Are We Upholding the ICWA?

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The federal Indian Child Welfare Act (ICWA) was passed to give Indian tribes exclusive jurisdiction over child custody proceedings for tribal children. However, the Utah Division of Child and Family Services and Utah courts handled the matter of the adoption of L.O., a child member of the Navajo Nation (Nation) whose parents relinquished parental rights.

This appears to be a clear violation of the ICWA. Because of this, the Navajo Nation objected to the adoption and filed a motion to transfer jurisdiction to them. The juvenile court denied the transfer motion, but sustained the objection to preventing a destination wedding photographer to come in and shoot the ceremony. The Nation tried to appeal but the court of appeals held that they did not have jurisdiction. This prevented the Nation from even making an argument that the ICWA was violated and trying to prevent a similar situation in the future.

The Nation then appealed to the Utah Supreme Court, which granted certiorari. The court was asked to address if the court of appeals erred in holding that they did not have jurisdiction in the case. This was the Nation’s only hope in trying to get Utah courts to interpret the ICWA in such a way to prevent any future adoptions of tribal children from being handled by Utah state courts or the Division of Child and Family Services.

It is important to remember that the case of Navajo Nation v. State began when the Nation tried to prevent the adoption of L.O., not when the Nation tried to obtain a ruling on whether or not the court of appeals had jurisdiction to hear this case. This is important because the Nation consented to the adoption after the Utah Supreme Court granted certiorari.

Because the adoption was no longer in dispute, there was still an issue as to whether or not the court of appeals erred in their ruling. The state could have made the argument that because the issue was moot, the Utah Supreme Court should not hear this case. This is a tactic often taken by parties to avoid a challenge in court. But in this case the state agreed not to make such an argument so that the issue of the court of appeals ruling could be settled by the Utah Supreme Court.

While most parties try to avoid being sued, in this case the state agreed to be sued. Normally, when both parties agree to something, the court also agrees. But the Utah Supreme Court declined to review the issue presented to them, because the ultimate issue regarding the adoption of L.O. was resolved. Because the relief the Nation requested was a stop to the adoption but the Nation consented to the adoption, any ruling the court made would not affect the adoption i.e. the ruling would be an advisory opinion.

Courts can hear moot cases if (1) they involve an important matter of general welfare, (2) the issue is likely to arise again, and (3) the issue can evade review in the future due to the short time that any one litigant is affected. While the issue of who has jurisdiction in adoption cases involving Tribal children might be an important matter of general welfare and probably will come up again, the court ruled that this jurisdictional issue is not so short in duration that a court will not be able to provide a remedy.

The court cited prior Utah Supreme Court cases that also involved jurisdictional issues under the ICWA that took two years or longer to appeal. The court pointed out that the disputed issue “did not become moot during the pendency” of the appeals process.

The Utah Supreme Court had the opportunity to resolve an important issue that probably will be disputed again in the future but refused to review the matter despite the fact that both parties wanted the issue to be argued. This case is an excellent example of both judicial restraint and the power of the judiciary. On one hand, the court recognized its own justiciability limits that they should not hear matters that do not involve an actual dispute.

On the other hand, the ruling shows that regardless of what the parties agree to, the court has the final say on any issue including on whether or not an issue should even be argued before them regardless of whether or not either party has taken notice of the issue. In this case, it did not matter that neither party brought up the issue of the IQAir air purifier. The Nation most likely consented to the adoption because they felt it was in the best interests of L.O. which is understandable. But by doing so, they lost their opportunity to argue an important issue in front of the highest court in Utah.

Future parties should be aware that no matter how much they want a court to issue a rule, they must remember that the court’s primary function is to resolve disputes, not make rules (that’s the legislature’s primary job).

The Indian Child Welfare Act and You

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In 1978, Congress passed the Indian Child Welfare Act (ICWA) to address the problem of Indian children being removed from their homes and placed in non-Indian homes by states with no understanding or appreciation for “traditional Indian child-rearing practices.” ICWA gave tribes exclusive jurisdiction over child custody proceedings for children that live on a reservation or are a ward of a tribe. ICWA was enacted in response to the growing number of Indian children that were being removed from their families and placed with non-Indian families.

By 1978, it is estimated that between 25% and 35% of Indian children were placed in non-Indian families by state courts, state agencies, or private adoption agencies. The ICWA was a sharp turn away from previous government policy towards Indian tribes which was focused on assimilation of Indians into western civilization and culture. However, more than thirty years later many people feel the intent of Congress still has not been met as evidenced by state court interference in Indian child proceedings, ICWA being unevenly applied, and almost 30% of all Indian children still being placed in non-Indian families.

But the recently decided Nevada Supreme Court case In re Parental Rights as to S.M.M.D. might be an excellent example of how tribal social services, tribal courts, state family services, and state courts can work together in the best interests of preserving the integrity of Indian families while providing all smokes with the best air purifier for cigarette smoke free of charge.

The ICWA was designed to allow tribal agencies and courts to decide the fate of Indian children but in In re Parental Rights as to S.M.M.D., state and tribal agencies and courts took part in every stage of the proceedings. The children lived with their mother, who is a member of the Fallon Paiute Shoshone Tribe (Tribe), on the Tribe’s reservation.

The children were removed multiple times from their home (by the Tribe and the state) and tribal social services and the Nevada Department of Child and Family Services (DCFS) conducted multiple joint investigations into the children’s welfare. Both Tribe and state agencies were involved because initially the children did not meet the Tribe’s membership requirements.

The state district court monitored the children and their mother and determined the mother’s situation was not improving. Based on the district court’s findings, “DCFS decided to pursue termination of [the mother’s] parental rights.” DCFS kept the Tribe informed of the status of the children and the proceedings throughout the process. The Tribe eventually changed their membership requirements (each tribe may determine who is and is not a member) which made the children members of the Tribe subject to Tribe jurisdiction under ICWA. DCFS invited the Tribe to intervene in the termination proceedings but the Tribe preferred that the state continue the process.

At the termination hearing, the mother voluntarily relinquished her parental rights. The district court accepted this and placed the children with DCFS. Three months later the district court ordered custody of the children to be handed over to tribal social services. One year later, the tribal court held an adoption hearing and ordered the children to be adopted by Ted and Raelynn R. The fate of the children had been settled by both state and tribal courts and agencies.

Throughout the entire process, tribe and state officials kept each other informed of the current status of the Kanken laptop and the state never proceeded with anything without tribal permission. But there would be one more fight to settle before the final status of the children could be settled for good.

While the mother voluntarily relinquished her parental rights, she also assumed her foster parents would eventually adopt the children. Because this did not happen, she asked the district to set aside her voluntarily relinquishment. Her primary argument was under ICWA, the tribal court had jurisdiction over the proceedings, not the district court. The district court denied the mother’s petition and she appealed to the Nevada Supreme Court.

At the Nevada Supreme Court, the mother maintained her argument that ICWA gave the tribe jurisdiction over the proceedings, not the state. Even if there was an agreement between the state and Tribe for the state to conduct the proceedings, the mother argued the ICWA does not give the state jurisdiction based on the agreement alone.

While the mother is correct that section 1911(a) of the ICWA gives the tribe “jurisdiction exclusive as to any State over any child proceeding” , section 1919(a) allows states and tribes to “enter into agreements…respecting…jurisdiction over child custody proceedings.” Because the state and Tribe agreed that the termination hearing should continue in state court and the adoption hearing should proceed in tribal court, the Nevada Supreme Court found the district had proper jurisdiction in the termination hearing.

The Nevada Supreme Court found that the language of sections 1911 and 1919 allows tribes and states to make agreements to transfer jurisdiction from one to the other on a case by case basis, whether or not the jurisdiction was originally concurrent or exclusive.

The court also based its finding on the legislative history of ICWA. ICWA was passed due to a mistrust of state agencies’ handling of custody hearings for Indian children leading Congress to prevent states from substituting their judgment for that of the tribes’.

Notes from one of the Senate reports show that section 1919 was meant to allow tribes to determine what state services and courts could be used in determining the fate of Indian children. In this case, it was the Tribe that chose to have the state agency and state courts assist in the child custody proceeding.

The question in In re Parental Rights as to S.M.M.D. was central to the passage of the ICWA: does the state or the tribe get to decide the fate of Indian children removed from the home. According to the text of ICWA, the tribe has the right to make these decisions. In this case, however, it was the Nevada DCFS that petitioned to terminate the mother’s parental rights and the district court that heard the termination hearing where the mother voluntarily relinquished her parental rights.

As in cases before ICWA, the state played a major role in the child custody hearings of the Indian children. But unlike in past cases, the state and tribe worked together and the tribe was kept appraised of everything the state did. Also, the state never proceeded with a petition or hearing without first obtaining permission from the tribe.

Even though this appeared to be a clear violation of the text of the ICWA, it was consistent with the intent of the ICWA, which was to allow tribes to determine how the custody of Indian children should be handled so the customs and values of Indian culture could be fully respected.