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U.S. Supreme Court won't hear Indian child welfare case
Tuesday, May 2, 2006

An Indian child welfare case that was being watched by tribes and Indian organizations across the nation was turned down by the U.S. Supreme on Monday.

Without comment, the justices declined to review Doe v. Mann, a case from the 9th Circuit Court of Appeals. The move affirms a precedent that tribal advocates say runs counter to federal law by giving states more control over Indian child welfare proceedings.

Under the Indian Child Welfare Act of 1978, tribes normally have exclusive jurisdiction over adoptions and custody disputes involving tribal children. Congress passed the law in response to extremely high rates of Indian children being placed in non-Indian homes by states.

But in California, home to the largest Indian population in the country, tribes will have to share jurisdiction with the state despite the historical record. In the case at issue, a mother from the Elem Indian Colony has to give up her child because a state court terminated her parental rights without the tribe's involvement.

"The tribe's sovereignty and self-government has been gutted," the Elem Indian Colony wrote in a court brief, "and the tribe's families have been left vulnerable to all of the evils the ICWA was designed to protect, as demonstrated by the state's actions in this case."

The conflict arose because California is one of several states that fall under Public Law 280. The law, passed in the 1950s when Congress was terminating the federal government's relationship with tribes, grants the state criminal and civil jurisdiction in Indian Country.

Federal courts have ruled that Public Law 280 hasn't divested tribes of their inherent sovereignty over tribal members. But the 9th Circuit, in the first case of its kind, ruled that ICWA contains an exception for Public Law 280 states like California even though both laws are separated by three decades and a shift in federal policy towards self-determination.

"When Congress enacted ICWA, states already were exercising their Public Law 280 jurisdiction over child dependency proceedings, a fact we presume Congress knew," the court wrote.

So rather than "undo this statutory and historical framework and immediately vest exclusive jurisdiction in the tribes," the court said Public Law 280 states share "concurrent jurisdiction" over Indian child dependency proceedings.

The 9th Circuit noted that ICWA contains a procedure for tribes in California and other Public Law 280 states to assume "exclusive" jurisdiction. Section 1918 requires the tribe to submit an application to the Interior Department, something that didn't happen in the Elem Indian Colony's case.

In its brief at the 9th Circuit level, the Elem Indian Colony acknowledges the existence of Section 1918 but said it only applies in private child custody proceedings, not in situations where a state takes action. In this case, the state went onto the Elem Reservation and removed the Indian child from the home.

Section 1918 was at issue in another ICWA case in the state courts. Siskiyou County objected when the Karuk Tribe sought to transfer a child welfare case to tribal court, arguing that the tribe failed to submit an application to the Interior Department.

Bu the 3rd District appeals court ruled the section didn't apply because the tribe was only seeking to transfer the case, not seek exclusive jurisdiction. Citing the 9th Circuit's ruling in Doe v. Mann, the court said "all tribes, regardless of their 280 status, be able to accept transfer jurisdiction of ICWA cases from state courts."

Doe v. Mann drew significant attention nationwide at it went before the 9th Circuit. The Yurok Tribe and the Morongo Band of Mission Indians, both of California, each submitted briefs in support of the Elem Indian Colony.

The National Indian Child Welfare Association, the Association of Indian Affairs and the Tanana Chiefs Conference submitted a joint brief to the 9th Circuit. The Tribal Supreme Court Project of the Native American Rights Fund and the National Congress of American Indians monitored the case as it went before the justices.

9th Circuit Decision:
Doe v. Mann (July 19, 2005)

Court Briefs and Case Documents:
NCAI-NARF Tribal Supreme Court Project

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

Related Stories:
Christian Mag: Children at mercy of ICWA tribes (04/14)
California appeals court rules in ICWA transfer case (03/10)
Paper concludes series on Indian child welfare (01/06)
Rapid City Journal runs series on Indian child welfare (1/5)
South Dakota panel pressed on Indian child welfare (10/04)
White Earth Band seeks control of child custody case (09/15)
Meskwaki mother decides not to give up baby son (08/26)
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9th Circuit rules against tribe in California ICWA case (07/20)
Meskwaki mom wants son to go to non-Native family (07/06)
Adopted Navajo child to return home to reservation (06/22)
Wisconsin tribes form child welfare partnership (06/16)
GAO calls for better state data in ICWA cases (04/08)
Failures cited in child abuse on Utah reservation (03/21)
Couple says mother didn't want son in her tribe (03/01)
Hearing slated on custody dispute over Indian boy (02/28)
Yellow Bird: A nation cannot flourish without children (02/01)
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