Indian Children Before the Court

Last week, the Supreme Court heard oral arguments n a case about one of the few federal laws discussing family law issues. The Indian Child Welfare Act (ICWA) was enacted in 1978 to stop a trend of removal of Native American children from their families; by 1974, 25 to 35 percent of Indian children had been removed. Congress also wanted to protect against dissociation of Indian children from Native culture as a result of voluntary adoptions and to preserve tribes’ rights as political entities in the American system. The statement of purpose in the law recognizes that tribal existence was threatened by removal of children and declares that ICWA is intended to set a minimum standard for removal of Indian children from their families.

Under ICWA, tribes have the right to participate in family law cases involving the children of tribal members, and, unless good cause is shown, after the parents, relatives of the Indian parent, other tribal members, and other Indians have priority for placement of children in order to ensure that the children remain connected to the tribe. The Supreme Court has only addressed one case under ICWA until now, and in that case, it upheld a tribe’s power to choose adoptive parents over the preferences of the birth parents.

The South Carolina Case – What Happened

An unfortunate case from South Carolina now raises the question of how far ICWA reaches. Unfortunately, the media reports of the case appear to have left out a few important details. As described in this article, most of the facts are taken from the opinion of the South Carolina Supreme Court, which I believe was correctly decided.

The parents lived in Oklahoma and were engaged. The father is a registered Cherokee tribal member. He also was on active duty in the Army. In January 2009, when the child’s mother informed the child’s father that she was pregnant, he encouraged her to move up their wedding date. She declined, and the relationship fell apart. During the pregnancy, the mother asked the father either to pay child support or surrender his parental rights. The father surrendered his rights, but mistakenly believed this applied only to his relationship with the mother, not the child.

The mother located adoptive parents in South Carolina and gave the child to them immediately after birth. Her lawyer contacted the Cherokee tribe about the proposed adoption, but misspelled the father’s name and provided an incorrect birth date. Based on the incorrect information, the tribe reported that the father was not a member and that it would not contest the adoption, but noted that if it had been given incorrect information, its decision may be invalidated. The mother reportedly told her lawyer that she believed the father was a Cherokee, but that she did not know the correct birthdate.

The adoptive parents did not remove the child from Oklahoma for eight days because Oklahoma has joined a multi-state agreement requiring approval from the state to remove children whose parental situation is unresolved. Unfortunately, the mother’s application for this approval did not identify the child as Native American, which would have resulted in notice to the Cherokee tribe and an objection from the tribe.

An adoption case was filed in South Carolina. The father was not served with the adoption papers under four months after the case was filed, and only shortly before he was deployed to Iraq. He signed a statement that he was not contesting the adoption, but immediately asked for it back. The process server refused to return the papers and threatened him with arrest if the papers were damaged.

The next day, the father requested the adoption be stayed under a federal law protecting members of the Armed Forces from adverse legal action while on active service. He also filed a paternity suit in Oklahoma to try to establish his rights. The Oklahoma court decided that it did not have jurisdiction because the South Carolina case had already been filed.

The Cherokee tribe then notified the adoptive parents that the father was, in fact, a tribal member, and objected to the adoption.

The trial court ruled for the father, holding that he had not voluntarily surrendered his parental rights and that it was not in the child’s best interest to terminate his rights. It also held that ICWA applied. The child was returned to the father at the end of 2011 and now lives in Oklahoma with him. The adoptive parents appealed.

The Ruling of the South Carolina Supreme Court

The South Carolina Supreme Court transferred the case from an intermediate court and affirmed the trial court. Its ruling was based on four questions.

First, the court asked if, because the Cherokee tribe was not notified of the application to remove the child from Oklahoma, the case should have been heard in South Carolina in the first place. It ruled that the Oklahoma court had already addressed this issue when it dismissed the father’s suit.

Second, the court asked whether ICWA or state law decided whether the father was a “parent” with rights under ICWA. There was no real dispute that under South Carolina state law, the father had not exercised his parental rights until after he was served with the adoption papers. The court ruled, however, that ICWA did not define “parent” by reference to state law, required only that the father exercise his rights as soon as he realized the child had been placed for adoption, and that by participating in the case and establishing his paternity by a DNA test, he had done enough to meet the requirements under ICWA.

Third, the court considered whether the father’s parental rights were surrendered or should be terminated. The analysis of this took two parts. First, the court noted that ICWA requires that any consent to adoption by an Indian parent must be in writing and approved by a judge after confirming that the parent understands the consent, similar to a guilty plea in a criminal case. In addition, ICWA allows consent to be withdrawn at any time before the final judgment is entered. Because the father’s signing of a consent in front of a process server was never reviewed by a judge, and because the father clearly contested the adoption after he learned of it, the court held that no valid consent was given and that the father had withdrawn any consent. Some state courts that have ruled on this question, notably including Oklahoma, have disagreed.

As a result, the court had to decide whether it could involuntarily terminate the father’s parental rights. This requires not only that the usual grounds to terminate under state law must be shown, but also two additional requirements under ICWA. First, remedial attempts must be made to prevent the breakup of the Indian family, and only if these are unsuccessful may parental rights be terminated. Second, it must be shown beyond a reasonable doubt that continued custody by the parent or other tribal members would seriously harm the child physically or emotionally.

The adoptive parents argued that remedial attempts would be futile. The majority of the court ruled that futility was not enough to override the clear language of the law.

The court also ruled that the trial court mistakenly applied a lower standard of proof than ICWA required in determining whether the child would be harmed by placement with the father, but because the trial court found that the adoptive parents were unable to prove a risk of harm even under the lower standard, it didn’t matter. The parties had presented experts with differing opinions, and the trial court found that the father’s expert presented better evidence of the child’s probable long-term development, supported by evidence of his relationship with his other child. The majority of the South Carolina Supreme Court also held that the adoptive parents’ expert improperly focused on the effect of removal from them instead of continued placement with the father, so the evidence they presented failed to answer the right question.

Finally, the South Carolina court asked whether the best interests of the child affected the result, based on earlier rulings interpreting ICWA as not supplanting traditional best interest determinations. The court held that the child’s best interests included consideration of her Indian heritage, and approved the trial court’s finding that there was no significant difference between the child’s best interests and the father’s parental rights. The court also noted that under ICWA, the preference for relatives and tribal members over non-Indian adoptive parents had to be considered the default best interest of the child, and the mother’s circumvention of this preference was not enough to override it.

Although the court recognized that the adoptive parents provided a loving environment for the children, that was not enough to override the father’s rights under ICWA, and as a result, it approved the denial of the adoption request.

Two of the five justices on the South Carolina court dissented. Justice Kittredge argued that ICWA did not completely override state law, but instead was intended to work in parallel to state law, and that the father’s failure to participate until after the adoption case had begun was sufficient to show he was not acting in the child’s best interests. In Justice Kittredge’s opinion, the father had tried to condition his financial assistance for the child on the mother agreeing to marry him, and the father had understood that he was surrendering all rights when the mother asked him to. He also argued that the father had failed to make any effort to visit or bond with the child while the case was pending, questioned the father’s relationship with his other child in light of the development of a large support arrearage before he started paying, and therefore under state law the father’s parental rights should be terminated. With regard to the requirements under ICWA of finding risk of harm to the child, Justice Kittredge believed the adoptive parents’ expert was more persuasive than the father’s, and found a risk of emotional harm. He also argued that the father had abandoned the child and that therefore it could be determined that remedial efforts would not be effective. Finally, Justice Kittredge argued that the two year placement with the adoptive parents was good cause to override the preference for placement with Indians.

Justice Hearn agreed with Justice Kittredge’s dissent and added that the father had consistently avoided responsibility until he was served with the adoption papers.

At the Supreme Court

The adoptive parents asked the Supreme Court to review the decision, asking if a noncustodial parent could, under ICWA, intervene in a state court adoption, and if state law governed whether an unmarried parent qualified as a parent under ICWA. The father and the Cherokee tribe argued in response that neither of these issues had any real bearing on the case, noting that the question of whether noncustodial parents had rights under ICWA was waived by the adoptive parents in the South Carolina courts, and whether federal or state law applied to determine whether the father was parent did not affect the result because his DNA test established he was a parent under state law. A special guardian appointed for the child favored the adoptive parents. A series of friend of the court briefs were filed by various groups, arguing on both sides. The Court agreed to take the case.

Reports on oral arguments suggest that the Court is split, but not along ideological lines. Three justices appear to favor a strict enforcement of the plain language of ICWA, favoring the father. Justice Kagan appears to be leaning the same way. Three justices appear to favor a narrow interpretation, favoring the adoptive parents. Justice Thomas said nothing and is hard to predict in cases where the other conservative justices split. Justice Kennedy appears to be the swing vote.

Comments on a Few Issues Raised in the Supreme Court Briefs

One argument that has been raised in the case is whether ICWA creates a racial preference for Indians. Because Congress has the power to legislate relations with tribes as nations with a continued existence, however, I think that this argument is likely to fail. Rights under ICWA apply to tribes and tribal members, not individuals of Native American descent. Not all tribes, for example, would consider the birth father’s 3/128 Cherokee heritage to be sufficient for membership. Following its usual tendency in cases involving Indians, the Court is likely to find that ICWA is not a racial preference, but a political one.

The National Council for Adoption noted that under a previous case, the constitution guarantees parents the primary right to care for children. It argued that the mother had made a proper determination by deciding that she could not properly care for the child and giving her up for adoption. The potential fallacy of this argument is that it presumes the father has given up his rights. If the Court rules that ICWA’s procedural safeguards meant that the father’s rights were not given up, he is entitled to the same constitutional consideration as the mother, and therefore should be able to step forward as the preferred parent.

The adoptive parents have argued that if a federal standard of parentage is applied that includes the father, sperm donors and rapists might also be included. That interpretation, however, is not necessary. There is a longstanding rule that statutes do not need to be interpreted in an absurd manner, and a fair argument can be made that calling sperm donors and rapists legal parents would be absurd. The “good cause” exception to preferential placement also almost certainly would apply, so the courts are likely to rule in favor of mothers in those cases.

A possibly better argument, also raised by the parents, is that in other contexts, the Court has held that where Congress uses the word “parent,” it usually defers to state law definitions. On the other hand, the federal government, which supports the father and the tribe, has argued that Congress generally intended ICWA not to defer to state definitions. In addition, ICWA’s definition of the phrase “Indian custodian” includes a reference to custodial rights under tribal or state law, so a fair argument can be made that Congress did not intend to refer to state law when it defined “parent” in ICWA.

The adoptive parents have also argued that allowing that affirming the South Carolina court would create a surprise veto power for Indian parents. This argument is undercut, however, by the inaccuracies in the submissions to the tribe and the State of Oklahoma, and the delay in serving the father. A counter-argument to the adoptive parents’ position can be made that the father stepped forward to assert his rights as soon as he understood the situation, and that, in light of the deficiencies of notice, reversing the South Carolina court might enable circumvention of ICWA.

Another question that probably requires more factual analysis than legal line-drawing is the question of whether the father should have provided medical support for the mother. The adoptive parents have raised this argument as part of their claim the father abandoned the child. A group of organizations and tribes led by the Association on American Indian Affairs noted that the child would have been eligible for medical services on the Cherokee reservation and that the mother could have chosen to give birth there. A good argument can be made, therefore, that the father should not be required to make expenditures that the tribe is willing to make on his behalf.

The American Academy of Adoption Attorneys argued that the father’s refusal to provide financial assistance may have been an abusive act. This is not an unreasonable argument, but that is a question of fact, not of law, and should be decided in each individual case. If the father did, in fact, abuse the mother by withholding assistance, that should be good cause to rule against him as a matter of fact, but it should not be grounds to shut the courthouse door in his face before he has a chance to argue that his actions were not abusive. As it turns out, the trial court did find that the father was a fit parent; his preference for moving up the intended wedding may have been reasonable in light of resulting availability of additional military benefits for the child and family, such as access to base housing and an increased housing allowance adding to the father’s pay.

The father’s brief in the Supreme Court argues that the special guardian has been biased against him, primarily based on prior familiarity with the adoptive parents and class bias, and that the special guardian was badly misinformed as to the benefits the child could receive from placement with a tribal member. If true, this sadly recalls the reasons Congress enacted ICWA in the first place. State child welfare agencies were found to have a long history of failure to understand Native American cultures, including child rearing practices, which contributed to the high rate of removal of children.

Finally, the federal government and a group of family law professors each noted a very important point: the right of a parent to have a child adopted by a specific adoptive parent has never been recognized as a constitutional right. If, for example, two parents agree that a child should be adopted but disagree as to the adoptive parent, some means of deciding is necessary. If ICWA, as a federal law, sets forth special rules for dealing with Indian children, it generally will trump conflicting state law.

As I noted above, I believe the South Carolina court ruled correctly in this unfortunate case. I think that Congress, by specifically including procedural safeguards against Indians consenting to adoptions before they understood the full impact of their consent makes it very difficult to argue that a request to waive parental rights should not be reviewable by a court and subject to rescission. In addition, because Congress made very plain that it was trying to stop historic abuses that threatened to create a lost generation of Indian children and undermine the viability of tribal populations, interpretation of ICWA must be considered in light of a policy to minimize removal of Indian children from tribes.

Practical Implications

It appears likely that whatever the Court decides, it will be difficult to apply its decision to other cases without careful review of the facts. Therefore, it is probably advisable, in cases involving children of Indian descent, to contact tribes early in the process and bring them into any negotiations. This suggestion would apply not only to adoption cases, but also other custody situations, including divorces and paternity. All parents also should be brought into the discussion to ensure that whatever decision is made, everyone has the opportunity to participate. This will minimize the risk of a later objection.

I understand that not all parents will agree with a tribe’s opinion regarding an Indian child’s upbringing. ICWA does not intend, however, that tribes have veto power, only that they have significant input. Furthermore, in non-adoption cases, the parents have first rights to custody over others, and willingness to support a child’s learning of his or her Indian heritage and participating in tribal culture is likely to significantly increase the chances a tribe will cooperate or a court will agree.

In general, because ICWA complicates the procedure, consulting a lawyer at an early stage is probably advisable; the importance of this point was noted in a brief by the Oklahoma Indian Child Welfare Association. If there is any reason to argue for or against Indian preferences for placement of a child, that should be brought up at the beginning and experts should be sought. Diligence in following ICWA procedure also is advisable to protect against late challenges such as those in the case before the Supreme Court.

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2 Responses to Indian Children Before the Court

  1. Gusadihi says:

    Good reading but I take issue with the paragraph pertaining to Indian parent Veto power. The court records show that it was the father’s actions in signing a deposition that stated that he nor the child were American Indian and “ICWA did not apply.” The tribe searched all enrollment records when they were notified by mother and her attorney and determined there were 8 individuals with the name Dustin or Dusten Brown. They did not follow up to determine if any of them were the father.

    • This is the first that I’ve heard of any affidavit by the father claiming that he and the child weren’t Native American. Are you sure you aren’t confusing this case with another Oklahoma/South Carolina case now pending in which the father is non-native, but the mother is, and the tribe has intervened and obtained placement of the child?

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