Tuesday, January 10, 2012

The Existing Indian Family Doctrine

There are obviously strong feelings in a difficult case, like the one I posted about, where a child who spent 2 years with adoptive parents is returned to birth parents.  I wanted to address one issue raised in the comments by various commenters, touching on the Indian Child Welfare Act aspect of the case:
"the indian law being used here is silly. he is not an active part of the indian community."
"Apparently he does not live within the tribe, so it's doubtful this child will grow up knowing her 'tribe' or any of it's true purposes."
"just because someone is an enrolled member of the tribe, as this dad is, doesn't necessarily mean grew up with the tribe, that he lives with the tribe now, or that he participates in the affairs the tribe in any meaningful way."
I think the commenters are alluding to something called the "existing Indian family" doctrine, that some state courts have adopted in applying ICWA.  That phrase does not exist in the statute, having been invented 4 years after the adoption of ICWA by a Kansas court seeking not to apply the federal statute to an adoption case.  As we say in law, hard facts make bad law. And these days, only 6 states are still following that doctrine.

Under the existing Indian family doctrine, courts would take one of two approaches. In a case of newborn adoption, the court would say, "The child was never part of an existing Indian family,"  emphasizing that the child hadn't lived with the birth parents as a family. Right, because the child was never ALLOWED to be part of an existing Indian family!  I especially like that argument in cases where the Native American parent, usually the birth father, was never told about the existence of the child or given notice of the adoption, much less the opportunity to bring the child into an existing Indian family. 

And as I mentioned, there's nothing in ICWA that requires an existing Indian family -- only that it be a child custody case involving an Indian child as defined in the act. An Indian child is "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."

There's a pretty clear reason why ICWA doesn't include the phrase "existing Indian family" -- the intent of ICWA is not simply to protect Indian families, but to protect the sovereignty of Indian tribes and to protect Indian children, separate and apart from whether their families are existing Indian families.  The creation of the "existing Indian family" is some of that judicial activism that it's so popular to rail against these days.

The second way courts have used the "existing Indian family" doctrine is to  focus on the Indian part, and deny application of ICWA if the court feels the birth parent isn't "Indian" enough.  Like in a California case where the court noted that the birth parents didn't live on the reservation, didn't participate in tribal events, did not have Indian artifacts in their homes, and did not follow Indian traditions and holidays at home.

I find this particular use of "existing Indian family" doctrine particularly troubling.  Here we have white courts making judgments about what it means to be Native American.  With little knowlege of what it actually means to be Native American, courts focus on outward trappings, and tend to do so with stereotypical notions of Indianness.  Does he wear braids?  Do they have a dream catcher over the crib?  Do they have a peace pipe at home?  Yikes, how offensive is that! And the whole point of ICWA was to avoid this kind of prejudiced thinking by non-Indian courts.

Can you imagine doing that with any other racial or ethnic group?  "You're African-American, but you shouldn't be allowed to adopt an African-American child, because you don't live in the inner city, you don't speak Ebonics, you don't listen to rap. You don't qualify as an existing African-American family." China gives a preference in adoption to ethnically-Chinese parents -- what if they said, "What?  You don't celebrate Grave Sweeping Day? You can't use chopsticks? You didn't hang Spring Couplets above your door last Lunar New Year?  You don't qualify as an existing Chinese family!" Would we be ok with that?

ICWA is designed to prevent outsiders from deciding who is Indian -- the act gives the responsibility to the tribes themselves to decide who is a tribal member, and then hinges all of ICWA's protection from that definition.  The existing Indian family doctrine is completely contrary to ICWA.

And courts have come to recognize that. Kansas, the state that invented the existing Indian family exception to ICWA, has now rejected it. And Kansas isn't alone -- 13 of the 19 states that once followed the doctrine have since rejected it as contrary to the language of the statute.  That leaves only 6 states that still follow it, and two of those states have limited the existing Indian family doctrine considerably.

The pendulum is swinging back so that the actual language of ICWA will prevail, not the judicially invented "existing Indian family" doctrine.  If folks think the existing Indian family doctrine should prevail, they first have to change the statute. Without that, courts are not mis-applying the law in cases like this one.


Anonymous said...

Our son has less than 1/32 of Native American blood, with no family member having ties to a tribe anymore, and we do not anticipate any contesting to the adoption. Yet our agency STILL had us sign a form that we understood that this law means that at ANY TIME IN OUR CHILD'S LIFE the tribe could seek custody. Our agency wanted to make absolute sure we knew the risk was there EVEN AFTER FINALIZATION. According to our state laws adoptions cannot be finalized until a child is in an adoptive parent's home for at least 6 months. This birth father started seeking custody when the child was 4 months old. None of this should have been shocking to the adoptive parents after only a few months of placement. Yet, so many people seem shocked that the adoptive parents' privilege didn't win over the letter of the law and the rights of the father.

Shaorn said...

Malinda, this is not just a case of the child never having been part of an "existing Indian family;" it appears from most press reports that the father was never part of an "existing Indian Family" either. According to one commenter at Indian Country, he supposedly testified that he has no relationship with the tribe other than the way he is benefiting from the use of the Indian Child Welfare statute in this case.

Of course we don't want courts looking for stereotypical cultural markers, but in this instance there are apparently NO cultural markers of any sort. I think I read somewhere that the child in this case is 1% Indian, which means the dad has relatively little Indian blood. This case evokes America's 1 drop history, with one drop of blood designating one's legal race.

In international adoption, most countries do give preference to same race/ culture, but only to those who are "100%." For example, India will give preference to non-resident Indian couples. A couple where one spouse is Indian fall lower on the scale. Someone who is 1/2 East Indian, or 1/4 East Indian, or 1% East Indian, is accorded no special consideration.

malinda said...

I understand your point, Sharon, but there's just no legal argument for the position under ICWA. In fact, ICWA masterfully avoided any "one drop" problem by making the statute applicable on a basis different from what percentage of blood is Indian -- the child just has to be the biological child of a tribal member. It isn't 1 drop of blood that makes one an Indian child for purposes of ICWA, it is the biological relationship to a tribal member, and that's all.

Sharon said...

I see what you're saying too, Malinda, from the legal standpoint. It's just frustrating to me as a person of Cherokee heritage that my family was legally cut out of the tribe by the US government at the end of the 19th century. The folks who are "in" mostly got in because they had ancestors in the right place at the right time. I guess I'd far more comfortable with an argument in this case that this man is her biological father, period. Making the case with ICWA was a smart legal strategy, but is she now going to be raised in tribal culture? Doubtful.Even the legislator who wrote the ICWA is saying he never intended/envisioned the law being applied to a case like this, and thinks it is a mistake.

Anonymous said...

I don't know all of the facts of this case, but some thoughts occur to me. First, isn't ICWA based on the notion of tribal sovereignty rather than "culture" or strict biology? And am I correct in presuming that the biological father was not the legal father at the time of the adoption surrender? If so, we cannot expect the court, or anyone else, to have a duty toward the father. In that case, what would the deadline be for a father needing to make his biology known to the court--the date of the adoption order? I don't read ICWA as applying to non-legally established fathers. I read ICWA as letting the tribe intervene, but not the unwed father if he was late establishing parentage under tribal or state law.

Again, I don't know what the facts are about the father's paternity, etc. Maybe you can tell me.

Law clerk underground

bbmomof2boys said...

I've been following this case since the beginning. This father did not want his daughter then changed his mind. That is a FACT. What gives him the right to change his mind and get his daughter back? Oh yeah...he's part Indian! There are many sides to this case and we'll never know the whole truth. People say that she needs to be brought up knowing her culture. Come on, give me a break! I have a Chinese daughter - I know about teaching culture and I know how important it is. He used this law as a way to get V back. This law is the only reason why he was given custody. Have you read the many many cases of kids being taken away from loving parents because the tribe got involved and decided what was best for the child? People scream that she needs to know all about her Indian culture but what about her mom's side? Does she not have any right to learn about that culture? I'm sure that ICWA has its place but it was used for the wrong reason in this case.