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Friday, August 26, 2011

Jurisdiction of Indian Children A Trial Judge's Perspective

By District Judge Tom Walker

Since the massive constitutional overhaul of the judiciary in the late '60s, lawyers have looked to the district court to adjudicate matters relating to Oklahoma's children. As more and more Indian tribes develop court systems, that landscape is changing. Primarily because of cost and convenience, an increasing number of litigants look to the tribal courts to dissolve marriages. As those courts evolve in sophistication and expand their jurisdiction, other matters relating to children will be presented to them for resolution. In the not too distant future they will present an alternative that may be a preferable, and in some instances required, forum.

Heaven forbid that a judge would even hint at something that smacks of forum shopping. Be that as it may, choice of forum is sometimes a reality of litigation. For a substantial segment of our state's children, it is rapidly becoming a more convoluted reality. I speak of Indian children and the impact of the Indian Child Welfare Act of 1978 (25 U.S.C. §§1901-1923). As it has been wont to do since the days of the New Deal, Congress used the interstate commerce clause to insert the national government into the realm of social legislation. ICWA is no different. Because it deals with children, its impact can, and will, be lifelong.

Although the law for some 15 years now, ICWA continues to confound and confuse both lawyers and judges. At first blush it seems pretty straightforward. Closer scrutiny reveals nuance after nuance, few of which have been addressed by the appellate courts of this state. This dearth of case law leaves the bench and bar with little guidance and an abundance of confusion. As the number of tribal courts increases, the confusion will likewise increase.

This article will examine the jurisdictional aspects of the act. The focus will be those areas which, in the author's experience, are most likely to be pitfalls. It will do so by dividing the inquiry into three areas: the class of children involved, the type of litigation concerning those children and finally a determination of which court/courts has/have jurisdiction. It is not meant to be an exhaustive examination. Rather, the intent is to alert practitioners to some of the more common issues that can arise, and to point them toward an answer that will assist to provide informed advice to a client.

As the focus of controversy will be litigation relating to children, a reasonable place to start the inquiry is the child her/himself. With that in mind, the question becomes, "How does one determine if the child is an Indian child?" Section 1903 of ICWA defines an Indian child as, "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." Even the most casual reading reveals the definition to be legal/political, not racial. It is quite common for adults to believe they are Indian because of Indian ancestry or having a certificate of degree of Indian blood issued by the Bureau of Indian Affairs. While this may be racially true, it may not be legally true - at least, not as far as ICWA is concerned.

To determine if a child is either a member of a particular tribe or eligible for membership in that tribe, the starting point should be the tribe itself. The cases seem to be uniform that a tribe's determination that a child is a member or eligible for membership is binding and ends the inquiry.1 However, it is interesting to note that in each of these cases, as well as all others read by the author, the appellate court made such a statement as obiter dictum, not as the holding of the case. However, there is no reason to believe that should the specific issue be presented, the decision will be otherwise.

The more difficult question can arise when the tribe, for whatever reason, either cannot determine if the child is a member or eligible for membership or does not appear and make the determination known to the court. When this occurs, the cases are likewise uniform that the trial court must decide based on the information before it.2

Because state action removing Indian children from their parents prompted Congress to enact ICWA, the uninitiated, and thus unwary, may think the act applies only to deprived child actions under the Oklahoma Children's Code (10 O.S. Chap 70). Not so. Section 1903(1) of ICWA defines a child custody proceeding by dividing the term into four different categories: foster care placement, termination of parental rights, pre-adoptive placement and adoptive placement.

The first category, "foster care placement," means "any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator, but where parental rights have not been terminated."3 To determine if the action fits the definition, it is helpful to perform a four part analysis of the action:
1.Removal from a parent or Indian custodian;
2.Temporary placement in a foster home, institution, home of a guardian, or home of a conservator;
3.The parent or Indian cannot have the child returned on demand; and
4.Parental rights have not been terminated.

The first aspect of removal is pretty straightforward - the child's parent. (Caution: it does not include unwed fathers who have not acknowledged paternity or paternity has not been established.) The second - Indian custodian - may be a little trickier. An Indian custodian is defined by the act as "any Indian person who has legal custody of an Indian child under tribal law or custom or under State law or to whom temporary physical care, custody or control has been transferred by the parent of such child."4 That which may make it difficult is custody based on tribal law or custom. If the particular tribe adopted its own statutes and they are codified, the task may be made more simple.5

If the tribe has not codified a definition of a custodian, it becomes a question of proof. The New Mexico District Court faced just such a question when deciding In the Matter of the Guardianship of Ashley Elizabeth R. and Amity Danielle.6 These two children were in the custody of their mother. The father of each was incarcerated in the state penitentiary. Upon the death of the mother, they were taken in by a paternal great-aunt and her husband. They petitioned the state court to appoint them as guardians. The Navajo tribe sought to intervene and have the case transferred to tribal court. The initial question to be resolved was whether this was a foster care proceeding. The decision hinged on the definition of Indian custodian.

The tribe introduced evidence that pursuant to Navajo custom, if a child is orphaned, his/her custody is vested automatically in the mother's family, usually the maternal grandmother. In this instance, because the grandmother was no longer living, custody was automatically vested in a maternal aunt. Based on this testimony, the court determined the aunt to be the children's Indian custodian, thus the matter was a foster care placement.7 The important point to remember is that when dealing with an Indian child, the identity of an Indian custodian may turn on tribal law or custom, not Oklahoma law.

As with the "removal from" step of the analysis, the "placement in" step can provide both easy and difficult issues to resolve. Note that section 1903(1) speaks in terms of a "temporary placement." A plain reading of the definition reveals it to include state action to place a child in a foster home, i.e., a deprived child action. Likewise, an equally plain reading reveals it to apply to state action to place a child in a mental health institution.8 Both of these actions, by definition, are temporary placements.

A guardianship action may be a bit less straightforward. Unless the petition states to the contrary, one reasonably assumes a guardianship is permanent. If this is the case, the wording of the statute would lead to the conclusion that the action is not a foster care placement. This conclusion may be a bit hasty.

In those instances in which the guardianship of any Indian child has been sought, the courts have not addressed the temporary/permanent distinction, but, nonetheless, found ICWA to apply. The Ashley Elizabeth R. and Amity Danielle G. case, supra, provides an example. In determining that this guardianship action was a "foster care placement" as defined by the act, the court focused on the definition of Indian custodian and did not address the issue of a permanent versus temporary placement.9

The Minnesota Court of Appeals seems to have followed the same path as its sister court in New Mexico. In re the Custody of A.K.H. involved a dispute between a grandmother and a tribe.10 The child, A.K.H. had lived most of her life with her grandmother. They, as well as both parents, were members of the Leech Lake Band of Chippewa Indians. The grandmother petitioned the trial court for "sole physical and legal custody" of the child. The tribe sought to intervene. The trial court denied the petition in intervention.

In its analysis of the foster care placement issue, the appellate court focused on the nature of the placement, not its tenure. The grandmother's prayer for relief was for custody, not to be appointed guardian or conservator. The court examined the Minnesota definitions of guardian and conservator and compared them to the grandmother's prayer. It concluded that the custodial authority she sought was the same as if she had petitioned for either a guardianship or conservatorship. Thus, the court reasoned, placing the child in her custody would be the same as placement in the home of a guardian or conservator within the meaning of ICWA. The temporary/ permanent dichotomy was not addressed.11

The Washington Court of Appeals was faced with a similar question in that a relative asked for custody, but not the creation of a guardianship. In re Custody of S.B.R.12 involved the request of grandmother and her husband. They filed a petition in Superior Court alleging the parents to be unfit and praying custody of S.B.R. The mother agreed and the father objected, but did not appear at the trial. Upon his default, the petitioners were awarded "permanent custody." Three months later the child's tribe sought to intervene and prayed the court to vacate the custody order. Both prayers were denied.

Similar to the court in Minnesota, the appellate court analyzed the custody prayer as being one for a judicial investment of the same authority as a guardian. Thus, it held this was a guardianship placement within the meaning of the act. Unlike both the Minnesota and New Mexico courts, the temporary vs. permanent issued was mentioned. The court stated, almost in passing, and without any explanation or analysis, "S.B.R. was removed from Anderson [the father] for temporary placement, as opposed to a permanent "adoptive placement" as defined by 25 U.S.C. §1903(1)(iv) with the Browns."13

These cases may ignore or gloss over the temporary vs. permanent question, but both A.K.H. and S.B.R. provide unmistakable guidance on what constitutes a guardianship or conservatorship within the meaning of the act. Regardless of the label the plaintiff may affix in the prayer for relief, the courts appear to be guided by the authority over the child that is being requested. At the risk of being both simplistic and crude, the courts addressing the issue seem to have applied the old saw, "If it walks like a duck and quacks like a duck ..."! Their logic is pretty persuasive, and there is no reason to believe the Oklahoma courts would do otherwise.

The third part of the analysis is "return on demand." This seems to be pretty straightforward. If the nature of the placement being sought is such that the parent or Indian custody may not have the child returned on demand, this prong of the test is met. As it did with the temporary question, the S.B.R. court mentioned this in passing. It noted that because the father would be required to seek a judicial modification of custody, he could not have the child returned on demand.14

As with the "return on demand" portion of the analysis, the "parental rights not terminated" is equally straightforward. If parental rights have not been terminated, the placement may fall into the "foster care" category. If rights have been terminated, the placement is not "foster care."

The second category of child custody proceeding is a termination of parental rights.15 The unwary may assume the section is limited to cases involving only the termination of the rights of an Indian parent - not so. The statute speaks in terms of parental rights generally, and does not limit its application to Indian parents. The Supreme Court of South Dakota recognized this when it reversed a trial court decision to terminate a Caucasian mother's right because it failed to apply the burden of proof required by ICWA.16

The third category is denominated as "pre-adoptive placement." It is a term of art meaning "temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but prior to or in lieu of adoptive placement."17 For those practitioners who appear in deprived child matters only sporadically, this definition may be troublesome and misleading. A source of confusion is the difference between "temporary placement" as used in the act and "temporary custody" as the Department of Human Services uses the term. They are not the same. In DHS parlance, any custody decision made before a termination of parental rights is denominated as "temporary." Once parental rights are terminated, the custody becomes "permanent," although, in reality, it is only temporary while awaiting an adoption.

The final species of a child custody proceeding is an "adoptive placement" - the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption.18 The definition is pretty straightforward and should not cause difficulties.

The third area of inquiry is one fundamental to all litigation - jurisdiction of the court. ICWA divides jurisdiction into two different categories, exclusive and concurrent. The child's tribal court is vested with exclusive jurisdiction if the child resides or is domiciled on the reservation of her/his tribe or, regardless of domicile, if the child is already a ward of that court.19

The residency/domicile issue immediately raises three questions:
1.How is residency/domicile determined?
2.What is a "reservation"?
3.How does one determine which is the child's tribe?

Addressing the question in reverse order, ICWA answers the third, at least in part. Section 1903(5) defines the child's tribe as the one in which (s)he is a member or eligible for membership or, if eligible for membership in more that one, the tribe with which the child has more significant contacts. It is not uncommon for children to be eligible for membership in more than one tribe. This can present a substantial dilemma for the practitioner, especially with the number of tribes headquartered in Oklahoma. Some tribes do not prohibit dual membership,20 some prohibit dual membership outright,21 and some permit dual membership, but with certain restrictions.22 In the author's opinion, the best approach is to treat the matter like any other conflict of laws question, and decide based on the facts that seem more likely susceptible of proof.

A determination of "reservation" is a bit more convoluted, but not necessarily complicated. Per section 1911(10), a "reservation" is "Indian country" as defined by 18 U.S.C. §1151, lands held in trust by the United States, and lands with restrictions against alienation. Section 1151, in turn, defines Indian country as reservations (as the term is popularly understood), dependent Indian communities, and allotted lands, the Indian titles to which have not been extinguished.

Until 1998, as all the circuits did not agree, the determination of a dependent Indian community was a bit tricky. In that year the Supreme Court provided substantial guidance in Alaska vs. Native Village of Venetie Tribal Government.23 It defined the term to mean a limited category of lands that are neither reservations nor allotments, that meet a two pronged test. First, the lands must have been set aside for the use of Indians as Indian land. Second, the lands must be under federal superintendence.24

For an Oklahoma child, the most common, but not the only, "reservation" will be lands the title to which is still burdened by restrictions against alienation. Here it is important to note that the "reservation" must be that of the child's tribe. Thus, if a child is residing on restricted land, but it is not that of her/his tribe, exclusive jurisdiction does not lie with the tribal court.25

The final question is the determination of residency/domicile. Any practitioner who has ever faced a conflict of laws issue concerning a determination of domicile knows it to be fraught with uncertainty. Fortunately, the U.S. Supreme Court removed some of the uncertainty in its 1989 decision of Mississippi Band of Choctaw Indians vs. Holyfield.26

In this case, twins were born out of wedlock to parents who were Mississippi Choctaw and domiciled on the reservation of that tribe. The mother gave birth to the children some 200 miles from the reservation and consented to their adoption in state court. The father, likewise, consented. The tribe sought to have the adoption set aside, claiming its court had exclusive jurisdiction. The state court denied the request based on two findings - the parents went to great lengths to ensure the children were not born on the reservation and the children had never resided on, nor even been physically present on, the reservation. The Mississippi Supreme Court affirmed the decision of the trial court.

In reversing the state court decision, the Supreme Court opined that the intent of Congress was that domicile be determined by reference to the law of the U.S. and not each individual state. It went on to adopt the common law rule that children cannot form the intent required to create domicile and they have the domicile of their parents. Thus, although the parents wished it otherwise for their children, because the parents were domiciled on the reservation, so were the children.27

Law review commentators would find it interesting and devote pages to arguing the yeas and nays of this being a case establishing U.S. common law. Regardless of what it may be called, the court looked to what it termed "established common law principles"28 and "generally accepted doctrine in this country"29 and related them to congressional intent. These references seem to make it clear that if the congressional intent is not otherwise reasonably clear from ICWA, the courts should determine that intent from that which is generally accepted (would we call this the majority rule?) as common law, rather than the peculiarities of a particular state's common law. Such a notion is certainly in accord with the stated congressional policy of establishing minimum federal (emphasis added) standards for the removal of Indian children from their families.30

Turning to the instances of concurrent jurisdiction, it exists if the child is not domiciled or residing within the reservation of the tribe. It is concurrent in that section 1911(b) provides that jurisdiction must be transferred to the tribe upon motion of either parent, the Indian custodian, or the child's tribe, absent parental objection and absent good cause to the contrary. The section goes on to provide that the transfer is subject to declination by the tribal court. (Note that the declination must be by the court, not some other tribal entity.)

The question that immediately comes to mind is, "What constitutes good cause?" Pursuant to its rule-making authority, the Bureau of Indian Affairs promulgated non-binding guidelines for the implementation of ICWA by state courts.31 Section C 3 sets out suggested causes that are sufficient to deny a transfer of jurisdiction to the court of the child's tribe. They are:
1.The proceeding was at an advanced stage in the state court when the transfer was requested and the movant did not make the request promptly after receiving notice of the hearing;
2.The child is over age 12 and objects to the transfer;
3.Presenting the evidence necessary to reach a decision in the tribal court would cause undue hardship on the parties or witnesses;
4.The parents are not available and the child has had little or no contact with the tribe or its members.

The Oklahoma Supreme Court in Matter of N.L. faced the "good cause" issue.32 In this case a deprived child action was filed in Okmulgee County. The mother sought transfer to the Court of Indian Offenses sitting in Kay County, as the child was eligible for membership in both the Kaw and Creek tribes. The trial court refused the transfer request, and the mother appealed. The court held that good cause had been established because of the presence of the parties and witnesses in Okmulgee County and the best interest of the child was better served by a retention of jurisdiction.33

This case is instructive for three reasons. The first two are pretty straightforward. First, the court recognized the best interest of the child as good cause for refusing a transfer request. Second, although not saying it in so many words, by considering the presence of the witnesses and the parties in Okmulgee County rather than the county in which the tribal court sat, the court used traditional forum non conviens factors.

The third is a little more convoluted. In adopting the best interest of the child as a valid reason for denying a transfer to tribal court, our Supreme Court cited with approval a similar holding by the Supreme Court of Montana in In the Matter of M.E.M.34 Here, the court not only held best interest of the child can be good cause, it went two steps further. It also held that the party objecting to the transfer has the burden of proof and best interest of the child must be established by clear and convincing evidence.35 Unfortunately, the Montana court did not elaborate on its reasoning, thus we do not know how it arrived at its conclusions concerning burden and quantum of proof. As such, it would be mere speculation to predict if our court will adopt these other two aspects of the decision.

As mentioned at the outset, the number of tribal courts is increasing, and in the not too distant future will often be an alternative to the district court to address family issues. As those courts evolve, those involved in disputes over Indian children will face significant choice of forum issues. Of course, everyone will claim to be acting in the best interest of the children involved. Equally of course, in reality, everyone will be looking for the forum more likely to grant the desired relief. I predict significant jurisdictional disputes as the parties maneuver for a perceived advantage. Should I be prescient in that regard, family law practitioners, whether by choice or judicial appointment, are well advised to enhance their knowledge of the Indian Child Welfare Act. Failing to do so is a jurisdictional disaster waiting to happen.

Post script. An excellent resource is The Indian Child Welfare Handbook produced by Oklahoma Indian Legal Services, Inc. Written with the practitioner in mind, it provides an excellent, balanced overview of the act and contains a wealth of cases from all jurisdictions. The author gives it two thumbs up for anyone practicing in this area of the law.

1. see, for example, In re M.C.P., 571 A.2d 627 (VT 1989); In the Interests of J.W., B.W., T.W. and R.W., Minor Children, 498 N.W.2d 417 (IA App 1993); In the Interest of A.G.-G., a Child, 899 P.2d 319 (CO App 1995)
2. Adoption of a Child of Indian Heritage, 543 A.2d 925 (NJ 1988); Baby Boy Doe, 849 P.2d 925 (ID1993)
3. 25 U.S.C. §1903(1)(i)
4. 25 U.S.C. §1903(6)
5. see, for example, Little River Band of Ottawa Indians Ordinance and Regulations, Children's Code, §2.01(1) or Nez Perce Tribal Code, 5-1-1(g)
6. 863 P.2d 451 (NM App 1993)
7. 863 P.2d at 453
8. see 43A O.S. §5-501, et seq
9. 863 P.2d at 453
10. 502 NW 2d 790 (Minn App 1993)
11. 502 NW 2d at 793
12. 719 P.2d 154 (Wash App 1986)
13. 719 P.2d at 625
14. 719 P.2d at 625
15. 25 U.S.C. §1903(1)(ii)
16. In the Matter of the Dependency and Neglect of N.S., and Concerning J.S., His Mother, 474 N.W.2d 96 (SD 1991)
17. 25 U.S.C. §1903(1)(iii)
18. 25 U.S.C. §1903(1)(iv)
19. 25 U.S.C. §1911(a)
20. see e.g., The Constitution of the Chickasaw Nation As Amended June 22, 1990, Art III
21. see e.g., Constitution of the Choctaw Nation of Oklahoma, Art II, Sec 2, and Constitution of the Miami Tribe of Oklahoma, Art III, Sec 1(c)
22. see e.g., Constitution of the Otoe-Missouria Tribe of Indians, Art IV, Sec 1, and Cheyenne-Arapaho Tribes of Oklahoma Constitution and By-Laws, Art II, Sec 2
23. 552 U.S. 520, 118 S.Ct. 948, 140 L.Ed.2d 30
24. 552 U.S., at 527
25. 25 U.S.C. §1911(a)
26. 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed. 29
27. 490 U.S. at 48
28. 490 U.S. at 48
29. 490 U.S. at 49
30. 25 U.S.C. §1902
31. 44 Fed. Reg. 67584-67595
32. 1988 OK 39, 754 P.2d 863
33. 1988 OK 39, at 28
34. 635 P.2d 1313 (Mont 1981)
35. 635 P.2d at 1317

District Judge Tom Walker has been on the bench since 1979. He is very active in children's issues, and served 21 years as a member of the Supreme Court's juvenile justice oversight committee and 13 years as the judicial member of the Oklahoma Commission on Children and Youth. He is also a brigadier general in the Army Reserve

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