The Best interests of the Indian Child
Federal Gloss on a State Law Concept
Exercising Sovereignty Through Protection of Our Children
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The traditional "best interests of the child" standard is a bedrock of state child custody and placement law. As applied to Indian children and families, however, this standard often becomes a subjective evaluation that is imbued with the values of majority non-indian culture. Through federal legislation known as the Indian Child Welfare Act, 25 U.S.C. '' 1900-1963 (ICWA), Congress sought to remedy the injection of majority values which inject anti-Indian bias into decisions affecting Indian children. Too often, however, the mandates of ICWA have foundered on the shores of state court resistance. The best interests of the child standard is one doctrines state courts routinely use to undermine the intentions of ICWA. By narrowly interpreting ICWA's requirements and relying on these judicially created exceptions, state courts have largely succeeded in resisting the meaningful involvement of tribes in Indian child custody proceedings.
In Mahaney v. Johnston (In re Mahaney), 146
Because the case involved Indian children, the Mahaney court was also presented with the question of how ICWAs federal standards affect the state courts application of the best interests standard. As is discussed in more detail below,
Authority over Indian matters is delegated to Congress by the Indian Commerce clause of the United States Constitution.
Misunderstanding of native culture, tribal and Indian family relationships is a common thread throughout the tortured history of Native Americans interactions with white society. For centuries, Indian children were removed from their Native American homes by state courts and welfare agencies at a rate overwhelmingly disproportionate to their non‑Indian counterparts.
The Native American culture values relationships and child rearing by those outside of the nuclear family. The dynamics of extended Native American families are fundamentally misunderstood. A single Indian child may have scores of, perhaps even more than a hundred, close relatives, who are considered responsible family members. The concept of the extended family maintains its vitality and strength in the Indian community. See id. By custom and tradition, if not necessity, members of the extended family have definite responsibilities and duties to assist in child rearing . . . . Based on white middle‑class standards, social workers who witnessed young Native American children with significant independence, or who saw them living with relatives outside of the nuclear family, condemned these practices as neglectful. Prior to enactment of ICWA, Congress heard testimony regarding the detrimental effects on Indian children by placing them in non‑ Indian homes. The Senate noted that removal of Indians from Indian society has serious long‑term and short‑term effects . . . for the individual child . . . who may suffer untold social and psychological consequences.
Amanda B. Westphal, An Argument In Favor Of Abrogating The Use Of The Best interests Of The Child Standard To Circumvent The Jurisdictional Provisions Of The Indian Child Welfare Act In South Dakota, 49 S.D. L. Rev. 107, 111‑12 (2003) (citing H.R. Rep. No. 95‑1386, at 10 (1978) and S. Rep. No. 95‑597, at 43 (1977).
At the heart of ICWA is the recognition that the best interests of Native American children will be served by protecting the relationships between Indian children and their tribes. Mississippi Choctaw Indian Band v. Holyfield, 490
As stated by the Supreme Court of Arizona, [t]he Act is based on the fundamental assumption that it is in the Indian childs best interests that its relationship to the tribe be protected. In re Appeal in Pima County Juvenile Action, 130
Accordingly, some state courts have held that the traditional best interests standard should play no role in ICWA cases, particularly when determining whether good cause to deviate from ICWAs jurisdiction and placement preferences. The Supreme Court of Minnesota, for instance, has held that ICWA creates a presumption that placement of Indian children within preferences of the Act is in the best interests of Indian children. Matter of the Custody of S.E.G., 521 N.W.2d 35 (1994). The court in effect redefined the best interests standard that applies to an Indian child to focus not on subjective cultural norms but rather on fostering connections between Indian children, their families and their tribes.
The short and obvious answer is all the time, every day of their lives. As a technical legal matter, however, the best interests standard is often, and arguably improperly, injected at a number of specific stages in an ICWA case. Most often, the traditional best interests standard is relied on by state courts seeking to justify a finding of good cause to depart from ICWAs requirements.
When a foster care placements or parental rights termination proceeding is initiated in state court that involves an Indian child who resides or is domiciled off‑reservation, the Indian childs parent, custodian, or tribe may petition to transfer the proceeding to tribal court. ICWA, 25 U.S.C. ' 1911(b). There are three exceptions that allow the state court to deny a petition to transfer such a case to a tribal court. They are: (1) the tribal court declines the transfer; (2) either parent objects to the transfer; or (3) the state court finds good cause not to transfer.
Good cause is a matter of discretion of the court, and some state courts have interpreted that discretion as allowing them to consider best interests of the child when deciding whether or not to transfer a case to tribal court. For example, the Nebraska Supreme Court has held that the childs best interests overrides both tribal and family interests in transfer and thus may constitute good cause to deny transfer to tribal court. In re Interest of C.W., 239
The Washington Supreme Court took a similar position in In re Mahaney, 146
The best interests analysis as employed by Mahaney and similar decisions at the transfer stage undermines ICWA by injecting into the transfer analysis entirely irrelevant considerations. The legal question of jurisdiction does not and should not raise the discretionary, and largely value laden, question of what should ultimately happen to the child. Mississippi Band of Choctaw Indians v. Holyfield, 490
Bureau of Indian Affairs ICWA Guidelines list several factors to be considered in determining good cause, none of which implicate substantive best interests type concerns. Rather, those factors are limited to purely jurisdictional considerations, such as the availability of a tribal forum to which the case can be transferred, the stage of the proceeding, whether the Indian child is over 12 years and objects to the transfer, and whether the evidence necessary to the case could be adequately presented in tribal court without undue hardship to the parties. Bureau of Indian Affairs, Guidelines for State Courts: Indian Child Custody Proceedings, 44 Fed.
The burden of establishing good cause to deny transfer of jurisdiction lies with the party opposing transfer. This burden must be met with clear and convincing evidence that the best interests of the Indian child would be injured by transfer to tribal court.
Such practices should be discouraged. State courts should not be allowed to assume that determinations by tribal courts would not be in the best interests of the child. The Texas Court of Appeals has described such an assumption as an arrogant idea that defeats the sovereignty of Indian tribes in custody matters; the very idea for which ICWA was enacted. Yavapai‑Apache Tribe v. Mejia, 906 S.W.2d 152, 170 (Tex. Ct. App. 1995). Instead, state courts should recognize that by virtue of their greater familiarity with and proximity to tribal and reservation communities, tribal courts are often in a superior position to find placements that accommodate the best interests of the Indian child, as properly defined to incorporate the childs interest in being raised in an Indian community.
ICWA requires that the clear and convincing standard be applied to all involuntary foster care placements. Involuntary foster care placement of an Indian child cannot be ordered unless there is clear and convincing evidence that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to child.
The BIA ICWA Guidelines define clear and convincing evidence in this context:
7 Evidence that only shows the existence of community or family poverty, crowded or inadequate housing, alcohol abuse or nonconforming social behavior does not constitute clear and convincing evidence.
7 To be clear and convincing, the evidence must show the existence of particular conditions in the home that are likely to result in serious emotional or physical damage to the particular child who is the subject of the proceeding.
7 The Evidence must show the causal relationship between the conditions that exist and the damage likely to result.
The BIA ICWA Guidelines further state that to be clear and convincing, the evidence must show the existence of particular conditions in the home that are likely to result in serious emotional or physical damage to the particular child who is the subject of the proceeding. The evidence must show the causal relationship between the conditions that exist and the damage that is likely to result. 44 Fed. Reg. at 67593.
The Washington Supreme Court, however, has held that neither the Guidelines nor ICWAs statutory language supplants Washington state law requiring foster care placements be made on the basis of the best interests of the child. In re Mahaney, 146
Section 1915 of ICWA establishes foster and pre‑adoptive placement preferences. Under ICWA, foster and pre‑adoptive placement preference is given to: (i) a member of the Indian childs extended family; (ii) a foster home licensed, approved, or specified by the Indian childs tribe; (iii) an Indian foster home licensed or approved by an authorized non‑Indian licensing authority; or (iv) an institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian childs needs. 25 U.S.C. ' 1915(b). These placement preferences must be followed unless a court determines that there is good cause to deviate from the preferences.
As with transfer requests, state courts often look to the best interests standard when assessing whether good exists to deviate from the placement preferences. The issue thus framed is whether it is in the best interests of the child to follow or deviate from the preferences. However, as noted above, some courts have rejected the idea that the traditional best interests test has any proper role to play in ICWA placement decisions, given the clear preferences set forth in the federal statute. E.g. In the Matter of the Custody of S.E.G., 521 N.W.2d 35 (1994) (discussed above). These courts properly recognize that when applied to an Indian child, the best interests analysis should accommodate congressional findings that an Indian child has an undeniable and overriding interest in fostering their connection to their tribe and their native heritage.
Bonding and related child development issues also implicate judicial concerns couched in terms of the Indian childs best interests. These issues typically arise when application of ICWA would result in removal of an Indian child from a non‑Indian home to which she has developed an emotional attachment. In such situations, the relevant legal question is whether the extent of bonding and emotional attachment an Indian child has developed with their current non‑Indian caregivers constitutes good cause to deviate from ICWAs placement preferences. Here, the federal Bureau of Indian Affairs (BIA) has provided valuable guidance to state courts in the practical application of ICWA. Those Guidelines define good cause for purposes of deviating from ICWAs placement preferences. The BIA ICWA Guidelines provide that only the most extraordinary emotional needs, as established by qualified expert witness testimony, are good cause.
First, a word of evidentiary caution: expert witness evidence should be reviewed and presented with extreme care. Courts ought to assure themselves that the expert is qualified not only in child developmental psychology but also in the unique needs of Indian children and the ICWA. A qualified expert should have expertise beyond the normal social worker qualifications. In re Appeal in
Second, evidence of the emotional needs of the child must also be evaluated in light of the BIA ICWA Guidelines proscription that only the most extraordinary cases rise to the level of good cause. The ordinary bonding that one could reasonably expect to observe between a one year old and the only caregiver he has known is not extraordinary. When faced with this issue, the Montana Supreme Court observed:
The emotional attachment between a non‑Indian custodian and an Indian child should not necessarily outweigh the interests of the Tribe and the child in having that child raised in the Indian community . . . . Moreover, a conclusion that an Indian child should be placed with a non‑Indian foster parent because of a strong emotional bond is essentially a determination that it is in the childs best interests to be so placed. [W]hile the best interests of the child is an appropriate and significant factor in custody cases under state law, it is an improper test to use in ICWA cases because the ICWA expresses the presumption that it is in the Indian childs best interests to be placed in accordance with statutory preferences. To allow emotional bonding‑‑a normal and desirable outcome when, as here, a child lives with a foster family for several years to constitute an extraordinary emotional need would essentially negate the ICWA presumption.
In re C.H., 997 P.2d 776, 783‑849 (
ICWAs good cause standard requires something other than the traditional state law conception of a childs best interests, under which considerable weight is typically given to the ordinary emotional bonding between an child and their current caregiver. ICWA, by contrast, establishes that the best interests of the Indian child are complex and necessarily include consideration of the Indian childs interest in being raised in an Indian community.
State court resistance to faithful application of ICWA can be overcome. To do so may require clear and forceful advocacy, and possibly legislation, aimed at reversing recent decisions that undermine ICWAs goals. Such efforts should be directed, in part, at ensuring that the best interests standard is not applied in Indian child custody cases in a manner that undermines ICWAs purpose to promote connections between Indian children and their tribes. Rather, if applied at all, the best interest standard should be reconceptualized so as to give full consideration to the distinct cultural interests of Indian children, and to the finding of Congress that it is in the best interests of Indian children to foster their knowledge of, understanding and involvement with their native heritage and Indian communities.
Cherokee Nation v. Georgia, 30 U.S. 1 (1831)
In re Appeal in Pima County Juvenile Action, 130 Ariz. 202, 635 P.2d 187 (1981)
In re Aschauer, 93 Wash. 2d 689, 611 P.2d 1245 (1980)
In re C.H., 997 P.2d 776 (Mont. 2000)
In re Interest of C.W., 239 Neb. 817, 479 N.W.2d 105 (1992)
In the Matter of the Dependency of J.B.S., 123 Wash. 2d 1, 863 P.2d 1344 (1993)
Mahaney v. Johnston (In re Mahaney), 146 Wash. 2d 878, 51 P.3d 776 (2002)
Matter of M. E.M., 195 Mont. 329, 635 P.2d 1313 (1981)
Matter of the Custody of S.E.G., 521 N.W.2d 35 (1994)
Mississippi Choctaw Indian Band v. Holyfield, 490 U.S. 30 (1989)
Yavapai‑Apache Tribe v. Mejia, 906 S.W.2d 152 (Tex. Ct. App. 1995)
Resources and Further
Bureau of Indian Affairs, Guidelines for State Courts: Indian Child Custody Proceedings, 44 Fed.
The Indian Child Welfare Act, 25 U.S.C. '' 1901 et seq.,
Indian Child Welfare Act of 1978: Hearings Before the Subcommittee on Indian Affairs and
The Indian Child Protection & Family Violence Prevention Act, 25 U.S.C. ' 3201‑3211.
Amanda B. Westphal, An Argument In Favor Of Abrogating The Use Of The Best Interests Of The Child Standard To Circumvent The Jurisdictional Provisions Of The Indian Child Welfare Act In South Dakota, 49 S.D. L. Rev. 107 (2003)
 The BIA ICWA Guidelines provide that:
[A] determination of good cause not to follow the order of preference set out above shall be based on one or more of the following considerations:
(i) The request of the biological parents or the child when the child is of sufficient age;
(ii) The extraordinary physical or emotional needs of the child as established by testimony of a qualified expert witness.
(iii) The unavailability of suitable families . . . .