No. A10-1390 ________________________________________________________________________

STATE OF MINNESOTA

IN SUPREME COURT

In the Matter of the Welfare of the Child of: R.S. and L.S., Parents

AMICI CURIAE BRIEF OF THE INDIGENOUS LAW AND POLICY CENTER, THE LEECH LAKE BAND OF OJIBWE AND THE MILLE LACS BAND OF

OJIBWE

Matthew L.M. Fletcher (P61593) Kathryn E. Fort (P69451) Michigan State University College of Law Indigenous Law and Policy Center 405 Law College Building East Lansing, MI 48824-1300 (517) 432-6909 Hedi Bogda (#0275943) Senior Tribal Attorney Leech Lake Child Welfare Leech Lake Band of Ojibwe 115 Sixth Street N.W. Cass Lake, MN 56633 (218) 335-8270 Barbara Cole (#0350278) The Mille Lacs Band of Ojibwe 43408 Oodena Drive Onamia, MN 56359 (320)532-4722 Attorneys for Amici Curiae Indigenous Law and Policy Center, Leech Lake Band of Ojibwe, and Mille Lacs Band of Ojibwe

Marc A. Al (#247923) Stoel Rives LLP 33 South Sixth Street, Suite. 4200 Minneapolis, MN 55402 (612) 373-8801 Rebecca J. McConkey (#0388656) White Earth Band of Ojibwe P.O. Box 358 White Earth, MN 56591 (218) 983-4647 Heidi A. Drobnick (228357) Swanson, Drobnick & Tousey, P.C. 3120 Woodbury Drive, Suite 200 Woodbury, MN 55125 (651) 739-9615 Attorneys for Respondent White Earth Tribe of Ojibwe Lee Novotny (#0289227) Assistant Fillmore County Attorney 101 Fillmore Street, P.O. Box 307 Preston, MN 55965 (507) 765-2530 Attorney for Respondent County

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Mark D. Fiddler (#197853) Fiddler Law Office, P.A. 510 Marquette Ave. South, Ste. 200 Minneapolis, MN 55402 (612) 822-4095 Attorney for Appellant Guardian ad Litem Lori Swanson (#254812) Minnesota Attorney General Cynthia B. Jahnke (#0294858) Assistant Attorney General 445 Minnesota Street, Ste. 900 St. Paul, MN 55101-2127 (651) 757-1468 Attorney for Amicus Curiae Minnesota Department of Human Services Bruce Jones (#179553) Jennifer Dukart (#0388616) Faegre & Benson LLP 2200 Wells Fargo Center 90 South Seventh Street Minneapolis, MN 55402 (612) 766-7000 Shannon Smith (#0293404) ICWA Law Center 1730 Clifton Place Minneapolis, MN 55403 (612) 879-9165 Attorneys for Amicus Curiae ICWA Law Center

Kurt BlueDog (#9143) BlueDog, Paulson & Small 5001 American Blvd. West Ste. 500 Minneapolis, MN 55437 (952) 893-1813 Attorney for Amici Curiae Shakopee Mdwakanton Sioux Community, Grand Portage Band, Upper Sioux Community, Lower Sioux Community, and Prairie Island Community

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TABLE OF CONTENTS

TABLE OF CONTENTS……………………………………………………………….....i  

TABLE OF AUTHORITIES ............................................................................................. iii  

INTRODUCTION AND INTEREST OF AMICI ............................................................... 1  

STANDARD OF REVIEW ................................................................................................. 1  

STATEMENT OF FACTS .................................................................................................. 1  

SUMMARY OF ARGUMENT ........................................................................................... 2  

ARGUMENT ....................................................................................................................... 3  

I. TRIBAL JURISDICTION OVER INDIAN CHILDREN IS AN INHERENT ASPECT OF TRIBAL SOVEREIGNTY ............................................................................ 3  II.   CONGRESS ENACTED THE INDIAN CHILD WELFARE ACT TO ENFORCE ALREADY EXISTING TRIBAL JURISDICTION AND PREVENT THE WHOLESALE REMOVAL OF INDIAN CHILDREN FROM INDIAN COMMUNITIES ................................................................................................................. 8 A.   ICWA Presumes and Favors Tribal Jurisdiction ..................................................... 8  B.   The Uniform Child Custody and Jurisdiction Enforcement Act Does Not Apply to ICWA cases .............................................................................................. 9 C.   ICWA Was Enacted to Prevent the Wholesale Removal of Indian Children by

State Actors ........................................................................................................... 13 III.   ICWA’S CONCERNS ABOUT THE ROLE OF STATE WORKERS IN INDIAN CHILD CUSTODY CASES NECESSARILY IMPLICATE GUARDIANS AD LITEM WHO REPRESENT INDIAN CHILDREN ................................................... 18

ii

A.   Guardians ad litem Are Appointed By the State and Are Therefore State Actors Under ICWA.. ....................................................................................................... 18  

B.   Guardians ad litem Are Obligated By the Best Interests Of the Child to Keep a Child’s Connection to Her Tribe and Culture .................................................... 20

IV. CONCLUSION ........................................................................................................ 25

iii

TABLE OF AUTHORITIES

Federal Decisions

Bryan v. Itasca County, 426 U.S. 373; 96 S.Ct. 2101; 48 L.Ed.2d 710..............................6

California v. Cabazon Band of Mission Indians, 480 U.S. 202; 107 S.Ct. 1083; 94

L.Ed.2d 244 (1987)..........................................................................................................7

Fisher v. Dist. Ct., 424 U.S. 382; 96 S.Ct. 943; 47 L.Ed.2d 106 (1976).........................5, 7

Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30; 109 S. Ct. 1597; 104 L.

Ed. 2d 29 (1989) .................................................................................................... passim

Montana v. United States, 450 U.S. 49; 101 S.Ct. 973; 67 L.Ed.2d 36 (1981)..................5

Santa Clara Pueblo v. Martinez, 436 U.S. 49; 98 S.Ct. 1670; 56 L.Ed.2d 106 (1978)...4, 5

Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, 476 U.S. 877;

106 S.Ct. 2305; 90 L.Ed.2d 881 (1986)...........................................................................5, 7

Williams v. Lee, 358 U.S. 217; 79 S.Ct. 269; 3 L.Ed.2d 251 (1959)...................................4

Worcester v. Georgia, 31 U.S. 515; 6 Pet. 515; 8 L.Ed. 483 (1832)...................................4

United States v. Wheeler, 435 U.S. 313; 98 S.Ct. 1079; 55 L.Ed.2d 303............................4

United States v. Quiver, 241 U.S. 602; 36 S.Ct. 699; 60 L.Ed. 1196..................................5

Native Village of Venetie I.R.A. Council v. State of Alaska, 944 F.2d 548 (9th Cir.

1991)................................................................................................................................5, 6

Wisconsin Potawatomies v. Houston, 393 F.Supp. 719 (WD Mich 1973) ...................... 7, 8

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Minnesota Decisions

Earl v. Godley, 44 N.W. 254 (Minn. 1890).........................................................................6

In re Adoption of M.T.S., 489 N.W.2d 285 (Minn. App. 1992).........................................23

In re S.E.G., 521 N.W.2d 357 (Minn. 1984)...................................................19, 21, 22, 23

In re R.A.J., 769 N.W.2d 297 (Minn. 2009)......................................................................24

La Framboise v. Day, 161 N.W.2d 529 (Minn. 1917)........................................................6

Rogers v. Cordingley, 4 N.W.2d 627 (Minn. 1942)............................................................6

Tindell v. Rogosheske, 428 N.W.2d 387 (Minn. 1988)......................................................18

U.S. ex rel. Davis v. Shanks, 15 Minn. 369 (1870).............................................................4

Other States’ Decisions

In re Adoption of Buehl, 555 P.2d 1334 (Wash. 1976)........................................................7

In re Appeal in Pima County Juvenile Action No. S-903, 635 P.2d 187 (Ariz.App.

1981)..............................................................................................................................21

In re A.J.S., 204 P.3d 543 (Kan. 2009)..............................................................................12

In re Elias L., 767 N.W.2d 98 (Neb. 2009).......................................................................12

In re J.J.C., 302 S.W.3d 896 (Tex. Ct. App. 2009............................................................12

In re JL, 770 N.W.2d 853 (Mich. 2009)............................................................................12

In re M.S., 237 P.3d 161 (Okla. 2010).................................................................................9

v

Kobogum v. Jackson Iron Co., 43 N.W. 602 (Mich. 1889).................................................9

Wakefield v. Little Light, 347 A.2d 228 (Md. 1975)............................................................7

In re W.D.H., 43 S.W.3d 30 (Tex. Ct. App. 2001)............................................................12

Federal Statutes

P.L. 83-280; 67 Stat. 588 (Aug. 15, 1952).......................................................................6, 7

P.L. 95-608; 25 U.S.C. §§ 1901-1963 ....................................................................... passim

State Statutes

Minn. Stat. § 260C.001......................................................................................................23

Minn. Stat. § 260C.163..........................................................................................18, 19, 20

Minn. Stat. § 206C.193................................................................................................18, 20

Minn. Stat. § 206C.201......................................................................................................19

Minn. Stat. § 518D.104................................................................................................11, 13

Federal Legislative Authorities

Establishing Standards for the Placement of Indian Children in Foster or Adoptive

Homes, to Prevent the Breakup of Indian Families, and for Other Purposes, H R Rep

95-1386 (July 24, 1978) ........................................................................................... 14, 21

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Indian Child Welfare Act of 1978, Hearings before the Subcommittee on Indian Affairs

and Public Lands of the Committee on Interior and Insular Affairs, House of

Representatives, 95th Cong, 2d Sess (Feb. 9 & Mar. 9, 1978) ...................................... 16

Indian Child Welfare Program, Hearings before the Subcommittee on Indian Affairs of

the Senate Committee on Interior and Insular Affairs, 93rd Cong, 2d Sess (April 8 & 9,

1974)............................................................................................................14, 15, 16, 17

Federal Administrative Authorities

Bureau of Indian Affairs, Guidelines for State Courts; Indian Child Custody Proceedings,

44 Fed. Reg. 67584 (Nov. 26, 1979) .............................................................................. 13

Treatises

Cohen’s Handbook of Federal Indian Law (2005 ed)..........................................5, 6, 7, 23

Law Review Articles

Barbara Atwood, The Voice of the Indian Child: Strengthening the Indian Child Welfare

Act Through Children's Participation, 50 Ariz. L.Rev. 127 (2008)......................20, 21

Catherine M. Brooks, The Indian Child Welfare Act in Nebraska: Fifteen Years, A

Foundation for the Future, 27 Creighton L. Rev. 661 (1994).....................................22

Carole Goldberg, Public Law 280: The Limits of State Jurisdiction Over Reservation

Indians, 22 UCLA L.Rev. 535 (1975)............................................................................6

vii

Tara Lea Muhlhauser, From "Best" to "Better": The Interests of the Children and the

Role of the Guardian Ad Litem, 66 N.D. L.Rev. 633 (1990).......................................19

Marian E. Saksena, Out-of-Home Placements for Abused, Neglected and Dependent

Children in Minnesota, 32 Wm. Mitchell L. Rev. 1007 (2006)...................................15

Books

Barbara Ann Atwood, Children, Tribes, and States: Adoption and Custody Conflicts over

American Indian Children (2010)........................................................................................7

Facing the Future: The Indian Child Welfare Act at 30 (Matthew L.M. Fletcher et al. eds.,

2009)............................................................................................................................3, 4

B.J. Jones et al., The Indian Child Welfare Act Handbook (2nd ed. 2008).............7, 23, 24

Other Authorities

American Indian Policy Review Commission Task Force Four, Report on Federal, State,

and Tribal Jurisdiction (July 1976) ................................................................................ 14

Jurisdictional Questions Relating to the Implementation of the Indian Child Welfare Act

Discussed, 70 Wis. Op. Att'y Gen. 237 (1981)..........................................................6, 7

Minnesota Guardian ad Litem Oath..................................................................................24

Uniform Child Custody Juisdiction and Enforcement Act §104 Comment (Nat'l

Conference of Comm'rs on Unif. State Laws, 1997 Annual Meeting

Draft)..............................................................................................................................10

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Court Documents

Appellant’s Addendum ...................................................................................................... 24

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INTRODUCTION AND INTEREST OF AMICI

The Indigenous Law and Policy Center, the Leech Lake Band of Ojibwe, and the

Mille Lacs Band of Ojibwe file this amici curiae brief pursuant to the March 23, 2011

order of the Supreme Court of Minnesota.

The Indigenous Law and Policy Center is based at the Michigan State University

College of Law, and has a public interest in this case. The Leech Lake Band of Ojibwe is

an Indian tribe located in northern Minnesota. The Mille Lacs Band of Ojibwe is an

Indian tribe located in east central Minnesota. Both Leech Lake and Mille Lacs Bands

have a public interest in this area. Because ICWA is a federal law interpreted by state

courts, the decision reached in this case will affect the Bands as if they were a party to the

case.

STANDARD OF REVIEW

Amici Curiae concur with the Appellant’s statement of the standard of review.

STATEMENT OF FACTS

Amici Curiae concur in the Statement of Facts set forth in the Brief of Appellant.

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SUMMARY OF ARGUMENT

Congress enacted the Indian Child Welfare Act of 1978 as a reaction to the

wholesale and practically automatic removal of Indian children from Indian families and

tribal communities. Congress’s scheme involved the transfer of jurisdiction over Indian

children from primarily state courts to tribal courts, and the federal guarantee of

procedural requirements that state courts must follow prior to both removing Indian

children from Indian families and before terminating the parental rights of Indian parents.

Congress intended these federal guarantees and jurisdictional provisions both to trump

state procedures and to favor Indian parents and Indian tribes.

The Court of Appeals correctly held that the transfer of an Indian Child Welfare

Act (“ICWA”) case to the tribal court after termination of parental rights but before the

preadoptive placement was allowable under both federal and state law. This case

addresses two important aspects of an ICWA case, ICWA’s intent to both allow transfer

of this type of case to tribal court and to protect Indian children against the biases of state

appointed guardians ad litem.

Amici Curiae urge the Supreme Court to uphold the Court of Appeals decision on

two independent grounds. First, the jurisdictional provisions of ICWA favors and

presumes tribal jurisdiction. Second, the guardian ad litem’s role is to act in the best

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interests of the child, and the juvenile court found that transfer was legal under federal

and state law and also in the child’s best interests.

ARGUMENT

I. TRIBAL JURISDICTION OVER INDIAN CHILDREN IS AN INHERENT ASPECT OF TRIBAL SOVEREIGNTY

The Indian Child Welfare Act (“ICWA”), Pub. L. No. 95-608; 25 U.S.C. §§ 1901-

1963 (1978), does not exist in a vacuum. Though ICWA defines and delineates between

tribal and state jurisdiction in child welfare cases, ICWA is part of the long history of

federal Indian law and policy and recognizes established tribal jurisdiction over internal

tribal issues. As the Supreme Court has written, “[t]ribal jurisdiction over Indian child

custody proceedings is not a novelty of the ICWA.” Mississippi Band of Choctaw

Indians v. Holyfield, 490 U.S. 30, 42 (1989).

Tribes have always exercised jurisdiction over their children. Though both the

federal and state government enforced horrific programs to separate Indian children from

their parents, grandparents, extended families, tribes, and cultural heritage, tribes have

worked continuously to maintain jurisdiction over their children. See Lorie M. Graham,

Reparations, Self-Determination and the Seventh Generation in Facing the Future: The

Indian Child Welfare Act at 30 50 (Matthew L.M. Fletcher et al. eds., 2009). Ensuring

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tribal jurisdiction in cases involving Indian children is one of the primary motivating

factors in establishing tribal judicial systems recognizable to state courts. Michael

Petoskey, Foreward to Facing the Future, supra at vii (“These kinds of cases are so

important, in fact, that their existence has been the impetus for many tribes in the state of

Michigan and elsewhere to embark upon the process of developing their own judicial and

child protection systems.”).

Tribes have always had the inherent sovereign jurisdiction “to make their own

laws and be ruled by them.” Williams v. Lee, 358 U.S. 217, 220 (1959). Tribes have

long been recognized as “distinct, independent political communities,” Worcester v.

Georgia, 31 U.S. 515, 559 (1832), with the inherent sovereignty to govern their own

members. Tribal powers of self-governance are not granted by the federal government,

but rather arise from tribal sovereignty which preexisted the United States. Santa Clara

Pueblo v. Martinez, 436 U.S. 49, 56 (1978) (“As separate sovereigns pre-existing the

Constitution, tribes have historically be regarded as unconstrained by those constitutional

provisions framed specifically as limitations on federal or state authority.”); United States

v. Wheeler, 435 U.S. 313, 323-324 (1978); U.S. ex rel. Davis v. Shanks, 15 Minn. 369, *2

(1870) (“The Indians within our territory have always been considered and recognized by

the United States as distinct political communities; and, so far as is essential to constitute

them separate nations, the rights of sovereignty have been conceded to them.”). Tribes

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have a unique government-to-government relationship with the federal government based

on agreements, treaties, and the Constitution. Cohen’s Handbook of Federal Indian Law

1 (Nell Jessup Newton et al. eds, 2005).

Central to this power of self-governance is the arena of domestic relations,

including jurisdiction over Indian children. U.S. v. Quiver, 241 U.S. 602 (1916) (internal

domestic relations); Fisher v. Dist. Ct., 424 U.S. 382 (1976) (jurisdiction over Indian

children); Martinez, 436 U.S. 49 (1978) (regulating internal membership decisions);

Montana v. United States, 450 U.S. 544, 564 (1981) (“Indian tribes retain their inherent

power to determine tribal membership, to regulate domestic relations among members . .

.”); Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, 476 U.S.

877, 889-90 (1986) (internal domestic tribal relations).

In short Indian tribes are currently recognized as sovereign because they were, in fact, sovereign before the arrival of non-natives on this continent. The practical result of this doctrine is that an Indian tribe need not wait for an affirmative grant of authority from Congress in order to exercise dominion over its members.

Native Village of Venetie I.R.A. Council v. State of Alaska, 944 F.2d 548, 556 (9th Cir.,

1991) (tribal jurisdiction over child custody determinations).

Minnesota also recognizes this basic power of self-governance and tribal

jurisdiction over domestic relations.

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So in the instant case as to these Indians, who always have resided on their Indian reservations, even if they had gone to another state and there married as prescribed by statute and then returned to their reservation in this state, we apprehend that they could then be divorced according to the usages and customs of the tribe.

Rogers v. Cordingley, 4 N.W.2d 627, 629 (Minn. 1942); Earl v. Godley, 44 N.W. 254,

255 (Minn. 1890) (“Under the laws of the United States they are recognized as capable of

managing their own affairs, including their domestic relations . . .”); La Framboise v.

Day, 161 N.W.2d 529 (Minn. 1917) (recognizing traditional tribal divorce).

Though the passage of Public Law 83-280 (“P.L. 280”), 67 Stat. 588 (Aug. 15,

1953), purported to place jurisdiction on the reservation in the hands of the state, courts

and commentators have come to agree that state civil jurisdiction on reservations is to be

construed narrowly. Bryan v. Itasca County, 426 U.S. 373 (1976); Handbook of Federal

Indian Law at 546. The Wisconsin Attorney General found that P.L. 280 did not grant

the state “general jurisdiction over child custody matters.” Jurisdictional Questions

Relating to the Implementation of the Indian Child Welfare Act Discussed, 70 Wis. Op.

Att’y Gen. 237 (1981). Along with Wisconsin, Minnesota was included as one of the

original five states granted jurisdiction under P.L. 280 (excepting the Red Lake

reservation), which was originally designed to deal with a lack of tribal forums for

criminal law enforcement. Native Village of Venetie I.R.A., 944 F.2d at 560; Bryan, 426

U.S. at 379; Carole Goldberg, Public Law 280: The Limits of State Jurisdiction Over

7

Reservation Indians, 22 UCLA L. Rev. 535, 541 (1975). However, P.L. 280 was not a

divestiture statute, or a removal of jurisdiction from tribes. California v. Cabazon Band

of Mission Indians, 480 U.S. 202, 207-12 (1987). In other words, tribes in P.L. 280 states

with tribal courts, such as the White Earth Band, Leech Lake Band, and Mille Lacs Band

continue to maintain at least concurrent jurisdiction over family law issues, and may have

exclusive jurisdiction over some family law issues. Wold Engineering, 476 U.S. at 889-

890; Jurisdictional Questions, 70 Wis. Op. Att’y Gen. 237; Handbook of Federal Indian

Law at 830; B.J. Jones et al., The Indian Child Welfare Act Handbook 54 (2nd ed. 2008);

Barbara Ann Atwood, Children, Tribes, and States: Adoption and Custody Conflicts over

American Indian Children 80 (2010).

ICWA did not grant jurisdiction over Indian children to tribes, but rather

acknowledged the fact of tribal jurisdiction over Indian children. See Fisher, 424 U.S.

382; Wisconsin Potowatomies v. Houston, 393 F. Supp. 719 (W.D. Mich. 1973);

Wakefield v. Little Light, 347 A.2d 228, 234-5 (Md. 1975); In re Adoption of Buehl, 555

P.2d 1334 (Wash. 1976). As the federal court wrote in Wisconsin Potowatomies, “if

tribal sovereignty is to have any meaning at all at this juncture of history, it must

necessarily include the right . . . to provide for the care and upbringing of its young, a

sine qua non to the preservation of its identity.” Wisconsin Potowatomies, 939 F. Supp. at

730.

8

II. CONGRESS ENACTED THE INDIAN CHILD WELFARE ACT TO ENFORCE ALREADY EXISTING TRIBAL JURISDICTION AND PREVENT THE WHOLESALE REMOVAL OF INDIAN CHILDREN FROM INDIAN COMMUNITIES

A. ICWA Presumes and Favors Preexisting Tribal Jurisdiction

ICWA was passed by Congress to, among other things, protect preexisting tribal

jurisdiction over Indian children. ICWA presumes tribal jurisdiction. Holyfield, 490 U.S.

at 36. Tribal jurisdiction over Indian child custody proceedings has a “strong basis in

pre-ICWA case law in the federal and state courts.” Id. at 42. Reading the statute leads

to an “inescapable” conclusion, “the main effect of which is to curtail state authority.” Id.

at 45 n.17. The intent of ICWA, therefore, was to protect and encourage tribal

jurisdiction over state jurisdiction in the area of Indian child welfare.

Congress passed ICWA pursuant to the “special relationship between the United

States and the Indian tribes and their members” and recognized the “Federal

responsibility to Indian people.” 25 U.S.C. § 1901. The statute provides that tribal courts

have exclusive jurisdiction over custody proceedings involving Indian children domiciled

in Indian Country. 25 U.S.C. § 1911(a). Congress borrowed this concept from the

Western District of Michigan, where Judge Engel had reached the same outcome in a

1973 common law decision in a case involving children who were members of the

Hannahville Indian Community. Wisconsin Potowatomies, 393 F. Supp. at 734, cited in

9

Holyfield, 490 U.S. at 35 n.4; cf. Kobogum v Jackson Iron Co, 43 N.W. 602, 605 (Mich.

1889) (“[Indian tribes] did not occupy their territory by our grace and permission, but by

a right beyond our control. They were placed by the constitution of the United States

beyond our jurisdiction, and we had no more right to control their domestic usages than

those of Turkey or India.”).

ICWA provides that tribal courts have concurrent and presumptive jurisdiction

over Indian child custody cases where the child is domiciled outside of Indian Country.

25 U.S.C. § 1911(b); Holyfield, 490 U.S. at 36. As in the case at bar, a state court may

(assuming certain circumstances) accept or retain jurisdiction over Indian child custody

cases if the child lives off the reservation, or where a tribal court declines jurisdiction. 25

U.S.C. § 1911(b), (c). Those provisions withstanding, however, does not change the

presumption of tribal court jurisdiction throughout the proceedings. See In re M.S., 237

P.3d 161, 165 (Okla. 2010).

B. The Uniform Child Custody and Jurisdiction Enforcement Act Does Not Apply to ICWA Cases

Regardless of whether the juvenile court orders a transfer to tribal court or not, the

Uniform Child Custody and Jurisdiction Enforcement Act (“UCCJEA”) does not apply to

the proceeding, as the proceeding is subject to ICWA. Minn. Stat. § 518D.104(a). “A

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child custody proceeding that pertains to an Indian child as defined in the Indian Child

Welfare Act is not subject to this chapter to the extent that it is governed by the Indian

Child Welfare Act.” Id. (citations omitted). See Uniform Child Custody Jurisdiction and

Enforcement Act § 104 Comment (Nat’l Conference of Comm’rs on Unif. State Laws,

1997 Annual Meeting Draft), available at http://www.law.upenn.edu/bll/archives/

ulc/uccjea/chldcust.htm. (“A case that falls under the Indian Child Welfare Act is

governed by that Act and not by this Act.”)

The UCCJEA is adopted by each state individually, and as such is enforced as

state law. ICWA is a federal law that preempts the field in the cases where it applies.

States cannot use state law to fill in the holes in ICWA, and therefore cannot use the

UCCJEA as gap filler. As the Supreme Court held in Holyfield, state law cannot be used

to undermine ICWA. Holyfield, 490 U.S. at 44 (“A second reason for the presumption

against the application of state law is the danger that the ‘federal program would be

impaired if state law were to control.’”) (citations omitted).

In Holyfield, the state court attempted to use the state’s definition of domicile to

undermine ICWA. Id. at 40 Under the state’s reasoning, the child’s domicile followed

that of her parents, and meant that any child born off the reservation was not subject to

ICWA. Id. ICWA does not define domicile, the state tried to fill the gap with state law.

However, the Supreme Court held that:

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First, and most fundamentally, the purpose of the ICWA gives no reason to believe that Congress intended to rely on state law for the definition of a critical term; quite the contrary. It is clear from the very text of the ICWA, not to mention its legislative history and the hearings that led to its enactment, that Congress was concerned with the rights of Indian families and Indian communities vis-à-vis state authorities. More specifically, its purpose was, in part, to make clear that in certain situations the state courts did not have jurisdiction over child custody proceedings. Indeed, the congressional findings that are a part of the statute demonstrate that Congress perceived the States and their courts as partly responsible for the problem it intended to correct. See 25 U.S.C. § 1901(5) (state “judicial bodies ... have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families”). Under these circumstances 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.

Id. at 44-45.

In Minnesota’s version of the UCCJEA, tribes are to be included in the home state

analysis, but only in cases where ICWA does not govern. See Minn. Stat. § 518D.104(a).

The plain meaning of the state law prevents it from applying when ICWA does. ICWA

governs an entire case where an Indian child is the subject to involuntary removal from

her parents. This is especially true in the area of jurisdiction, which include ICWA’s

most important provisions. Id. at 36 (“At the heart of ICWA are its provisions

concerning jurisdiction over Indian child custody proceedings”). Using the UCCJEA to

12

interpret ICWA to deny transfer to tribal court would undermine the very foundation of

ICWA.

States have followed this reasoning in preventing state, and even federal, statutes

from interfering with ICWA’s provisions. In Michigan, the Michigan Supreme Court

refused to enforce the Michigan statute which codified the Adoption and Safe Families

Act to the detriment of ICWA. In re JL, 770 N.W.2d 853, 863 (Mich. 2009)(“Because

the ICWA establishes ‘minimum Federal standards for the removal of Indian children

from their families,’ and nothing in the ASFA indicates a congressional intent to

supersede the ICWA, neither the ASFA nor its state law analogues relieve the DHS from

the ICWA’s ‘active efforts’ requirement . . .”) (citations omitted) (emphasis added). The

Supreme Court of Nebraska allowed tribes to intervene without a bar licensed attorney,

holding that a “Tribe’s right to intervene under the federal Indian Child Welfare Act

(ICWA) preempts Nebraska’s laws regulating the unauthorized practice of law.” In re

Elias L., 767 N.W.2d 98, 100 (Neb. 2009). See also, In re A.J.S, 204 P.3d 543, 431-2

(Kan. 2009); In re W.D.H., 43 S.W.3d 30, 35-6 (Tex. Ct. App. 2001); In re J.J.C., 302

S.W.3d 896, 899 (Tex. Ct. App., 2009).

The UCCJEA cannot change the jurisdictional provisions at the heart of ICWA,

and a court cannot drop in and out of ICWA requirements, or use the UCCJEA to fill in

where ICWA may be unclear. If the court were to find that it retained jurisdiction over

13

an Indian child, its reasoning would have to come from ICWA, such as good cause. 25

U.S.C. § 1911(b); Bureau of Indian Affairs, Guidelines for State Courts; Indian Child

Custody Proceedings C.3, 44 Fed. Reg. 67584, 67592 (Nov. 26, 1979). ICWA’s

jurisdictional scheme leaves no room for the UCCJEA, which by its terms does not apply

with ICWA does. In the case at bar, if the transfer had not been properly ordered by the

juvenile court, the juvenile court would still have to apply ICWA provisions to the

proceeding until the final decree for adoption. The reasoning for denying the transfer

would have to come from ICWA, not from a UCCJEA analysis.

This Court should follow the plain meaning of Minn. Stat. § 518D.104(a), hold

that the provisions of ICWA are to be interpreted in accordance with Congress’s intent

and policy toward Indian people, and refuse to incorporate provisions and public policies

related to the UCCJEA in ICWA cases.

C. ICWA Was Enacted to Prevent the Wholesale Removal of Indian Children from Their Families and Tribes by State Actors

Congress’s intent and policy toward Indian people in the Indian Child Welfare Act

was to prevent the wholesale removal of Indian children and retain existing tribal court

jurisdiction. Congress enacted ICWA after more than four years of hearings,

deliberation, and debate, in order to alleviate a terrible crisis of national proportions – the

14

“wholesale separation of Indian children from their families….” Establishing Standards

for the Placement of Indian Children in Foster or Adoptive Homes, to Prevent the

Breakup of Indian Families, and for Other Purposes, H. R. Rep. 95-1386, at 9 (July 24,

1978) (“1978 House Report”)1; see also Holyfield, 490 U.S. 30. Hundreds of pages of

legislative testimony taken from Indian Country over the course of four years confirmed

for Congress that many state and county social service agencies and workers, with the

approval and backing of many state courts and some federal Bureau of Indian Affairs

officials, had engaged in the systematic, automatic, and across-the-board removal of

Indian children from Indian families and into non-Indian families and communities. 25

U.S.C. § 1901(4)-(5); see also Holyfield, 490 U.S. at 32-33. State governmental actors

following this pattern and practice removed between 25 and 35 percent of all Indian

children nationwide from their families, placing about 90 percent of those removed

children in non-Indian homes. Holyfield, 490 U.S. at 32-33 (citing Indian Child Welfare

Program, Hearings before the Subcommittee on Indian Affairs of the Senate Committee

on Interior and Insular Affairs, 93rd Cong, 2d Sess, at 3 (statement of William Byler)

(April 8 & 9, 1974) (“1974 Hearings”); see also American Indian Policy Review

1 The text of ICWA, the legislative history, and any draft bills or Congressional materials dealing with ICWA cited in this brief are available at the website of the Native American Rights Fund, <http://narf.org/icwa/federal/lh.htm>.

15

Commission Task Force Four, Report on Federal, State, and Tribal Jurisdiction 79 (July

1976) (“Task Force Four”).

This was true in Minnesota as well: “For example, rations, annuities, and other

goods were withheld from parents and guardians who did not agree to send their children

away to school. Ojibwe children from northern Minnesota were often ‘rounded up by the

reservation police before being sent to boarding school.’” Marian E. Saksena, Out-of-

Home Placements for Abused, Neglected and Dependent Children in Minnesota, 32 Wm.

Mitchell L. Rev. 1007, 1035 (2006) (citations omitted). “[I]n Minnesota one in four

Indian children under the age of one had been removed from their home and adopted by a

non-Indian couple.” Id. at 1039.

A critical aspect to the legislative history of ICWA is the “wholesale” and

automatic character of Indian child removal by state actors nationally. As the Executive

Director of the Association on American Indian Affairs, William Byler, testified, the

“[r]emoval of Indian children is so often the most casual kind of operation….” 1974

Hearings, supra, at 19-20, 23. Byler testified that at the Rosebud Sioux Reservation,

state social workers believed that the reservation was, by definition, an unacceptable

environment for children and would remove Indian children without providing services

or even the barest investigation whatsoever. 1974 Hearings, supra, at 21-23.

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And, importantly, Congress recognized that state law and policy affecting Indian

children and families, as well as the actions of state workers, has an enormous impact on

the future of Indian tribes as well. Congress found “that there is no resource that is more

vital to the continued existence and integrity of Indian tribes than their children and that

the United States has a direct interest, as trustee, in protecting Indian children who are

members of or are eligible for membership in an Indian tribe….” 25 U.S.C. § 1901(3).

The United States Supreme Court echoed that finding by relying upon the statements of

Calvin Issac, the tribal chief of the Mississippi Band of Choctaw Indians, who stated:

Culturally, the chances of Indian survival are significantly reduced if our children, the only real means for the transmission of the tribal heritage, are to be raised in non-Indian homes and denied exposure to the ways of their People. Furthermore, these practices seriously undercut the tribes’ ability to continue as self-governing communities. Probably in no area is it more important that tribal sovereignty be respected than in an area as socially and culturally determinative as family relationships.

Holyfield, 490 US at 34 (quoting Indian Child Welfare Act of 1978, Hearings before the

Subcommittee on Indian Affairs and Public Lands of the Committee on Interior and

Insular Affairs, House of Representatives, 95th Cong, 2d Sess, at 193 (Feb. 9 & Mar. 9,

1978) (“1978 Hearings”)). The Holyfield Court also relied upon the testimony of experts

and studies that demonstrated the destructive effects of placing Indian children in non-

Indian families and communities. Holyfield, 490 U.S. at 33, 33 n.1 (citing 1974

Hearings, supra, at 46).

17

State actors made decisions to remove Indian children with “few standards and no

systematic review of judgments” by impartial tribunals. 1974 Hearings, supra, at 62

(Statement of Dr. Carl Mindell and Dr. Alan Gurwitt). A member of the Sisseton-

Wahpeton Sioux Tribe in South Dakota testified that state actors had taken Indian

children without even providing notice to Indian families, with state courts then placing

the burden on the Indian parent to prove suitability to retain custody. 1974 Hearings,

supra, at 67-69 (Statement of Cheryl DeCoteau). The President of the National Congress

of American Indians testified that a state caseworker came to an Indian woman’s house

without warning or notice and took custody of an Indian child by force. 1974 Hearings,

supra, at 224 (Statement of Mel Tonasket). Senator Abourezk, chairman of the

Subcommittee on Indian Affairs, stated after hearing much of this testimony:

[W]elfare workers and social workers who are handling child welfare caseloads use any means available, whether legal or illegal, coercive or cajoling or whatever, to get the children away from mothers they think are not fit. In many cases they were lied to, they given documents to sign and they were deceived about the contents of the documents.

1974 Hearings, supra, at 463.

To remedy the problem, Congress created a statute designed to guarantee

minimum procedural safeguards for Indian tribes and Indian families in non-tribal

adjudicative forums and to clarify jurisdictional gray areas between state and tribal

courts. This case addresses both of these areas—jurisdictional gray areas and the role of

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a state actor in an Indian child’s case. ICWA’s intent is both to allow transfer of these

cases to tribal court and to protect Indian children against the biases of state appointed

guardians ad litem.

III. ICWA’S CONCERNS ABOUT THE ROLE OF STATE WORKERS NECESSARILY IMPLICATE GUARDIANS AD LITEM WHO REPRESENT INDIAN CHILDREN

A. Guardians ad litem are appointed by the State and Are Therefore State Actors in ICWA Cases

Guardians ad litem (“GAL”) occupy a similar space as the state social workers of

concern in ICWA. While the role of a GAL is to advocate for the child, the GAL is still

appointed as an officer of the state court and, as such, is accorded presence at the hearing

and the opportunity to voice a recommendation. Minn. Stat. § 260C.163, subd. 5; Tindell

v. Rogosheske, 428 N.W.2d 387 (Minn. 1988) (the guardian ad litem is a quasi-judicial

officer of the court and entitled to absolute immunity). A GAL also conducts

investigations into the family, and present written recommendations. Minn. Stat. §

260C.163, subd. 5(b). In that role, the GAL is a part of the state court system the

minimum safeguards in ICWA was designed to protect against. See Minn. Stat. §

206C.193, subd. 2. “The plain language of the Act read as a whole and its legislative

history clearly indicate that state courts are a part of the problem the ICWA was intended

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to remedy.” In re S.E.G., 521 N.W.2d 357, 363 (Minn. 1994). “It is clear from the very

text of ICWA, not to mention its legislative history and the hearings that led to its

enactment, that Congress was concerned with the rights of Indian families and Indian

communities vis-à-vis state authorities.” Holyfield, 490 U.S. at 44-45.

The GAL is an instrument for the state court throughout his or her appointment,

acting as an expert witness, conducting independent investigations, and making

recommendations concerning the disposition of the minor’s case. Minn. Stat. §260C.163

subd. 5(b). The court may consider the GAL report when making a disposition in a case

or terminating parental rights. Minn. Stat. § 206C.193, subd. 2. This level of authority

within an ICWA case is not significantly different than that of a state social worker, who

may also make recommendations, testify in front of the court, and have his report

considered by the court. Minn. Stat. § 260C.201, subd. 6 (a); Minn. Stat. § 206C.193,

subd. 2. And like the state social worker, the GAL is also a state actor who can use the

courts to remove Indian children from their families and tribes.

The role of the GAL is different from that of a customary lawyer; a GAL is

required to act in the best interests of the child even if those interests conflict with the

child’s own wishes. “The dichotomous role of the [GAL] as a champion of both the

child’s best interests and the child’s wishes is widely recognized.” Tara Lea Muhlhauser,

From “Best” to “Better”: The Interests of Children and the Role of the Guardian Ad

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Litem, 66 N.D. L. Rev. 633 (1990). Determining what those best interests are for an

Indian child can be a daunting task, and a GAL needs to be especially sensitive to these

issues.

The need for representatives to be sensitive to their clients’ cultural backgrounds is axiomatic, but that principle is particularly relevant to ICWA cases. Some children may be fully integrated into tribal culture, and if the representative is not a member of the child's tribe, cultural differences and language barriers may intensify the challenges that already exist in adult-child communication. Cultural understanding is especially challenging because of the enormous diversity among tribes and Indian communities, both urban and rural.

Barbara Atwood, The Voice of the Indian Child: Strengthening the Indian Child Welfare

Act Through Children’s Participation, 50 Ariz. L. Rev. 127, 150-51 (2008).

B. Guardians ad litem are obligated by the best interests of the Indian child to keep a child’s connection to her tribe and culture

Minnesota law requires the courts to consider special factors for a GAL when a

GAL is appointed to a case involving an Indian child. “The following factors shall be

considered when appointing a guardian ad litem in a case involving an Indian or minority

child: (1) whether a person is available who is the same racial or ethnic heritage of the

child or, if that is not possible; (2) whether a person is available who knows and

appreciates the child’s racial or ethnic heritage.” Minn. Stat. §260C.163, subd. 5(e)(1-2).

Given the primary role of the GAL is to act in the child’s best interests, presumably the

21

legislature believed that Indian children required a GAL who would understand different

kinds of best interests than are traditionally understood for non-Indian children. See

Atwood at 150-1.

While the best interest standard has long been used by courts and workers to

determine what should be done with a child in the court’s care, “[t]he best interests of the

child standard, by its very nature, requires a subjective evaluation of a multitude of

factors, many, if not all of which are imbued with the values of majority culture.” In re

S.E.G., 521 N.W.2d at 363. Because the GAL is required to consider the child’s best

interests, even if contrary to the child’s wishes, it is vital for a GAL to realize an Indian

child’s best interests may include different interests and needs than a non-Indian child.

Indeed, the application of the Indian Child Welfare Act to a case attempts to ensure the

best interests of the child include the child’s connection to her tribe. “Thus, the

conclusion seems justified that, as one state court has put it, ‘[t]he Act is based on the

fundamental assumption that it is in the Indian child’s best interest that its relationship to

the tribe be protected.’ In re Appeal in Pima County Juvenile Action No. S-903, 130 Ariz.

at 204, 635 P.2d at 189.” Holyfield at 50 n.24.

A child’s connection to her tribe not only protects her identity, language and

cultural affiliation, it provides a very real property interest. See 1978 House Report at 24

(“These provisions [allowing adult adoptee receive information of her tribal relations]

22

will help protect the valuable rights an individual has as a member or potential member

of an Indian tribe and any collateral benefits which may flow from the Federal

Government because of said membership.”). The connection means she will be able to

participate meaningfully in the political and cultural affairs of the tribe, receive services

as a citizen of the tribe and benefit from her tribe’s government-to-government

relationship with the federal government. See Catherine M. Brooks, The Indian Child

Welfare Act in Nebraska: Fifteen years, A Foundation For The Future, 27 Creighton L.

Rev. 661, 705 (1994).

In addition, this Court has found that “Congress, in conjunction with numerous

Indian tribal governments and the Bureau of Indian Affairs, has carefully and

thoughtfully set out the nation’s policy to prevent the destruction of Indian families and

Indian tribes and to protect the best interests of Indian children by preventing their

removal from their communities.” In re S.E.G., 521 N.W.2d at 366. This means an

Indian child’s best interests considerations are necessarily broader than a standard best

interest analysis, and includes the Indian child’s connection to her tribal identity.

While the best interests of the child should not inform a jurisdictional decision,

conversely, the history prior to ICWA and after the enactment of ICWA assumes tribal

jurisdiction is in the best interest of the Indian child. As the Minnesota Appellate Court

held, “[i]n general, the ICWA includes standards which adequately protect the best

23

interests of the child.” In re Adoption of M.T.S., 489 N.W.2d 285, 288 (Minn. App.

1992). The best interest standard is generally not good cause to deny a transfer to tribal

court, especially given Minnesota’s law requiring that the best interests of the child in

ICWA cases be consistent with ICWA. Minn. Stat. § 260C.001, subd. 2(a). In ICWA

cases, then, the best interests of the Indian child are generally served when a case is

handled by the tribal courts. As the Cohen Handbook states, “ICWA presumes that its

policy of advancing the best interest of Indian children is compatible with protecting

tribal interests.” Handbook of Federal Indian Law at 823; see also Jones et al., at 13

(“Congress concluded that proper implementation of the Act itself would serve the best

interest of the Native American child.”).

Minnesota law provides “[i]n proceedings involving an American Indian child, as

defined in section 260.755, subdivision 8, the best interests of the child must be

determined consistent with sections 260.751 to 260.835 and the Indian Child Welfare

Act, United States Code, title 25, sections 1901 to 1923.” Minn. Stat. § 260C.001, subd.

2(a). Part of those interests include the right for a case to be handled by the tribal court.

Best interest standards are “imbued with majority culture values” In re S.E.G., 521

at 363, and have been used to keep Indian children away from their tribes. The standards

are subjective and “may well clash” with the Indian Child Welfare Act. Jones et al. at 12.

As a state appointed GAL, the GAL is likely to represent those majority values and

24

concerns. While “[t]he Indian Child Welfare Act recognizes that cultural attachment in

placements is vital to the ‘best interests’ of an Indian child,” id., those are not always

recognized by the state actors, even those purported to be working on behalf of the Indian

child.

While a court may find that, among other considerations, the best interests of the

child may not support transfer, In re R.A.J., 769 N.W.2d 297, 304 (Minn. Ct. App.,

2009), when the court does come to a finding that both supports the best interest of the

child and the concurrent right of tribal jurisdiction, the GAL is acting outside of her

bounds by continuing to appeal the decision. In this case, the juvenile court found that “it

would be in the child’s best interests if the adoption proceedings were under the

jurisdiction of a tribal court.” (Appellant Add. at. 13.) Continuing to appeal an opinion in

the child’s best interests goes against the GAL oath to protect the best interests of the

child and constitutes a significant conflict of interest. Minnesota Guardian ad Litem

Oath, at www.mncourts.gov/documents/2/Public/Guardian_ad_Litem/GAL-OATH.doc