December 9, 2005
Case Law Development: New York Rejects Judicial Exception to Indian Child Welfare Act for Children who are not part of an "Existing Indian Family"
In a matter of first impression, the New York Supreme Court, Appellate Division, concluded that it would not join those states that had adopted a judicial exception to the application of the Indian Child Welfare Act (ICWA). That exception, adopted by seven states and rejected by fourteen, provides that the ICWA does not apply to a child who is not a member of an “existing Indian family” (EIF). The court’s analysis of the case provided a clear and scholarly summary of the history of the ICWA and its application, including the development of the EIF exception. The opinion then analyzes the jurisdictional provisions of the act and the application of its substantive standards providing certain preferences in placement of Indian children with Indian families, absent good cause to do otherwise. Faculty looking for a clear and concise summary of the ICWA would be well served by assigning this opinion.
Baby Boy C. v Tohono O'odham Nation, 2005 NY Slip Op 9259; 2005 N.Y. App. Div. LEXIS 13717 (December 6, 2005) Opinion on the web at http://www.courts.state.ny.us/reporter/3dseries/2005/2005_09259.htm (last visited December 9, 2005 bgf)
The facts of this case involved the Tohono O’odham Tribe’s request to intervene in an adoption proceeding. The Mother of the child in this proceeding was one-half Native American Indian and a registered member of the Tohono O'odham Nation tribe. Father is Caucasian and Jewish. However, since her adolescence, Mother had rejected any connections to her tribal heritage. Both Mother and Father had executed extrajudicial consents to the termination of their parental rights and the adoption of the child by adoptive (non-Indian) parents in New York. Based on these consents, an Arizona court terminated Mother and Father’s parental rights. Though the Tribe had notice of the proceedings, it did not appear. The adoptive parents took the child to New York and began adoption proceedings.
The trial court found that the Tribe had no right to intervene in the proceeding under the ICWA because the EIF exception applied in this case. Moreover, following the reasoning of the California appellate courts, the trial court found that this exception was necessary to preserve the constitutionality of the ICWA, which would otherwise violate the due process and equal protection rights of children who have no cultural or familial links to an Indian family.
The appellate court disagreed, concluding that the EIF exception directly conflicts with the express language and purpose of ICWA, as well as the rationale of the United States Supreme Court's decision in Mississippi Band of Choctaw Indians v Holyfield, 490 U.S. 30 (1989) which found that the ICWA protects not only the interests of Indian children, but also the interests of the tribes themselves in preserving their ties to Indian children.
As to the constitutionality of the ICWA without the IEF exception, the court concluded that cases finding ICWA unconstitutional were based on a fundamental right of potentially adoptive children in a stable home environment that the court did not believe existed as a matter of law. Likewise, the court rejected the argument that the ICWA is based on a suspect classification of the race of the child and is, rather, concerned with the rights of a sovereign nation to determine its membership. Thus, applying a rational basis examination, the court found that the ICWA was rationally related to the stated goals of preserving tribal interests.
Finally, as a practical matter, the court concluded that the EIF exception was truly unnecessary because the ICWA itself contains a "good cause" exception, which “provides state courts with the flexibility to deviate from the placement preferences in circumstances where the interests of the parent or child outweigh the tribe's interest in the strict application of those preferences.”