The Indian Child Welfare Act: No clear Illinois guidance
The Indian Child Welfare Act (ICWA), a federal law enacted in 1978 that governs child custody proceedings, can be and is often utilized as a tool for parents to circumvent unfavorable state custody laws. ICWA allows Native American tribal governments, rather than any applicable state government or agency, to determine child-related issues pertaining to children of Native American descent. It effectively removes a state’s jurisdiction to resolve child custody issues including, adoptions, guardianships, removal, and termination of parental rights, among other things.
ICWA was designed to preserve the Native American culture and family unit by preventing Native American children from being wrongfully removed from their families. At the time the law was passed, a significant amount of Native American children were being placed in non-Native American homes, and the law sought to preserve the Native American culture. As a central concept driving the passage of the law, Congress believed that the state law standard of “best interests of the child,” used in family law proceedings, was equally as important as preserving the integrity and stability of Native American tribal nations and cultures by keeping children with their families. Further, Congress determined that the best interests of a non-Native American child were not necessarily identical to the best interests of a Native American child.
In many cases, persons of very distant Native American descent attempt to use ICWA for personal gain to circumvent state custody laws, rather than for its intended purpose. However, Congress did not intend the ICWA to authorize gamesmanship on the part of a tribe – e.g. to authorize a temporary and nonjurisdictional citizenship upon a nonconsenting person in order to invoke ICWA protections.1
In order for ICWA to apply in a given situation, a court must determine whether jurisdiction is proper. To do that, it must determine whether the child at issue is an “Indian child” as defined by ICWA, prior to its application. Section 1903(4) defines “Indian child” as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” 5 U.S. Code § 1903(4).
The problem arises when a party to a child custody proceeding asserts that a child is or is not an “Indian child.” It can be difficult to determine whether the child is, in fact, a member of an Indian tribe or eligible for membership in a tribe and the biological child of a member of a tribe, as each tribe has its own membership requirements. In some tribes, a child could be eligible for membership even if the child is several generations removed from the initial Native American lineage. For example, a person can be eligible for membership in the Cherokee Nation by tracing his or her bloodline to someone listed on the Dawes Rolls, created by Congress in 1893, regardless of the number of years or generations that have lapsed since then.
Even if a Court finds that the child involved in the litigation is an “Indian child,” as defined by ICWA, there are additional jurisdictional requirements that must be met in order for the law to apply. State courts are consistently faced with litigants asserting ICWA jurisdiction as a “trump card” to circumvent state laws. In a 2013 United States Supreme Court case, Adoptive Couple v. Baby Girl, a biological father filed suit to stay the adoption of his daughter, after he had previously consented to relinquish his parental rights to the biological mother.2 After receiving the biological father’s consent, the biological mother placed the child for adoption. When the adoptive couple began adoption proceedings, however, the biological father asserted ICWA should govern the case, alleging that he was part of the Cherokee tribe.3 The Court noted that ICWA was enacted to prevent unwarranted removal of Indian children from their Indian parents and families, and an Indian parent who forfeits custody of the child and has never had continued custody of the child in an Indian family cannot avail himself to the protections afforded under ICWA.4
In the opinion, Justice Alito stated as follows:
The Indian Child Welfare Act … would put certain vulnerable children at a great disadvantage solely because an ancestor—even a remote one—was an Indian. As the State Supreme Court read §§ 1912(d) and (f), a biological Indian father could abandon his child in utero and refuse any support for the birth mother—perhaps contributing to the mother’s decision to put the child up for adoption—and then could play his ICWA trump card at the eleventh hour to override the mother’s decision and the child’s best interests. If this were possible, many prospective adoptive parents would surely pause before adopting any child who might possibly qualify as an Indian under the ICWA. Such an interpretation would raise equal protection concerns, but the plain text of §§ 1912(f) and (d) makes clear that neither provision applies in the present context. Nor do § 1915(a)’s rebuttable adoption preferences apply when no alternative party has formally sought to adopt the child.5
State courts have been divided on the appropriate use of a judicially created exception called the “Existing Indian Family Exception,” which allows courts to decline to apply ICWA if the Native American family of the child has not had a considerable relationship with their tribe.6 This exception allows the state court to retain jurisdiction, even if a child is an “Indian child,” if a court finds that there was never an “existing family.”7 Certain courts have applied the Existing Indian Family Exception based on premise that it supports the legislative intent of Congress. ICWA’s primary purpose is to preserve Native American families, so it stands to reason that if no Indian “family” exists, ICWA should not apply.
This situation arose in a Washington case, In re Adoption of Crews, in which a mother voluntarily consented to the adoption of her child, then days later requested the return of her child.8 Month into the litigation, the Choctaw Nation of Oklahoma confirmed that the child was eligible for enrollment with the tribe and ICWA, then, governed the litigation.9 In a deposition, the mother testified that she had only researched her heritage to reinstate her parental rights in the adoption proceedings.10 The state court dismissed the mother’s petition to invalidate the termination of her parental rights because it determined that the child was not an “Indian child” under ICWA because the “Certificate of Degree of Indian Blood” had been issued to the mother.11 On appeal, the appellate court affirmed that the child did not become an “Indian child” until after the court approved termination of the mother’s rights.12
The Crews court noted that the mother and the Choctaw Nation were asking the court to apply ICWA when the child “has never been a part of an existing Indian family unit or any other Indian community.”13 Furthermore, the mother failed to allege that if she regained custody that the child would grow up in an Indian environment. In fact, the mother showed “no substantive interest in her Indian heritage in the past and has given no indication this will change in the future.”14 The Crews court found that the child was never a part of an existing Indian family unit or other Indian community.15 The court ruled that applying ICWA would not further ICWA’s purposes and it declined to apply it, despite the child being an Indian child.16 In fact, it stated, “ICWA is not applicable when an Indian child is not being removed from an Indian cultural setting, the natural parents have no substantive ties to a specific tribe, and neither the parents nor their families have resided or plan to reside within a tribal reservation.”17
Illinois courts have not conclusively ruled on the application of the Existing Indian Family Exception, and so no mandatory authority exists on the issue. However, in the case of In re: Adoption of S.S. & R.S., Justice Heiple noted in his concurrence as follows:
[T]here is no existing Indian family and the children have never been part of an Indian cultural setting or lived on a reservation, there is no justification for applying the ICWA. It is this rationale that constitutes the existing Indian family exception and Illinois should join the majority of jurisdictions that have adopted the exception and refused to apply the ICWA where children are not part of an existing Indian family.18
Additionally, in the case of In re: Cari B., Justice Hutchinson’s stated, in dicta, that, “[W]e also believe that under appropriate circumstances a court may find that no Indian family exists for the ICWA to protect.”19
ICWA was created to protect Native American children and the breakdown of their families, cultures, and societies. However, the jurisdictional and legal protections it offers in child custody proceedings that state laws do not, allow certain litigants to use ICWA as a “trump card” to avoid unfavorable state laws. While certain courts have determined that ICWA cannot apply, even in situations in which an “Indian child” is at issue, Illinois has not addressed the question. However, two recent Illinois opinions, In re: Adoption of S.S. & R.S and In re: Cari B, provide persuasive authority that the Exception should be routinely applied in Illinois. It is crucial for Native American families, attorneys, and courts to understand the nuances of ICWA and its applicability in order to navigate child custody proceedings involving children of Native American descent.
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