ILNews

Justices asked to revisit Indian family law

Back to TopE-mailPrintBookmark and Share

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.”
 

ADVERTISEMENT

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

  2. Catholic, Lutheran, even the Baptists nuzzling the wolf! http://www.judicialwatch.org/press-room/press-releases/judicial-watch-documents-reveal-obama-hhs-paid-baptist-children-family-services-182129786-four-months-housing-illegal-alien-children/ YET where is the Progressivist outcry? Silent. I wonder why?

  3. Thank you, Honorable Ladies, and thank you, TIL, for this interesting interview. The most interesting question was the last one, which drew the least response. Could it be that NFP stamps are a threat to the very foundation of our common law American legal tradition, a throwback to the continental system that facilitated differing standards of justice? A throwback to Star Chamber’s protection of the landed gentry? If TIL ever again interviews this same panel, I would recommend inviting one known for voicing socio-legal dissent for the masses, maybe Welch, maybe Ogden, maybe our own John Smith? As demographics shift and our social cohesion precipitously drops, a consistent judicial core will become more and more important so that Justice and Equal Protection and Due Process are yet guiding stars. If those stars fall from our collective social horizon (and can they be seen even now through the haze of NFP opinions?) then what glue other than more NFP decisions and TRO’s and executive orders -- all backed by more and more lethally armed praetorians – will prop up our government institutions? And if and when we do arrive at such an end … will any then dare call that tyranny? Or will the cost of such dissent be too high to justify?

  4. This is easily remedied, and in a fashion that every church sacrificing incense for its 501c3 status and/or graveling for government grants should have no problem with ..... just add this statue, http://commons.wikimedia.org/wiki/File:Capitoline_she-wolf_Musei_Capitolini_MC1181.jpg entitled, "Jesus and Cousin John learn to suckle sustenance from the beloved Nanny State." Heckfire, the ACLU might even help move the statue in place then. And the art will certainly reflect our modern life, given the clergy's full-bellied willingness to accede to every whim of the new caesars. If any balk, just threaten to take away their government milk … they will quiet down straightaway, I assure you. Few, if any of them, are willing to cross the ruling elite as did the real J&J

  5. Tina has left the building.

ADVERTISEMENT