6. Collateral Challenges to Icwa Determinations

• Library: The Indian Child Welfare Act Handbook: A Legal Guide to Custody and Adoption (ABA) (2018 Ed.)

A review of the cases involving the Indian Child Welfare Act (ICWA) reveals quite a divergence of opinion on the proper application of the Act. Some of the more stark examples are the courts that have carved out an Existing Indian Family Exception to the applicability of the ICWA versus the courts that have rejected the exception (see pages 63-66) and the courts that have used the "best interest of the child" standard to deny a transfer of jurisdiction to a tribal court versus those denouncing that ground (see pages 96-98).

Obviously, with so many conflicting opinions regarding the ICWA, we are reaching the point where the Supreme Court's admonishment that the ICWA, because it is a federal law, should be applied uniformly is being ignored and the application of the Act will depend in many circumstances on where a child custody proceeding is commenced.¹ The recent regulations are an effort to promote uniformity (see pages 14-16). The other remedy for this problem lies in § 1914 of the ICWA, which permits any Indian child, tribe, parent, or Indian custodian to petition a court of competent jurisdiction to invalidate a child custody proceeding if it violates §§ 1911, 1912, or 1913 of the Act.² This provision seems to grant those parties, either alone or in concert, a federal court cause of action to attack collaterally an order that violates the ICWA. The availability of that remedy has proven less widely available than anticipated, however, as discussed as follows. Of note, § 1914 is not available to a party who wishes to challenge a placement preference issue collaterally.³

It should also be noted § 1914 does not explicitly confer on the federal courts subject matter jurisdiction to review state court ICWA decisions, unlike other provisions of federal law that do.⁴ It is apparent from the legislative history that Congress did intend to allow some type of collateral review of ICWA decisions,⁵ but the language of § 1914 does not unambiguously express that federal courts would have that authority.⁶ The courts that have addressed this issue have found that jurisdiction may still lie under 28 U.S.C. § 1331, although that can be a contested issue.⁷

The lack of uniformity regarding some provisions in ICWA is mirrored by the divergent approaches of different federal circuit courts in regard to § 1914. The contrast between the Ninth Circuit and Tenth Circuit (the two circuits that have interpreted § 1914) is particularly worth noting.

The Ninth Circuit in Doe v. Mann⁸ held that § 1914 of the ICWA was an exception to the Rooker-Feldman doctrine, a rule derived from Rooker v. Fidelity Trust⁹ and District of Columbia Court of Appeals v. Feldman¹⁰ that bars federal courts, with the exception of the US Supreme Court, from essentially serving as an appellate court to review state court decisions based on federal law. The court found that § 1914, in combination with the federal jurisdiction vested by the federal question statute, 28 U.S.C. § 1331, conferred jurisdiction on a federal district court to review alleged state court violations of §§ 1911-1913 of the ICWA.¹¹ The court reached that conclusion by the process of elimination finding that Congress could not have intended the language of § 1914 referring to a "court of competent jurisdiction" as meaning a state or tribal court because tribal courts have no authority to overturn state court decisions and state courts would be barred by the doctrine of res judicata from questioning a final decision of another state court; thus, Congress must have intended some limited federal court authority.¹² After finding that it had the authority under § 1914, the court went on to conclude that the California state court properly exercised jurisdiction under § 1911 to terminate the parental rights of an Indian mother residing on an Indian reservation in California.¹³ In a later case, a federal district court in the Ninth Circuit allowed a § 1914 challenge to a foster care placement based upon a claim of ineffective counsel in the state court proceeding, citing Doe v. Mann.¹⁴

By contrast, although in a recent case the Tenth Circuit appeared to allow for the use of § 1914 to challenge the validity of a parental consent (although it ultimately ruled against the parent),¹⁵ and a federal district court in that circuit recently utilized § 1914 to invalidate a mother's consent to a termination of parental rights,¹⁶ in most cases the Tenth Circuit has found that the merits of a § 1914 claim could not be reached because of the requirement in 28 U.S.C. § 1738 that a federal court grant full faith and credit to the judgment of state courts.¹⁷ That section requires that a federal court grant preclusive effect to a state court decision, provided that there is identity of parties and the issues sought to be litigated in federal court were litigated in the state forum. In one case, the tribe was precluded from challenging the state court decision even where it had not pursued its appellate remedies in state court and instead commenced a federal court action in an attempt to challenge the state court's determination.¹⁸ Thus, it appears that a case brought in the Tenth Circuit to review a state court's application and disposition of a child custody proceeding under the ICWA may be barred by res judicata, provided that the issues were litigated in state court.¹⁹

There are several potential ways to avoid this outcome, but they are risky. One would be for a party to seek federal court intervention before the state...