Metropolitan News-Enterprise


Monday, July 23, 2001


Page 1


Placement of Minor Child With Native American Tribe Held Unconstitutional by Court of Appeal


By a MetNews Staff Writer


The federal Indian Child Welfare Act is unconstitutional to the extent it gives tribal authorities special preference with respect to a dependent child whose sole connection to the tribe is biological, the Court of Appeal for this district ruled Friday.

“[A]pplication of the ICWA to an individual who is in all respects, except in genetic heritage, indistinguishable from other residents of this state violates the Fifth, Tenth, and Fourteenth Amendments to the United States Constitution,” Presiding Justice Roger Boren wrote for Div. Two.

Invoking the “existing Indian family doctrine,” and finding it to be a rule of constitutional import, the justices overturned an October 2000 order by Los Angeles Superior Court Referee Sherri Stolberg. The referee had granted custody of an infant, who turned two years old last November, to the Grand Portage Band of Chippewa Indians.

Santos Y., as the court identified him, is now being raised by a distant relative of his mother’s on the Grand Portage reservation in North Central Minnesota.

Santos was taken into county custody shortly after testing positive for cocaine at birth. The Grand Portage Band intervened in the case on the ground that Santos’ mother was an enrolled member of the tribe, although she testified she had not had contact with it since the death of her mother 17 years earlier.

Santos’ biological father has a Navajo grandmother but is not a registered member of the tribe. The Navajo were notified of the proceedings but did not seek intervention, and neither parent opposed the Chippewa bid for custody.

Santos’ foster parents opposed the Chippewa intervention and sought to adopt him. They presented evidence that they had raised him almost from birth, that he considered them to be his parents, and that he was happy to be part of their family.

There was also evidence that the prospective adoptive Indian parent, a single woman, had not had prior contact with the child or the mother, and had only recently completed treatment for drug and alcohol abuse.

The referee ruled that the foster parents had presented insufficient evidence to override the preference to which the tribe was entitled under the ICWA.

The law was enacted in 1978 for the expressed purpose of curbing a rise in adoptions of Indian children by non-Indian parents, a trend that Congress found threatening to the survival of some tribes. Among other things, it creates a presumption of tribal jurisdiction over proceedings involving Indian children, which may be overcome by a showing of good cause, and allows tribes to assert jurisdiction by intervening in state court proceedings.

A child is defined as an Indian if enrolled as a member of a tribe, or if either parent is an enrolled member and the child is eligible for membership.

The act also provides that absent good cause to the contrary, an Indian child subject to adoption must be placed with a member of the child’s extended family, with other members of the Indian child’s tribe, or with another Indian family.

The act has been interpreted in different ways by Court of Appeal panels in California, and by courts in other states.  Some courts have given tribes virtual veto power over adoptions of any children they claim as members, while others have insisted that the act can only be applied if the child was raised in a family with Indian ties.

The former interpretation was bolstered by the Legislature in 1998 when it declared that a tribal determination that a child was a member of the tribe, or was eligible for membership and was the biological child of a member, “shall constitute a significant political affiliation with the tribe and require application of the federal Indian Child Welfare Act to the proceedings.”

The 1998 legislation, Boren wrote Friday, deprives children like Santos of due process and equal protection.

“We do not disagree with the proposition that preserving Native-American culture is a significant, if not compelling, governmental interest.,” Boren wrote. “We do not, however, see that interest being served by applying the ICWA to a multi-ethnic child who has had a minimal relationship with his assimilated parents….”

Attorneys on appeal were Ernesto P. Rey and John L. Dodd for the foster parents, Vito A. Constanzo of Holland and Knight for the Chippewa, Brian Brookey of Christie Parker & Hale and  Mark C. Tilden of the Native American Rights Fund for the amici on behalf of the tribe, and Janette Freeman Cochran, by appointment of the Court of Appeal, for the minor.

The case is In re Santos Y., B144822.


Copyright 2001, Metropolitan News Company