”
UNDER ICWA
SECTION 1912(D)
BARRED TERMINATION
OF FATHER'S PARENTAL
RIGHTS
THE SOUTH CAROLINA
SUPREME COURT
MISINTERPRETED SECTION
1912(F)
APPLICATION OF ICWA
IN THIS CASE PRESENTS
NO CONSTITUTIONAL
CONCERNS