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Justices asked to revisit Indian family law

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At least one Indiana Court of Appeals judge believes the state’s highest court should revisit how it applies a three-decade old statute to tribal Indian family adoption issues inside Indiana.

Ruling today on the case of In Re The Adoption of D.C. v. J.C. and A.C., No. 49A02-0909-CV-862, the panel unanimously affirmed a Marion County probate judge’s decision to allow a stepfather to adopt an 11-year-old boy who’d lived with him since birth.

The case presented a family law issue about the Indian Child Welfare Act of 1978, 25 U.S.C. § 1901-1963 (1982), which is aimed at protecting the interests of tribal children and promoting stability and security to those tribes and families by minimizing their removal from those environments.

Stepfather J.C. had petitioned Marion Superior Court to adopt D.C., who’d been living with him since birth in 1998 after the mother S.C. had separated from his biological father. Mother and stepfather had custody of the child until the mother’s death in 2005. A few months before that, stepfather had obtained S.C.’s notarized consent to adopt D.C. Stepfather later remarried and his new wife joined the petition, arguing that biological father’s consent wasn’t needed under Indiana state law where they lived because the man hadn’t communicated or provided support significantly through the years.

But biological father contested D.C.’s adoption under ICWA, arguing the law should be applied because he was a member of the Sitka Tribe of Alaska, an older son now living with him had enrolled in that tribe, and D.C. would be eligible for enrollment at some point. Another elder child was originally part of this case, but at age 15 that child went to live with biological father and was removed as part of the petition.

Marion Superior Judge Tanya Walton Pratt found ICWA to be inapplicable because there was no “removal” from custody within an Indian family as contemplated by the law, and that the Indiana Supreme Court has found it applies when a tribal Indian child is being removed from an existing Indian environment.

The Court of Appeals found that it was in the child’s best interests to stay with stepfather in Indiana, since he’d cared for D.C. without interruption for the 11 years before this adoption matter. In addition, the court noted that biological father had not objected to custody and had extremely limited contact while accumulating tens of thousands of dollars in unpaid child support payments. The appellate judges also found biological father’s adoption consent wasn’t required.

Significantly, though, the appellate court declined to accept biological father’s invitation to go against 1988 Indiana Supreme Court precedent in analyzing and evaluating the ICWA application. More than 20 years ago in Matter of Adoption of T.R.M., 525 N.E. 2d 298, 303 (Ind. 1988), Indiana joined other states in how it applies that act to Indian children being removed from their existing environments.

While agreeing with the majority, Judge Michael Barnes wrote a concurring opinion that invited the state’s justices to do exactly that and join more recent national trends in applying the law. In the past decade courts, including those in Kansas and Oklahoma, have overruled the previous ruling that they and Indiana had originally based their applications on.

“In fact, the validity of the existing Indian family doctrine has repeatedly been called into question, and many courts have now abandoned the doctrine,” Judge Barnes wrote. “We do not have the authority to overrule our supreme court, and we must apply the existing Indian family doctrine in this case. However, given the controversy surrounding the existing Indian family doctrine, I encourage our supreme court to revisit its applicability in Indiana.”
 

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  2. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  3. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  4. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  5. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

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