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Barbara Ann Atwood

excerpted from: Flashpoints under the Indian Child Welfare Act: Toward a New Understanding of State Court Resistance, 51 Emory Law Journal 587-676, 587-596, 673-676 (Spring 2002)


The Indian Child Welfare Act ("ICWA" or "the Act"), a unique statute in the American legal landscape, was an effort by Congress to reverse the "wholesale separation of Indian children from their families" and to restore tribal authority over the welfare of Indian children. By some accounts the Act has been the victim of entrenched state court hostility ever since its enactment more than two decades ago. Reported state court cases--often emerging from widely publicized disputes --have involved children who are caught in emotional battles that pit tribes against non-Indian prospective adoptive parents. Although the Act has greatly strengthened tribal power in child welfare matters and has curbed the most blatant abuses among state authorities that were occurring prior to its enactment, the very visible "hard cases" have polarized debates about social policies underlying the Act.

This Article examines certain flashpoints of controversy under the ICWA in an effort to understand the forces driving the state court jurisprudence. By identifying the themes that shape state court dispute resolution across a variety of factual contexts under the ICWA, this Article attempts to develop a more nuanced understanding of reactions of state court judges to this unique statute. I examine ICWA cases from a perspective of constructive skepticism about overarching narratives and categories that essentialize individuals or groups. Applying insights from postmodernism, I suggest that the "grand narrative" underlying the ICWA is stretched thin in cases involving children at the edges of the Act's intended scope.

With respect to children whose "Indianness" is one of several potential identities, some state courts have found the Act inapplicable under the "existing Indian family" exception. By resorting to that judge-made exception, courts avoid the procedural and substantive mandates of the Act, often perceived as absolute and inflexible. A close examination of case law reveals that fear of categorical imperatives in interpreting the ICWA drives these judges to find ways of escaping application of the Act. On the other hand, many courts do apply the ICWA at the dispositional phase and decide the future placement of Indian children. Reported cases show that some judges view the ICWA placement decision as a choice between mutually exclusive alternatives and mutually exclusive identities. To the extent the ICWA is interpreted to compel decisionmakers to select among irreconcilable interests, the tensions engendered by the Act will only increase. Conversely, if the Act is construed to allow for flexibility and the exercise of discretion at the dispositional phase, the Act can accommodate the multiple interests at stake in the hard case.

Most of the scholarship on the ICWA attacks state court resistance as unreasonably hostile to the statutory goals at best and anti-Indian at worst. For example, Professor Jeanne Carriere has contributed a thoughtful exploration of ICWA's "good cause" exception to the statutory provision for transfer of child custody proceedings to tribal court. In her survey of state court cases, she identifies various ways in which state judges manipulate statutory standards to deny transfer and maintain authority over disputes involving Indian children. She decries the "inherent biases" and "cultural hostility" of state courts and urges the elimination of the good cause exception altogether because it can be so easily manipulated by state judges to thwart tribal jurisdiction. While Carriere's analysis of the ICWA is compelling, her portrayal of state court adjudication does not directly address the incommensurability of values inherent in the ICWA's overarching goals or the underlying themes that animate much of the ICWA jurisprudence.

Similarly, Professor Christine Metteer has argued forcefully that state courts have defied the plain command of the ICWA because of their deep distrust of tribal courts and their entrenched resistance to the concept of tribal sovereignty. Metteer has catalogued what she characterizes as "abuses of the ICWA by state courts over the last two decades," including expansive interpretations of the Act's good cause exceptions, the judge-made "existing Indian family" exception, and varying interpretations of the Act's notice provisions. In strongly endorsing proposed amendments to the ICWA to resolve various ambiguities, Metteer contends that state courts have persisted in defying the spirit of the Act. In Metteer's analysis, state courts appear as jurisdiction-grabbing entities that will exploit every ambiguity in the Act to retain power over proceedings involving Indian children and to thwart the placement preferences of the Act. These authors as well as others suggest that state judges are characterized by entrenched Anglo- American bias and wooden resistance to cultural difference.

In contrast, a few scholars have gone against the tide and criticized the ICWA itself. This literature faults the Act as an infringement of individual rights (of parents and children) and contends that the Act wrongly subordinates the best interests of Indian children to tribal interests. The exercise of collective tribal power against the individual, exemplified in such cases as Mississippi Band of Choctaw Indians v. Holyfield, has fueled opposition to the Act. Grounded in the principles of liberalism and individual autonomy, some scholars question the view that tribal power trumps parental choice in, for example, voluntary adoptions of children domiciled on a reservation. Much of the critical literature bears a strident anti-tribe tone. Christine Bakeis complains that

[t]he ICWA permits tribes and courts to blatantly disregard a natural parent's deliberate and thoughtful decision to have their child adopted by a specific family of their choice. Even more frightening is the fact that under the ICWA courts and tribes can disregard a parent's conscious decision not to have their child raised in the same social setting to which they belong. In essence, these scholars portray the statute as a tool of power-hungry Indian tribes who are insensitive to the true welfare of children.

Another potential critique of the ICWA comes from those who resist race-matching in adoption. Elizabeth Bartholet, a leading proponent of interracial adoption, has argued that efforts to place racial minority children with members of the same racial minority work to the ultimate disadvantage of children by delaying permanent placements. Randall Kennedy, for somewhat different reasons, contends that race-matching is, at core, invidious race discrimination.

This Article offers a different perspective on the roles of states and tribes in disputes arising under the ICWA. I identify two separate themes that have surfaced across the recurring flashpoints of controversy under the ICWA. First, state judges have often exhibited frustration, implicitly or explicitly, with the ICWA's approach to Indian identity. As multiracial categories become more common in law, the Act's definition of "Indian child" may run against the understanding that identity is a fluid, contingent construct. When a state court judge is faced with feuding parties advancing disparate characterizations of a child's identity, the judge may well resist cloaking the child of mixed heritage with one monolithic classification, especially if the judge perceives the ICWA as a set of statutory absolutes. When a child of multiple heritages fits within the ICWA's definition of "Indian child," state courts may develop a cynicism toward the underlying premises of the Act. Not surprisingly, the case law reveals efforts by state courts in such circumstances to devise theories to avoid application of the Act.

A second fundamental theme in state court jurisprudence is the assumption that a child who has bonded to a primary caregiver within a stable placement will suffer harm if the child's custodial arrangement is disrupted. According to social science research, bonding and attachment between a child and her caregiver are critical elements in child development, and a break in continuity of caregiving places the child at risk for serious emotional harm. A corresponding body of law--both statutory and judge-made--increasingly recognizes the significance of continuity of care in children's lives. Much of the case law in this area embraces the concept of the "psychological parent," the one who on a day-to-day basis fulfills the child's physical needs as well as emotional needs for a parent and for whom the child develops a deep attachment. Where the ICWA applies to an Indian child who has been in a stable placement for a significant period of time, state courts often search for a basis to avoid the Act's substantive and jurisdictional provisions as a means of preserving the child's immediate sense of home and belonging.

These themes, which I refer to as the identity question and the continuity principle, inform much of the state court adjudication under the ICWA involving children on the periphery of congressional concern and lie at the core of contemporary resistance to the ICWA. ThisArticle suggests that those questions of identity and continuity are legitimate considerations in adjudicating child welfare cases and that the ICWA can be read to encompass these concerns.

Part I of this Article explores various expressions of postmodern thought and highlights strands that can be drawn on to illuminate decisionmaking under the ICWA. Postmodern skepticism toward grand narratives and broad categories seems particularly useful in light of the ICWA's pivotal reliance on the category of "Indian child." Part II describes the ICWA's core features and the ways in which the Act mediates between the collective will of the tribe and the voice of the individual. Part III discusses certain flashpoints of controversy that continue to surface in state court interpretations of the Act--the judge-made "existing Indian family exception" to the Act's applicability and the good cause exception to the Act's placement preferences. In examining the hard cases under the ICWA, I highlight ways in which the state courts, while wrestling with questions of a child's personal and cultural identity, often characterize the tension as a clash of incommensurable values. Part IV explores in more depth the underlying narratives that have shaped much of the thinking about the ICWA today and the tendency of some courts to essentialize the Indian children that appear before them. Part IV also proposes means by which a child's multiple identities and interests might be accommodated under the Act. Part V summarizes proposed revisions of the ICWA introduced in the 107th Congress. As explained there, some provisions offer reasonable statutory improvements while others would be misguided and might intensify the conflicts that already exist between states and tribes regarding Indian child welfare.

This Article is an effort to move beyond the cynicism of the opposing camps to a recognition of the core themes manifest in the state court jurisprudence under the ICWA. The grand narrative underlying the Act, while born of a grim history of governmental destruction of Indian tribes, families, and culture, sometimes has little direct correlation with the actual circumstances of individual Indian children before state judges. In any child welfare case, it is essential that the decisionmaker be able to exercise discretion in arriving at a disposition that is most likely to protect the future welfare of the unique child. On the one hand, courts that rely on the existing Indian family exception to avoid the Act altogether are wrongly ignoring the value to the child and to the child's tribe of the child's Native heritage. On the other hand, courts that read the Act too rigidly at the dispositional stage rob the statute of needed flexibility and may ultimately lead to its demise. A construction of the Act that permits a multiplicity of voices to be heard at the placement stage of Indian child custody proceedings in state court, I argue, will better serve the interests of children while still safeguarding the federal policy of promoting tribal self-determination and tribal survival.

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The Indian Child Welfare Act is an emphatic and justified response to the past destructive practices of state and federal governments vis-�-vis Indian families and tribes. The Act has enhanced tribal sovereignty in a realm of core tribal concern--the care and custody of children--by greatly strengthening the tribal role in child welfare and by promoting Indian children's cultural ties with their tribes. Nevertheless, the Act has generated state court resistance that warrants understanding rather than condemnation. Ultimately, by exploring the tensions in values that shape much of the state court resistance to the Act, we can better protect the welfare of the complex, real children at the center of these controversies. To paraphrase Tina Rosenberg, laws that try to do justice on a grand scale risk doing injustice on an individual scale; our goal should not be Justice but justice case-by-case.

Postmodern philosophy points out the basic importance of difference and the injustice of imposing universal standards on groups and individuals who do not share a common belief in the legitimacy of the standard. The ICWA is a unique and laudable statutory effort to restore to American Indian tribes a measure of cultural integrity, to protect Indian children as Indians, and to promote tribal survival, and in that sense it implements a postmodern insight. The flashpoints of the ICWA, however, reveal tensions concerning the Act's approach to Indian identity and tribal power, especially in cases involving children at the outer limits of congressional concern who have only attenuated links to their tribal community. As shown in this Article, the flashpoints are intensified because of the bonding and emotional attachments that often develop between Indian children and their non-Indian caregivers. In cases such as California's In re Santos Y. and Montana's In re C.H., courts struggle with the competing goals of protecting the immediate emotional interest of the individual child in remaining in a de facto family, promoting the child's presumptive interest in belonging to an Indian community, and advancing the Indian tribe's vital interest in maintaining its existence. At the core of many of the hard cases is the courts' profound unease with the consequences of classifying a child as an "Indian child" to the exclusion of other identities. The power and durability of these themes is clear as they have continued to surface during the two decades since the Act's passage.

Judge-made exceptions to the ICWA have emerged in part because the grand narrative of the ICWA does not fit comfortably onto the circumstances of every Indian child and because children's identities are fluid and complex. Consequently, state courts charged with determining an Indian child's welfare are often confronted with seemingly incommensurable values. As courts grapple with the tensions inherent in the ICWA, the placement decision under � 1915 becomes the fulcrum around which conflicting interests turn.

In applying the existing Indian family exception, state courts not only violate the clear language and intent of the Act, but they also strip the child of her Indian identity. By sweeping the Act off the table, these state courts eliminate the voice of the tribe and denigrate the value to the child of cultural affiliation with the tribe. The exception, which erases the meaning of the child's tribal heritage altogether, removes an essential voice from the state court's ultimate determination of the best placement for the child. Conversely, state courts that interpret the placement preferences of � 1915 as tantamount to an irrebuttable presumption without regard to the circumstances of the individual child likewise strip the child of a part of her identity--the sense of herself, for example, as a member of a functioning non-Indian family. Such an approach can edge into a view of individual Indian children as "every Indian child"--whose tribal heritage is the sole determinant of future placements.

A postmodern skepticism about categorical approaches to the protection of Indian children's welfare can strengthen the Act. Irreconcilable themes, or differends, may require a new genre of discourse, as Lyotard would contend. The judicial act of placing a dependent child, Indian or otherwise, is surely one of the most difficult tasks trial judges face. Developing a new language for resolving the hard cases that arise under the ICWA may mean the authorization of new, more fluid conceptions of adoption and guardianship, as suggested by the 2001 Amendments to the ICWA. Increased federal funding, also currently before Congress, would significantly strengthen the ability of tribes to operate their child welfare programs, to develop family-preservation systems, and to recruit prospective foster and adoptive homes from among their membership.

State courts should ensure that all Indian children who come within the Act are given the full benefit of the Act's jurisdictional, procedural, and substantive rights. The Act's goal of promoting tribal self-determination will remain elusive unless courts ensure that the tribe's perspective on the welfare of the child before the court is heard. Where the Act is followed, the state judge at the dispositional stage can render a decision informed by the tribe's understanding of the particular case, giving due regard to the statutory placement preferences and the tribe's vital interest in survival. In this Article, I have suggested one means of protecting the statutory placement preferences: requiring that any alternative disposition be justified by clear and convincing evidence. At the same time, I have argued for a broader understanding of good cause than that envisioned by the BIA Guidelines and several state courts.

A state court's final resolution of an Indian child's placement must allow for a consideration of the child's individual circumstances. In performing that critical function, state judges should be free to consider a child's immediate interests in continuity of care as well as the child's interest in embracing her identify as a member of a tribe. State courts that recognize an Indian child's multiple potential allegiances and interests reduce the risk of essentializing the child either as every Indian child or as the non-Indian subject. They thus can give the Act a contingent and individualized reading--a messier, less ordered approach than some would like but one that comports better with the diverse and complicated human condition.