Indian Child Welfare Act: Supreme Court Rules in Favor of Pre-Existing Family Doctrine

The U.S. Supreme Court issued a new opinion on the Indian Child Welfare Act (“ICWA”) last month.  The Court held that ICWA did not apply in cases where the Indian parent had no existing relationship with the child, other than biological.  Adoptive Couple v. Baby Girl, June 25, 2013, S. Ct. 12-399

Those of us who believe that orphaned Indian children, like the baby girl here, should be treated just like any other orphaned child, will be heartened by the decision.  Those of us who believe that all orphaned Indian children should be sent to the Reservation, regardless of how tenuous their ties to the Reservation may be, will be chastened by the decision.

I personally fall into the former category.  Most of my Indian Child Welfare Act clients are non-tribal members attempting to gain custody of infants who may be Indian by virtue of their blood line, but who have never had any contact with the Reservation or their Indian parent(s).  In my view, if an infant is thriving in a stable, loving home she should be allowed to stay there, regardless of any Indian ancestry.  This case will help those clients.

The case pitted a prospective adoptive couple against an Indian father.  I happen to know something about the prospective couple because I met the mother when I was giving a presentation on ICWA in Washington DC last year.  They appeared to be ideal parents.  They both had stable jobs, Ph.Ds, (I’m pretty sure they were both psychologists) and seemed like excellent parents.

In addition, per the Supreme Court, the prospective adoptive parents provided financial and emotional support to the mother during and after her pregnancy.  The father even cut the umbilical cord in the delivery room at the hospital.  They also let the mother have contact with Baby Girl after she was born.

The biological father, on the other hand, was a deadbeat.  The Supreme Court found the following facts about him.

  • He provided absolutely no financial or emotional support to the mother during or after her pregnancy, even though he had the means to do so;
  • He never saw the child or had any contact with her;
  • While pregnant, the mother sent him a text message asking if he would prefer to pay child support or to relinquish his parental rights.  His return text message: relinquish parental rights;
  • After the child was born, he signed papers indicating he was “not contesting the adoption;”
  • He did not allow Baby girl any contact with the prospective adoptive parents after she was delivered to him.

However, when push came to shove, the father contested the adoption in state court.  The state court, South Carolina, denied the adoption petition and awarded custody of the child to the father.  The South Carolina Supreme Court affirmed.

Thus, at the age of 27 months, Baby Girl was removed from the only home she ever had and placed with a complete stranger.

The U.S. Supreme Court reversed and remanded.  Now the South Carolina Court will have to determine if, based on state law, the child should be removed from her current home and returned to her previous home.

Young v. Fitzpatrick, A Series of Four Blog Posts

The following entries are part of a series of four blog posts relating to the U.S. Supreme Court case, Young v. Fitzpatrick, 11-1485:

1) YOUNG V. FITZPATRICK, 11-1485 (CERT. PETITION DENIED)

2) YOUNG V. FITZPATRICK, 11-1485 (FACTS);

3) YOUNG V. FITZPATRICK, 11-1485 (LEGAL ISSUES); and

4) YOUNG V. FITZPATRICK, 11-1485 (CERT. PETITION).

See Law Offices of O. Yale Lewis III at http://yalelewislaw.com for more information.

Young v. Fitzpatrick, 11-1485 (Cert. Petition Denied)

The Supreme Court denied my cert. petition June 24, 2013. One way to look at this, of course, is four years of work down the drain. But that isn’t how I look at it.

I gained invaluable insight and experience. I know how to bring a civil rights and/or excessive force claim and have learned many of the nuances of qualified immunity and individual v. official capacity suits.

Based on this work, I have been receiving phone calls from potential clients around the region. At least twice in the past year, potential clients from different parts of the state have called me regarding off-reservation criminal arrests by tribal police.

A few choice samples:

  • Murder. From an attorney in Oregon: Client, a non-tribal member, was driving through the Reservation in the passenger seat. Tribal cop pulled the car over, asked the driver, also a non-member, for his driver’s license. Driver complied. Cop went back to his squad car and ran the license. Cop walked back to the driver and shot him in the head. Killed him.
  • Accidental Death. From an attorney in Seattle: (Attorney represents the estate). Client, a tribal member, went to a sweat lodge, run by another tribe. Tribal member overheated, had a heart attack, and died.
  • False Arrest. From two or three recent potential clients:
  1. Scenario A. Potential client was buying gas miles from the Reservation, or otherwise minding his own business, when a tribal police officer arrested him for something or another.
  2. Scenario B. Potential client was on fee land within the exterior boundaries of the Reservation. Arrested by tribal police officers. Taken by the same officers to the local county jail.

The solution to all of these cases lies in the same legal framework that I developed in my Supreme Court case. It was not four years down the drain. It was an investment.

Young v. Fitzpatrick, 11-1485 (Facts)

The Puyallup Tribal Police Killed My Client When He Wandered Unwittingly onto the Reservation

One evening in the spring of 2007, Dr. Jeffrey Young wandered onto the Puyallup Reservation, unarmed, harmless, obese and seeking help.  He was then killed by three Tribal Police Officers.

The officers were trained and certified by the State of Washington.  They were cross commissioned by the City of Fife, the City of Tacoma, and Pierce County.  They were armed and provisioned by the United States.

Dr. Young was not in his right state of mind.  He went to the tribal health clinic and told them he was a doctor and needed to see his patients.  The residential assistant did not recognize him and did not let him in.

The RA then called the security guard.  Dr. Young called the RA the anti-Christ.  He then called the security guard the anti-Christ and asked him for protection from the RA.

The RA called the police.  Three police officers arrived.  They did not consider the situation an emergency, so they did not turn on their lights or their dash-cams.  The officers then engaged Dr. Young in conversation.

Dr. Young wandered off.  The officers called him back.  One officer then kicked Dr. Young’s feet out from under him so that he fell face down on pavement.  The officers then proceeded to pigpile, handcuff, and ankle cuff him.  They also tasered him three or four times.

After completing their handiwork, the officers stood up and began to recollect themselves.  Meanwhile, a fourth officer arrived and noticed that Dr. Young’s lips were blue.  The officers began CPR and called the medics.

It was too late.  Dr. Young was pronounced dead approximately half an hour later.  The Pierce County coroner determined that the cause of death was excited delirium.

My pathologist determined that Dr. Young died of a hypoxia-induced cardiac dysrhythmia.  The hypoxia was caused by the weight of the officers sitting on his back and the fact that the officers left Dr. Young on his belly.

My police expert determined that the officers used excessive force.

For further information on Young v. Fitzpatrick, see Supreme Court website at:  http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/11-1485.htm

For the Supreme Court supplemental briefing on my case, see: http://yalelewislaw.com/files/YoungSuppBriefPetit03Jun2013.pdf

For the Young v. Duenas Court of Appeals of the State of Washington, Division One, published Opinion, see: http://yalelewislaw.com/files/YoungWAApellCrtIPublishedOpinion.pdf

 

Young v. Fitzpatrick, 11-1485 (Legal Issues)

My Case Is Focused on Sovereign Immunity and the Civil Rights Act

The legal issues in dispute in this case center on tribal sovereign immunity and the Civil Rights Act of 1866, as amended.

Sovereign Immunity

As I have written on my website, sovereign immunity is the last vestige of the divine right of kings. Back in the day, the king could do no harm and therefore could not be sued.

In England, the sovereign’s power was never as absolute as it was in France and elsewhere in the continent. In addition, it was diminished by the Magna Carta and the gradual expansion of the powers of parliament. Nonetheless, the English colonists brought the principle with them to the new world and bequeathed it to the American Indian tribes.

In modern times, the sovereign immunity of the federal government has been mostly waived by the Federal Tort Claims Act. The various states have similarly waived their sovereign immunity in most circumstances.

The Puyallup Indian tribe has, in theory, waived its sovereign immunity for certain tort claims, but the waiver is quite limited and does not include civil rights claim. The waiver is only effective in tribal court. Even if the waiver did include civil rights claims, per federal law, tribal court lacks jurisdiction to hear them.

Thus, I chose to sue in state court. I named the individual police officers in their individual capacity as the defendants. I very carefully did not name the tribe. The tribe has sovereign immunity. Whether the individual officers partake in that sovereign immunity is in dispute.

My legal theory is that they do not. An individual capacity suit goes against the individual. Any judgment would go against his or her assets. The individual’s employer’s assets would be off the table. I am not suing the employer.
The police officer’s legal theory, on the other hand, is that they and the employers are one. So long as the police officers were working in their official capacity, within the scope of their employment, they enjoy qualified immunity, which is derivative of the Tribe’s sovereign immunity.

Civil Rights Act of 1866

Congress promulgated the Civil Rights Act of 1866 to protect freed black slaves from sheriffs and other state law enforcement officers who were lynching and otherwise abusing them immediately after the civil war. The magic phrase, as amended, regarding who is subject to the law is “color of state law,” as follows:

[A]ny person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory of the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights … shall be liable to the party injured.

An Indian tribe is neither a state nor a territory. Thus, the Civil Rights Act does not ordinarily apply to an Indian tribe or their agents. Someone who is injured by tribal government ordinarily has no recourse under federal law.

The exception, of course, is when the Indian agent is operating under the color of state law. My theory is that the tribal police officers were acting under the color of state law because they were trained and certified by the Washington State Criminal Justice Training Commission. In addition, they were cross commissioned by the City of Fife, City of Tacoma, and Pierce County.

The police officer’s theory, on the other hand, is that certification, training, and cross commissioning have no legal significance and don’t constitute “color of state law.” Moreover, the police officers were acting solely within the scope of their retained inherent authority. Whatever state-based authority they had, they were not using it.

For further information on Young v. Fitzpatrick, see Supreme Court website at:  http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/11-1485.htm

For the Supreme Court supplemental briefing on my case, see: http://yalelewislaw.com/files/YoungSuppBriefPetit03Jun2013.pdf

For the Young v. Duenas Court of Appeals of the State of Washington, Division One, published Opinion, see: http://yalelewislaw.com/files/YoungWAApellCrtIPublishedOpinion.pdf

Young v. Fitzpatrick, 11-1485 (Cert. Petition)

A Petition for a Writ of Certiorari Is Rarely Granted

My U.S. Supreme Court case, Young v. Fitzpatrick, 11-1485, entered the next phase last week. Whether the phase is terminal, or the launching pad for consideration by the Supreme Court, remains to be seen.

With a few obscure exceptions, review by the Supreme Court is discretionary. That is to say, it is not mandatory. The Supreme Court only grants cert. petitions if the case has national significance, most commonly when there is a circuit split; e.g., when one circuit court of appeals publishes an opinion on the same point of law that conflicts with the opinion of another circuit.

This is my first cert. petition, so I don’t claim to be an expert. This blog is not a law review article and I haven’t done extensive research, only just enough. However, this is what I have learned:

The Supreme Court only grants about 1 in 100 cert. petitions. Even this figure is too generous because it includes cert. petitions filed by the United States. The Supreme Court grants nearly half of the cert. petitions filed by the United States.

Most cert. petitions, perhaps two-thirds, are either granted or denied upfront. However, where the Supreme Court thinks the United States may have a substantial stake in the outcome, it refers the cert. petition to the U.S. Solicitor General.

This is known as a Request for the View of the Solicitor General. The Solicitor General is the attorney who represents the United States in Supreme Court litigation.

I filed my cert. petition last June. The Supreme Court requested the view of the Solicitor General in October. In December, I associated with a Supreme Court practitioner, Eric Miller, from Perkins Coie, in downtown Seattle. The two of us flew back to Washington D.C. to meet with the Deputy Solicitor General, Assistant Solicitor General, and about fifteen other senior appellate attorneys with the U.S. Justice Department.

We were ushered into a huge conference room in the Justice Department a few blocks from the Supreme Court building and given an hour to present our case. It was the most interesting and forward-thinking hour I have ever spent as an attorney.

Unfortunately, the Solicitor General came out against us. Last week, he recommended that the Supreme Court deny cert. We filed a supplemental brief in response to the Solicitor General’s brief. The Supreme Court justices are considering the briefs as I write this.

Eric, who is my primary source for most of this information, tells me that, in most cases, if the Solicitor General recommends deny, the long journey to the U.S. Supreme Court is effectively over. However, in Indian law cases, there is still hope, because the United States is often on the incorrect side of the law.

For further information on Young v. Fitzpatrick, see Supreme Court website at:  http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/11-1485.htm

For the Supreme Court supplemental briefing on my case, see: http://yalelewislaw.com/files/YoungSuppBriefPetit03Jun2013.pdf

For the Young v. Duenas Court of Appeals of the State of Washington, Division One, published Opinion, see: http://yalelewislaw.com/files/YoungWAApellCrtIPublishedOpinion.pdf

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Tribal Law Enforcement Stops at the Reservation Boundary

Our State Supreme Court recently limited the doctrine of inherent tribal sovereignty.  About eleven months ago, our Supreme Court held that a tribal police officer had inherent sovereign authority, while in fresh pursuit of a driver, to stop the driver outside the Reservation for a traffic infraction the driver committed inside the Reservation.  Once the officer stopped the driver, he was required to call the state authorities and hold the driver until arrival of a deputy.
State v. Erkisen, 241 P.3d 399 (2010).

About a week ago, on a motion for reconsideration, our Supreme Court reversed itself, holding that a tribe’s inherent authority stops at the Reservation boundary.  Once a suspect crosses the Reservation boundary, the tribal police officer cannot pursue him or her based on inherent sovereignty alone.   Rather, the tribe would only have authority to stop and detain outside the Reservation boundary if it had some kind of mutual aid pact or cross-deputization agreement with the county or other local jurisdiction.

Tribal inherent authority – essentially, the aboriginal authority the tribes possessed before the arrival of the white settlers – is limited by two principles: 1) territorial jurisdiction, and 2) membership.  A tribe, like a state or any other jurisdiction, only has jurisdiction over its own territory.  Thus, for example, an Oregon police officer does not have authority to arrest someone in Washington.   Tribal jurisdiction is also limited to its own members.  With two exceptions, tribes lack jurisdiction over people who are not members of the tribe.

This obviously creates a problem for law enforcement, which was well illustrated by this case.  Here, Eriksen, the suspect driver, was driving erratically on the Lummi Indian Reservation.  After seeing the Lummi police officer, she then drove outside the reservation boundary and stopped.   The officer pursued her off the Reservation and held her until the arrival of a Skagit County Sheriff’s deputy.

The legal issue was whether the off-reservation traffic stop and detention was lawful.  The State of Washington and the Lummi Nation both asserted that the stop and detention was lawful based on the doctrine of fresh pursuit.  The Supreme Courtdisagreed, holding that fresh pursuit was only authorized if the tribal officer was a general authority Washington Peace Officer.

Per the Washington Mutual Aid Peace Officers Powers Act, a tribal police officer may exercise law enforcement authority over a non-member only if they comply with the following conditions:

1)     The tribe must have professional liability insurance;

2)    Neither the Tribe nor the insurance carrier may raise the defense of sovereign immunity to a tort claim brought against the officer or the Tribe;

3)     The officer must be trained and certified pursuant to State law; and

4)     The Tribe must have an interlocal agreement with the appropriate local law enforcement agency.

Since the Lummi Nation did not meet these conditions, its law enforcement officers were not authorized to make arrests outside the Reservation.