Written by Tana Fye
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.
(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
An updated version of this article was published in the Family Law Reporter. The article can be accessed through my JDSupra profile: http://www.jdsupra.com/post/documentViewer.aspx?fid=ea8fb56c-2988-48cd-a0b9-083c3482730d