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No. A10-1390 ________________________________________________________________________
STATE OF MINNESOTA
IN SUPREME COURT
In the Matter of the Welfare of the Child of: R.S. and L.S., Parents
AMICI CURIAE BRIEF OF THE INDIGENOUS LAW AND POLICY CENTER, THE LEECH LAKE BAND OF OJIBWE AND THE MILLE LACS BAND OF
OJIBWE
Matthew L.M. Fletcher (P61593) Kathryn E. Fort (P69451) Michigan State University College of Law Indigenous Law and Policy Center 405 Law College Building East Lansing, MI 48824-1300 (517) 432-6909 Hedi Bogda (#0275943) Senior Tribal Attorney Leech Lake Child Welfare Leech Lake Band of Ojibwe 115 Sixth Street N.W. Cass Lake, MN 56633 (218) 335-8270 Barbara Cole (#0350278) The Mille Lacs Band of Ojibwe 43408 Oodena Drive Onamia, MN 56359 (320)532-4722 Attorneys for Amici Curiae Indigenous Law and Policy Center, Leech Lake Band of Ojibwe, and Mille Lacs Band of Ojibwe
Marc A. Al (#247923) Stoel Rives LLP 33 South Sixth Street, Suite. 4200 Minneapolis, MN 55402 (612) 373-8801 Rebecca J. McConkey (#0388656) White Earth Band of Ojibwe P.O. Box 358 White Earth, MN 56591 (218) 983-4647 Heidi A. Drobnick (228357) Swanson, Drobnick & Tousey, P.C. 3120 Woodbury Drive, Suite 200 Woodbury, MN 55125 (651) 739-9615 Attorneys for Respondent White Earth Tribe of Ojibwe Lee Novotny (#0289227) Assistant Fillmore County Attorney 101 Fillmore Street, P.O. Box 307 Preston, MN 55965 (507) 765-2530 Attorney for Respondent County
ii
Mark D. Fiddler (#197853) Fiddler Law Office, P.A. 510 Marquette Ave. South, Ste. 200 Minneapolis, MN 55402 (612) 822-4095 Attorney for Appellant Guardian ad Litem Lori Swanson (#254812) Minnesota Attorney General Cynthia B. Jahnke (#0294858) Assistant Attorney General 445 Minnesota Street, Ste. 900 St. Paul, MN 55101-2127 (651) 757-1468 Attorney for Amicus Curiae Minnesota Department of Human Services Bruce Jones (#179553) Jennifer Dukart (#0388616) Faegre & Benson LLP 2200 Wells Fargo Center 90 South Seventh Street Minneapolis, MN 55402 (612) 766-7000 Shannon Smith (#0293404) ICWA Law Center 1730 Clifton Place Minneapolis, MN 55403 (612) 879-9165 Attorneys for Amicus Curiae ICWA Law Center
Kurt BlueDog (#9143) BlueDog, Paulson & Small 5001 American Blvd. West Ste. 500 Minneapolis, MN 55437 (952) 893-1813 Attorney for Amici Curiae Shakopee Mdwakanton Sioux Community, Grand Portage Band, Upper Sioux Community, Lower Sioux Community, and Prairie Island Community
i
TABLE OF CONTENTS
TABLE OF CONTENTS……………………………………………………………….....i
TABLE OF AUTHORITIES ............................................................................................. iii
INTRODUCTION AND INTEREST OF AMICI ............................................................... 1
STANDARD OF REVIEW ................................................................................................. 1
STATEMENT OF FACTS .................................................................................................. 1
SUMMARY OF ARGUMENT ........................................................................................... 2
ARGUMENT ....................................................................................................................... 3
I. TRIBAL JURISDICTION OVER INDIAN CHILDREN IS AN INHERENT ASPECT OF TRIBAL SOVEREIGNTY ............................................................................ 3 II. CONGRESS ENACTED THE INDIAN CHILD WELFARE ACT TO ENFORCE ALREADY EXISTING TRIBAL JURISDICTION AND PREVENT THE WHOLESALE REMOVAL OF INDIAN CHILDREN FROM INDIAN COMMUNITIES ................................................................................................................. 8 A. ICWA Presumes and Favors Tribal Jurisdiction ..................................................... 8 B. The Uniform Child Custody and Jurisdiction Enforcement Act Does Not Apply to ICWA cases .............................................................................................. 9 C. ICWA Was Enacted to Prevent the Wholesale Removal of Indian Children by
State Actors ........................................................................................................... 13 III. ICWA’S CONCERNS ABOUT THE ROLE OF STATE WORKERS IN INDIAN CHILD CUSTODY CASES NECESSARILY IMPLICATE GUARDIANS AD LITEM WHO REPRESENT INDIAN CHILDREN ................................................... 18
ii
A. Guardians ad litem Are Appointed By the State and Are Therefore State Actors Under ICWA.. ....................................................................................................... 18
B. Guardians ad litem Are Obligated By the Best Interests Of the Child to Keep a Child’s Connection to Her Tribe and Culture .................................................... 20
IV. CONCLUSION ........................................................................................................ 25
iii
TABLE OF AUTHORITIES
Federal Decisions
Bryan v. Itasca County, 426 U.S. 373; 96 S.Ct. 2101; 48 L.Ed.2d 710..............................6
California v. Cabazon Band of Mission Indians, 480 U.S. 202; 107 S.Ct. 1083; 94
L.Ed.2d 244 (1987)..........................................................................................................7
Fisher v. Dist. Ct., 424 U.S. 382; 96 S.Ct. 943; 47 L.Ed.2d 106 (1976).........................5, 7
Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30; 109 S. Ct. 1597; 104 L.
Ed. 2d 29 (1989) .................................................................................................... passim
Montana v. United States, 450 U.S. 49; 101 S.Ct. 973; 67 L.Ed.2d 36 (1981)..................5
Santa Clara Pueblo v. Martinez, 436 U.S. 49; 98 S.Ct. 1670; 56 L.Ed.2d 106 (1978)...4, 5
Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, 476 U.S. 877;
106 S.Ct. 2305; 90 L.Ed.2d 881 (1986)...........................................................................5, 7
Williams v. Lee, 358 U.S. 217; 79 S.Ct. 269; 3 L.Ed.2d 251 (1959)...................................4
Worcester v. Georgia, 31 U.S. 515; 6 Pet. 515; 8 L.Ed. 483 (1832)...................................4
United States v. Wheeler, 435 U.S. 313; 98 S.Ct. 1079; 55 L.Ed.2d 303............................4
United States v. Quiver, 241 U.S. 602; 36 S.Ct. 699; 60 L.Ed. 1196..................................5
Native Village of Venetie I.R.A. Council v. State of Alaska, 944 F.2d 548 (9th Cir.
1991)................................................................................................................................5, 6
Wisconsin Potawatomies v. Houston, 393 F.Supp. 719 (WD Mich 1973) ...................... 7, 8
iv
Minnesota Decisions
Earl v. Godley, 44 N.W. 254 (Minn. 1890).........................................................................6
In re Adoption of M.T.S., 489 N.W.2d 285 (Minn. App. 1992).........................................23
In re S.E.G., 521 N.W.2d 357 (Minn. 1984)...................................................19, 21, 22, 23
In re R.A.J., 769 N.W.2d 297 (Minn. 2009)......................................................................24
La Framboise v. Day, 161 N.W.2d 529 (Minn. 1917)........................................................6
Rogers v. Cordingley, 4 N.W.2d 627 (Minn. 1942)............................................................6
Tindell v. Rogosheske, 428 N.W.2d 387 (Minn. 1988)......................................................18
U.S. ex rel. Davis v. Shanks, 15 Minn. 369 (1870).............................................................4
Other States’ Decisions
In re Adoption of Buehl, 555 P.2d 1334 (Wash. 1976)........................................................7
In re Appeal in Pima County Juvenile Action No. S-903, 635 P.2d 187 (Ariz.App.
1981)..............................................................................................................................21
In re A.J.S., 204 P.3d 543 (Kan. 2009)..............................................................................12
In re Elias L., 767 N.W.2d 98 (Neb. 2009).......................................................................12
In re J.J.C., 302 S.W.3d 896 (Tex. Ct. App. 2009............................................................12
In re JL, 770 N.W.2d 853 (Mich. 2009)............................................................................12
In re M.S., 237 P.3d 161 (Okla. 2010).................................................................................9
v
Kobogum v. Jackson Iron Co., 43 N.W. 602 (Mich. 1889).................................................9
Wakefield v. Little Light, 347 A.2d 228 (Md. 1975)............................................................7
In re W.D.H., 43 S.W.3d 30 (Tex. Ct. App. 2001)............................................................12
Federal Statutes
P.L. 83-280; 67 Stat. 588 (Aug. 15, 1952).......................................................................6, 7
P.L. 95-608; 25 U.S.C. §§ 1901-1963 ....................................................................... passim
State Statutes
Minn. Stat. § 260C.001......................................................................................................23
Minn. Stat. § 260C.163..........................................................................................18, 19, 20
Minn. Stat. § 206C.193................................................................................................18, 20
Minn. Stat. § 206C.201......................................................................................................19
Minn. Stat. § 518D.104................................................................................................11, 13
Federal Legislative Authorities
Establishing Standards for the Placement of Indian Children in Foster or Adoptive
Homes, to Prevent the Breakup of Indian Families, and for Other Purposes, H R Rep
95-1386 (July 24, 1978) ........................................................................................... 14, 21
vi
Indian Child Welfare Act of 1978, Hearings before the Subcommittee on Indian Affairs
and Public Lands of the Committee on Interior and Insular Affairs, House of
Representatives, 95th Cong, 2d Sess (Feb. 9 & Mar. 9, 1978) ...................................... 16
Indian Child Welfare Program, Hearings before the Subcommittee on Indian Affairs of
the Senate Committee on Interior and Insular Affairs, 93rd Cong, 2d Sess (April 8 & 9,
1974)............................................................................................................14, 15, 16, 17
Federal Administrative Authorities
Bureau of Indian Affairs, Guidelines for State Courts; Indian Child Custody Proceedings,
44 Fed. Reg. 67584 (Nov. 26, 1979) .............................................................................. 13
Treatises
Cohen’s Handbook of Federal Indian Law (2005 ed)..........................................5, 6, 7, 23
Law Review Articles
Barbara Atwood, The Voice of the Indian Child: Strengthening the Indian Child Welfare
Act Through Children's Participation, 50 Ariz. L.Rev. 127 (2008)......................20, 21
Catherine M. Brooks, The Indian Child Welfare Act in Nebraska: Fifteen Years, A
Foundation for the Future, 27 Creighton L. Rev. 661 (1994).....................................22
Carole Goldberg, Public Law 280: The Limits of State Jurisdiction Over Reservation
Indians, 22 UCLA L.Rev. 535 (1975)............................................................................6
vii
Tara Lea Muhlhauser, From "Best" to "Better": The Interests of the Children and the
Role of the Guardian Ad Litem, 66 N.D. L.Rev. 633 (1990).......................................19
Marian E. Saksena, Out-of-Home Placements for Abused, Neglected and Dependent
Children in Minnesota, 32 Wm. Mitchell L. Rev. 1007 (2006)...................................15
Books
Barbara Ann Atwood, Children, Tribes, and States: Adoption and Custody Conflicts over
American Indian Children (2010)........................................................................................7
Facing the Future: The Indian Child Welfare Act at 30 (Matthew L.M. Fletcher et al. eds.,
2009)............................................................................................................................3, 4
B.J. Jones et al., The Indian Child Welfare Act Handbook (2nd ed. 2008).............7, 23, 24
Other Authorities
American Indian Policy Review Commission Task Force Four, Report on Federal, State,
and Tribal Jurisdiction (July 1976) ................................................................................ 14
Jurisdictional Questions Relating to the Implementation of the Indian Child Welfare Act
Discussed, 70 Wis. Op. Att'y Gen. 237 (1981)..........................................................6, 7
Minnesota Guardian ad Litem Oath..................................................................................24
Uniform Child Custody Juisdiction and Enforcement Act §104 Comment (Nat'l
Conference of Comm'rs on Unif. State Laws, 1997 Annual Meeting
Draft)..............................................................................................................................10
viii
Court Documents
Appellant’s Addendum ...................................................................................................... 24
1
INTRODUCTION AND INTEREST OF AMICI
The Indigenous Law and Policy Center, the Leech Lake Band of Ojibwe, and the
Mille Lacs Band of Ojibwe file this amici curiae brief pursuant to the March 23, 2011
order of the Supreme Court of Minnesota.
The Indigenous Law and Policy Center is based at the Michigan State University
College of Law, and has a public interest in this case. The Leech Lake Band of Ojibwe is
an Indian tribe located in northern Minnesota. The Mille Lacs Band of Ojibwe is an
Indian tribe located in east central Minnesota. Both Leech Lake and Mille Lacs Bands
have a public interest in this area. Because ICWA is a federal law interpreted by state
courts, the decision reached in this case will affect the Bands as if they were a party to the
case.
STANDARD OF REVIEW
Amici Curiae concur with the Appellant’s statement of the standard of review.
STATEMENT OF FACTS
Amici Curiae concur in the Statement of Facts set forth in the Brief of Appellant.
2
SUMMARY OF ARGUMENT
Congress enacted the Indian Child Welfare Act of 1978 as a reaction to the
wholesale and practically automatic removal of Indian children from Indian families and
tribal communities. Congress’s scheme involved the transfer of jurisdiction over Indian
children from primarily state courts to tribal courts, and the federal guarantee of
procedural requirements that state courts must follow prior to both removing Indian
children from Indian families and before terminating the parental rights of Indian parents.
Congress intended these federal guarantees and jurisdictional provisions both to trump
state procedures and to favor Indian parents and Indian tribes.
The Court of Appeals correctly held that the transfer of an Indian Child Welfare
Act (“ICWA”) case to the tribal court after termination of parental rights but before the
preadoptive placement was allowable under both federal and state law. This case
addresses two important aspects of an ICWA case, ICWA’s intent to both allow transfer
of this type of case to tribal court and to protect Indian children against the biases of state
appointed guardians ad litem.
Amici Curiae urge the Supreme Court to uphold the Court of Appeals decision on
two independent grounds. First, the jurisdictional provisions of ICWA favors and
presumes tribal jurisdiction. Second, the guardian ad litem’s role is to act in the best
3
interests of the child, and the juvenile court found that transfer was legal under federal
and state law and also in the child’s best interests.
ARGUMENT
I. TRIBAL JURISDICTION OVER INDIAN CHILDREN IS AN INHERENT ASPECT OF TRIBAL SOVEREIGNTY
The Indian Child Welfare Act (“ICWA”), Pub. L. No. 95-608; 25 U.S.C. §§ 1901-
1963 (1978), does not exist in a vacuum. Though ICWA defines and delineates between
tribal and state jurisdiction in child welfare cases, ICWA is part of the long history of
federal Indian law and policy and recognizes established tribal jurisdiction over internal
tribal issues. As the Supreme Court has written, “[t]ribal jurisdiction over Indian child
custody proceedings is not a novelty of the ICWA.” Mississippi Band of Choctaw
Indians v. Holyfield, 490 U.S. 30, 42 (1989).
Tribes have always exercised jurisdiction over their children. Though both the
federal and state government enforced horrific programs to separate Indian children from
their parents, grandparents, extended families, tribes, and cultural heritage, tribes have
worked continuously to maintain jurisdiction over their children. See Lorie M. Graham,
Reparations, Self-Determination and the Seventh Generation in Facing the Future: The
Indian Child Welfare Act at 30 50 (Matthew L.M. Fletcher et al. eds., 2009). Ensuring
4
tribal jurisdiction in cases involving Indian children is one of the primary motivating
factors in establishing tribal judicial systems recognizable to state courts. Michael
Petoskey, Foreward to Facing the Future, supra at vii (“These kinds of cases are so
important, in fact, that their existence has been the impetus for many tribes in the state of
Michigan and elsewhere to embark upon the process of developing their own judicial and
child protection systems.”).
Tribes have always had the inherent sovereign jurisdiction “to make their own
laws and be ruled by them.” Williams v. Lee, 358 U.S. 217, 220 (1959). Tribes have
long been recognized as “distinct, independent political communities,” Worcester v.
Georgia, 31 U.S. 515, 559 (1832), with the inherent sovereignty to govern their own
members. Tribal powers of self-governance are not granted by the federal government,
but rather arise from tribal sovereignty which preexisted the United States. Santa Clara
Pueblo v. Martinez, 436 U.S. 49, 56 (1978) (“As separate sovereigns pre-existing the
Constitution, tribes have historically be regarded as unconstrained by those constitutional
provisions framed specifically as limitations on federal or state authority.”); United States
v. Wheeler, 435 U.S. 313, 323-324 (1978); U.S. ex rel. Davis v. Shanks, 15 Minn. 369, *2
(1870) (“The Indians within our territory have always been considered and recognized by
the United States as distinct political communities; and, so far as is essential to constitute
them separate nations, the rights of sovereignty have been conceded to them.”). Tribes
5
have a unique government-to-government relationship with the federal government based
on agreements, treaties, and the Constitution. Cohen’s Handbook of Federal Indian Law
1 (Nell Jessup Newton et al. eds, 2005).
Central to this power of self-governance is the arena of domestic relations,
including jurisdiction over Indian children. U.S. v. Quiver, 241 U.S. 602 (1916) (internal
domestic relations); Fisher v. Dist. Ct., 424 U.S. 382 (1976) (jurisdiction over Indian
children); Martinez, 436 U.S. 49 (1978) (regulating internal membership decisions);
Montana v. United States, 450 U.S. 544, 564 (1981) (“Indian tribes retain their inherent
power to determine tribal membership, to regulate domestic relations among members . .
.”); Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, 476 U.S.
877, 889-90 (1986) (internal domestic tribal relations).
In short Indian tribes are currently recognized as sovereign because they were, in fact, sovereign before the arrival of non-natives on this continent. The practical result of this doctrine is that an Indian tribe need not wait for an affirmative grant of authority from Congress in order to exercise dominion over its members.
Native Village of Venetie I.R.A. Council v. State of Alaska, 944 F.2d 548, 556 (9th Cir.,
1991) (tribal jurisdiction over child custody determinations).
Minnesota also recognizes this basic power of self-governance and tribal
jurisdiction over domestic relations.
6
So in the instant case as to these Indians, who always have resided on their Indian reservations, even if they had gone to another state and there married as prescribed by statute and then returned to their reservation in this state, we apprehend that they could then be divorced according to the usages and customs of the tribe.
Rogers v. Cordingley, 4 N.W.2d 627, 629 (Minn. 1942); Earl v. Godley, 44 N.W. 254,
255 (Minn. 1890) (“Under the laws of the United States they are recognized as capable of
managing their own affairs, including their domestic relations . . .”); La Framboise v.
Day, 161 N.W.2d 529 (Minn. 1917) (recognizing traditional tribal divorce).
Though the passage of Public Law 83-280 (“P.L. 280”), 67 Stat. 588 (Aug. 15,
1953), purported to place jurisdiction on the reservation in the hands of the state, courts
and commentators have come to agree that state civil jurisdiction on reservations is to be
construed narrowly. Bryan v. Itasca County, 426 U.S. 373 (1976); Handbook of Federal
Indian Law at 546. The Wisconsin Attorney General found that P.L. 280 did not grant
the state “general jurisdiction over child custody matters.” Jurisdictional Questions
Relating to the Implementation of the Indian Child Welfare Act Discussed, 70 Wis. Op.
Att’y Gen. 237 (1981). Along with Wisconsin, Minnesota was included as one of the
original five states granted jurisdiction under P.L. 280 (excepting the Red Lake
reservation), which was originally designed to deal with a lack of tribal forums for
criminal law enforcement. Native Village of Venetie I.R.A., 944 F.2d at 560; Bryan, 426
U.S. at 379; Carole Goldberg, Public Law 280: The Limits of State Jurisdiction Over
7
Reservation Indians, 22 UCLA L. Rev. 535, 541 (1975). However, P.L. 280 was not a
divestiture statute, or a removal of jurisdiction from tribes. California v. Cabazon Band
of Mission Indians, 480 U.S. 202, 207-12 (1987). In other words, tribes in P.L. 280 states
with tribal courts, such as the White Earth Band, Leech Lake Band, and Mille Lacs Band
continue to maintain at least concurrent jurisdiction over family law issues, and may have
exclusive jurisdiction over some family law issues. Wold Engineering, 476 U.S. at 889-
890; Jurisdictional Questions, 70 Wis. Op. Att’y Gen. 237; Handbook of Federal Indian
Law at 830; B.J. Jones et al., The Indian Child Welfare Act Handbook 54 (2nd ed. 2008);
Barbara Ann Atwood, Children, Tribes, and States: Adoption and Custody Conflicts over
American Indian Children 80 (2010).
ICWA did not grant jurisdiction over Indian children to tribes, but rather
acknowledged the fact of tribal jurisdiction over Indian children. See Fisher, 424 U.S.
382; Wisconsin Potowatomies v. Houston, 393 F. Supp. 719 (W.D. Mich. 1973);
Wakefield v. Little Light, 347 A.2d 228, 234-5 (Md. 1975); In re Adoption of Buehl, 555
P.2d 1334 (Wash. 1976). As the federal court wrote in Wisconsin Potowatomies, “if
tribal sovereignty is to have any meaning at all at this juncture of history, it must
necessarily include the right . . . to provide for the care and upbringing of its young, a
sine qua non to the preservation of its identity.” Wisconsin Potowatomies, 939 F. Supp. at
730.
8
II. CONGRESS ENACTED THE INDIAN CHILD WELFARE ACT TO ENFORCE ALREADY EXISTING TRIBAL JURISDICTION AND PREVENT THE WHOLESALE REMOVAL OF INDIAN CHILDREN FROM INDIAN COMMUNITIES
A. ICWA Presumes and Favors Preexisting Tribal Jurisdiction
ICWA was passed by Congress to, among other things, protect preexisting tribal
jurisdiction over Indian children. ICWA presumes tribal jurisdiction. Holyfield, 490 U.S.
at 36. Tribal jurisdiction over Indian child custody proceedings has a “strong basis in
pre-ICWA case law in the federal and state courts.” Id. at 42. Reading the statute leads
to an “inescapable” conclusion, “the main effect of which is to curtail state authority.” Id.
at 45 n.17. The intent of ICWA, therefore, was to protect and encourage tribal
jurisdiction over state jurisdiction in the area of Indian child welfare.
Congress passed ICWA pursuant to the “special relationship between the United
States and the Indian tribes and their members” and recognized the “Federal
responsibility to Indian people.” 25 U.S.C. § 1901. The statute provides that tribal courts
have exclusive jurisdiction over custody proceedings involving Indian children domiciled
in Indian Country. 25 U.S.C. § 1911(a). Congress borrowed this concept from the
Western District of Michigan, where Judge Engel had reached the same outcome in a
1973 common law decision in a case involving children who were members of the
Hannahville Indian Community. Wisconsin Potowatomies, 393 F. Supp. at 734, cited in
9
Holyfield, 490 U.S. at 35 n.4; cf. Kobogum v Jackson Iron Co, 43 N.W. 602, 605 (Mich.
1889) (“[Indian tribes] did not occupy their territory by our grace and permission, but by
a right beyond our control. They were placed by the constitution of the United States
beyond our jurisdiction, and we had no more right to control their domestic usages than
those of Turkey or India.”).
ICWA provides that tribal courts have concurrent and presumptive jurisdiction
over Indian child custody cases where the child is domiciled outside of Indian Country.
25 U.S.C. § 1911(b); Holyfield, 490 U.S. at 36. As in the case at bar, a state court may
(assuming certain circumstances) accept or retain jurisdiction over Indian child custody
cases if the child lives off the reservation, or where a tribal court declines jurisdiction. 25
U.S.C. § 1911(b), (c). Those provisions withstanding, however, does not change the
presumption of tribal court jurisdiction throughout the proceedings. See In re M.S., 237
P.3d 161, 165 (Okla. 2010).
B. The Uniform Child Custody and Jurisdiction Enforcement Act Does Not Apply to ICWA Cases
Regardless of whether the juvenile court orders a transfer to tribal court or not, the
Uniform Child Custody and Jurisdiction Enforcement Act (“UCCJEA”) does not apply to
the proceeding, as the proceeding is subject to ICWA. Minn. Stat. § 518D.104(a). “A
10
child custody proceeding that pertains to an Indian child as defined in the Indian Child
Welfare Act is not subject to this chapter to the extent that it is governed by the Indian
Child Welfare Act.” Id. (citations omitted). See Uniform Child Custody Jurisdiction and
Enforcement Act § 104 Comment (Nat’l Conference of Comm’rs on Unif. State Laws,
1997 Annual Meeting Draft), available at http://www.law.upenn.edu/bll/archives/
ulc/uccjea/chldcust.htm. (“A case that falls under the Indian Child Welfare Act is
governed by that Act and not by this Act.”)
The UCCJEA is adopted by each state individually, and as such is enforced as
state law. ICWA is a federal law that preempts the field in the cases where it applies.
States cannot use state law to fill in the holes in ICWA, and therefore cannot use the
UCCJEA as gap filler. As the Supreme Court held in Holyfield, state law cannot be used
to undermine ICWA. Holyfield, 490 U.S. at 44 (“A second reason for the presumption
against the application of state law is the danger that the ‘federal program would be
impaired if state law were to control.’”) (citations omitted).
In Holyfield, the state court attempted to use the state’s definition of domicile to
undermine ICWA. Id. at 40 Under the state’s reasoning, the child’s domicile followed
that of her parents, and meant that any child born off the reservation was not subject to
ICWA. Id. ICWA does not define domicile, the state tried to fill the gap with state law.
However, the Supreme Court held that:
11
First, and most fundamentally, the purpose of the ICWA gives no reason to believe that Congress intended to rely on state law for the definition of a critical term; quite the contrary. It is clear from the very text of the ICWA, not to mention its legislative history and the hearings that led to its enactment, that Congress was concerned with the rights of Indian families and Indian communities vis-à-vis state authorities. More specifically, its purpose was, in part, to make clear that in certain situations the state courts did not have jurisdiction over child custody proceedings. Indeed, the congressional findings that are a part of the statute demonstrate that Congress perceived the States and their courts as partly responsible for the problem it intended to correct. See 25 U.S.C. § 1901(5) (state “judicial bodies ... have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families”). Under these circumstances it is most improbable that Congress would have intended to leave the scope of the statute's key jurisdictional provision subject to definition by state courts as a matter of state law.
Id. at 44-45.
In Minnesota’s version of the UCCJEA, tribes are to be included in the home state
analysis, but only in cases where ICWA does not govern. See Minn. Stat. § 518D.104(a).
The plain meaning of the state law prevents it from applying when ICWA does. ICWA
governs an entire case where an Indian child is the subject to involuntary removal from
her parents. This is especially true in the area of jurisdiction, which include ICWA’s
most important provisions. Id. at 36 (“At the heart of ICWA are its provisions
concerning jurisdiction over Indian child custody proceedings”). Using the UCCJEA to
12
interpret ICWA to deny transfer to tribal court would undermine the very foundation of
ICWA.
States have followed this reasoning in preventing state, and even federal, statutes
from interfering with ICWA’s provisions. In Michigan, the Michigan Supreme Court
refused to enforce the Michigan statute which codified the Adoption and Safe Families
Act to the detriment of ICWA. In re JL, 770 N.W.2d 853, 863 (Mich. 2009)(“Because
the ICWA establishes ‘minimum Federal standards for the removal of Indian children
from their families,’ and nothing in the ASFA indicates a congressional intent to
supersede the ICWA, neither the ASFA nor its state law analogues relieve the DHS from
the ICWA’s ‘active efforts’ requirement . . .”) (citations omitted) (emphasis added). The
Supreme Court of Nebraska allowed tribes to intervene without a bar licensed attorney,
holding that a “Tribe’s right to intervene under the federal Indian Child Welfare Act
(ICWA) preempts Nebraska’s laws regulating the unauthorized practice of law.” In re
Elias L., 767 N.W.2d 98, 100 (Neb. 2009). See also, In re A.J.S, 204 P.3d 543, 431-2
(Kan. 2009); In re W.D.H., 43 S.W.3d 30, 35-6 (Tex. Ct. App. 2001); In re J.J.C., 302
S.W.3d 896, 899 (Tex. Ct. App., 2009).
The UCCJEA cannot change the jurisdictional provisions at the heart of ICWA,
and a court cannot drop in and out of ICWA requirements, or use the UCCJEA to fill in
where ICWA may be unclear. If the court were to find that it retained jurisdiction over
13
an Indian child, its reasoning would have to come from ICWA, such as good cause. 25
U.S.C. § 1911(b); Bureau of Indian Affairs, Guidelines for State Courts; Indian Child
Custody Proceedings C.3, 44 Fed. Reg. 67584, 67592 (Nov. 26, 1979). ICWA’s
jurisdictional scheme leaves no room for the UCCJEA, which by its terms does not apply
with ICWA does. In the case at bar, if the transfer had not been properly ordered by the
juvenile court, the juvenile court would still have to apply ICWA provisions to the
proceeding until the final decree for adoption. The reasoning for denying the transfer
would have to come from ICWA, not from a UCCJEA analysis.
This Court should follow the plain meaning of Minn. Stat. § 518D.104(a), hold
that the provisions of ICWA are to be interpreted in accordance with Congress’s intent
and policy toward Indian people, and refuse to incorporate provisions and public policies
related to the UCCJEA in ICWA cases.
C. ICWA Was Enacted to Prevent the Wholesale Removal of Indian Children from Their Families and Tribes by State Actors
Congress’s intent and policy toward Indian people in the Indian Child Welfare Act
was to prevent the wholesale removal of Indian children and retain existing tribal court
jurisdiction. Congress enacted ICWA after more than four years of hearings,
deliberation, and debate, in order to alleviate a terrible crisis of national proportions – the
14
“wholesale separation of Indian children from their families….” Establishing Standards
for the Placement of Indian Children in Foster or Adoptive Homes, to Prevent the
Breakup of Indian Families, and for Other Purposes, H. R. Rep. 95-1386, at 9 (July 24,
1978) (“1978 House Report”)1; see also Holyfield, 490 U.S. 30. Hundreds of pages of
legislative testimony taken from Indian Country over the course of four years confirmed
for Congress that many state and county social service agencies and workers, with the
approval and backing of many state courts and some federal Bureau of Indian Affairs
officials, had engaged in the systematic, automatic, and across-the-board removal of
Indian children from Indian families and into non-Indian families and communities. 25
U.S.C. § 1901(4)-(5); see also Holyfield, 490 U.S. at 32-33. State governmental actors
following this pattern and practice removed between 25 and 35 percent of all Indian
children nationwide from their families, placing about 90 percent of those removed
children in non-Indian homes. Holyfield, 490 U.S. at 32-33 (citing Indian Child Welfare
Program, Hearings before the Subcommittee on Indian Affairs of the Senate Committee
on Interior and Insular Affairs, 93rd Cong, 2d Sess, at 3 (statement of William Byler)
(April 8 & 9, 1974) (“1974 Hearings”); see also American Indian Policy Review
1 The text of ICWA, the legislative history, and any draft bills or Congressional materials dealing with ICWA cited in this brief are available at the website of the Native American Rights Fund, <http://narf.org/icwa/federal/lh.htm>.
15
Commission Task Force Four, Report on Federal, State, and Tribal Jurisdiction 79 (July
1976) (“Task Force Four”).
This was true in Minnesota as well: “For example, rations, annuities, and other
goods were withheld from parents and guardians who did not agree to send their children
away to school. Ojibwe children from northern Minnesota were often ‘rounded up by the
reservation police before being sent to boarding school.’” Marian E. Saksena, Out-of-
Home Placements for Abused, Neglected and Dependent Children in Minnesota, 32 Wm.
Mitchell L. Rev. 1007, 1035 (2006) (citations omitted). “[I]n Minnesota one in four
Indian children under the age of one had been removed from their home and adopted by a
non-Indian couple.” Id. at 1039.
A critical aspect to the legislative history of ICWA is the “wholesale” and
automatic character of Indian child removal by state actors nationally. As the Executive
Director of the Association on American Indian Affairs, William Byler, testified, the
“[r]emoval of Indian children is so often the most casual kind of operation….” 1974
Hearings, supra, at 19-20, 23. Byler testified that at the Rosebud Sioux Reservation,
state social workers believed that the reservation was, by definition, an unacceptable
environment for children and would remove Indian children without providing services
or even the barest investigation whatsoever. 1974 Hearings, supra, at 21-23.
16
And, importantly, Congress recognized that state law and policy affecting Indian
children and families, as well as the actions of state workers, has an enormous impact on
the future of Indian tribes as well. Congress found “that there is no resource that is more
vital to the continued existence and integrity of Indian tribes than their children and that
the United States has a direct interest, as trustee, in protecting Indian children who are
members of or are eligible for membership in an Indian tribe….” 25 U.S.C. § 1901(3).
The United States Supreme Court echoed that finding by relying upon the statements of
Calvin Issac, the tribal chief of the Mississippi Band of Choctaw Indians, who stated:
Culturally, the chances of Indian survival are significantly reduced if our children, the only real means for the transmission of the tribal heritage, are to be raised in non-Indian homes and denied exposure to the ways of their People. Furthermore, these practices seriously undercut the tribes’ ability to continue as self-governing communities. Probably in no area is it more important that tribal sovereignty be respected than in an area as socially and culturally determinative as family relationships.
Holyfield, 490 US at 34 (quoting Indian Child Welfare Act of 1978, Hearings before the
Subcommittee on Indian Affairs and Public Lands of the Committee on Interior and
Insular Affairs, House of Representatives, 95th Cong, 2d Sess, at 193 (Feb. 9 & Mar. 9,
1978) (“1978 Hearings”)). The Holyfield Court also relied upon the testimony of experts
and studies that demonstrated the destructive effects of placing Indian children in non-
Indian families and communities. Holyfield, 490 U.S. at 33, 33 n.1 (citing 1974
Hearings, supra, at 46).
17
State actors made decisions to remove Indian children with “few standards and no
systematic review of judgments” by impartial tribunals. 1974 Hearings, supra, at 62
(Statement of Dr. Carl Mindell and Dr. Alan Gurwitt). A member of the Sisseton-
Wahpeton Sioux Tribe in South Dakota testified that state actors had taken Indian
children without even providing notice to Indian families, with state courts then placing
the burden on the Indian parent to prove suitability to retain custody. 1974 Hearings,
supra, at 67-69 (Statement of Cheryl DeCoteau). The President of the National Congress
of American Indians testified that a state caseworker came to an Indian woman’s house
without warning or notice and took custody of an Indian child by force. 1974 Hearings,
supra, at 224 (Statement of Mel Tonasket). Senator Abourezk, chairman of the
Subcommittee on Indian Affairs, stated after hearing much of this testimony:
[W]elfare workers and social workers who are handling child welfare caseloads use any means available, whether legal or illegal, coercive or cajoling or whatever, to get the children away from mothers they think are not fit. In many cases they were lied to, they given documents to sign and they were deceived about the contents of the documents.
1974 Hearings, supra, at 463.
To remedy the problem, Congress created a statute designed to guarantee
minimum procedural safeguards for Indian tribes and Indian families in non-tribal
adjudicative forums and to clarify jurisdictional gray areas between state and tribal
courts. This case addresses both of these areas—jurisdictional gray areas and the role of
18
a state actor in an Indian child’s case. ICWA’s intent is both to allow transfer of these
cases to tribal court and to protect Indian children against the biases of state appointed
guardians ad litem.
III. ICWA’S CONCERNS ABOUT THE ROLE OF STATE WORKERS NECESSARILY IMPLICATE GUARDIANS AD LITEM WHO REPRESENT INDIAN CHILDREN
A. Guardians ad litem are appointed by the State and Are Therefore State Actors in ICWA Cases
Guardians ad litem (“GAL”) occupy a similar space as the state social workers of
concern in ICWA. While the role of a GAL is to advocate for the child, the GAL is still
appointed as an officer of the state court and, as such, is accorded presence at the hearing
and the opportunity to voice a recommendation. Minn. Stat. § 260C.163, subd. 5; Tindell
v. Rogosheske, 428 N.W.2d 387 (Minn. 1988) (the guardian ad litem is a quasi-judicial
officer of the court and entitled to absolute immunity). A GAL also conducts
investigations into the family, and present written recommendations. Minn. Stat. §
260C.163, subd. 5(b). In that role, the GAL is a part of the state court system the
minimum safeguards in ICWA was designed to protect against. See Minn. Stat. §
206C.193, subd. 2. “The plain language of the Act read as a whole and its legislative
history clearly indicate that state courts are a part of the problem the ICWA was intended
19
to remedy.” In re S.E.G., 521 N.W.2d 357, 363 (Minn. 1994). “It is clear from the very
text of ICWA, not to mention its legislative history and the hearings that led to its
enactment, that Congress was concerned with the rights of Indian families and Indian
communities vis-à-vis state authorities.” Holyfield, 490 U.S. at 44-45.
The GAL is an instrument for the state court throughout his or her appointment,
acting as an expert witness, conducting independent investigations, and making
recommendations concerning the disposition of the minor’s case. Minn. Stat. §260C.163
subd. 5(b). The court may consider the GAL report when making a disposition in a case
or terminating parental rights. Minn. Stat. § 206C.193, subd. 2. This level of authority
within an ICWA case is not significantly different than that of a state social worker, who
may also make recommendations, testify in front of the court, and have his report
considered by the court. Minn. Stat. § 260C.201, subd. 6 (a); Minn. Stat. § 206C.193,
subd. 2. And like the state social worker, the GAL is also a state actor who can use the
courts to remove Indian children from their families and tribes.
The role of the GAL is different from that of a customary lawyer; a GAL is
required to act in the best interests of the child even if those interests conflict with the
child’s own wishes. “The dichotomous role of the [GAL] as a champion of both the
child’s best interests and the child’s wishes is widely recognized.” Tara Lea Muhlhauser,
From “Best” to “Better”: The Interests of Children and the Role of the Guardian Ad
20
Litem, 66 N.D. L. Rev. 633 (1990). Determining what those best interests are for an
Indian child can be a daunting task, and a GAL needs to be especially sensitive to these
issues.
The need for representatives to be sensitive to their clients’ cultural backgrounds is axiomatic, but that principle is particularly relevant to ICWA cases. Some children may be fully integrated into tribal culture, and if the representative is not a member of the child's tribe, cultural differences and language barriers may intensify the challenges that already exist in adult-child communication. Cultural understanding is especially challenging because of the enormous diversity among tribes and Indian communities, both urban and rural.
Barbara Atwood, The Voice of the Indian Child: Strengthening the Indian Child Welfare
Act Through Children’s Participation, 50 Ariz. L. Rev. 127, 150-51 (2008).
B. Guardians ad litem are obligated by the best interests of the Indian child to keep a child’s connection to her tribe and culture
Minnesota law requires the courts to consider special factors for a GAL when a
GAL is appointed to a case involving an Indian child. “The following factors shall be
considered when appointing a guardian ad litem in a case involving an Indian or minority
child: (1) whether a person is available who is the same racial or ethnic heritage of the
child or, if that is not possible; (2) whether a person is available who knows and
appreciates the child’s racial or ethnic heritage.” Minn. Stat. §260C.163, subd. 5(e)(1-2).
Given the primary role of the GAL is to act in the child’s best interests, presumably the
21
legislature believed that Indian children required a GAL who would understand different
kinds of best interests than are traditionally understood for non-Indian children. See
Atwood at 150-1.
While the best interest standard has long been used by courts and workers to
determine what should be done with a child in the court’s care, “[t]he best interests of the
child standard, by its very nature, requires a subjective evaluation of a multitude of
factors, many, if not all of which are imbued with the values of majority culture.” In re
S.E.G., 521 N.W.2d at 363. Because the GAL is required to consider the child’s best
interests, even if contrary to the child’s wishes, it is vital for a GAL to realize an Indian
child’s best interests may include different interests and needs than a non-Indian child.
Indeed, the application of the Indian Child Welfare Act to a case attempts to ensure the
best interests of the child include the child’s connection to her tribe. “Thus, the
conclusion seems justified that, as one state court has put it, ‘[t]he Act is based on the
fundamental assumption that it is in the Indian child’s best interest that its relationship to
the tribe be protected.’ In re Appeal in Pima County Juvenile Action No. S-903, 130 Ariz.
at 204, 635 P.2d at 189.” Holyfield at 50 n.24.
A child’s connection to her tribe not only protects her identity, language and
cultural affiliation, it provides a very real property interest. See 1978 House Report at 24
(“These provisions [allowing adult adoptee receive information of her tribal relations]
22
will help protect the valuable rights an individual has as a member or potential member
of an Indian tribe and any collateral benefits which may flow from the Federal
Government because of said membership.”). The connection means she will be able to
participate meaningfully in the political and cultural affairs of the tribe, receive services
as a citizen of the tribe and benefit from her tribe’s government-to-government
relationship with the federal government. See Catherine M. Brooks, The Indian Child
Welfare Act in Nebraska: Fifteen years, A Foundation For The Future, 27 Creighton L.
Rev. 661, 705 (1994).
In addition, this Court has found that “Congress, in conjunction with numerous
Indian tribal governments and the Bureau of Indian Affairs, has carefully and
thoughtfully set out the nation’s policy to prevent the destruction of Indian families and
Indian tribes and to protect the best interests of Indian children by preventing their
removal from their communities.” In re S.E.G., 521 N.W.2d at 366. This means an
Indian child’s best interests considerations are necessarily broader than a standard best
interest analysis, and includes the Indian child’s connection to her tribal identity.
While the best interests of the child should not inform a jurisdictional decision,
conversely, the history prior to ICWA and after the enactment of ICWA assumes tribal
jurisdiction is in the best interest of the Indian child. As the Minnesota Appellate Court
held, “[i]n general, the ICWA includes standards which adequately protect the best
23
interests of the child.” In re Adoption of M.T.S., 489 N.W.2d 285, 288 (Minn. App.
1992). The best interest standard is generally not good cause to deny a transfer to tribal
court, especially given Minnesota’s law requiring that the best interests of the child in
ICWA cases be consistent with ICWA. Minn. Stat. § 260C.001, subd. 2(a). In ICWA
cases, then, the best interests of the Indian child are generally served when a case is
handled by the tribal courts. As the Cohen Handbook states, “ICWA presumes that its
policy of advancing the best interest of Indian children is compatible with protecting
tribal interests.” Handbook of Federal Indian Law at 823; see also Jones et al., at 13
(“Congress concluded that proper implementation of the Act itself would serve the best
interest of the Native American child.”).
Minnesota law provides “[i]n proceedings involving an American Indian child, as
defined in section 260.755, subdivision 8, the best interests of the child must be
determined consistent with sections 260.751 to 260.835 and the Indian Child Welfare
Act, United States Code, title 25, sections 1901 to 1923.” Minn. Stat. § 260C.001, subd.
2(a). Part of those interests include the right for a case to be handled by the tribal court.
Best interest standards are “imbued with majority culture values” In re S.E.G., 521
at 363, and have been used to keep Indian children away from their tribes. The standards
are subjective and “may well clash” with the Indian Child Welfare Act. Jones et al. at 12.
As a state appointed GAL, the GAL is likely to represent those majority values and
24
concerns. While “[t]he Indian Child Welfare Act recognizes that cultural attachment in
placements is vital to the ‘best interests’ of an Indian child,” id., those are not always
recognized by the state actors, even those purported to be working on behalf of the Indian
child.
While a court may find that, among other considerations, the best interests of the
child may not support transfer, In re R.A.J., 769 N.W.2d 297, 304 (Minn. Ct. App.,
2009), when the court does come to a finding that both supports the best interest of the
child and the concurrent right of tribal jurisdiction, the GAL is acting outside of her
bounds by continuing to appeal the decision. In this case, the juvenile court found that “it
would be in the child’s best interests if the adoption proceedings were under the
jurisdiction of a tribal court.” (Appellant Add. at. 13.) Continuing to appeal an opinion in
the child’s best interests goes against the GAL oath to protect the best interests of the
child and constitutes a significant conflict of interest. Minnesota Guardian ad Litem
Oath, at www.mncourts.gov/documents/2/Public/Guardian_ad_Litem/GAL-OATH.doc