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9th Circuit rules against tribe in California ICWA case
Wednesday, July 20, 2005

California tribes do not have exclusive jurisdiction over Indian Child Welfare Act cases, the 9th Circuit Court of Appeals ruled on Tuesday.

In a unanimous decision, a three-judge panel refused to transfer an Indian child welfare case to the Elem Indian Colony. The mother, a tribal member, had challenged a state court's termination of her parental rights.

Normally, ICWA vests the tribe with exclusive jurisdiction in such cases. But since California is a Public Law 280 state, the court said it had to view the legal landscape in light of the state's broad civil and criminal jurisdiction over Indian lands.

First, the court concluded that it has jurisdiction under ICWA to hear the case. The state had argued that a legal doctrine barred federal courts from reviewing state court decisions.

In a more important finding, the court said that ICWA contains an exception for Public Law 280 states like California. The judges noted that the law provides a method for tribes like the Elem Indian Colony to resume exclusive jurisdiction over Indian child welfare matters but that didn't happen in this case.

So rather than "undo this statutory and historical framework and immediately vest exclusive jurisdiction in the tribes," the court said it must uphold the state's "concurrent jurisdiction" over Indian child dependency proceedings.

From an ultimate perspective of public policy and in furtherance of the goal of tribal sovereignty over the destiny of Indian children, a transition from Public Law 280 jurisdiction to tribal jurisdiction in child custody proceedings may well be appropriate," Judge M. Margaret McKeown wrote for the majority. "But we believe this is a judgment for Congress to make, not the courts."

The case was being monitored by the Tribal Supreme Court Project [Briefs] for the precedent it sets in California and potentially nationwide in Public Law 280 states. A rehearing before the full 9th Circuit or an appeal to the U.S. Supreme Court is possible.

Get the Story:
State Can Terminate Indian Parental Rights, Court Says (The Los Angeles Times 7/20)
Username: indianz@indianz.com, Password: indianzcom

Get the Decision:
Doe v. Mann (July 19, 2005)

Relevant Links:
National Indian Child Welfare Association - http://www.nicwa.org

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