Author:Dow, Taylor

INTRODUCTION 1514 I. THE BIRTH OF A MILESTONE: ICWA AND THE INDIAN FAMILY 1516 A. A History of Suffering 1516 B. ICWA as Revolution: Shifting the Tide in Favor of Tribal 1520 Unification II. SECTION 1903(9) AND ADOPTIVE COUPLE 1525 A. State Court Interpretation 1526 B. Section 1903(9) Following Adoptive Couple 1528 III. BIOLOGY PLUS AND THE UNWED FATHER 1533 IV. CONSIDERING STATE LAW INCORPORATION: A THRESHOLD ISSUE 1542 A. Paternity by State 1542 B. Rejecting Wholesale Incorporation 1544 V. FASHIONING A STANDARD 1548 A. A Constitutional Imperative 1548 B. Articulating a Standard 1551 C. The Potential of a Biology Plus [section] 1903(9) 1557 CONCLUSION 1559 INTRODUCTION

Fatherhood, as a legal concept and social role, has eluded concrete legal definition. (1) In the context of the Indian Child Welfare Act of 1978 (ICWA), (2) that nebulous term has also bedeviled the unwed putative fathers to whom it applies, (3) shrouding their attempts to assert rights under ICWA in indeterminacy.

Enacted to shield American Indian families and tribes (4) from the unwarranted removal of their children, ICWA provides procedural protections for American Indian children, their parents, tribes, and Indian custodians in state court child custody proceedings. But [section] 1903(9) of the Act excludes "unwed father[s] where paternity has not been acknowledged or established" from its definition of "parent." (5) ICWA, however, does not define "acknowledged or established." (6) This has led state courts to adopt their own, often conflicting, definitions. (7) As a result, varying standards (8) for determining the paternity rights of unwed men with American Indian biological children have effectively undermined the uniformity which ICWA sought to impart in the child welfare proceedings of Indian children. (9) The resulting confusion has highlighted the need for a uniform standard. (10)

This Comment proposes a constitutional solution to defining these terms. It rejects an application of [section] 1903(9) controlled entirely by state law. Rather, it posits that where an unmarried father fails to satisfy state law paternity establishment procedures consistent with the plain terms of the Act, a court should next look to the constitutional principles and standard established by the Supreme Court in a series of cases considering the parental rights of unwed fathers. That "biology plus" line of precedent grants unwed fathers parental rights when they have developed a substantial relationship with their children. Applying that precedent in conjunction with state law permits the Constitution to serve as a backstop where an unwed father of an Indian child may have failed to satisfy state law governing paternity but nonetheless created a constitutionally cognizable (and protectable) relationship with his child.

Part I of this Comment provides a brief overview of the treatment of American Indian children by the federal and state governments which led to ICWAs enactment. (11) It also provides an overview of ICWA provisions pertinent to the determination of paternity under the Act. Next, Part II surveys state courts' conflicting rulings construing [section] 1903(9) and considers the impact that the Supreme Court's decision in Adoptive Couple v. Baby Girl should play in interpreting the provision moving forward. Part III describes the Court's seminal biology plus cases and the shift they generated in paternal rights. Part IV then considers issues arising from state law incorporation after reviewing states' methods for establishing paternity. Part V first sketches arguments in favor of employing biology plus principles, and then proceeds to describe those principles in greater detail. Finally, this Comment concludes by invoking those principles as a clarion call for their incorporation into [section] 1903(9) where unwed fathers do not satisfy state paternity requirements.


    This Part traces the plight of American Indian children prior to the enactment of ICWA. It then analyzes ICWAs provisions, considering in turn the protections they provide to Indian children, their parents, and Indian tribes and custodians in the quest to shield them from the indignities which led to the Act's creation.

    1. A History of Suffering

      Throughout modern history, Native peoples have often occupied a precarious position both within the American polity and the land which now constitutes the American union. (12) Much of that precariousness often stemmed from concerted movements, spearheaded by the federal government, towards tribal destruction and forced assimilation of tribal members. (13) At the inception of the American union, Indian tribes were viewed as separate, sovereign nations within the territorial limits of the United States. (14) Their presence, in large part, shaped the framing of the Constitution, (15) punctuated the powers of the federal government over Indian affairs, (16) and limited the role of states in subjecting recalcitrant tribes to their laws. (17) Tribes were treated like foreign nations, with treatymaking often dictating their relationships with the United States. (18)

      Those relationships, however, quickly eroded. Whereas Indian tribes initially commanded a fearful respect in the fledgling republic, (19) that respect was replaced in short order by a diminished status amidst a feverish push for westward expansion and Indian subjugation. (20) Indian tribes were demoted from fully sovereign entities to quasi-sovereign groups divested of their right to freely convey (21) and exclusively police their lands, (22) as well as any cogent claim to foreign status. (23) Though tribal members had occupied vast expanses of the territorial United States, (24) tribal property was relegated to reservations (25) and subsequently parceled off to a disastrous effect (26) in the name of dissolving tribes and integrating their members within the broader confines of states. (27)

      In the period following the Civil War, the federal government's assimilationist policies came to dominate, (28) marking an abrupt end to a treaty-based system through which tribes were primarily viewed by Congress as political sovereigns. (29) The Supreme Court often abetted these efforts through largely permissive, vacillating conceptions of the federal government's power over American Indians and the land they occupied. (30)

      A central component of that assimilationist movement was the system of boarding schools created by Congress to strip American Indian children of their cultural identities. (31) The teachings of the schools, often anathema to tribal customs and mores, (32) were meant to facilitate cultural genocide (33) and the removal of Indian children from the purview of their families and tribes. (34)

      In addition to indoctrination, the schools endeavored to pacify Indian children and their parents amidst growing hostilities between tribes and the federal government. (35) The government achieved these ends through compulsion, threatening to withhold rations from Indian families whose children did not attend school (36)--a practice sanctioned by Congress. (37)

      According to the federal government's own report, the schools were "largely ineffective" at educating Indian children. (38) But they did succeed in devastating tribes and Indian families through a "psychological assault on [Indian] identity" that pervaded "every aspect of boarding school life." (39) In addition to pillorying Indian children for their cultural heritage, the schools exposed their students to sordid living conditions (40) and violated numerous treaties through which the federal government had guaranteed tribes adequate access to schools on their reservations. (41) The plight of Indian children subjected to those schools eventually reached such a fever pitch that Congress sought to ban their forced enrollment. (42)

      During that same period, by federal mandate, Indian children were relocated to white-owned farms in the East and Midwest where they were similarly conditioned to shed their cultural identities. (43) The Indian Reorganization Act of 1934 ostensibly sought to curb the forced assimilation which had, until that time, defined the federal government's stance toward Indian existence. (44) But that was followed by a period in which further tribal destruction ensued, and formal ties with many tribes were severed as states were granted criminal jurisdiction over tribal lands for purposes of further bringing tribal members within the ambit of the American system. (45)

      With the advent of the midcentury Civil Rights Movement, federal policy toward American Indians shifted from one of forced assimilation and tribal termination to that of support for Indian self-determination. (46) In 1978, ICWA was enacted in the midst of that shift, a period in which the federal government set upon a "new orientation" towards American Indians. (47)

    2. ICWA as Revolution: Shifting the Tide in Favor of Tribal Unification

      At the time of ICWA's enactment, "the American Indian child-welfare crisis" had reached "massive proportions." (48) Surveys indicated that between twenty-five and thirty-five percent of all American Indian children had been separated from their families. (49) Eighty-five percent of Indian children removed from their homes and placed into foster care were relocated to non-Indian homes. (50) Those removals were overwhelmingly a product of cultural biases and misconceptions about American Indian family structures. (51) According to testimony Congress received prior to ICWA's enactment, the "nontribal government authorities" who extracted Indian children from their families had "no basis for intelligently evaluating the cultural and social premises underlying Indian life and childbearing." (52)

      ICWA was Congress's response to this "growing crisis with respect to the breakup of Indian families and the placement of Indian children, at an alarming rate, with non-Indian...

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