Indian Child Welfare Act in Texas – An Overview

By Paul Shunatona and Tricia Tingle
Published in TEXAS BAR JOURNAL, APRIL 1995
According to the 1990 Census, Texas has the eighth largest Indian population in the United States.  Because the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.) applies in "child custody proceedings"1 involving an "Indian child" living within and outside the boundaries of Indian Country, it is time all Texas Family Law practitioners become familiar with the ICWA.  The ICWA preempts state law.  If the ICWA was raised, and should have been applied in a "child custody proceeding" and was not, the custody order may be vacated and declared invalid.  This tragedy causes harm to the child and threatens the bond the child has established with his or her caretakers.  Bonding is now recognized as an important aspect in child custody cases and recent highly publicized cases have shown the heartbreak and turmoil that results when a child is taken from a home he or she knows and is returned to natural parents after months and years of separation.  Unfortunately, the potential for such a situation exists in every involuntary termination when the court knows or should know that an Indian child is involved in a "child custody proceedings" It also exists in every voluntary termination involving any Indian parent or Indian custodian.2  There is no time limitation barring a petition to a competent court to invalidate a foster care placement or termination of parental rights for any violation of any provision of the ICWA, The potential for disastrous consequences implores that the mandates of the ICWA be adhered to strictly.

Sovereignty
To gain a genuine understanding of the ICWA, one must recognize the unique relationship between the government of the United States and the governments of the indigenous American Indian people.3 Concepts of tribal sovereignty and tribal governments were discussed by the United States Supreme Court as early as 1830.4  Since 1830, the Supreme Court has followed a consistent course of upholding Indian sovereignty and the ability of tribes to exercise their powers of self-government.5  The principle that an Indian tribe is a political body with the powers of self-government was clearly enunciated by Chief Justice Marshall in the case of Worcester v. Georgia, 31 U.S. 515 (1832). The United States, through treaty, agreement, and statute, has recognized Indian tribes as sovereign nations and dealt with them in much the same way as they would a foreign country.6 Indian tribal sovereignty is recognized in the ICWA declaration of policy, which states that the best interest of an Indian child is protected by promoting the stability of tribes and families in order to promote preservation of Indian culture.  By protecting the children of Indian tribes from actual and cultural genocide, Congress sought to ensure the continuing viability of the respective sovereign nations.

Indians, as citizens of a sovereign nation, are accorded political status by the United States,7 and laws granting Indians preferential treatment are not evaluated by a traditional Equal Protection analysis.8  The political status preference becomes apparent in the application of the ICWA.  The ICWA preempts state law applicable to "child custody proceedings" involving an Indian child, and it establishes an Indian preference.9

Application of the Act
The 1CWA applies to children who either are tribal members or are eligible to become tribal members because their biological parents are tribal members.10 The ICWA also applies when Indian parents11 or Indian custodians12  are involved in a "child custody proceeding."13  Anytime a fact situation exists that could qualify as a "child custody proceeding" an inquiry must be made regarding the American Indian ancestry of the children and the biological parents.  Professional liability considerations alone should provide the competent practitioner with the necessary impetus to determine Indian ancestry.  Determination of Indian status is very simple.  Make an inquiry of both biological parents to determine if they are citizens (members) of a tribe or tribes: if neither are citizens of any tribe, the ICWA will not apply.14  If either parent is enrolled in a tribe, then an inquiry should be made as to whether the child is enrolled or is eligible for enrollment.  In many instances, a child may have a tribally enrolled parent and yet still not be eligible for enrollment in the parent's tribe because of insufficient blood quantum.  This is because self-government and sovereignty allows each tribe to determine the blood quantum required for membership.  Do not hesitate to make this inquiry.  Asking an Indian person to produce proof of citizenship to a tribe should not cause offense.  Tribal citizenship may be held in addition to U.S. citizenship.  Proof usually can be established by documentation of tribal enrollment.  Do not confuse a Certificate of Degree of Indian Blood (CDIB) card, issued by the U.S. Department of Interior, Bureau of Indian Affairs, with evidence of tribal enrollment.  They are not the same.  The ICWA requires tribal membership or eligibility of membership for children, not a CDIB card.15

Because many tribes have different blood quantum requirements for citizenship (membership), do not restrict your inquiry to those persons who "look like Indians." Persons who are Indian are frequently mistaken as being Hispanic, Polynesian, or Asian.  There are also many African-Americans, Anglos, and Hispanics who are members or are eligible for membership in tribes.  The inquiry, of course, should focus on tribal citizenship (membership) or eligibility for tribal membership.

Jurisdiction
The relationship between sovereign governments raises jurisdictional issues.  Pursuant to the ICWA, a "child custody proceeding" involving an Indian child may be pursued in either a state court or a tribal court if the child lives outside Indian Country.  However, if a child does live in Indian Country then the tribal court has exclusive jurisdiction.16  A child custody proceeding under the ICWA in a state court is subject to a mandatory transfer to a tribal court, which may be out of state, assuming three conditions exist: (i) there is no good cause opposing transfer; (ii) there is no objection by either parent; and (iii) the tribal court accepts transfer of the case.

A petition to transfer may be made by either parent, an Indian custodian, or the tribe.17  As a practical matter, it is unlikely that a case will be transferred to a tribal court absent agreement by the parents.  It is also worth noting that full faith and credit shall be given to the "acts, records, and judicial proceedings" of the tribal court proceedings so that a tribal court declination to accept the case would be dispositive and vest jurisdiction in the state court.18  Additionally, full faith and credit must be given to a child custody decree of a tribal court.  There are more than 500 federally recognized tribes in the United States and consequently the tribal courts must be given full faith and credit for their judgments in this regard. 19

Emergency Removal
Under the Texas Family Code, emergency removal of a child from his or her family is obtained by a sworn petition by a government entity that a child is in immediate danger and that there is no time for an adversarial hearing.20  However, the guidelines of state courts published in the Federal Register require a more specific affidavit for the emergency removal of an Indian child.21  If an agency removes an Indian child who is enrolled or eligible for enrollment in a tribe and does not follow the specified procedures, the emergency procedure is invalid and the child may be returned immediately to the Indian parents.  In an emergency removal under the ICWA, an agency must inquire among other things as to the tribal affiliation of the child.  It must also provide a statement of specific actions taken in the removal affidavit to assist the Indian parents or guardian so that the child may be safely returned home.22  Absent extraordinary circumstances, the temporary emergency custody shall not be continued more than 90 days without determination by clear and convincing evidence and the testimony of at least one qualified expert that custody by the parent is likely to result in serious emotional or physical damage to the child. 23

Terminations
In an involuntary proceeding for termination of parental fights in a state court where the court knows or has reason to know that an Indian child is involved, the party seeking foster care placement must give notice to the parent or Indian custodian and the child's tribe, of the proceeding and of their fight to intervene.  In the event that identity or location of same cannot be determined, notice shall be given to the secretary of the interior, who then has 15 days after receipt to provide notice to same.  Parents and custodians have 10 days from receipt of notice to prepare for the hearing and an additional 20 days upon request.24  In cases of indigency, counsel shall be appointed, even in states where there is no provision for same.25

In a voluntary termination, no consent is valid if given prior to or within 10 days after the child is born.  Thereafter, any parent or Indian custodian consent must be in writing and recorded before a court of competent jurisdiction with a judge's certificate that the terms were fully understood.  In addition, the certification of the court must state that the explanation was made in whatever language was understood.26 Voluntary foster care or consent to placement in foster care may be withdrawn at any time.27  In addition, withdrawal of consent may be made by the parent anytime prior to the final decree of adoption.28  After final decree, consent may be withdrawn and the decree vacated by collateral attack upon a showing that consent was obtained by fraud or duress.29  Finally, there is no statute of limitations for invalidation of a court's order or violations of the Act at sections 1911, 1912, and 1913, which govern termination and adoption.30

Evidentiary Standards
When seeking to place an Indian child in foster care or terminate parental rights, the evidentiary proof required is mandated by federal law. The guidelines provide that the placement of an Indian child into foster care requires clear and convincing evidence that the child should not be placed with the biological parents.31 Clear and convincing evidence does not include evidence which shows the existence of poverty, crowded conditions, non-conforming social behavior, or "unfit" parents.  There must also be expert witness testimony demonstrating the child's continued custody with his or her parents or Indian custodian is likely to result in serious emotional or physical damage to the child.32  The expert witness should have some knowledge of the customs and cultural standards of the tribe of, the child.33  In the instance where the parental rights of the Indian parents are being involuntarily terminated, the court must find by proof beyond a reasonable doubt that the continued custody of the child with the Indian parents or Indian custodian is likely to result in serious emotional or physical damage to the child.34
Best Interest of the Child
The standard for the best interest of an Indian child as set forth in the ICWA and interpreted in Holyfield are integrally related to the future interest and survival of Indian tribes.  The ICWA ensures that culture remains a primary focus for a child's future.  The ICWA's best interest standard is drastically different than the best interest test set forth in Holley v. Adams, 544 S.W. 2nd 367, 372 (Tex. 1976).  The best interest of the Indian child is intertwined with the interest of the child's tribe and recognizes the importance of the extended family in Indian culture and society.  The determination of the best interest of the Indian child must include consideration of tribal family practices.35

Placement Preferences Under the ICWA
When an Indian child is removed and placed in foster care the ICWA requires that the child be placed in his or her extended family, if possible.  If there is not an extended family member, the child must be placed with a foster home approved or specified by the Indian child's tribe.  The next possible placement is to put the Indian child in an Indian foster home licensed or approved by a non-Indian licensing authority.  Finally, an Indian child may be placed in a children's institution approved by the tribe or one that is tribally operated to meet an Indian child's needs.36

If an Indian child is adopted, there is a placement preference order which requires that the child be adopted by a member of the child's extended family.  If there is not a member of the child's extended family, the child may then be adopted by a member of the Indian child's tribe.  And finally, the Indian child may be adopted by other Indian families.37

Conclusion
The provisions of the ICWA are quite different from the Texas Family Code and require that the practitioner follow different guidelines and procedures to obtain a valid court order.  The Texas Indian Bar Association and the American Indian Law Section of the State Bar of Texas are resources for the practitioner who has questions concerning this act.  All family law practitioners are welcomed to this area of litigation.

Footnotes

  1) "Child Custody Proceedings" encompass foster care placement, termination of parental rights, pre-adoptive placement, or adoptive placement. 25 U.S.C. 1903(l).

  2) The United States Supreme Court recognized that the bonding of an Indian child to non-Indian adoptive parents would cause pain upon  separation in Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 104 L.Ed. 29, 109 S.Ct. 1597 (1989).  The court deferred to the tribal court to determine whether the bonding of the children to the adoptive parents would out-weigh the interest of the tribe and children who would be raised as a part of the tribal community.  The court noted that if the ICWA had been followed at the beginning of the case, no such bonding would have occurred and that to rule on custody based on bonding would automatically reward those who maintained custody during litigation.

  3) The authors recognize in recent years that the term "Native American" has often been used interchangeably with American Indian.  The term "Indian" is used throughout this paper because most Indians refer to themselves as Indians and because the word is a legal term.

  4) Kickingbird, Kirke. An Overview of United States Federal Indian Law and Policy, presented at the Indian Child Welfare Act Conference, Dallas 1993. (Professor Kickingbird is the director of the Native American Legal Resource Center at Oklahoma City University School of Law. This paragraph is a paraphrase of Kickingbird's paper.)

  5) Id.

  6) Worcester v. Georgia, 31 U.S. 515, 559-61(1832); United States v. Wheeler, 435 U.S. 313 (1978).

  7) Worcester v. Georgia, 31 U.S. 515 (1832).

  8) Morton v. Mancari, 417 U.S. 535, 41 L. Ed. 2nd 90, 94 S.Ct. 2474 (1974).

  9) 25 U.S.C. 1915 (a).

10) 25 U.S.C. 1903 (4).  Please note that the Indian child must also be unmarried and under age 18.

11) 25 U.S.C. 1903 (3).

12) 25 U.S.C. 1903 (6).

13) 25 U.S.C. 1903 (1).

14) 25 U.S.C. 1903 (3).

15) The determination of tribal membership is made by the tribes themselves.  Many tribes require a demonstrable blood quantum, frequently, of one-quarter of ancestry in a particular tribe.  However, do not assume that to always be the case.  The Choctaw, Creek, Chickasaw, Cherokee, and Seminole Nations of Oklahoma only require proof of direct descent from any person named in the rolls made pursuant to the Dawes Act of 1907.  In contrast, the Choctaw Nation of Mississippi requires a one-half blood quantum to be eligible for membership.  It is imperative that the tribe be contacted and asked the required blood quantum for citizenship if there is a question.

16) 25 U.S.C. 1911 (a).

17) 25 U.S.C. 1911 (b).

18) 25 U.S.C. 1911 (d).  This is significant because tribal court decisions are usually accorded mere comity.

19) Id.

20) Texas Family Code, Section 17.02.

21) Federal Register, Vol. 44, No. 228, Nov. 26, 1979, page 67589.

22) Id.

23) Id. at 67589-67590.

24) 25 U.S.C. 1912 (a).

25) Id.

26) 25 U.S.C. 1913 (a).

27) 25 U.S.C. 1913 (b).

28) 25 U.S.C. 1913 (c).

29) 25 U.S.C. 1913 (d).

30) 25 U.S.C. 1914.

31) Id.

32) Id. at 67592-67593.

33) Id. at 67593.

34) 25 U.S.C. 1912 (f).

35) 25 U.S.C. 1902.

36) 25 U.S.C. 1915 (b).

37) 25 U.S.C. 1915 (a).

About the Authors
Tricia A. Tingle is a trial attorney with the Department of Justice, Civil Rights Division, Voting Section in Washington, D.C. She is past president of the Native American Bar Association and the Texas Indian Bar Association.  She formerly practiced family law in San Marcos and is an enrolled member of the Choctaw Tribe.

Paul R. Shunatona is a sole practitioner in Dallas.  He is president-elect of the Texas Indian Bar Association and is a council member of the State Bar American Indian Law Section.  His practice includes criminal defense, personal liability, and family law.  He is an enrolled member of the Muscogee (Creek) Nation of Oklahoma.