State Can Terminate Indian Parental Rights, Court Says

In a significant case for Native Americans, a federal court in San Francisco ruled Tuesday that tribes cannot stop California courts from taking Indian children from their parents.

The opinion in Doe vs. Mann by a three-judge panel of the U.S. 9th Circuit Court of Appeals is an attempt by the federal courts to determine how much control tribes retain over foster care and other child welfare issues. Tribes around the country have moved to assert more authority in recent years, arguing that Indian children are better off remaining within their tribes than being placed for adoption.

They base their arguments on the Indian Child Welfare Act, passed by Congress in 1978, which gave tribes exclusive jurisdiction over custody proceedings involving children residing on reservations, “except where such jurisdiction is otherwise vested in the state under existing federal law.”

Some states, notably Wisconsin, have concluded that involuntary child custody proceedings lie outside state purview, while state courts in Washington and Idaho have deduced the opposite.

The case stems from a 2001 Superior Court decision to terminate the parental rights of a Native American mother accused by child welfare authorities of failing to protect her daughter while both resided on the Elem Indian Colony in Northern California’s Lake County. The child told her mother she had been sexually assaulted by a male cousin while staying at a relative’s home. The mother called the state Department of Social Services, and the child was placed in a foster home.

The Tribal Council later passed a resolution declaring that the child should be adopted by the mother’s brother and sister-in-law.

But the Superior Court approved an adoption petition by the girl’s foster parents.

The girl’s mother filed a complaint in federal court challenging the Superior Court’s jurisdiction.

The mother’s attorney, Jeff L. Bleich, said he had not talked with his client but was disappointed in the decision.

“We obviously disagree with the conclusion the court reached and will have to consider whether to pursue the matter with the Supreme Court,” he said. David Simmons, director of government affairs and advocacy at the National Indian Child Welfare Assn., which filed an amicus brief in the case, said the appeal underscores the fact that state court decisions in such matters are still subject to federal review and that tribes can apply for exclusive jurisdiction in individual cases under the Indian Child Welfare Act.

Tuesday’s appellate ruling hinged on an interpretation of so-called “Public Law 280,” which gives some states, including California, broad jurisdiction over criminal and some civil offenses committed in Indian territory. The judges concluded that based on this law, those civil actions include dependency court proceedings.

The panel noted that California has assumed authority over such child custody cases for years. And while a complete transition to tribal jurisdiction in these cases may be appropriate, the panel acknowledged, “we believe this is a judgment for Congress to make, not the courts.”