Fye Law Office South Dakota Issues Blog

Non-Profit Series: 7. Benefits of 501(c)(3) Status

2017-03-28T14:18:00.002-05:00

Written by Sagan L. Carman-Downer

The previous article in this series explained what the term 501(c)(3) means, and briefly which organizations can qualify for tax-exempt status under 501(c)(3). As explained in that article, many non-profit entities seek tax-exempt status under this provision as charitable organizations.

In order to qualify under the charitable portion of 501(c)(3), your organization must be operated for a purpose that is recognized by the federal government as “charitable.” Purposes that are recognized include:

• Relief of the poor, the distressed, or the underprivileged;
• Advancement of religion;
• Advancement of education or science;
• Erecting or maintaining public buildings, monuments, or works;
• Lessening the burdens of government;
• Lessening neighborhood tensions;
• Eliminated prejudice and discrimination;
• Defending human and civil rights secured by law; and
• Combating community deterioration and juvenile delinquency.

When seeking tax-exempt status, the non-profit organization must go through an application process to be recognized as having 501(c)(3) status. During this process, the organization must ensure that they operate for one or more of the purposes listed above to qualify as a charitable organization.

If the organization’s application is approved, it will be considered tax-exempt for purposes of federal law. There are two major tax benefits to obtaining 501(c)(3) status. First, the organization is exempt from paying federal income tax. Second, the organization can receive tax deductible contributions. This allows people who donate to the organization to deduct their contribution from their income, which may lower the income tax they would otherwise owe. This provides a direct benefit to the donors, and an indirect benefit to the organization. Because the donors’ contributions may help lower their tax burden, it can encourage donors to contribute to an organization that has 501(c)(3) status over one that doesn’t.

If you believe your organization could benefit from having status as 501(c)(3), it is best to speak with an attorney in your state to discuss the requirements further. This article provides general guidelines, but you should seek advice specific to your situation to determine whether this is the best option for your organization.

We're Hiring!

2017-03-22T08:53:00.002-05:00

Fye Law Office seeks candidates for an Associate Attorney position. Applicants with all levels of experience are encouraged to apply. A successful candidate will have an interest in family law, juvenile law, estate planning/probate. Interest in other areas of law is also welcome. Travel to counties in South Central NE should be expected. Applicants must either be admitted to practice law in the State of Nebraska or eligible to apply for admission.

A cover letter, resume, and references may be submitted to: Tana Fye, Fye Law Office, 713 Fourth Avenue, Holdrege, NE 68949, or fyelaw@gmail.com.

Rural Areas Need More Lawyers

2014-10-07T17:42:00.001-05:00

I live and work primarily in rural Nebraska, but am from the Rapid City area of South Dakota. And I hear about and see first hand that there is a shortage of lawyers able to handle the caseload that exists. The American Bar Association recently wrote a fantastic article about this issue, and how different states are seeking to address it. Really a lawyer shortage equates to a justice shortage, because of the long distances that people have to travel to find attorneys and the cost associated with doing so. I applaud the work of the State Bars that are trying to find solutions, and hope that this will continue.

ICWA and the SCOTUS

2013-01-04T16:43:00.000-06:00

For only the second time, the Supreme Court of the United States will hear a case involving the Indian Child Welfare Act (ICWA). This Reuters article describes the situation as a "human tragedy," which pretty much can describe any case on appeal involving ICWA, as the failure to abide by ICWA's mandates can essentially 'undo' an adoption.

Whatever the result, it will be wonderful for attorneys involved in these types of cases to have a little more guidance from the Supreme Court.

First Amendment, Pastors, and the IRS

2012-10-09T09:25:00.000-05:00

I thought that this story (here and here) was fascinating. Currently churches can lose their 501(c)(3) status if the pastor endorses candidates, as the church is no longer purely a religious organization. These pastors believe that such a rule violates their First Amendment right to free speech. I guess we'll have to wait and see what happens. Any pastors in South Dakota participating?

Right to Counsel for Children

2012-09-28T15:06:00.000-05:00

This link has a report card for each state on a child's right to counsel. South Dakota only earns a D. This report card is based on laws actually on the books, not based on how those laws are applied by the Courts. When we look at how the laws are applied, I think that South Dakota would score a little higher, but perhaps it raises a good question about whether the laws should reflect the best practices of the state courts?

Thanks to the Children's Advocacy Institute, FirstStar, and the University of San Diego School of Law for conducting this study and making your results public.

Trauma

2012-09-25T16:58:00.001-05:00

Trauma seems to be the new hot button issue for those who work in the child welfare system. So...what exactly is trauma? The definition that I received at the session on Polyvictimization and Child Trauma at the National Association of Counsel for Children (NACC) conference is as follows (and note that this definition is geared toward children, but is more broadly applicable):
- extraordinary experience that threatens the life or physical integrity of a child or of someone important to that child
- this extraordinary experience causes overwhelming sense of terror, helplessness, and horror
- this extraordinary experience produces intense physical effects.

Okay, but we all know that those who are involved in the child welfare system, whether they are parents or children, have experienced some truly awful things. Why is trauma as a concept so important for us to consider and look for? A study called the Adverse Childhood Experiences (ACE) study found that childhood trauma results in a reduction of life expectancy of 19 years. This is a big deal. Nineteen years can mean the difference between seeing your child graduate from college or get married, or meeting a grandchild.

So how do we know whether the experiences are just a bad thing (or a series of bad things) that happened to a person, or whether they constitute a trauma, which the person may need assistance in dealing with? We look for symptoms, such as diagnoses of PTSD, ODD, bipolar disorder, ADD, ADHD, and conduct disorder. Other symptoms besides diagnoses include avoidance, feeling numb or disengaged, hyperarousal or emotional/behavioral agitation, re-experiencing, feelings of powerlessness and helplessness, and feelings of hyper-vigilance. These types of symptoms may also be a clue that there is an underlying trauma, if you were not already aware of the trauma and were only aware of the diagnoses.

Once you are aware of the types of symptoms listed above, and that there may be trauma underlying those symptoms, it is key to conduct a trauma assessment, which is more in-depth and is different from a routine general mental health treatment. The person conducting a trauma assessment should be a mental health provider with training on trauma. The assessment is intended to determine whether the child (or person) needs trauma focused treatment.

So why am I writing about trauma on a blog that is not necessarily geared toward other attorneys and professionals in the child welfare system (although I certainly welcome them to read as well!)? Because anyone can look for trauma and recognize some of the symptoms of trauma and then assist the person to obtain an assessment and trauma-focused treatment, if necessary. And because 19 years is a really big deal.

Thanks to the presenters at the NACC Conference on this topic, as well as the National Child Traumatic Stress Network, Child Welfare Committee for the resources for this post.

National Association of Counsel for Children (NACC) Conference

2012-08-20T21:01:00.000-05:00

I just returned from the National Association of Counsel for Children (NACC) Conference in Chicago, IL. It was fabulous (just as it was last year)! It's given me some great ideas for posts, so I'll be updating the blog soon with all of the great information I learned.

Thanks for reading!

Youth with Sexual Behavior Problems

2012-04-18T12:17:00.001-05:00

I wrote an article that was published on the Through the Eyes of the Child Initiative's website. Here's the link. Please feel free to check it out & let me know if you have any comments.

Shaken Baby Syndrome

2011-12-01T10:22:00.001-06:00

When I was a law clerk, the year after I graduated from law school, I had the opportunity to watch two separate criminal trials where the issue was shaken baby syndrome. In one trial, the defendant was convicted; in the other, the defendant was acquitted. In both cases, the prosecution and defense both presented the testimony of expert witnesses on this very topic. Needless to say, it was extremely interesting to watch and learn about. However, it made very clear to me that the diagnoses of shaken baby syndrome is far from a medical certainty. There are many variables that go into whether shaken baby syndrome is present in the particular child. But even more interesting (at least to me), is the question of whether shaken baby syndrome even exists, as well as whether shaking alone can cause injury or if an impact of the head is needed. I take no position on this, because frankly I lack the medical training to honestly evaluate it.

In the December 2011 issue of the ABA Journal, an American Bar Association publication, this very topic has been taken up. I urge you to read it and consider the issue for yourself. ~~(The article is in the hard copy version of the ABA Journal, but hasn't yet been posted on their website. Once it is, I'll add the link.)~~ Here is the link to the article (Updated 12/08/2011). The ABA Journal has also written about this topic before. This is a list of some of their other articles on the topic.

Identity Theft & Kids Aging Out of Foster Care

2011-09-14T09:32:00.002-05:00

I recently attended the National Association of Counsel for Children (NACC) Conference. At the conference, I heard in a couple of different breakout sessions about one particular problem that is facing foster kids who have aged out of the system or are about to do so. That is the problem of identity theft. Studies show that 1/2 of the kids in foster care in California are victims of identity theft. Estimates are that fewer South Dakota foster care kids are victims, but any number other than zero is too many. Making the problem even worse is that most of these kids don't discover the identity theft until they have already aged out of the system and are without support and assistance with cleaning up the problem.

While in foster care, kids' personal information, including date of birth and social security number, passes through an untold number of hands. HHS/DSS caseworkers and supervisors, attorneys, court personnel, counselors and therapists, medical professionals, and others all come into contact with the children's files. In addition, kinship placements, foster families, group home staff, and immediate family all get copies of the children's files. When children's identifying information passes through so many people's hands, as well as is retained by the child's biological family, it's really not surprising that when these kids age out, they often find out that they are victims of identity theft.

So what can we do about it? Well for one thing, we can use something other than the children's social security number as an identifier. This would make it slightly more difficult for the identities of children to be compromised.

In addition, we can do credit checks of foster care kids when they are 16 years old, so that identity theft & credit problems can be cleaned up before they age out of the system. Many states have already enacted legislation mandating that their states' HHS/DSS do this as part of the process of educating and preparing those kids who are about to age out of the system. South Dakota could certainly use those states' laws as a model for legislation here. HHS could begin doing these credit checks as part of the process of preparing foster care kids to age out, even without legislation in place. Guardians ad litem can and should assist in this process.

Moreover, kids who are about to age out of the system need to be educated so that they can protect themselves against others taking advantage of them once they do age out. This education needs to be very practical and pragmatic. Topics such as how you check your credit reports, what are the implications of cosigning or taking out a loan for someone else, etc. need to be covered. Guardians ad litem need to ensure that these kids are getting the information that they need on this front.

This is something that cannot wait. We need to begin taking these steps immediately to protect these children from further identity theft, and to help them clean up the cases of identity theft that have already occurred.

Rural Practice and South Dakota

2011-09-13T15:56:00.000-05:00

I'm from South Dakota originally, but recently relocated to Nebraska. When I lived in South Dakota, I practiced law from Rapid City, and ventured to other, smaller towns for the occasional case. In Nebraska, I live and practice in a much more rural setting. Holdrege, Nebraska is a town of about 5,000 people, set in a county of about 10,000 people. However, many of my cases come out of the surrounding counties, the county seats of which are much smaller.

When I was a law student, I distinctly remember the Chief Justice of the South Dakota Supreme Court, David Gilbertson speaking to law students about the absence of attorneys in many rural communities and the problems this was creating in the administration of justice. I remember thinking that rural practice could be an excellent opportunity, but not having a clue as to how one would find out about rural communities in need of attorneys.

Well, the South Dakota State Bar Association has taken up the challenge of studying the decline of rural law practice through its recent announcement of the creation of the Rural Practice Task Force (see page 2 of the State Bar Newsletter). This development has been widely reported on, both within South Dakota (see the Argus Leader's coverage), as well as more widespread national coverage (see the Wall Street Journal Law Blog's coverage, see this post from the Rural Lawyer blog, and see this post from My Shingle).

In my short time thus far practicing law in rural Nebraska, I have already heard from one judge and multiple attorneys about the need for attorneys in certain rural communities, as well as the gratitude and relief that some new attorneys are moving to more rural communities to begin their careers. It is clear to me that this problem is certainly not limited to South Dakota.

What should be done to address the problem of 'justice denied' in rural communities? I'm not exactly sure, but I think that the task force created by the South Dakota State Bar is an excellent first step. I, for one, will be following the task force's activity to see what they discover.

South Dakota Rural Areas Need Lawyers

2011-09-08T09:36:00.000-05:00

When I was in law school, the need for attorneys to practice in rural areas was a topic much discussed among the students and the faculty. Chief Justice Gilbertson, of the South Dakota Supreme Court, even came to the law school to discuss the issue on more than one occasion. It looks like the Wall Street Journal has picked up the topic now. You can access the story here, if you are interested in reading more.

Non-Probate Assets

2011-08-18T11:11:00.000-05:00

I have previously posted explaining (see this post) why it is necessary for everyone to have a will, and explained some of the topics that are frequently covered in in a will. I also explained that it's important to have an attorney draft that will for you because the attorney should be familiar with state law & can customize your estate planning documents to your needs.

In that post, I didn't cover the topic of non-probate assets. Non-probate assets are things like 401Ks, IRAs, annuities, and insurance policies. These are called non-probate assets because they pass outside of probate court. These assets pass directly to the person listed as beneficiary, or directly to a spouse without a beneficiary designation.

Because of non-probate assets, it is important to review beneficiary designations to determine whether those designations are still appropriate. In addition, it is important to let your estate planning attorney know about these kinds of assets so that the attorney can make recommendations to you, in order to ensure that your estate passes as you would like it to. This post explains in more detail why it is so important.

Juvenile Law: Nebraska v. South Dakota

2011-07-05T13:42:00.000-05:00

As an attorney who was first licensed in South Dakota, and who practiced there before moving to Nebraska, I grew accustomed to South Dakota procedures in different types of cases. As a result, becoming acquainted with how things are done in Nebraska has been an adjustment and a definite learning experience. Juvenile law is one area where there are definite differences between Nebraska and South Dakota. Here are just a few of the differences between the two states, and my opinion on which is superior.

SD: Different types of cases involving juveniles (abuse & neglect, juvenile delinquency, child in need of supervision, etc.) each have their own chapter of the Code, and as a result, have slightly different procedures.

NE: Different types of cases involving juveniles are all handled under one section of the Code, and therefore have uniform procedures.

Winner: NE. It's really nice that the cases all have identical procedures, so that the attorneys and participants in the case cannot get tripped up by some minor difference in the procedures for different types of cases.

SD: Child's attorney appointed to represent the interests of the child in an abuse & neglect case. Child's attorney is an attorney for the child who also advocates the best interests of the child (as they quite often are the same thing), although a Guardian ad Litem (GAL) may be appointed if the child's stated interests appear to differ from the best interests of the child.

NE: GAL appointed to represent the interests of the child in an abuse & neglect case. GAL represents the best interests of the child, and an additional attorney may be appointed if the child's stated interests appear to differ from the best interests of the child.

Winner: These are essentially equivalent, although just the reverse of one another.

SD: Department of Social Services (DSS) prepares a Report to the Court before every hearing. The Child's Attorney does not prepare a Report to the Court.

NE: GAL prepares a Report to the Court before every hearing. The Department of Health and Human Services (HHS) does not prepare a Report to the Court.

Winner: Neither state wins. There are benefits to both systems, and therefore I would recommend that both states adopt a requirement that DSS/HHS & the GAL/Child's Attorney prepare Reports to the Court. HHS has information such as completion of parenting classes, treatment information from parents, as well as information about contacts with the parents, that is valuable for the parties, attorneys, and the judge to consider. However, the GAL is more of an impartial outsider to the case than is DSS/HHS, and therefore is in a better position to make recommendations to the judge as to what should happen in the case going forward. In addition, because the GAL is an attorney, and the social worker is not an attorney, the GAL is in a better position to review the law applicable to the case & ensure that it is complied with.

SD: The State's Attorney represents DSS's interests and may require DSS to take action.

NE: The County Attorney does not represent HHS's interests, and HHS may bring in its own attorney if HHS's recommendations are in conflict with those of the County Attorney.

Winner: South Dakota. SD's procedure here is much cleaner and smoother. It makes much more sense to have the County Attorney, who represents the interests of the State on a daily basis, advocate the position of a state agency. Likewise, it makes sense for the County Attorney to have some control over the actions of the state agency prior to the case being heard before the judge.

So as you can see, there are differences between how juvenile cases are handled in Nebraska and South Dakota. There are benefits to the systems of each state, as well as reasons for the different approaches. It also makes clear how important it is to be represented by an attorney familiar with these procedures.

From the Mountains to the Prairies

2011-06-28T11:29:00.000-05:00

I recently relocated from my hometown in the Black Hills of South Dakota to Holdrege, Nebraska. It has definitely been a change for a girl used to seeing mountains every day to go to the prairies. However, the landscape is not the only thing that is different about living in Nebraska.

Over on my new blog, From the Mountains to the Prairies, I'll be discussing legal issues relating to Nebraska, just as I've done here on topics relating to South Dakota. From time to time, I may post a topic on both blogs and talk about the differences between the law in Nebraska and South Dakota, as those may be of interest to readers interested in both states' law.

If you're interested in Nebraska law, I hope that you'll check out the new blog as well. Happy reading!

Exceptional Pardon Hearing Change

2011-06-28T10:56:00.000-05:00

I recently found out about a change from the South Dakota Board of Pardons and Paroles with how they handle exceptional pardon and other clemency hearings, and as I know these are popular topics on this blog, I thought I would pass along this information to my readers.

It used to be that the Board of Pardons and Paroles would handle all of the applications received in a given month at the next Board meeting. This meant that the Board's meetings were not equal in length/time, and could vary greatly depending on the volume of clemency applications received. The Board has recently made a change in that they only handle a certain number of applications in a given month (I believe they handle 5 per meeting, but don't know this for certain). This means that there is a backlog of applications waiting for hearings.

As a result, the process of attempting to obtain an exceptional pardon or other forms of clemency is a lengthier process than it used to be. Getting an application in to the Board for consideration as quickly as possible is important, as the applications are heard by the Board in the order they are received.

A Recipe for Successful & Sustainable Relationship

2011-02-01T15:59:00.000-06:00

Quite often in my family law practice, I deal with folks whose relationships have broken down. When the relationship falls apart, those involved are often left to wonder what went wrong, especially if the parties feel as if they put everything into the relationship. However, this interesting article indicates that putting the relationship first may not be the best approach, as the best relationships give something back to the participants.

Food for thought in this pre-Valentine's Day season.

Inmates on Drugs

2011-01-26T12:02:00.000-06:00

A new study in Hennepin County, Minnesota (Minneapolis) found that 70% of inmates are on drugs at the time of booking. This article from the Minneapolis Start Tribune discusses the study & the problem. A very interesting read for those who deal with jail inmates, or are interested in the problem of drug use/abuse and its connection with crime.

Thanks to Professor Roger Baron from The University of South Dakota School of Law for passing along the article.

Rationale for A Proposal for Amendments to the Indian Child Welfare Act

2011-01-24T13:25:00.003-06:00

In my previous blog entry, I posted my proposal for amendments to the Indian Child Welfare Act. As promised, this post is my rationale for that proposal, as well as a bibliography of sources for my proposed amendments and the rationale. As with the previous post, I welcome comments.

Problem

In 1978, Congress enacted the Indian Child Welfare Act to address the “alarmingly high percentage of Indian families […] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and institutions,” as well as the fact “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.”[1] In states with large Indian populations, 25 to 35 percent of all Indian children were removed from their homes and placed into foster adoptive homes at one point in their lives.[2]

Making the situation more alarming is that Native American children were rarely removed from their homes because of physical abuse.[3] These children were removed and their parents judged unfit because of alleged neglect, emotional mistreatment, or abuse of alcohol.[4] Native American parents and families were routinely judged to be unfit by non-Indian social workers and judges because these non-Indian individuals were ignorant of the traditional and cultural Indian ways of childrearing,[5] thus resulting in a disproportionate number of Indian children being removed from their families on grounds of alcohol abuse as compared to the number of non-Indian families affected by the same addiction, and evidencing an obvious cultural bias. [6] According to Congressional findings, a main reason for the disproportionate removal of Indian children was “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.”[7] Judges charged with making these custody decisions “rarely received the expert testimony of native people who could familiarize [them] with traditional child-rearing practices,” but instead relied upon the testimony of non-Indian social workers who were ignorant of the ways and traditions of Native Americans.[8] These social workers often advised courts that the abject poverty of many Indian families prevented them from properly parenting their children.[9] “The result was oftentimes the judicial countenance of abusive practices of state welfare agencies.”[10]

In enacting the ICWA, Congress declared its policy to be the protection of

the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimal 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.[11]

In essence, the ICWA was designed to accomplish three objectives: (1) to eliminate the removal of Indian children from their families because of cultural bias and ignorance; (2) to assure that those Indian children who do need to be removed from their families be placed in foster and adoptive homes that reflect their unique cultures and backgrounds; and (3) to encourage tribal court adjudication of proceedings involving Indian children.[12]

Solution in ICWA—New Problems

The Indian Child Welfare Act of 1978 “established minimum federal jurisdictional, procedural, and substantive standards aimed to achieve the dual purposes of protecting the right of an Indian child to live with an Indian family and to stabilize and foster continued tribal existence.”[13] It seems as if the ICWA has been a success, though it is difficult to tell because of the limited number of compliance studies that have taken place, and the limited generalizability of these compliance studies. However, with the ostensible success of the ICWA in improving the lives of Indian children, comes also problems. These problems arise from misinterpretation of the ICWA’s mandates, as well as from unwillingness to apply the ICWA. These problems also arise from lack of funding and lack of clarity in the language of the ICWA and the resulting BIA Guidelines. Only a few of the more substantial problems will be addressed here.

The existing Indian family exception is a judicially created doctrine holding that the ICWA does not apply to those Indian children who have never been a member of an Indian home or culture and probably never would be.[14] Prior to the United States Supreme Court’s decision in Mississippi Band of Choctaw Indians[15], many states adopted the existing Indian family exception. In that case, the United States Supreme Court dealt with the status of twin babies who were born out of wedlock to parents who both were enrolled members of the Mississippi Band of Choctaw Indians (Tribe) as well as residents and domiciliaries of the Choctaw Reservation.[16] On January 10, 1986, the twins’ mother deliberately gave birth to the twins in a county some 200 miles from the reservation and executed a consent-to-adoption form in that same county.[17] The twins’ father signed a similar form.[18] On January 16, 1986, the Holyfields filed a petition for adoption of the twins in the same court; and the adoption proceedings were concluded on January 28 with the issuance of a Final Decree of Adoption.[19] The adoption decree contained no reference to ICWA or mention of the twins’ Indian background, despite the Chancery Court’s apparent awareness of both.[20]

Two months after the Final Decree of Adoption the Tribe moved to vacate the adoption decree on the ground that the tribal court should have exclusive jurisdiction of the twins.[21] The Chancery Court overruled the motion and held that the Tribe had “never obtained exclusive jurisdiction over the children…”[22] That court primarily relied upon a few facts in reaching this conclusion; first, that the twins’ mother “went to some efforts to see that they were born outside the confines of the Choctaw Indian Reservation,” second, that the parents had promptly arranged for the adoption of the twins by the Holyfields, and third, that “at no time from the birth of these children to the present date have either of them resided on or physically been on the Choctaw Indian Reservation.”[23] The Supreme Court of Mississippi subsequently affirmed the Chancery Court’s decision.[24] That court stated that,

The Indian twins…were voluntarily surrendered and legally abandoned by the natural parents to the adoptive parents, and it is undisputed that the parents went to some efforts to prevent the children from being placed on the reservation as the mother arranged for their birth and adoption in Gulfport Memorial Hospital, Harrison County, Mississippi;

and distinguished state cases that appeared to establish that “the domicile of minor children follows that of the parents.”[25] The Mississippi Supreme Court said that the domicile of the twins was off of the reservation and that the state court properly had jurisdiction over the adoption proceedings of those twins.[26] In support of its position, the Supreme Court of Mississippi stated that the lower court judge “did conform and strictly adhere to the minimum federal standards governing adoption of Indian children with respect to parental consent, notice, service of process, etc.,” while at the same time concluding that the provisions of ICWA were inapplicable by stating that “these proceedings…actually escape applicable federal law on Indian Child Welfare.”[27]

The United States Supreme Court recognized that the proceeding at issue was a “child custody proceeding” and that the children involved in that proceeding were “Indian children.”[28] Because the twins fit into these portions of ICWA, the issues for determination by the Court were whether the state law definition of “domicile” should control, and whether under the ICWA definition of “domicile” the twins were non-domiciliaries on the reservation.[29] The Supreme Court recognized that the language of ICWA does not define “domicile;” and that the definition is a matter of Congressional intent.[30] The Court began with the canon of construction, stating that “in the absence of a plain indication to the contrary,…Congress when it enacts a statute is not making the application of the federal act dependent on state law.”[31] It reached this conclusion because “federal statutes are generally intended to have uniform nationwide application,”[32] and because of the presumption that “the federal program would be impaired if state law were to control.”[33] Congress very clearly did not intend for the critical terms in ICWA to rely on state law for definition, and actually was quite concerned with curtailing state authority.[34] In support, the Court states that,

Even if we could conceive of a federal statute under which the rules of domicile (and thus of jurisdiction) applied differently to different Indian children, a statute under which different rules apply from time to time to the same child, simply as a result of his or her transport from one State to another, cannot be what Congress had in mind.[35]

In fact, the Court is concerned that a State might apply a definition of domicile that would render ICWA inapplicable, or that an “adoption brokerage business” might develop if Mississippi’s position were sustained.[36]

Because the United States Supreme Court determined that state law does not control the definition of “domicile,” it relied upon the term’s generally uncontroverted and widely used definition.[37] The Court stated that domicile for adults is “established by physical presence in a place in connection with a certain state of mind concerning one’s intent to remain there.”[38] The Court continues that the domicile of minors is determined by the domicile of their parents because “most minors are legally incapable of forming the requisite intent to establish a domicile” of their own and that the domicile of illegitimate children means the domicile of the mother.[39]

Because the domicile of the unwed mother and father was at all relevant times on the Choctaw Reservation, the domicile of the twin babies, at the time of their birth, was also on the reservation.[40] The Court continues that the mother’s voluntary surrender of the twins’ to the Holyfields does not render this finding of domicile on the reservation incorrect.[41] In perhaps the most significant statement of ICWA and the portion of the opinion which most directly affects the existing Indian family doctrine, the United States Supreme Court declared that,

Tribal jurisdiction under § 1911(a) was not meant to be defeated by the actions of individual members of the tribe, for Congress was concerned not solely about the interests of Indian children and families, but also about the impact on the tribes themselves of the large numbers of Indian children adopted by non-Indians.[42]

The Court also continues that “the protection of this tribal interest [the tribe’s ability to assert its interest in its children] is at the core of the ICWA, which recognizes that the tribe has an interest in the child which is distinct from but on parity with the interest of the parents.”[43] In line with this position, the United States Supreme Court, with three dissenters, reversed the judgment of the Supreme Court of Mississippi and remanded the case.

As a result of Mississippi Band of Choctaw Indians v. Holyfield, which implicitly rejected the existing Indian family exception[44], many states have rejected the existing Indian family exception through court decision and through legislation. These states are: Alabama, Alaska, Arizona, California, Colorado, Idaho, Illinois, Indiana, Iowa, Maine, Michigan, Minnesota, Montana, New Jersey, New York, North Carolina, North Dakota, Oklahoma, Oregon, South Dakota, Texas, Utah, and Washington.[45] However, some states did not read Holyfield as eliminating the existing Indian family exception. These states are: California, Kansas, Kentucky, Louisiana, Missouri, Tennessee, and Washington.[46]

Additionally, in cases where a tribe appears to have exclusive jurisdiction, but may not be able to take jurisdiction over that case for a variety of reasons[47], it is currently unclear whether a state court may take jurisdiction over the case. Section 1911(a) of the ICWA deals with exclusive jurisdiction vested in tribal courts. The BIA Guidelines state that where the tribe exercises exclusive jurisdiction over child custody proceedings, the state court proceeding should be dismissed.[48] Most states have never addressed the situation, so the answer to whether a tribe may waive exclusive jurisdiction does not appear to be entirely clear.

Exclusive jurisdiction under the ICWA seems to be subject matter jurisdiction, which cannot be waived or consented to. However, at least one state has held that a tribe may waive exclusive jurisdiction under the ICWA. In the case of In the Matter of J.M., the Supreme Court of Alaska stated that in order for a tribe to waive exclusive jurisdiction, “[t]he tribe itself must have, by some prior act performed through a legally recognized procedure, conferred jurisdiction upon the [state] court.”[49] The Court went on to state that implying a waiver of jurisdiction is inconsistent with ICWA’s objective of encouraging tribal control over decisions of custody of Indian children.[50] Additionally, the Court stated that courts “historically have been reluctant to imply a waiver of Indian rights.”[51] In support of its holding that exclusive tribal jurisdiction can be waived, the Supreme Court of Alaska cited to a Montana case (which did not deal specifically with ICWA, but rather with tribal jurisdiction in general): “[c]ase law also holds that procedural requirements must be strictly complied with before a state can exercise jurisdiction over a matter that otherwise would be within a tribe’s jurisdiction.”[52]

The Court further states that states and tribes can enter into a formal agreement under 25 U.S.C. § 1919(a), whereby the tribe would be able to waive its exclusive jurisdiction.[53] However, the Court holds that these agreements are not necessary where the state exercises jurisdiction because the tribe has clearly expressed its intent to waive jurisdiction.[54] 25 U.S.C. §1919(a) allows states and tribes 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.” This would imply that in the current type of situation, a tribe and a state could enter into agreement whereby tribal exclusive jurisdiction would be waived by the tribe’s failure to respond to the State’s request to transfer jurisdiction. The agreement would likely be interpreted as an affirmative act waiving jurisdiction, rather than as a passive act of implied waiver.

As a result, amendments to the ICWA are needed in order to ensure that Indian culture and practices are of continued vitality in the future, and to ensure that tribes are able to retain their most important asset, their people.

Clarity in Amendments

A Section by Section Analysis of the Amendments

These proposed amendments address the additional problems that have arisen as a result of misapplication of the ICWA, as well as to make clerical corrections to the ICWA. Section 4—Congressional Findings—merely makes a clerical correction to the Act’s quotation from the United States Constitution, Indian Commerce Clause. Section 11—Pending Court Proceedings—amendment (2) makes a similar clerical correction, in that mail must be sent certified in order to have a return receipt, instead of registered mail. Section 10—Full Faith and Credit makes a clerical amendment in that Congress intended that tribal proceedings and judgments in child custody determinations under the ICWA be granted full faith and credit, and the current language of the Act only gives full faith and credit to proceedings. The amendment is proposed to ensure that courts do not reach absurd results by their reliance upon the plain meaning of the existing text. Under the plain meaning of the existing text, state courts may not be required to give full faith and credit to judgments entered by tribal courts and may be permitted to re-litigate issues determined by tribal courts. This could be an absurd result in that state courts would not be required to give full faith and credit to judgments, but only to proceedings.

Section 5—Definitions—clarifies that an Indian child may have only one “Indian child’s tribe” for purposes of the ICWA. Courts, commentators, and administrators have often questioned whether an Indian child may have more than one “Indian child’s tribe” for purposes of the Act and this amendment answers the question definitively. Section 11—Pending Court Proceedings amendment (3) is an additional part of this clarification.

Section 6—Congressional Declaration of Policy and Applicability—definitively puts to rest the “existing Indian family” exception, as a way to avoid applying the ICWA. It makes absolutely clear that the exception cannot be a reason to avoid the Act’s provisions. The amendment also explains that Indian children should have the opportunity to develop and maintain relationships with family and tribe and that these opportunities may not be disallowed. Section 11—Pending Court Proceedings—amendment (5) furthers this position. Qualified expert witnesses may not be denied or refused because the child is not part of an existing Indian family.

Sections 7 and 8—Exclusive Jurisdiction over Child Custody Proceedings and Transfer of Jurisdiction to Tribal Court—have two main purposes: first, to reiterate Congress’ preference that custody determinations be made by tribal courts whenever possible; and second, to allow tribal courts to decline jurisdiction over proceedings while ensuring that decisions to decline jurisdiction be express and clear so that no ambiguities arise about the intentions of tribal courts.

Section 9—Intervention in State Court Proceedings—ensures that tribes will be permitted to intervene in all child custody proceedings involving Indian children as well as makes clear that the tribe need not have an attorney in order to intervene.

Section 11—Pending Court Proceedings—amendment subpart (4) mandates that courts recognize the unique relationship between each parent and each child and that the requirements of remedial and rehabilitative services applies individually to each child in a family.

Section 12—Tribal Affiliation Information—completely replaces the previous section, because the previous section engendered much confusion. It simplifies the language and is meant to simplify the procedures to enable adopted Indians to become members of their tribes.

[1] 25 U.S.C. §§ 1901(4) and (5) (2006).

[2] B.J. Jones, Mark Tilden & Kelly Gaines-Stoner, The Indian Child Welfare Act Handbook, Second Edition: A Legal Guide to the Custody and Adoption of Native American Children, 2 (ABA, Sec. of Fam. L. 2008) [hereinafter Jones, Tilden & Gaines-Stoner, The ICWA Handbook].

[3] Id.

[4] Id. at 2-3.

[5] Id.

[6] Id. at 3.

[7]

Bibliography

Statutes:

25 U.S.C. §§ 1901-1963 (2006).

Cases:

Mississippi Band of Choctaw Indians v. Holyfield, 490

U.S.

30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989).

In the Matter of J.M., 718 P.2d 150 (Alaska 1986).

In re Baby Boy L., 643 P.2d 168 (Kan. 1982)

Blackwolf v. District Court, 493 P.2d 1293 (Mont. 1972)

Secondary Authority:

B.J. Jones, Mark Tilden & Kelly Gaines-Stoner, The Indian Child Welfare Act Handbook, Second Edition: A Legal Guide to the Custody and Adoption of Native American Children (ABA, Sec. of Fam. L. 2008).

Dept. of Int., Bureau of Indian Affairs, Guidelines for St. Courts.; Indian Child Custody Proceedings, 44 Fed. Reg. 67584 (Nov. 26, 1979).

H.R. 2750, 108^th Cong. (Jul. 15, 2003)

Native American Rights Fund, A Practical Guide to the Indian Child Welfare Act, (Native American Rights Fund 2007).

A Proposal for Amendments to the Indian Child Welfare Act

2011-01-21T15:38:00.002-06:00

The Indian Child Welfare Act was enacted in 1978, and has never been amended since its enactment. After doing a fair amount of research into ICWA, as well as dealing with the requirements of ICWA in my profession and discussing it with others, it is clear to me that ICWA needs to be amended. Following is a bill with my proposed amendments to ICWA. In my next post, I will provide an explanation into why I believe these amendments are necessary as a whole, but will also explain the amendments section by section. That post will also include a bibliography of some of the sources that I used to assist in my drafting of this proposal. I welcome feedback in the comments section regarding the contents of this set of proposed amendments and the rationale, as well as your passing along these blog entries to your legislators if you are so inclined.

A BILL

To make technical and clerical amendments to the Indian Child Welfare Act of 1978.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the “Indian Child Welfare Act Amendments of 2011”.

SEC. 2. PURPOSE.

The purpose of this Act is to make technical and clerical amendments to the Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901-1963.

SEC. 3. FINDINGS.

The Congress finds—

(1) that the Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901 et seq. is of continued importance and practicability;

(2) that there are minor clerical errors in the Act;

(3) that certain amendments are necessary to correct those clerical errors;

(4) that there have been misinterpretations and misunderstandings of provisions of the Act;

(5) that certain technical amendments are necessary to correct misinterpretations and misunderstandings of provisions of the Act.

SEC. 4. CONGRESSIONAL FINDINGS.

Section 2(1) of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901(1)) is amended as follows—by striking “tribes” and inserting “Tribes”.

SEC. 5. DEFINITIONS.

Section 4(5) of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1903(5)) is amended as follows—by adding to the end the following: “and (c) there shall be only one tribe deemed to be the Indian child’s tribe”.

SEC. 6. CONGRESSIONAL DECLARATION OF POLICY AND APPLICABILITY

Section 3 of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1902) is amended as follows—

(1) by inserting “(a)” before “The Congress”;

(2) by inserting “by assuring that Indian children have the opportunity to develop or enhance their relationship with their families and Indian tribes” after “culture”; and

(3) by adding to the end the following: “(b) This Act shall apply to any Indian child involved in a child custody proceeding regardless of whether such child has ever been part of an Indian family, is currently part of an Indian family, or has maintained a social or cultural relationship with an Indian tribe.”.

SEC. 7. EXCLUSIVE JURISDICTION OVER CHILD CUSTODY PROCEEDINGS.

Section 101(a) of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1911(a)) is amended as follows—

(1) by inserting after “tribal court” the following: “or has become subject to a tribal court’s jurisdiction under subsection (b)”;

(2) by inserting at the end the following: “In situations in which there is uncertainty about the residence or domicile of the child, or whether the child is a ward of a tribal court, shall be resolved in favor of the tribe’s exercise of exclusive jurisdiction.”; and

(3) by inserting at the end the following: “The tribal court of the tribe may decline to exercise exclusive jurisdiction over custody proceedings, but must do so expressly, affirmatively, and in writing. If a tribe declines jurisdiction, the state court shall assume jurisdiction over the proceedings.”.

SEC. 8. TRANSFER OF JURISDICTION TO TRIBAL COURT.

Section 101(b) of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1911(b)) is amended to read as follows—

“(b) TRANSFER OF PROCEEDINGS; DECLINATION BY TRIBAL COURT.—In any state court child custody proceeding involving an Indian child not domiciled or residing within the reservation of the Indian child’s tribe and not a ward of a tribal court, and upon the petition of either parent or the Indian custodian or the Indian child’s tribe, the court shall transfer such proceeding to the jurisdiction of the tribe, unless

(1) either parent objects to the transfer of jurisdiction;

(2) the tribal court of the Indian child’s tribe expressly, affirmatively, and in writing, declines the transfer of jurisdiction;

(3) the tribal court of the Indian child’s tribe notifies the State court, in writing or through a representative, that the tribal court does not have subject matter jurisdiction;

(4) in circumstances where the evidence necessary to decide the case cannot be adequately presented in the tribal court without undue hardship to the parties or the witnesses, and the tribal court is unable to mitigate such hardship by making arrangements to receive and consider such evidence by remote communication, hearing the evidence at a location convenient to the parties or the witnesses, or any other means permitted in the Indian tribe’s rules of evidence or discovery; or

(5) there is good cause to the contrary.”

SEC. 9. INTERVENTION IN STATE COURT PROCEEDINGS.

Section 101(c) of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1911(c)) is amended—

(1) by adding “(1)” before “In”;

(2) by striking “proceeding for the foster care placement of, or termination of parental rights to,” and inserting “child custody proceeding involving”;

(3) by adding at the end the following: “(2) Any motion, application, or other form of request to intervene in a child custody proceeding pursuant to paragraph (1) may be filed pro se or through legal counsel.”.

SEC. 10. FULL FAITH AND CREDIT.

Section 101(d) of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1911(d)) is amended—

(1) by striking “and judicial proceedings” the first place it appears and inserting “judicial proceedings, and tribal court judgments”;

(2) by striking “and judicial proceedings” the second place it appears and inserting “judicial proceedings, and judgments”.

SEC. 11. PENDING COURT PROCEEDINGS

Section 102 of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1912) is amended in subsection (a)—

(1) by inserting “(1)” after (a)”;

(2) by striking, in the first sentence, “registered” and inserting “certified”;

(3) by adding at the end the following: “(2) If more than one tribe may be the Indian child’s tribe, each tribe must be notified of the pending proceedings and of its right to intervention so that each tribe may be afforded the opportunity to present evidence to the court that the tribe should be deemed the Indian child’s tribe. After an adjudication of the Indian child’s tribe, only that tribe must receive further notice of pending proceedings.”

(4) by adding at the end the following: “(3) No involuntary child custody proceeding commenced prior to the birth of the Indian child shall be valid. Nothing in this paragraph shall limit the authority of a State court to require that the prospective parent of an unborn Indian child receive remedial and rehabilitative services designed to protect the health of such parent and unborn child and prevent the foster care or adoptive placement of such child after birth.”.

(5) by adding at the end the following: “(4) The requirement of qualified expert witnesses applies regardless of whether such child has ever been part of an Indian family, is currently part of an Indian family, has maintained a social or cultural relationship with an Indian tribe and regardless of whether a cultural bias could be implicated.”.

SEC. 12. TRIBAL AFFILIATION INFORMATION.

Section 107 of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1917) is amended by striking the existing section and replacing with the following:

“SEC. 107. DISCLOSURE OF INFORMATION REGARDING TRIBAL AFFILIATION.

“Upon petition of an adopted Indian who is 18 years of age or older, or of an adoptive parent or guardian of an Indian who is under the age of 18 or incompetent, or of the Indian tribe of an adopted Indian, to the court which entered the final decree of adoption or any other court of competent jurisdiction for the release of information regarding tribal affiliation, if any, of the adopted child’s biological parents, the court shall disclose, from any records subject to its jurisdiction, such information to the petitioner and shall provide the petitioner with any other identifying information as may be necessary to protect any rights flowing from the individuals tribal relationship.”.

SEC. 13. SEVERABILITY.

Section 403 of the Indian Child Welfare Act of 1978 (25 U.S.C. 1963) is amended to read as follows: “SEC. 403. SEVERABILITY.

“If any provision of this Act is found or held to be invalid, all valid provisions that are severable from the invalid provision shall remain in effect and not be affected thereby. If a provision of this Act is found or held to be invalid in one or more of its applications, the provision shall remain in effect for all valid applications that are severable from the invalid applications and not be affected thereby.”.

SEC. 14. EFFECTIVE DATE.

This Act is effective upon passage by both Houses of Congress and signature by the President of the United States of America, and shall be prospectively effective

The Existing Indian Family Exception to ICWA (part 4)

2011-01-15T13:08:00.002-06:00

Part 4, the final portion, of my paper on the existing Indian family exception to ICWA.

Application of the Existing Indian Family Doctrine after Holyfield

In the time since Mississippi Band of Choctaw Indians v. Holyfield was decided in 1989, several states that had not previously decided the issue of the existing Indian family doctrine addressed it and declined to adopt the exception. Those states were Alaska[1], Arizona[2], Idaho[3], Michigan[4], New York[5], North Dakota[6], and Utah[7]. Still other states that had not previously decided the issue of the existing Indian family doctrine adopted the exception after Holyfield. Those states were Alabama[8], Illinois[9], Kentucky[10], Louisiana[11], Tennessee[12], and Washington[13]. Colorado[14], Nebraska[15], Wisconsin[16], and Wyoming[17] have taken cases which have addressed the topic of the existing Indian family doctrine, but decided those cases on separate grounds, thus deferring their decision on whether to adopt the existing Indian family doctrine.

California has mixed case law coming out of its Courts of Appeals as to the existing Indian family exception. To deal with this conflict of case law, the California Legislature enacted Section 360.6 of the California Welfare and Institutions Code. It defined “Indian child” the same way the ICWA defines the term and declares:

(a) The Legislature finds and declares the following:
(1) There is no resource that is more vital to the continued existence and integrity of Indian tribes than their children, and the State of California has an interest in protecting Indian children who are members of, or are eligible for membership in, and Indian tribe.
(2) It is in the interest of an Indian child that the child’s membership in the child’s Indian tribe and connection to the tribal community be encouraged and protected.

(b) In all Indian child custody proceedings, as defined in the federal Indian Child Welfare Act, the court shall consider all of the findings contained in subdivision (a), strive to promote the stability and security of Indian tribes and families, comply with the federal Indian Child Welfare Act, and seek to protect the best interest of the child.

(c) A determination by an Indian tribe that an unmarried person who is under the age of 18 years, is either (1) a member of an Indian tribe or (2) eligible for membership in an Indian tribe and a biological child of a member of an Indian tribe shall constitute a significant political affiliation with the tribe and shall require the application of the federal Indian Child Welfare Act to the proceedings.[18]

After this legislation was enacted, however, a California Court of Appeals rejected the authority of the state to enact legislation regarding “the family relations of members of federally recognized Indian tribes.”[19] Since that time the Supreme Court of California has not taken a case to resolve this conflict over the existing Indian family doctrine between the state Courts of Appeals and the state legislature.

The Iowa legislature appears to have made decision on the issue of whether to adopt the existing Indian family doctrine for the judiciary. The legislature adopted Iowa Code Section 232B.5(2)[20]. That Section states:

The federal Indian Child Welfare Act and this chapter are applicable without exception in any child custody proceeding involving an Indian child. A state court does not have discretion to determine the applicability of the federal Indian Child Welfare Act or this chapter to a child custody proceeding based upon whether an Indian child is part of an existing Indian family.[21]

Based upon this language, it does not appear that Iowa has or will adopt the existing Indian family doctrine. If a party wanted the court to adopt the exception, it appears that an argument similar to the one adopted in the California Court of Appeals case, In re Santos Y.[22] could be used. It is unlikely that Iowa would probably accept that argument, however, based upon the decisions of the North Dakota Supreme Court in the case of In the Interest of A.B.[23] and the Oklahoma Supreme Court in the case of In the Matter of Baby Boy L.[24].

Mississippi originally adopted the existing Indian family doctrine in Matter of B.B.[25], but the case’s jurisdiction was postponed by Mississippi Band of Choctaw Indians v. Holyfield[26], which then reversed the judgment of B.B. It appears that because of and after the decision in Holyfield, Mississippi has not adopted the existing Indian family exception in subsequent cases.

In the aftermath of Mississippi Band of Choctaw Indians v. Holyfield[27], two states reversed their decisions to adopt the existing Indian family exception. Those states were Oklahoma in its code and in the case of In the Matter of Baby Boy L.[28] and South Dakota in the case of Matter of Adoption of Baade[29].

In Oklahoma Statutes Annotated title 10, section 40.3(B), the Oklahoma legislature stated,

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.[30]

Subsequent to the adoption of this legislation in 1997[31], the Oklahoma declined to adopt the existing Indian family doctrine in the case of In the Matter of Baby Boy L.[32] That case involved a non-Indian mother who placed her newborn baby for adoption without the consent of the Indian father who was a member of the Muscogee Creek Indian Nation of Oklahoma.[33] The child’s paternity and the membership of the father in the tribe were not disputed.[34] The mother found a non-Indian couple from another state who wished to adopt the child and informed the father of this decision.[35] The child was born off of the reservation; and after the birth, the birth mother sought an order in state court for termination of the father’s parental rights without consent because the father had not contributed to the birth mother’s support during the pregnancy.[36] Notice of the proceedings was given to the father, the Bureau of Indian Affairs, and to the Muscogee Creek Nation.[37] The father objected to the adoption; and the tribe filed a motion to intervene acknowledging that the child was eligible for membership in the tribe.[38] The tribe’s motion to intervene was granted; and the tribe filed a motion to dismiss the adoption proceedings because ICWA placement preferences required that the child be given to the father.[39] The trial court denied the tribe’s motion and determined that the existing Indian family exception to ICWA applied because the father had not contributed to the support of the mother during the pregnancy.[40] The father appealed and the Court of Civil Appeals affirmed the trial court’s judgment.[41] On appeal, the Oklahoma Supreme Court cited Mississippi Band of Choctaw Indians v. Holyfield[42] as a “watershed opinion” and stated that the Oklahoma statute[43] was enacted in response to that United States Supreme Court case and the Oklahoma Supreme Court case of Matter of S.C.[44] in which the state Supreme Court determined that Holyfield did not invalidate the existing Indian family exception.[45] After analysis of the constitutionality of the Oklahoma statute, the Supreme Court of that state relied on North Dakota’s decision in the case of In the Interest of A.B.[46] and determined that the statute was constitutional and the existing Indian family doctrine was inapplicable in Oklahoma.[47]

The South Dakota took a more direct approach to the existing Indian family doctrine after Mississippi Band of Choctaw Indians v. Holyfield[48] and overturned its decision, from Claymore v. Serr[49], to adopt the existing Indian family exception. In Matter of Adoption of Baade, the South Dakota Supreme Court dealt with the case of a child, born to a non-Indian mother and a father who was a member of the Sisseton-Wahpeton Sioux Tribe, and adopted by the birth mother’s sister and brother-in-law.[50] The birth father was served with notice of the adoption proceedings and petitioned the state court to transfer the proceedings to tribal court.[51] The mother objected to the transfer and it was denied.[52] The father subsequently began a paternity in tribal court, was adjudged the father of the child; and the child was enrolled as a member of the Sisseton-Wahpeton Sioux Tribe.[53] The tribe then received notice of the adoption proceedings.[54] On appeal of the adoption, the father claimed that his parental rights could not be terminated without evidence beyond a reasonable doubt that his continued custody of the child would likely result in serious emotional or physical damage to the child.[55] The adoptive parents claimed that Claymore v. Serr[56] controlled and that because the child had never been a member of an existing Indian family, ICWA did not apply to the proceedings. The South Dakota Supreme Court stated that it read Holyfield to overrule the existing Indian family exception.[57] The court stated that the existing Indian family doctrine “fails to recognize the legitimate concerns of the tribe that are protected under the Act”[58] and that “Congress clearly intends that the only prerequisite to the operation of the ICWA be the involvement of an Indian Child in a child custody proceeding.”[59]

In 1996, Ohio Congresswoman Deborah Pryce proposed legislation to amend ICWA.[60] That bill would have required that before state courts apply ICWA they determine if the child is a natural child of a parent who “maintains significant social, cultural, or political affiliation with the Indian tribe of which either parent is a member.”[61] The bill passed the United States House of Representatives in that form, but was rejected by the Senate Committee on Indian Affairs because of tribal opposition.[62]

Conclusion

The United States Supreme Court’s decision in Mississippi Band of Choctaw Indians v. Holyfield[63] has been called the “death knell” of the existing Indian family doctrine, yet state courts have resurrected the doctrine “in a further attempt to defeat the application of ICWA.”[64] Courts which continue to apply the existing Indian family concept have stated that because Holyfield never specifically addressed and rejected the doctrine, it is applicable. The law regarding the existing Indian family is in a state of flux. States have mixed holdings regarding whether the doctrine is applicable in conformance with ICWA. This will probably continue until the issue is addressed by Congress or the United States Supreme Court.

[1] See In re Adoption of T.N.F., 781 P.2d 973 (Alaska 1989).

[2] See Michael J., Jr. v. Michael J., Sr., 7 P.3d 960 (Ariz. App. 2000).

[3] See In re Baby Boy Doe, 849 P.2d 925 (Idaho 1993).

[4] See In re Elliott, 554 N.W.2d 32 (Mich. App. 1996).

[5] See In re Baby Boy C., 27 A.D.3d 34 (N.Y. App. Div. 1 Dept. 2005).

[6] See In re A.B., 663 N.W.2d 625 (N.D. 2003).

[7] See Interest of D.A.C., 933 P.2d 993 (Utah App. 1997).

[8] See Ex Parte C.L.J., 946 So.2d 880 (Ala. Civ. App. 2006).

[9] See In re Adoption of S.S., 657 N.E.2d 935 (Ill. 1995).

[10] See Rye v. Weasel, 934 S.W.2d 257 (Ky. 1996).

[11] See Hampton v. J.A.L., 658 So.2d 331 (La. App. 1995).

[12] See In re Morgan, 1997 WL 716880 (Tenn. Ct. App. 1997).

[13] See Adoption of Crews, 825 P.2d 305 (Wash. 1992).

[14] See In the Matter of Catholic Charities and Community Services of the Archdiocese of Denver, 942 P.2d 1380 (Colo. App. 1997).

[15] See In re Adoption of Kenten H., 725 N.W.2d 548 (Neb. 2007).

[16] See In re Termination of Parental Rights to Branden F., 695 N.W.2d 905 (Wisc. App. 2005).

[17] See In re S.N.K., 108 P.3d 836 (Wyo. 2005).

[18] D.H. Gethes, C.F. Wilkinson, R.A. Williams, Jr. Cases and Materials on Federal Indian Law at 675 (citing California Welfare and Institutions Code §360.6).

[19] D.H. Gethes, C.F. Wilkinson, R.A. Williams, Jr. Cases and Materials on Federal Indian Law at 676 (citing In re Santos Y., 112 Cal. Rptr. 692 (Cal. App. 2d Dist. 2001)).

[20] Iowa Code Ann. § 232B.5(2) (West 2007).

[21] Id.

[22] Supra.

[23] 663 N.W.2d 625 (N.D. 2003).

[24] 103 P.3d 1099 (Okla. 2004). See below for analysis of that case.

[25] 511 So.2d 918 (Miss. 1987).

[26] Supra.

[27] Supra.

[28] 103 P.3d 1099 (Okla. 2004).

[29] 462 N.W.2d 485 (S.D. 1990).

[30] Okla. Stat. Ann. tit. 10, § 40.3(B) (West 2007).

[31] D.H. Getches, C.F. Wilkinson, R.A. Williams, Jr., Cases and Materials on Federal Indian Law, at 676.

[32] Supra.

[33] 103 P.3d 1099, 1101-02.

[34] Id. at 1102.

[35] Id.

[36] Id.

[37] Id.

[38] Id.

[39] Id.

[40] Id. at 1103.

[41] Id.

[42] Supra.

[43] Okla. Stat. Ann. tit. 10 § 40.3(B).

[44] 833 P.2d 1249 (Okla. 1992).

[45] 103 P.3d 1099, 1104-05.

[46] Supra.

[47] 103 P.3d 1099, 1107.

[48] Supra.

[49] Supra.

[50] 462 N.W.2d 485, 487.

[51] Id.

[52] Id.

[53] Id.

[54] Id.

[55] Id. at 489 (citing

The Existing Indian Family Exception to ICWA (part 3)

2011-01-14T13:16:00.004-06:00

Part 3 of my paper on the existing Indian family exception to ICWA.

Mississippi Band of Choctaw Indians v. Holyfield

In Mississippi Band of Choctaw Indians, the United States Supreme Court dealt with the status of twin babies who were born out of wedlock to parents who both were enrolled members of the Mississippi Band of Choctaw Indians (Tribe) as well as residents and domiciliaries of the Choctaw Reservation.[1] On January 10, 1986, the twins’ mother deliberately gave birth to the twins in a county some 200 miles from the reservation and executed a consent-to-adoption form in that same county.[2] The twins’ father signed a similar form.[3] On January 16, 1986, the Holyfields filed a petition for adoption of the twins in the same court; and the adoption proceedings were concluded on January 28 with the issuance of a Final Decree of Adoption.[4] The adoption decree contained no reference to ICWA or mention of the twins’ Indian background, despite the Chancery Court’s apparent awareness of both.[5]

Two months after the Final Decree of Adoption the Tribe moved to vacate the adoption decree on the ground that the tribal court should have exclusive jurisdiction of the twins.[6] The Chancery Court overruled the motion and held that the Tribe had “never obtained exclusive jurisdiction over the children…”[7] That court primarily relied upon a few facts in reaching this conclusion; first, that the twins’ mother “went to some efforts to see that they were born outside the confines of the Choctaw Indian Reservation,” second, that the parents had promptly arranged for the adoption of the twins by the Holyfields, and third, that “at no time from the birth of these children to the present date have either of them resided on or physically been on the Choctaw Indian Reservation.”[8] The Supreme Court of Mississippi subsequently affirmed the Chancery Court’s decision.[9] That court stated that,

and distinguished state cases that appeared to establish that “the domicile of minor children follows that of the parents.”[10] The Mississippi Supreme Court said that the domicile of the twins was off of the reservation and that the state court properly had jurisdiction over the adoption proceedings of those twins.[11] In support of its position, the Supreme Court of Mississippi stated that the lower court judge “did conform and strictly adhere to the minimum federal standards governing adoption of Indian children with respect to parental consent, notice, service of process, etc.,” while at the same time concluding that the provisions of ICWA were inapplicable by stating that “these proceedings…actually escape applicable federal law on Indian Child Welfare.”[12]

The United States Supreme Court recognized that the proceeding at issue was a “child custody proceeding” and that the children involved in that proceeding were “Indian children.”[13] Because the twins fit into these portions of ICWA, the issues for determination by the Court were whether the state law definition of “domicile” should control, and whether under the ICWA definition of “domicile” the twins were non-domiciliaries on the reservation.[14] The Supreme Court recognized that the language of ICWA does not define “domicile;” and that the definition is a matter of Congressional intent.[15] The Court began with the canon of construction, stating that “in the absence of a plain indication to the contrary,…Congress when it enacts a statute is not making the application of the federal act dependent on state law.”[16] It reached this conclusion because “federal statutes are generally intended to have uniform nationwide application,”[17] and because of the presumption that “the federal program would be impaired if state law were to control.”[18] Congress very clearly did not intend for the critical terms in ICWA to rely on state law for definition, and actually was quite concerned with curtailing state authority.[19] In support, the Court states that,

Because the United States Supreme Court determined that state law does not control the definition of “domicile,” it relied upon the term’s generally uncontroverted and widely used definition.[22] The Court stated that domicile for adults is “established by physical presence in a place in connection with a certain state of mind concerning one’s intent to remain there.”[23] The Court continues that the domicile of minors is determined by the domicile of their parents because “most minors are legally incapable of forming the requisite intent to establish a domicile” of their own and that the domicile of illegitimate children means the domicile of the mother.[24]

Because the domicile of the unwed mother and father was at all relevant times on the Choctaw Reservation, the domicile of the twin babies, at the time of their birth, was also on the reservation.[25] The Court continues that the mother’s voluntary surrender of the twins’ to the Holyfields does not render this finding of domicile on the reservation incorrect.[26] In perhaps the most significant statement of ICWA and the portion of the opinion which most directly affects the existing Indian family doctrine, the United States Supreme Court declared that,

The Court also continues that “the protection of this tribal interest [the tribe’s ability to assert its interest in its children] is at the core of the ICWA, which recognizes that the tribe has an interest in the child which is distinct from but on parity with the interest of the parents.”[28] In line with this position, the United States Supreme Court, with three dissenters, reversed the judgment of the Supreme Court of Mississippi and remanded the case.

[1] 490

U.S.

30, 30 and 37 (1989).

[2] Id.

[3] Id. at 38.

[4] Id.

[5] Id.

[6] Id.

[7] Id. at 39 (internal citations omitted).

[8] Id. (internal citations omitted).

[9] Id.

[10] Id. at 40 (ellipses in original; internal citations omitted).

[11] Id.

[12] Id. (ellipses in original).

[13] Id. at 42.

[14] Id. at 42 and 47.

[15] Id. at 43.

[16] Id. (ellipses in original; internal citations omitted).

[17] It appears that the Supreme Court’s admonishment that ICWA be applied uniformly across the country is being mostly ignored by the states and that the application of the Act will, in many circumstances (including with the existing Indian family doctrine, among others), depend upon where a child custody proceeding is commenced. B.J. Jones, The Indian Child Welfare Act Handbook at chapter 6.

[18] Id. (internal citations omitted).

[19] Id. at 45.

[20] Id. at 46.

[21] Id.

[22] Id. at 48.

[23] Id. (internal citation omitted).

[24] Id. (internal citations omitted).

[25] Id. at 48-49.

[26] Id.

[27] Id. at 49.

[28] Id. at 52.

The Existing Indian Family Exception to ICWA (part 2)

2011-01-13T13:08:00.010-06:00

Part 2 of my paper on the existing Indian family exception to ICWA.

Application of the Existing Indian Family Doctrine prior to Holyfield

Prior to the United States Supreme Court’s decision in Mississippi Band of Choctaw Indians v. Holyfield, many state courts adopted the existing Indian family doctrine and interpreted it as an exception to the application of ICWA’s requirements. Those states are Indiana, Kansas, Missouri, Oklahoma, and South Dakota. However, only one state, New Jersey, interpreted the existing Indian family exception as a distortion of ICWA and declined to adopt the exception.[1]

Indiana adopted the existing Indian family doctrine in the 1988 case of In the Matter of Adoption of T.R.M.[2] The child, T.R.M., was born in Hot Springs, South Dakota to a mother who was a member of the Oglala Sioux Indian Tribe.[3] The paternity of the child was not established.[4] The mother met the adoptive parents when the adoptive parents were travelling on the Pine Ridge Indian Reservation; and they subsequently became friends.[5] On multiple occasions prior to the birth of T.R.M. the birth mother and the adoptive parents discussed their plans for the adoption of T.R.M.[6] The child was born in June of 1981, off the reservation, and the adoptive mother returned at that time to take T.R.M. from the birth mother.[7] At T.R.M’s birth, the birth mother signed a form consenting to the adoption of T.R.M. by the couple.[8] The adoptive parents filed a petition for adoption of the child in September of 1982.[9] The trial court granted the adoption; but the decision was reversed by the Court of Appeals, who stated that exclusive jurisdiction had vested in tribal court.[10] The Indiana Supreme Court reversed, stating that “the central thrust and concern of the ICWA is…the establishment of minimum federal standards for the removal of Indian children from their families.”[11] The court admitted that T.R.M.’s biological ancestry was Indian, but stated that,

From the unique facts of this case, where the child was abandoned to the adoptive mother essentially at the earliest practical moment after childbirth and initial hospital care, we cannot discern how the subsequent adoption proceedings constituted a “breakup of the Indian family. We therefore hold that…the ICWA should not be applied to the present case in which the purpose and intent of Congress cannot be achieved thereby.[12]

Kansas adopted the existing Indian family exception in 1982 in Matter of Adoption of Baby Boy L.[13] Baby Boy L. was born out of wedlock to a non-Indian mother and the putative father, a member of the Kiowa Tribe.[14] On the day of the child’s birth, his mother executed a form consenting to the adoption of the child by the adoptive parents; and they filed a petition for adoption on the same day.[15] The birth father was given notice of the adoption proceedings as well as notice of a petition for termination of his parental rights.[16] When it was brought to the court’s attention that the birth father was a member of the Kiowa Tribe, the case was continued to provide notice of the proceedings to the tribe.[17] The child was even enrolled as a member of the Kiowa Tribe during the pendency of the proceedings.[18] The trial court subsequently held a hearing and determined that ICWA was inapplicable to the situation.[19] On appeal, the Kansas Supreme Court cited the legislative history and express language of ICWA as support for application of the existing Indian family exception to ICWA’s mandates.[20] The court stated,

A careful study of the legislative history behind the Act and the Act itself discloses that the overriding concern of Congress and the proponents of the Act was the maintenance of the family and tribal relationships existing in Indian homes and to set minimum standards for the removal of Indian children from their existing Indian environment. It was not to dictate that an illegitimate infant who has never been a member of an Indian home or culture, and probably never would be, should be removed from its primary cultural heritage and placed in an Indian environment over the express objections of its non-Indian mother…Numerous provisions of the Act support our conclusion that it was never the intent of Congress that the Act would apply to a factual situation as is before the court.[21]

Missouri adopted the existing Indian family doctrine in 1986 in the case of In Interest of S.A.M.[22] The child involved in the dispute was an illegitimate child born to a non-Indian mother and an Indian father who was an enrolled member of the Kickapoo Tribe.[23] The father appealed the termination of his parental rights arguing that the trial court erred by not applying ICWA to the proceedings.[24] The appellate court reproduced § 1912(f) of ICWA in its opinion, which states that in order for parental rights to an Indian child to be terminated, a determination “that the continued custody of the child by the parent…is likely to result in serious emotional or physical damage to the child.”[25] The court concluded that because the father had never had custody of S.A.M., it would be impossible for his custody of the child to “continue.”[26] Thus there would be no breakup of an existing Indian family by termination of his parental rights; and ICWA should not apply to the case.[27]

Oklahoma adopted the existing Indian family doctrine in two cases in 1985. Those cases were Matter of Adoption of Baby Boy D[28] and Matter of Adoption of D.M.J.[29] In Baby Boy D, the father was a member of the Seminole Nation of Oklahoma and the mother was a non-Indian.[30] The mother consented to adoption of Baby Boy D and the child was adopted without notice to the father and without his consent.[31] After learning that the child had been adopted, the father filed a petition seeking to vacate the adoption on grounds that the child was an Indian child and that the adoption proceedings were thus subject to ICWA.[32] The trial court denied the father’s petition.[33] On appeal, the Oklahoma Supreme Court stated that “Congress seeks to protect the Indian child by setting minimum federal standards for the removal of that Indian child from an existing Indian family unit. Here we have a child who has never resided in an Indian family, and who has a non-Indian mother” and because the child was not a member of an existing Indian family, the father lacked standing to ask the court to apply ICWA.[34] The case of Baby Boy D has a dissenting opinion in which the dissenting justice states that the majority has misconstrued ICWA in holding that ICWA may be disregarded if the child has not been living in an Indian familial setting.[35]

In Matter of Adoption of D.M.J., custody of D.M.J. was awarded to her non-Indian mother after a divorce between the mother and D.M.J.’s father, a member of the Cherokee Nation of Oklahoma.[36] Six years after the divorce, the birth mother arranged for an adoption of D.M.J. by a non-Indian married couple.[37] Adoption proceedings began; and the birth father and the Cherokee Nation of Oklahoma appeared at the hearing to oppose the adoption.[38] The trial court terminated the birth father’s parental rights for nonsupport of D.M.J.; and D.M.J. was adopted by the married couple.[39] The father appealed the termination of his parental rights because of the failure of the trial court to comply with ICWA.[40] On appeal, the Oklahoma Supreme Court adopted the position that the Indian family had been broken up since the divorce of the birth parents, so remedial services and rehabilitative programs, as required by ICWA, were unnecessary and could not repair the relationship or prevent the breakup of the family.[41] In support of its position that no existing Indian family existed and thus ICWA need not apply, the court stated,

Congress appreciated, as do we, the culture-shock and underlying trauma in yanking a child from an Indian environment and placing the child in a non-Indian one. In like manner, it provided no mandate that a child such as D.M.[J.] be uprooted from a non-Indian environment and placed in an Indian one.[42]

The Oklahoma Supreme Court concluded that ICWA only applies when Indian children are removed from existing Indian family environments.[43]

South Dakota adopted the existing Indian family exception in 1987 in Claymore v. Serr.[44] The child involved in that case, Danette, was born out of wedlock to a non-Indian mother and a father who was a member of the Cheyenne River Sioux Tribe.[45] The mother was the sole caregiver and provider for Danette for her early life; and the father paid no child support and very few of Danette’s expenses.[46] When Danette was about five years old, the mother met and married a man named Greg Serr; and about two years later, they commenced proceedings for Serr to adopt Danette.[47] When the birth father learned of these adoption proceedings, he filed an action in circuit court to restrain further adoption efforts.[48] The Cheyenne River Sioux Tribe was notified of the petition for adoption pursuant to ICWA and it requested transfer of the proceedings to tribal court.[49] The mother and her husband objected to transfer; and the tribe then made a motion to intervene in the proceedings.[50] That motion was denied and the circuit court made the determination that the tribal court was not entitled to either exclusive or concurrent jurisdiction over the case.[51] The birth father’s parental rights were terminated and the adoption of Danette by the mother’s husband was approved.[52] The birth father appealed to the South Dakota Supreme Court, raising two issues:

(1) whether the Indian Child Welfare Act mandated dismissal of the circuit court action due to lack of jurisdiction; and, (2) whether the trial court erred in terminating the [birth father’s] parental rights to his minor child.[53]

The South Dakota Supreme Court acknowledged that the case involved both and Indian child and a child custody proceeding, but declined to apply ICWA because “there was no existing ‘Indian family’ losing an Indian child.”[54] The court cited to the Kansas case of Matter of Adoption of Baby Boy L. in support of its position, but strangely enough, recognized that ICWA did not set forth the requirements of an existing Indian family in outlining the jurisdictional requirements of ICWA.[55] The court said that even though the existing Indian family doctrine was not included in ICWA, it “is implied throughout the Act” and held that because Danette had not been a part of or been removed from an existing Indian family, ICWA’s mandates did not apply to her.[56]

In contrast, however, New Jersey declined to adopt the existing Indian family exception in 1988 in Matter of Adoption of a Child of Indian Heritage.[57] In that case, the putative father of a child who may have been eligible for membership in the Rosebud Sioux Tribe moved to vacate the adoption of the child on grounds that he was not provided notice of the proceeding in accordance with ICWA’s mandates.[58] Both the putative father and the birth mother of the child were members of the Tribe; but neither resided on the reservation.[59] Prior to the birth, the child’s mother made plans to place the child for adoption in New York.[60] Six days after the child’s birth, the mother traveled to New York, executed her consent to the adoption and termination of her parental rights, met the adoptive parents[61], and turned the child over to them.[62] In overturning the adoption proceedings, the New Jersey Supreme Court stated that the primary purpose of ICWA is “preserving the continued existence and integrity of Indian tribes by preventing the unwarranted removal of Indian children from their families by nontribal public and private agencies.”[63] The court rejected the existing Indian family exception because, as it stated, the doctrine makes the voluntariness of the mother’s termination of parental rights the determinative jurisdictional and because the language of ICWA does not include it as a factor of jurisdiction.[64]

[1] It does not appear that the remaining states addressed the issue in case law.

[2] 525 N.E.2d 298 (Ind. 1988).

[3] Id. at 301.

[4] Id.

[5] Id.

[6] Id. at 301-02.

[7] Id. at 302. The former husband of the birth mother was not present at the time of the transfer of T.R.M. and did not object to the transfer. Id. Additionally, it is not clear that the former husband of the birth mother was ever established as the father of T.R.M. Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id. at 302-03 (emphasis added; internal quotation omitted).

[12] Id. at 303

[13] 643 P.2d 168 (Kan. 1982).

[14] Id. at 172.

[15] Id.

[16] Id. at 172-73.

[17] Id.

[18] Id.

[19] Id.

[20] Id. at 175.

[21] Id.

[22] 703 S.W.2d 603 (Mo. App. 1986).

[23] Id. at 603-04.

[24] Id. at 604.

[25] Id. at 607 (emphasis in original opinion but not in statute; citing 25 U.S.C. § 1912(f)).

[26] Id. at 607.

[27] Id. at 609.

[28] 742 P.2d 1059 (Okla. 1985).

[29] 741 P.2d 1386 (Okla. 1985).

[30] 742 P.2d 1059, 1060.

[31] Id.

[32] Id. The father also claimed that the adoption should be vacated because he had been denied due process and because of the fraud practiced on the part of the birth mother. Id.

[33] Id. at 1061.

[34] Id. at 1064.

[35] Id. at 1074.

[36] 741 P.2d. 1386, 1387.

[37] Id.

[38] Id.

[39] Id.

[40] Id. The Cherokee Nation also complained of lack of notice to the tribe. Id.

[41] Id. at 1388-89

[42] Id. at 1389.

[43] Id. As with Baby Boy D, D.M.J. included a dissenting opinion which stated that the existing Indian family doctrine was inapplicable and ICWA should have been applied. Id. at 1389-90.

[44] 405 N.W.2d 650 (S.D. 1987).

[45] Id. at 651.

[46] Id. at 652.

[47] Id.

[48] Id. The action also included a request for a declaratory judgment concerning his paternity, entry of an order requiring payment of child support, and scheduled visitation rights. Id.

[49] Id.

[50] Id.

[51] Id. at 653.

[52] Id.

[53] Id. (internal citation omitted).

[54] Id.

[55] Id. (citing 643 P.2d 168 (Kan. 1982)).

[56] Id. at 653-54.

[57] 543 A.2d 925 (N.J. 1988).

[58] Id. at 928.

[59] Id.

[60] Id.

[61] The adoptive parents are New Jersey residents. Id.

[62] Id.

[63] Id. at 930 (internal citations omitted).

[64] Id.

The Existing Indian Family Exception to ICWA

2011-01-12T13:07:00.000-06:00

I have previously written a paper on the topic of the existing Indian family exception to the Indian Child Welfare Act. This paper will be presented on this blog in several parts, due to the length of the paper. This entry constitutes the first part. I think the topic is certainly an interesting one, and hope that you may find the article useful.

Introduction

The Indian Child Welfare Act (ICWA) 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 1606 of title 43.”[1] ICWA further defines “Indian child” as “any unmarried person who is under age 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.”[2] In order to assist courts in determining exactly who is an Indian or an Indian child, the Bureau of Indian Affair (BIA) Guidelines state that

…the best source of information on whether a particular child is Indian is the tribe itself…Because of the Bureau of Indian Affairs’ long experience in determining who is an Indian for a variety of purposes, its determinations are also entitled to great deference.[3]

The Guidelines further state that “[t]he determination by a tribe that a child is or is not a member of that tribe, is or is not eligible for membership in that tribe, or that the biological parent is or is not a member of that tribe is conclusive.”[4] The text of the Indian Child Welfare Act gives no exceptions to application of ICWA’s requirements in the case of Indians who do not live on the reservation or do not have ties to the tribe or its cultural practices. The Bureau of Indian Affairs similarly gives no exceptions to the application of ICWA’s requirements for Indians who do not have ties to the reservation, tribe, or tribal cultural practices.

It seems reasonable, based upon this lack of express language, to think that Congress did not intend for such an exception to exist. As B.J. Jones, Chief Judge of the Turtle Mountain Tribal Court of Appeals, stated,

The existing Indian family exception allows state courts to make the very value judgments pertaining to which Indians have sufficient contacts with their cultural and traditional antecedents that Congress felt the state courts were incapable of making.[5]

If Congress intended for this type of an exception, called the existing Indian family exception, to be included as an ingredient for jurisdiction, it likely would have included it in the express language of the statute.

Many state courts, however, have come to exactly the opposite conclusion. These states interpret a lack of express language to the contrary as permission to create an exception to ICWA’s application. Based on this premise, the existing Indian family doctrine was judicially-created to limit ICWA’s application from applying to Indian children whose family units lack ties to reservations or tribal culture.[6] However, this judicially-created doctrine fails to recognize the interests of the Indian child’s tribe. It also fails to recognize that the interest of the tribe is a discrete interest which is separate from the interests of the parents or Indian custodians;[7] and that the ultimate goal of ICWA is to preserve the distinct cultures of the tribes by protecting the children of those cultures.[8] Courts, in states using the existing Indian family doctrine, refuse to apply ICWA “to situations where an Indian child is not being removed from an existing Indian family,” arguing that in those situations “the underlying policies [of ICWA] are not furthered.”[9]

[1] 25 U.S.C. § 1903(3) (2006).

[2] Id. at § 1903(4).

[3] Department of Interior, Bureau of Indian Affairs Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67584 at B.1 Commentary (Nov. 26, 1979) (internal citations omitted).

[4] Id. at B.1.

[5] D.H. Getches, C.F. Wilkinson, R.A. Williams, Jr. Cases and Materials on Federal Indian Law, 673 (Fifth Edition, 2005) (citing B.J. Jones The Indian Child Welfare Act: In Search of a Federal Forum to Vindicate the Rights of Indian Tribes and Children Against the Vagaries of State Courts, 73 N.D. L. Rev. 397, N.15).

[6] The existing Indian family exception has even been called “judicial distortion of ICWA.” B.J. Jones, Power Point Presentation and ICWA Training, Indian Child Welfare Act (South Dakota State Wide Education Services-SWES), July 19, 2007) (copy of Power Point available from B.J. Jones who may be contacted at jones@law.und.edu).

[7] B.J. Jones, The Indian Child Welfare Act Handbook, chapter 4 (American Bar Association, Section of Family Law 1995).

[8] Id. at chapter 8.

[9] D.H. Getches, C.F. Wilkinson, R.A. Williams, Jr. Cases and Materials on Federal Indian Law at 673.