Sharing Our Stories of Survival: Native Women Surviving Violence (55 page)

The term “child custody proceeding” is defined to include court proceedings for foster care placement, termination of parental rights, and preadoptive and adoptive placement.
²¹
It does not apply to a custody action solely between the two parents of an Indian child, such as in a divorce action. This is one of the biggest misunderstandings of ICWA and is often the source of batterer’s threats and manipulation (he might say “if you leave me, ICWA will give me the children and you’ll never see them again”). The term “custody” refers to legal as well as physical custody.
²²
The act applies to both voluntary and involuntary proceedings.
²³
It does not apply in placements arising out of status
²⁴
offense delinquency actions or in custody disputes arising in divorce actions.
²⁵
It is important to note that if a non-Indian mother were to petition the termination of rights of an Indian father, as might occur in a stepparent adoption, the Indian Child Welfare Act might apply.
²⁶
This can have a major impact upon whether the Indian parent’s rights can be terminated, since the act presumes that it is in the child’s best interest that his or her relationship to the tribe be protected.

Some state courts have created the “Indian Family Exception,” which allows courts to more easily terminate rights to Indian parents. Although the U.S. Supreme Court in
Mississippi Band of Choctaw Indians v. Holyfield
²⁷
unequivocally stated that Congress intended that the act receive uniform nationwide application, some state jurisdictions have created a judicially created exception, the “Indian Family Exception” first applied by the Kansas Supreme Court in
In re Adoption of Baby Boy L
.
²⁸
The Kansas court declared that “the legislative history behind the Act and the Act itself discloses that the overriding concern of Congress—was not to dictate that an
illegitimate
infant who has never been a member of an Indian home or culture, and probably never would be, should be removed from its primary cultural heritage and placed in an Indian environment over the express objections of its non-Indian mother.”
²⁹
This was followed by the Washington Supreme Court in
Matter of Adoption of Crews
,
³⁰
and the Second District Court of Appeals in
In re Bridget R.,
which added a requirement that the proponent of application of the Indian Child Welfare Act demonstrate that either the child or the child’s parent “maintains any significant social, cultural or political relationships with Indian life.”
³¹
Although state courts remain significantly split on application of the “Indian Family Exception,” many state courts have rejected its application because it ignores the tribe’s separate and distinct interest in the child.
³²

Which Courts Have Jurisdiction over Child Custody Actions Involving Indian Children?

The term “jurisdiction” refers to a court’s power to decide a case or issue a decree.
³³
The Indian Child Welfare Act is a preemptive federal law that governs all state custody proceedings involving Indian children except those incident to divorce, similar actions, or to criminal acts committed by a child.
³⁴
Because federal law is supreme, the jurisdictional provisions contained in the act are controlling where applicable.
³⁵
This is of particular significance where state authorities have removed children because of domestic violence issues in the home.

All too frequently, children are removed by state authorities who accuse the victim of failing to protect her children from witnessing the abuse, or the abuser makes false claims of child abuse as a controlling tactic. The abused parent in cases where ICWA applies may be assisted by the act, as it requires a higher standard or proof of abuse be met before removal of children or allowing the continuation of removal. However, it can also hinder her efforts to regain custody of her children, particularly if she is a non-Indian, by ICWA’s preferences that the children be placed with members of the batterer’s family or tribe, who may not be supportive of reuniting her with her children.

Exclusive Tribal Court Jurisdiction

The Act provides for exclusive tribal court jurisdiction over any ICWA child custody proceedings involving an Indian child who resides or is
domiciled
within the reservation of such tribe.
³⁶
“Exclusive tribal court jurisdiction” means that only the tribal court has the power to decide a case or issue a decree in an ICWA custody case involving an Indian child who lives or is domiciled on the reservation.
³⁷
The U.S. Supreme Court has held that “domicile” is to be determined by federal law, stating “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.”
³⁸
The parents’ domicile is established by physical presence in a place in connection with a certain state of mind concerning one’s intent to remain there.
³⁹
A child’s domicile is that of its parents. However, if the parents are unmarried, the child’s domicile is generally that of his or her mother.
⁴⁰
Where a child is a ward of a tribal court, the tribal court retains exclusive jurisdiction notwithstanding the residence or domicile of the child.
⁴¹

The act does, however, gives state courts authority to remove an Indian child from his or her parents, who live or are domiciled on a reservation but are temporarily located off the reservation, and place the child in foster care under applicable state law in emergency situations to prevent
imminent
physical harm to the child.
⁴²
The act also imposes a duty upon the state to ensure that the emergency removal terminates immediately when it is no longer necessary to prevent imminent physical harm to the child.
⁴³
Therefore, in removals based upon domestic violence where the mother does not present a risk to the children, having her leave the batterer and obtain a protection order ends the emergency and should require return of the children.

Concurrent Jurisdiction

The act provides for concurrent state and tribal court jurisdiction over any child custody proceeding involving an Indian child who does not reside and is not domiciled within the reservation of such tribe.
⁴⁴
“Concurrent jurisdiction” means that either the state or tribal court has the power to decide the case. However, the U.S. Supreme Court has stated that there is a
presumption
in favor of tribal court jurisdiction.
⁴⁵
The act also provides that the state court must transfer the case to tribal court if either parent, the Indian custodian, or the child’s tribe petitions the state court to transfer jurisdiction unless (I) either of the child’s parents objects, (2) the tribal court declines jurisdiction, or (3) the state court finds “good cause to the contrary.”
⁴⁶
The party opposing the transfer has the burden of establishing “good cause” to deny transfer of the case to tribal court.
⁴⁷
It is important for advocates to note that a parent has the absolute right to object to transfer. Therefore the advocate should inform the victim’s attorney of any potential problems that could affect the choice of courts. For example, if the tribe’s judges are related to the batterer, this could create a conflict of interest. On the other hand, this could militate in either direction depending upon the batterer’s family’s attitude toward his conduct. The advocate should investigate thoroughly and not assume bias where none may exist.

The Bureau of Indian Affair’s Guidelines provide that “good cause” not to transfer the proceedings to tribal court may exist if any of the following circumstances exist: (I) the proceeding was at an advanced stage when the petition to transfer jurisdiction was filed, and the petitioner did not file the petition promptly after receiving notice of the hearing; (2) the Indian child is over twelve years old and objects to the transfer; (3) the evidence necessary to decide the case could not be adequately presented in tribal court without undue hardship to the parties or the witnesses; and (4) the parents of a child over five years old are not available and the child has had little or no contact with the child’s tribe or members of the child’s tribe.
⁴⁸
Additionally, the Guidelines specify that socioeconomic conditions and the perceived adequacy of tribal justice systems or social services may not be considered by the state court in making a “good cause to the contrary” determination.
⁴⁹

What Evidentiary Standard Must State Courts Use in Indian Child Welfare Act Cases?

In dependency and termination of parental rights proceedings, the act requires state courts to make two findings: (I) that “active efforts” have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that such services and programs have been unsuccessful
⁵⁰
and (2) that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
⁵¹

The primary difference between the evidentiary standards applicable in dependency and severance matters involving Indian children and those involving non-Indian children is the
burden of proof
required. In temporary deprivations of custody of Indian children, such as dependency matters, the findings must be established by
clear and
convincing
evidence. This is a higher standard than the
preponderance of the evidence
standard of proof required for non-Indian children. In termination of parental rights proceedings involving Indian children, the findings must be established
beyond a reasonable doubt.
This is a higher standard than the clear and convincing standard of proof required for terminations applicable to non-Indian children. These can be very significant distinctions when attempting to prove domestic violence allegations. Some state courts have required that the “active efforts” finding of 25 U.S.C. § 1912(d) also be proven beyond a reasonable doubt.
⁵²

Additionally, cases governed by the act require “testimony of expert qualified witnesses.”
⁵³
“Qualified expert witness” is meant to apply to expertise beyond the normal social worker qualifications.
⁵⁴
Such expert testimony based upon familiarity with the tribal cultural standards is needed to provide the state court with knowledge of the social and cultural aspects of Indian life to diminish the risk of any cultural bias.
⁵⁵
The Bureau of Indian Affairs Guidelines provide that:

Knowledge of tribal culture and childrearing practices will frequently be very valuable to the court. Determining the likelihood of future harm frequently involves predicting future behavior—which is influenced to a large degree by culture. Specific behavior patterns will often need to be placed in the context of the total culture to determine whether they are likely to cause serous emotional harm.
⁵⁶

The act requires that the court make findings that “active efforts” have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family. This can provide a substantial protection to the mother in that she can demand that the court provide her with the services she needs to keep her children safe. The advocate should be involved in the child custody case to the extent that the advocate can provide support to the mother and verify that appropriate services are being provided. The advocate should then be able to testify as to the mother’s safe behavior and her participation in appropriate services.

What Are the Indian Child Welfare Act’s “Placement Preferences”?

An Indian child may not be placed in foster care unless the judge finds by clear and convincing evidence that parental custody is likely to result in serious physical or emotional harm to the child.
⁵⁷
The act’s emphasis on the social and cultural aspects of Indian life is reflected in its mandatory preferences when placing an Indian child in foster, preadoptive, or adoptive homes. The act mandates that the standards to be applied in meeting the preference requirements be those “prevailing social and cultural standards of the Indian community in which the parent or extended family resides or with which the parent or extended family members maintain social and cultural ties.”
⁵⁸

The act requires that, in the absence of good cause to the contrary, when a state court places an Indian child in foster care or in a preadoptive placement, preference in placement must be given to: (I) a member of the Indian child’s extended family; (2) a foster home licensed, approved, or specified by the Indian child’s tribe; (3) an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or (4) an institution for children approved by an Indian tribe or operated by an Indian organization that has a program suitable to meet the Indian child’s needs.
⁵⁹
The act also requires that in the absence of good cause to the contrary, when a state court places an Indian child in an adoptive placement, preference in placement must be given to: (I) a member of the Indian child’s extended family, (2) other members of the Indian child’s tribe, or (3) other Indian families. Given the fact that some courts have stated that “when the act is read as a whole, it is clear that Congress has made a very strong policy choice that Indian children, including those who have a non-Indian parent, belong in an Indian home,” such preferences can have a significant impact upon child custody considerations in domestic violence situations.
⁶⁰