(Cite
as: 123 Idaho 464, 849 P.2d 925)
Supreme
Court of Idaho,
Boise,
November 1992 Term.
.
In
the Matter of BABY BOY DOE, A Minor Child.
INDIAN
TRIBE, Intervenor-Appellant, Appellant on Appeal,
v.
Joe
DOE and Jane Doe, Petitioners-Respondents-Respondents on Appeal.
No.
19512.
March 19, 1993.
Bakes, J., pro tem., dissented
and filed opinion.
Child
was "Indian child" under Indian Child Welfare Act (ICWA) so
that ICWA governed parental rights termination and adoption proceedings,
where trial court
found that father, an Indian, was one of child's natural parents and father
owned land on reservation. Indian Child Welfare Act of 1978, §§ 3-113,
25 U.S.C.A. §§ 1901-1923.
Where
same issue presented to trial court was presented to district judge, and
district judge, sitting in appellate capacity, made decision based on
record established in trial court, supreme court will review trial court's
decision without deferring to decision of district judge.
Issue
whether trial court correctly applied Indian Child Welfare Act (ICWA)
to facts of parental rights termination and adoption case required supreme
court to examine legal theories employed by trial court so that issue
was one of law and subject to free review by supreme court.
Indian
Child Welfare Act (ICWA) required state courts to determine application
of ICWA including determination whether child was "Indian Child"
as defined by ICWA, and there was no requirement in ICWA that tribe make
conclusive determination of child's eligibility for membership in tribe
as proof that child is "Indian child," provision in Bureau of
Indian Affairs (BIA) guidelines requiring state court to give conclusive
effect to determination by Indian tribe as to child's eligibility for
membership was merely to aid state courts in deciding when to apply ICWA
and did not require tribe to determine child's eligibility before state
court could apply ICWA. Indian Child Welfare Act of 1978, § 4(4),
25 U.S.C.A. § 1903(4).
Statement
in affidavit of tribe's enrollment director was clearly not "determination,"
for purposes of Bureau of Indian Affairs (BIA) guidelines requiring state
court to give determination by tribe that child is member conclusive effect,
where statement stated that no determination was possible at time since
there was no evidence in record on issue. Indian Child Welfare Act
of 1978, § 4(4), 25 U.S.C.A. § 1903(4).
If
state court does not have conclusive determination from tribe or Bureau
of Indian Affairs regarding child's eligibility for tribal membership,
trial court must make its own determination regarding child's eligibility
for purposes of Indian Child Welfare Act (ICWA). Indian Child Welfare
Act of 1978, § 4(4), 25 U.S.C.A. § 1903(4).
Party
asserting applicability of Indian Child Welfare Act (ICWA) has burden
of producing necessary evidence for trial court to make this determination.
Indian Child Welfare Act of 1978, §§ 3-113, 25 U.S.C.A.
§§ 1901-1923.
"Indian
child," under Indian Child Welfare Act (ICWA), does not have to be
part of "Indian family" before ICWA applies. Indian Child
Welfare Act of 1978, § 4(4), 25 U.S.C.A. § 1903(4).
Jurisdictional
provisions of Indian Child Welfare Act (ICWA) apply to child custody proceedings
involving Indian children regardless of where children are born or where
they are proposed for adoption; application of ICWA is based on
interest tribe has in its children. Indian Child Welfare Act of
1978, §§ 2, 3, 4(1), (1)(ii), (4), 101(c), 102(a, f), 105(a,
d), 25 U.S.C.A. §§ 1901, 1902, 1903(1), (1)(ii), (4), 1911(c),
1912(a, f), 1915(a, d).
In
light of structure and nature of Indian Child Welfare Act (ICWA) it was
inappropriate to use judicially created exception limiting ICWA to situations
in which Indian Child is being removed from existing Indian family to
circumvent mandates of ICWA. Indian Child Welfare Act of 1978, §§ 3-113,
25 U.S.C.A. §§ 1901-1923.
Evidence
including father's membership application to tribe on child's behalf and
filing of paternity affidavit with state and tribe was sufficient to support
trial court's finding that father, an Indian, was one of "Indian
child's" natural parents; thus, trial court's decision that
Indian Child Welfare Act (ICWA) did not apply to parental rights termination
and adoption proceedings was not harmless error. Indian Child Welfare
Act of 1978, §§ 3- 113, 25 U.S.C.A. §§ 1901-1923.
Remand
was required to trial court to address questions of termination of parental
rights and placement of Indian child under Indian Child Welfare Act (ICWA),
and supreme court would not decide natural father's rights or placement
of child, even though more than three years had elapsed since child was
placed with adoptive non-Indian parents, where trial court erroneously
employed clear and convincing standard of state law rather than reasonable
doubt standard of ICWA in ordering termination of father's rights. Indian
Child Welfare Act of 1978, § 105(a), 25 U.S.C.A. § 1915(a).
**927
*466
Idaho Legal Aid Services, Inc., Coeur d'Alene, for intervenor-appellant.
Shannon D. Work argued.
Underwood & Steele, Chtd.,
Boise, for petitioners-respondents. James S. Underwood argued.
JOHNSON, Justice.
This case concerns the application
of the federal Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-1923,
to the termination of the parental rights of an Indian father and the
adoption of his child by a non-Indian couple. We reverse the
decision of the magistrate judge (the trial court) that ICWA does not
apply to the termination proceeding and to the placement of the child.
We vacate the termination order, and remand the case to the
trial court
for further proceedings. We also reverse the award of attorney
fees by the district judge on appeal from the trial court's decision.
I.
THE
BACKGROUND AND PRIOR PROCEEDINGS.
The child who is the subject of this case was born in 1989. The
mother is a non-Indian and was never married to the child's father. The
child's father is an enrolled member of the Indian tribe (the tribe).
The father maintained no contact with the mother during her
pregnancy and has had no contact with the child since the birth. Shortly
after the child was born, the mother approached an adoption agency to
arrange adoption of the child. Through the agency, the mother
chose a non-Indian married couple (the adoptive parents) to adopt the
child and placed the child in their custody. The child has
remained with the adoptive parents throughout the course of this case.
After placing the child with
the adoptive parents, the mother consented to voluntary termination of
her parental rights and to the adoption of the child by the adoptive parents.
The adoptive parents petitioned the trial court for termination
of the parental rights of the child's parents. Because the
mother indicated to the adoption agency *467
**928
that the child's father was a member of the tribe, the adoptive parents
sent the required notice of the termination proceedings to the father
and the tribe pursuant to federal guidelines and ICWA.
At the first hearing concerning termination of the father's parental rights,
the father did not appear, but a non-attorney advocate from the tribe
appeared at this hearing on behalf of the father and the tribe. The
non-attorney advocate asserted that the father wanted custody of the child
and that the tribe wished to intervene and have the trial court transfer
the proceedings to tribal court pursuant to ICWA. The trial
court appointed counsel to represent the father and granted the tribe
additional time to move to intervene and to seek transfer of the case
to tribal court.
On May 3, 1990, the trial court
heard the motions to intervene and to transfer. In allowing
the tribe to intervene, the trial court made an oral finding that the
child was an Indian child and that ICWA governed the proceedings. This
finding was based on a letter from the tribe's enrollment director indicating
the father had applied to enroll the child in the tribe. The trial court
stated that this letter was a determination by the tribe that the child
was eligible for membership in the tribe. Because the mother
filed an objection to the transfer of the case to the tribal court, the
trial court rejected the transfer, as required by ICWA.
On May 21, 1990, the trial court
held another hearing regarding termination of the father's parental rights.
The tribe argued ICWA governed the proceedings and required
the child to be placed for adoption within the tribal community. The
tribe advocated placing the child with the child's paternal
aunt and uncle, who lived on the reservation and wanted to adopt the child
into their family. The adoptive parents argued against application
of ICWA and against placing the child on the reservation, even if ICWA
applied to the proceedings.
The trial court ruled that ICWA
did not govern the proceedings, and terminated the father's parental rights
without applying the requirements of ICWA. Although the trial court found
the father was the child's natural father and was a member of the tribe,
the trial court ruled that the child was not an "Indian child"
as defined in ICWA, because the child was not eligible for membership
in the tribe. The trial court cited guidelines published by
the Bureau of Indian Affairs (BIA) as controlling. These guidelines
advise state courts to treat determinations by an Indian tribe regarding
eligibility for membership in the tribe as conclusive. Based
on an affidavit from the enrollment director of the tribe, the trial court
found that the tribe had declined to find the child was eligible for membership
in the tribe and that this meant the tribe had conclusively determined
the child was not eligible for membership in the tribe.
As an alternative legal theory
to support its ruling that ICWA did not govern the termination proceedings,
the trial court adopted an "Indian family" test as a prerequisite
to application of ICWA. Under this approach, the trial court
held ICWA only applied to child custody proceedings in which an Indian
child is removed
from an existing Indian family. The trial court reasoned that
even if the child met the definition of "Indian child," ICWA
does not apply where a child has never lived within the Indian community
or has never been exposed to Indian culture. In this case,
the trial court found the child was not being removed from an existing
Indian family because the child had either lived with the non-Indian mother
or the non-Indian adoptive parents since birth. The trial
court also noted that the child had no contact with the father or any
member of the father's family and that the father's family had not pursued
a relationship with the child.
The trial court terminated the
father's parental rights, and the tribe appealed to the district judge.
The district judge affirmed the trial court's findings, but
on different grounds from those stated by the trial court. The
district judge held the child was not an Indian child because there was
insufficient proof of paternity in the record to support a finding that
the child **929
*468
was the legal child of the father. The district judge also
found that the tribe brought the appeal frivolously, unreasonably, and
without foundation and ordered the tribe to pay more than $8,500.00 in
attorney fees pursuant to I.C. § 12-121.
The tribe appealed to this Court,
asserting the application of ICWA to the termination of the father's parental
rights and to the placement of the child. The tribe also asserts
that regardless of the application of ICWA, the district
judge improperly assessed attorney fees against the tribe.
II.
THE
PROVISIONS OF ICWA.
In 1978 Congress passed ICWA to address concerns surrounding the high
incidence of removal of Indian children from their Indian families and
tribes and the placement of Indian children in adoptive or foster homes
outside of their extended families, tribes and cultures. 25 U.S.C.
§§ 1901, 1902. ICWA recognizes that cultural biases in
child custody proceedings contribute to this problem. To promote
the stability of Indian tribes and to counter cultural biases, Congress
enacted ICWA to provide minimum procedural and substantive requirements
which state courts must apply to child custody proceedings involving Indian
children.
In order to invoke the requirements
of ICWA, state courts must first determine whether the proceedings are
"child custody proceedings" as defined by 25 U.S.C. § 1903(1),
and whether the child involved is an "Indian child" as defined
by 25 U.S.C. § 1903(4). Without dispute, the proceedings
in this case are "child custody" proceedings as defined in ICWA.
ICWA expressly includes termination of parental rights proceedings
within the statutory definition of child custody proceedings. § 1903(1)(ii).
The basic dispute in this case
is whether the child is an "Indian child" under ICWA. 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." § 1903(4). Whether
the child meets this definition is discussed in the following section.
If these prerequisites are met,
ICWA supplies procedural requirements and substantive standards that must
be used by the state court instead of procedures and standards under state
law. Several provisions of ICWA would apply to the proceedings
in this case, if ICWA were applicable. ICWA requires that
Notice of the proceeding be given to the Indian parent and the Indian
tribe, and that the tribe be given the opportunity to intervene in the
proceedings. §§ 1911(c), 1912(a). Before
terminating an Indian parent's parental rights, ICWA requires the state
court to make a determination on the record that beyond a reasonable doubt
termination is required to prevent serious emotional or physical damage
to the Indian child. § 1912(f). In an adoption
proceeding, ICWA requires the state court to give preference to placement
of the child with a member of the child's extended family, with the tribe,
or with another Indian family. § 1915(a). In
determining whether good cause exists for placement outside of the Indian
community, the state court is directed to examine the reasons given in
light of "the prevailing social and cultural standards of the Indian
community." § 1915(d).
III.
THE
CHILD IS AN "INDIAN CHILD."
The
Indian tribe asserts that the trial court misapplied federal guidelines
in concluding the child is not an Indian child under ICWA, and therefore,
incorrectly found ICWA did not govern the proceedings. We
agree.
This
appeal is taken from a decision of the district judge sitting as an appellate
court. Where the same issue presented to the trial court was
presented to the district judge, and the district judge, sitting in an
appellate capacity, made a decision based on the record established in
the trial court, this Court will review the trial court's decision*469
**930
without deferring to the decision of the district judge. Robinson
v. Joint Sch. Dist. No. 331,
105 Idaho 487, 490, 670 P.2d 894, 897 (1983).
The adoptive parents argue that
the trial court's decision that the child was not eligible for membership
in the tribe is a question of fact to which we must give deference on
appeal if it is supported by substantial and competent evidence. This
mischaracterizes the issue. Whether the trial court correctly
applied ICWA to the facts of the case requires this Court to examine the
legal theories employed by the trial court in determining that the child
was not eligible for membership in the tribe. This is a question
of law and is subject to free review by this Court.
When a child custody matter requires
a state court to resolve whether a child is an Indian child, the state
court must make the necessary determinations regarding
application of ICWA. This includes determining whether the
child meets the definition of an Indian child contained in 25 U.S.C. § 1903(4).
In this case, the trial court correctly looked to federal guidelines published
by the BIA to aid its determination. The BIA guidelines state:
B.1.
Determination That a Child is an Indian
(a)
When a state court has reason to believe a child involved in a child custody
proceeding is an Indian, the court shall seek verification of the child's
status from either the Bureau of Indian Affairs or the child's tribe....
(b)(i)
The determination by a tribe that a child ... is or is not eligible for
membership in that tribe ... is conclusive.
44 Fed.Reg. 67,584 (1979).
The enrollment director for the
tribe stated in an affidavit admitted in evidence at the May 21, 1990
hearing:
3.
That the primary consideration is [sic] permitting a tribal member
to enroll his or her child is residency on the reservation at the time
of the child's birth, but ... landownership may substitute for residency;
4.
That [the father] has owned land on the reservation since 1987;
5.
That an additional requirement for enrolling a child is providing
a birth certificate naming a tribal member as a parent;
6.
That the birth certificate is missing from [the child's] application;
7.
That a Paternity Affidavit signed by both parents naming a tribal
member as a biological parent may substitute if the father's name does
not appear on the birth certificate;
....
11.
That during the pendency of the application and prior to its vote,
the Tribal Enrollment Committee cannot state conclusively whether or not
the applicant is eligible for enrollment with the [tribe];
12.
That [the enrollment director] cannot at this time state with certainty
that [the child] is eligible for enrollment with the [tribe] because [the
child's] application is incomplete and without the required proof of eligibility,
[the child] cannot be enrolled.
In applying the federal guidelines,
the trial court concluded:
The
[t]ribe has declined to find that [the child] is either eligible for membership
in that Tribe or that [the child] is a member of that Tribe. Their
determination is conclusive and therefore [the child] is not an Indian
Child as defined in 25 USCS [sic] Sec. 1903(4) and the Indian Child Welfare
Act is not applicable to this proceeding.
The
trial court's decision amounts to imposing a requirement that a tribe
reach a conclusive determination regarding a child's eligibility for membership
as a prerequisite to application of ICWA. We do not read ICWA
or the BIA guidelines to impose this requirement.
ICWA requires the state courts to determine application of ICWA. This
includes a determination by
the trial court whether
the child is an "Indian child" as defined by ICWA. There
is no requirement that a tribe must make a conclusive determination of
a child's eligibility for membership in the tribe as proof that the child
is an Indian child. The provision in the BIA guidelines **931
*470
requiring a state court to give conclusive effect to a determination by
an Indian tribe as to a child's eligibility for membership in that Indian
tribe is merely to aid state courts in deciding whether to apply ICWA.
This directive does not require a tribe to determine a child's
eligibility for membership before a state court may apply ICWA.
In addition, the statement in
the enrollment director's affidavit is clearly not a "determination"
as intended by the BIA guidelines. At most, it is a statement
by the tribe that no determination was possible at that time. There is
no evidence in the record to support a finding that the tribe determined
the child is not eligible for tribal membership.
If
a state court does not have a conclusive determination from the tribe
or the BIA regarding a child's eligibility for tribal membership, the
trial court must make its own determination regarding the child's eligibility
for tribal membership. The party asserting the applicability
of ICWA has the burden of producing the necessary evidence for the trial
court to make this determination.
In this case, the evidence presented to the trial court established the
applicability of ICWA. The evidence contained the tribe's
requirements for "enrollment." Although enrollment
and membership are not synonymous, eligibility for enrollment is evidence
that the requirements for membership are met. 44 Fed.Reg. 67,584,
67,586 (enrollment is a common but not exclusive evidentiary means of
determining membership in a tribe). Enrollment is an administrative
function. The core of the inquiry under ICWA is eligibility
for membership in the parent's tribe. The affidavit of the
enrollment director explains the only reason the tribe could not make
a conclusive determination regarding the child's eligibility for enrollment
was because the application was missing documentary evidence regarding
paternity in the form of a birth certificate or paternity affidavit. The
trial court, however, found that the father is one of the child's parents.
This finding, together with the father's ownership of land
on the reservation, establishes the child's eligibility for membership
in the tribe. The other requirements for enrollment go to
the administrative aspect of enrollment and are not requirements of eligibility
for tribal membership.
IV.
THE
TRIAL COURT INCORRECTLY APPLIED AN "INDIAN FAMILY" REQUIREMENT.
The tribe also challenges
the trial court's alternative holding that an Indian child must be part
of an "Indian family" before ICWA applies. The
tribe asserts this is an improper restriction on the application of ICWA.
We agree.
The trial court's use of an Indian
family requirement as a prerequisite to application of ICWA is a question
of law to which this Court gives free review.
Although an Indian family requirement
has been applied by the courts of other states, we believe that the United
States Supreme Court has effectively undermined the imposition of this
requirement.
In Mississippi
Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989), the Supreme Court
held that federal domicile law applies in state court proceedings involving
ICWA and that the parents' tribe has exclusive jurisdiction over the child
custody proceeding even though the illegitimate Indian children in that
case had never been on the reservation, with their Indian parents, or
within the Indian culture. Mississippi
Choctaw indicates that
the jurisdictional provisions of ICWA apply to child custody proceedings
involving Indian children regardless of where the children are born or
where they are proposed for adoption. This application of
ICWA is based on the interest the tribe has in its children.
In this case, application of
an Indian family requirement would allow the non-Indian mother to circumvent
application of ICWA and the tribe's interest in the child by making sure
that the child is kept away from the reservation and out of contact with
the father and his family. This would undermine
*471
**932
the tribe's interest in its Indian children, which the Supreme Court recognized
in Mississippi
Choctaw.
We
also reject application of an Indian family requirement because the provisions
of ICWA do not contain any limitation based on where the child is located.
Limiting ICWA to situations in which an Indian child is being
removed from an existing Indian family is, therefore, a judicially created
exception to ICWA. Congress passed ICWA to limit state court
power by creating mandatory protective procedures and minimum evidentiary
standards that must be applied in child custody proceedings concerning
Indian children. In light of the structure and nature of ICWA,
it is inappropriate to use a judicially created exception to circumvent
the mandates of ICWA.
V.
ICWA
IS NOT INAPPLICABLE IN THIS CASE ON THE GROUND THAT THERE IS NO PROOF
OF
THE
FATHER'S PATERNITY.
The adoptive parents invite
this Court to find that the trial court's decision concerning the applicability
of ICWA is harmless. They ask us to avoid remanding the case
back to the trial court by finding ICWA does not apply because the tribe
did not sufficiently prove the father's paternity. This is
the approach taken by the district judge on appeal. We decline
the invitation to find ICWA is inapplicable for this reason.
The district judge held that
the requirements of ICWA do not apply in this case
because the tribe failed to prove that the child was the child of the
father. We reject this because it undermines findings of fact
of the trial court.
In its order, the trial court
specifically found that the father was one of the child's parents. This
is a finding of fact that will not be overturned on appeal if it is supported
by substantial and competent evidence. We note that paternity
was not an issue in this case. Neither the mother nor the
adoptive parents disputed the father's paternity. In fact,
in their briefs to the district judge, neither party argued the issue
of paternity.
The trial court had sufficient
evidence to support its finding that the father was one of the child's
parents. At the hearing on the motion to intervene, the tribe
submitted a letter from the enrollment director for the tribe stating
that the father had applied for the child's enrollment in the tribe. At
the hearing for termination of parental rights, the trial court heard
testimony from the father's sister that she had personally registered
a paternity affidavit with the state of Idaho on the behalf of the father.
The affidavit from the enrollment director for the tribe submitted
during the May 21, 1990 hearing indicates the father had signed a paternity
affidavit that was on file with the tribe. The foregoing evidence
taken together is sufficient to support the trial court's finding that
the father is one of the child's parents.
VI.
WE
DECLINE TO DECIDE THE FATHER'S RIGHTS AND THE PLACEMENT OF THE CHILD UNDER
ICWA.
The adoptive parents assert
that even if ICWA governs the proceedings, this Court should hold that
ICWA's requirements were met and should not upset the termination of the
father's parental rights or the placement of the child. We decline to
do so.
We are acutely aware that more
than three years have elapsed since the child was placed with the adoptive
parents. We understand the difficulty and danger of removing
a child of this age from the home in which the child has been nurtured
during this formative period. We cannot ignore, however, that
the termination of the father's rights and the placement of the child
by adoption were accomplished without applying ICWA.
In ordering the termination of
the father's parental rights, the trial court employed the clear and convincing
evidence standard of state law, rather than the beyond *472
**933
a reasonable doubt standard of ICWA. Following the termination
of the father's parental rights, the trial court held an adoption hearing
in which the tribe was not represented or given the opportunity to present
evidence. The trial court did not address the preference for
adoptive placement under 25 U.S.C. § 1915(a).
The trial court must address
the questions of termination and placement under ICWA
on remand.
VI.
WE
REVERSE THE AWARD OF ATTORNEY FEES BY THE DISTRICT JUDGE.
Because we find the trial court was incorrect in not applying ICWA to
the proceedings in this case, we reverse the district judge's award of
attorney fees based on the district judge's finding that the claim was
frivolous, unreasonable, or without foundation.
VII.
CONCLUSION
We reverse the trial court's decision that ICWA does not apply to the
proceedings in this case, vacate the termination order, and remand the
case to the trial court for further proceedings.
We reverse the district judge's
award of attorney fees.
We award the tribe costs on appeal.
The tribe did not request attorney fees on appeal.
BISTLINE, McDEVITT and TROUT,
JJ., concur.
BAKES, Judge, Pro Tem. (following
retirement on February 1, 1993), dissenting:
I believe we should follow the decisions of the Supreme Court of Washington,
Kansas and New Jersey in determining whether the Indian Child Welfare
Act applies to this case. The decision of the United States
Supreme Court in Mississippi
Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989), relied on by this
Court in this case, is not dispositive. The facts of the Holyfield
case were very different. In Holyfield
both the parents were Indians and both were domiciled on the reservation.
The Supreme Court in Holyfield
held that the policy of the ICWA could not be defeated by "individual
reservation-domiciled tribal members" intentionally leaving the reservation
to have the child and put it up for adoption so that the child's domicile
would not be on the reservation. Mississippi
Band of Choctaw Indians v. Holyfield
at 53, 109 S.Ct. at 1610.
The facts of this case are significantly
different. The trial court's findings of fact, which are supported
by the evidence in the record, conclude that the only contacts between
the reputed Indian father and the non-Indian mother were away from the
reservation; the non-Indian mother never lived with the reputed
Indian father; and neither lived on the Indian reservation. Once
the reputed Indian father learned that the non-Indian mother was pregnant
he stopped all contact with her and has never claimed paternity of the
child. No Indian family or reservation domicile is involved
in this case. All that is involved
is a non-Indian woman, with no contacts with an Indian tribe or reservation,
who became impregnated, allegedly by a man who reputedly is an enrolled
member of an Indian tribe.
In contrast, both parents in
the Holyfield
case were of Indian heritage, both were domiciled on the reservation,
and both parents were involved in the adoption process.
In the recent case of the Matter
of Adoption of Crews,
118 Wash.2d 561, 825 P.2d 305 (1992), the Washington Supreme Court quoted
from the hearings of Congress to the effect that the purpose of the Act
was to stop the breakup of Indian families by the "removal of Indian
children from their families and the placement of such children in foster
or adoptive [Indian] homes which will reflect the unique values of Indian
culture ..." 25 U.S.C. § 1901(4)-(5). In quoting
from In re Adoption
of Baby Boy **934
*473
L., 231 Kan. 199, 643
P.2d 168 (1982), the Court in Crews
agreed that:
the
underlying thread that runs throughout the entire Act [is] to the effect
that the Act is concerned with the removal of Indian children from an
existing Indian family unit and the resultant breakup of the Indian family.
Matter of Adoption
of Crews, 825 P.2d
at 309.
For the breakup of an Indian
family to occur it is necessary for an "Indian family" to exist.
Recently the Oklahoma Supreme Court, in Matter
of S.C., 833
P.2d 1249 (Okl.1992), similarly expressed the intent of the ICWA to be
to prevent the "removal of Indian children from an
existing Indian Family unit and the resultant breakup of the Indian family."
Matter of S.C.,
833 P.2d at 1255 (emphasis added); see
also Matter of Adoption of a Child of Indian Heritage,
111 N.J. 155, 543 A.2d 925 (1988). While a child of Indian
heritage must be involved in an adoption or foster placement for the ICWA
to be applicable, the Act can also be reasonably interpreted to require
that the placement of the child not breakup an "Indian family"
unit. Where no Indian family unit has ever existed, no breakup
of an Indian family unit can take place.
The rationale of these state
cases, which hold that an Indian family unit must be present before the
ICWA is applicable, is supported by more recent events in Congress. A
1987 amendment to the ICWA presented to the Senate by the Committee on
Indian Affairs would have made application of the ICWA mandatory regardless
of whether the child had "previously lived in Indian Country, in
an Indian cultural environment or with an Indian parent." See
S.1976, 100 Cong., 1st Sess., 133 Cong.Rec. S18532, S18533 (daily ed.
Dec. 19, 1987). The amendment never made it to the floor of
the Senate and has not been presented since. Congress was
well aware of the decisions employing the "existing Indian family"
doctrine and apparently chose not to change the statutory language
of the ICWA to modify that interpretation, as the Oklahoma Supreme Court
has observed. Matter
of S.C., 833 P.2d at
1255. The child involved in this case has never been part
of an "Indian family," and accordingly, the ICWA does not apply
to the facts of this case.
123 Idaho 464, 849 P.2d 925
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