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Back to Doe v. Mann
State Can Terminate Indian Parental Rights, Court Says
* California courts have jurisdiction in Native American child custody
cases, U.S. panel rules.
July 20, 2005
By Carla Rivera, Los Angeles Times Staff Writer
In a significant case for Native Americans, a federal court in San Francisco
ruled Tuesday that tribes cannot stop California courts from taking Indian
children from their parents.
The opinion in Doe vs. Mann by a three-judge panel of the U.S. 9th Circuit
Court of Appeals is an attempt by the federal courts to determine how much
control tribes retain over foster care and other child welfare issues.
Tribes around the country have moved to assert more authority in recent
years, arguing that Indian children are better off remaining within their
tribes than being placed for adoption.
They base their arguments on the Indian Child Welfare Act, passed by
Congress in 1978, which gave tribes exclusive jurisdiction over custody
proceedings involving children residing on reservations, "except where such
jurisdiction is otherwise vested in the state under existing federal law."
Some states, notably Wisconsin, have concluded that involuntary child
custody proceedings lie outside state purview, while state courts in
Washington and Idaho have deduced the opposite.
The case stems from a 2001 Superior Court decision to terminate the parental
rights of a Native American mother accused by child welfare authorities of
failing to protect her daughter while both resided on the Elem Indian Colony
in Northern California's Lake County. The child told her mother she had been
sexually assaulted by a male cousin while staying at a relative's home. The
mother called the state Department of Social Services, and the child was
placed in a foster home.
The Tribal Council later passed a resolution declaring that the child should
be adopted by the mother's brother and sister-in-law.
But the Superior Court approved an adoption petition by the girl's foster
parents.
The girl's mother filed a complaint in federal court challenging the
Superior Court's jurisdiction.
The mother's attorney, Jeff L. Bleich, said he had not talked with his
client but was disappointed in the decision.
"We obviously disagree with the conclusion the court reached and will have
to consider whether to pursue the matter with the Supreme Court," he said.
David Simmons, director of government affairs and advocacy at the National
Indian Child Welfare Assn., which filed an amicus brief in the case, said
the appeal underscores the fact that state court decisions in such matters
are still subject to federal review and that tribes can apply for exclusive
jurisdiction in individual cases under the Indian Child Welfare Act.
Tuesday's appellate ruling hinged on an interpretation of so-called "Public
Law 280," which gives some states, including California, broad jurisdiction
over criminal and some civil offenses committed in Indian territory. The
judges concluded that based on this law, those civil actions include
dependency court proceedings.
The panel noted that California has assumed authority over such child
custody cases for years. And while a complete transition to tribal
jurisdiction in these cases may be appropriate, the panel acknowledged, "we
believe this is a judgment for Congress to make, not the courts."
- END -
________________________________________________________________
United Nations Convention on the Rights of the Child
November 20, 1989
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