Who is an 'Indian child'?

A juvenile court assumes jurisdiction over two young children who have been removed from their mother's custody, placing them with their maternal grandmother. At a status conference, their biological father reveals that both he and the children are eligible for membership in the Cherokee Nation and that he plans to take steps to enroll. The children are not enrolled members, nor are they clearly "Indian children" under the definition used in the Indian Child Welfare Act (ICWA), which mentions only current tribe members and their membership-eligible children. Should the juvenile court consider the fact that the children, while not yet enrolled tribe members, may soon attain that status?

California's Rule of Court 5.482 says yes. When a tribe indicates that a child is eligible for tribal membership, the court must "proceed as if the child is an Indian child" and direct the relevant agency to "provide active efforts" to enroll the children in the tribe. In the case described above, In re Abbigail A., 2014 DJDAR 12584 (Sept. 10, 2014), the trial court ordered the Sacramento County Department of Health and Human Services to attempt to enroll the children, and announced that it would meanwhile treat ICWA as provisionally applicable.

While all of this accords with Rule 5.482, the 3rd District Court of Appeal reversed the decision to apply ICWA prior to the children's formal enrollment. It held that the "active efforts" rule was invalid because it impermissibly expanded the definition of "Indian child" under the terms of ICWA. The California Supreme Court will now decide whether that judgment was correct. S220187.

If the facts bring to mind those of the controversial U.S. Supreme Court case Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013), that shouldn't be a surprise. Although the two cases deal with disparate aspects of ICWA, both involve circumstances in which a seemingly routine juvenile proceeding had to shift course when a tribal connection was discovered. In such situations, courts are often tempted to scale back ICWA or to read it as narrowly as possible. Everyone wants children, particularly those in vulnerable situations, to find secure and loving homes quickly, and courts sometimes fear that tribal affiliations will throw a wrench in the works.

Yet while Rule 5.482 should be revised to reduce the uncertainty that plagued the Abbigail A. case, the appellate court's reasoning is nonetheless misconceived. The court rested its decision on an alleged inconsistency between the rule and ICWA (with the twist that it did so as a matter of state law, since the California Legislature has adopted ICWA's provisions). In its analysis, the court suggested that Congress deliberately excluded eligible but nonenrolled children from ICWA's scope because their inclusion would constitute a racial classification, triggering equal protection concerns. This view misapprehends equal protection's application in the tribal context. Morton v. Mancari, 417 U.S. 535 (1974), the U.S. Supreme Court's nuanced consideration of this issue, is often reduced to its epigrammatic statement - found only in a footnote - that tribe-based classifications are, in some sense, political rather than racial. But because ancestry is generally a requirement for tribal membership, "racial" and "political" categories can be difficult to disentangle, and Mancari does not suggest that Congress must do so. Rather, federal legislation affecting tribes is constitutional if it is "tied rationally to ... Congress's unique obligation toward the Indians" - a relatively lenient standard that recognizes the latitude Congress needs to negotiate the complex and tangled federal-tribal relationship.

Congress enacted ICWA just four years after Mancari was decided, in furtherance of this "unique obligation." It was responding to a widespread and heart-wrenching problem: The zeal state officials had often displayed for removing tribal children from their families, history and communities. The evidence suggests that Congress intended the term "Indian child" as a flexible category, to be considered from the tribal perspective. ICWA's definition of "Indian child," for example, deliberately uses the term "member" rather than "enrolled member." Likewise, federal guidelines make the tribe's determination of membership status conclusive. This view reflects on-the-ground realities. Enrollment is primarily a federal bureaucratic convenience; for tribes, it often does not delineate fully the boundaries of the tribal community.

Rule 5.482 is consistent with this understanding of tribal membership. ICWA's definition of "Indian child" was intended to honor the primacy of tribal ties, not to focus on formalities. (Exemplifying this view, a 2011 California case, In re Jack C., 192 Cal. App. 4th 967 (2011), treated several eligible but nonenrolled siblings as subject to ICWA where the tribe had indicated that it regarded them as "Indian children" whose ultimate enrollment was essentially guaranteed.) Even apart from ICWA, tribal membership can bring many tangible and intangible benefits. It is thus a reasonable for the Legislature to judge that enrollment is in children's best interests.

Although Rule 5.482 is consistent with the federal definition of "Indian child," it is in some respects badly drafted. It might be improved by requiring courts, in keeping with Jack C., to consider tribal input as to whether enrollment is merely a technicality or whether significant hurdles stand in the way. Such information could enable courts to make an earlier determination about ICWA's applicability, facilitating efficient resolution of juvenile cases. The agency's "efforts to enroll" could also have a clearly specified end point, ensuring that children are not in long-term limbo.

In addition, the term "active efforts" to describe enrollment proceedings is a poor turn of phrase. Both ICWA and a separate subsection of the California rules, Rule 5.484, use the words "active efforts" in a different context, referring to the active efforts courts must take to prevent the "breakup of the Indian family." Compounding the potential confusion, the enrollment rule cross-references Rule 5.484, suggesting that these distinct obligations are intertwined. This should be corrected. California Indian Legal Services, an amicus in the case, suggests substituting "reasonable efforts" or simply "efforts." That is an excellent idea.

But tweaks to Rule 5.482 should come through the ordinary rulemaking process, not through judicial action. Of ICWA's many aspects, some are widely accepted, while others are controversial. All of them, however, represent federal law and policy. A previous effort at judicial revision of ICWA - the court-created "existing Indian family" exception - has met widespread criticism and been rejected by the California Legislature. The California Supreme Court should not go down that road.