In a number of recent cases, state Supreme Courts had to slap down lower court decisions that failed to adequately account for Indian sovereign interests in rendering child custody decisions. The cases are a reminder that although Congress recognized and mandated respect for those interests in 1979 when it passed the Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963 (ICWA), that recognition has been very slow to penetrate the consciousness of the non-Indian bar and judiciary.
The ICWA recognized the role that child protective agencies have played in furthering the genocide of Indian peoples by separating Indian children from their families and placing them with non-Indian households. See 25 U.S.C. § 1901(3). The removal of Indian children from their native territorial and cultural context by Euro-American social workers, as such children had long been removed by other government bureaucrats to attend forced boarding schools, was recognized as one among many examples of paternalism run amok. And it was recognized that genocidal results were being achieved without the need for conscious prejudice or double standards, because the mainstream culture values imposed in every case by child-protective workers have a disparate impact on indigenous peoples who are economically deprived and whose lifestyles, such as reliance on extended kin networks to supervise children, differ from those common in the mainstream.
The ICWA sought to deal with this history and continuing impact by giving the Indian sovereign nation itself a stake in child custody proceedings involving native children, requiring notice to the tribe and giving it the opportunity to appear to advocate placement with an Indian family. Having involved the Indian sovereign itself, the ICWA then requires state courts adjudicating child placement matters to apply an order of preferences favoring Indian placements “in the absence of good cause to the contrary.” 25 U.S.C. § 1915(a)-(b). The preferences favor placement with members of the child’s extended family as a first choice, and generally require preference to placement of Indian children with Indian families. Id. According to the House Report accompanying the ICWA, the purpose of § 1915 is “to protect the rights of the Indian child as an Indian and the rights of the Indian community and tribe in retaining its children in its society.” H. R. Rep. No. 95-1386, at 23 (1978) (hereinafter House Report). As the Supreme Court explained in Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989), the ICWA expresses “a Federal policy that, where possible, an Indian child should remain in the Indian community” and seeks to ensure that “Indian child welfare determinations are not based on a ‘white, middle-class standard which, in many cases, forecloses placement with [an] Indian family.’” 490 U.S. at 37 (quoting House Report at 23-24).
The ICWA thus exists to protect individual and collective rights that have no place in a traditional "best interest of the child" inquiry. Yet states have often been resistant to the ICWA preferences, and have often effectively expanded the "good cause to deviate" exception so as to entirely efface the ICWA placement preferences and replace it with a traditional "best interest" inquiry. Compare, e.g., In re. Bird Head, 331 N.W.2d 785 (Neb. 1983) (child's "best interest" provided "good cause" to deviate); Adoption of M., 832 P.2d 518 (Wash. Ct. App. 1992) (same); Adoption of F.H., 851 P.2d 1361 (Alaska 1993) (same); Interest of A.E., 572 N.W.2d 579 (Iowa 1997) (same); and Interest of C.G.L., 63 S.W.3d 693 (Mo. Ct. App. 2002) (same), with Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152 (Tex. App. 1995) (“the use of the best interest standard when determining whether good cause exists defeats the very purpose for which the ICWA was enacted, for it allows Anglo cultural biases into the picture.”); Matter of C.H., 997 P.2d 776 (Mont. 2000) (similar); and Matter of S.E.G., 521 N.W.2d 357 (Minn. 1994) (similar); see also Michael J. Dale, State Court Jurisdiction Under the Indian Child Welfare Act and the Unstated Best Interest of the Child Test, 27 Gonz. L. Rev. 353. The Bureau of Indian Affairs has articulated Guidelines that provide an alternative explication of "good cause" that does not reduce to traditional "best interest" analysis, which many state courts have followed. Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67584-67595, 67594 (1979) (defining “good cause” to include (i) request of the biological parents or of the child if of sufficient age; (ii) extraordinary physical or emotional needs; or (iii) unavailability of suitable families for placement after a diligent search for families meeting the preference criteria). See Matter of S.E.G., 521 N.W.2d at 363; Matter of C.H., 997 P.2d at 782.
