Tag Archives: jurisdiction v. tribal court jurisdiction

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, 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