Tag Archives: domestic relations

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.

Public Law 280 on the Quinalt Reservation

A recent case from the Court of Appeals, Div. 2, State of Washington v. William Pink, Docket # 36485-9, reaffirms the scope of tribal sovereignty over criminal activity by tribal members on tribal land.

HOLDING
In this particular case, the state of Washington asserted criminal jurisdiction over an enrolled tribal member of the Quinault Reservation for possession of an illegal firearm on a state highway within the exterior boundaries of the Quinalt Reservation. According to the state, the fact that the crime occurred on the state highway gave the state jurisdiction to prosecute it.
The court of appeals disagreed, reasoning that the tribe had subject matter jurisdiction over the crime because it had jurisdiction over the land on which the crime occurred, per the Treaty of Olympia, which created the Reservation in 1859. The fact that the Tribe granted the state an easement for the highway did not vitiate this jurisdiction.
This decision contains a primer on state jurisdiction over Indians and Indian Reservations in Washington. This primer is worth summarizing here.
PL 280

In 1953, the US Congress passed legislation, Public Law 280, authorizing any state to assert concurrent jurisdiction over any Reservation within the territorial jurisdiction of the state, with or without tribal consent. The Washington State Legislature then elected to assert this jurisdiction but only over those Reservations that requested it.

Ten years later, in 1963, however, the Legislature elected to assert jurisidiction on the Reservation, with or without tribal consent, in eight different subject areas: 1. compulsory school attendance, 2. public assistance, 3. domestic relations, 4. mental illness, 5. juvenile delinquency, 6. adoption, 7. dependencies, 8. operation of motor vehicles on public streets.

This rather complicated set of laws was applied to the Quinalt Reservation as follows: in 1957, the Quinalt Tribe granted the State of Washington a right-of-way-easement over the Reservation so the State could build the highway.

In 1958, the Quinalt Tribe requested that the governor assert criminal and civil jurisdiction over the Reservation. A month later, in the same year, the governor obliged.

However, in 1965, the Quinalt Tribe petitioned the US Secretary of the Interior for retrocession of state jurisdiction. The Secretary granted the request.

Therefore, from 1965 through the present, the state of Washington lacks original criminal or civil jurisdiction over a tribal member for any matter arising on the Reservation. However, it does have concurrent jurisdiction over a tribal member for a matter arising on the reservation regarding one of the eight areas mentioned previously.

If this sounds complicated, it is because it is. The discussion above pertains only to tribal members and only to land within the exterior boundaries of the Reservation held in trust by the United States for the benefit of the Tribe or named tribal members.

CONCLUSION

This decision contains a good summary of how p.l. 280 applies to Indian Reservations in Washington State. It should be useful to anyone who advocates for tribal sovereignty and a cautionary tale for non-Indians who wish to do business with an Indian Tribe. If a non-tribal member wishes to do business in Indian country, that person must carefully consider not only what might go wrong, but also what remedies and what courts may be available for redress of grievances.