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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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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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