In Re Phoenix L., 270 Neb. 870, 708 N.w.2d 786 (2006): an Analysis of Parental Rights and the Nebraska Indian Child Welfare Act

• Publication year: 2021

86 Nebraska L. Rev. 459. In Re Phoenix L., 270 Neb. 870, 708 N.W.2d 786 (2006): An Analysis of Parental Rights and the Nebraska Indian Child Welfare Act

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Note*

In Re Phoenix L., 270 Neb. 870, 708 N.W.2d 786 (2006): An Analysis of Parental Rights and the Nebraska Indian Child Welfare Act

TABLE OF CONTENTS

I. Introduction ................................................... 459 R
II. Background ..................................................... 461 R
A. The Indian Child Welfare Act ................................ 461 R
B. The Nebraska Indian Child Welfare Act ....................... 463 R
C. The Collectivist Goals of the NICWA ......................... 464 R
D. Parental Rights and Non-Indian Children: In re
Phoenix ..................................................... 465 R
III. Analysis ....................................................... 470 R
A. Parental Rights under the ICWA .............................. 471 R
B. Does the NICWA violate fundamental rights of
Indian children? ............................................... 477 R
IV. Conclusion ..................................................... 486 R

I. INTRODUCTION

As early as 1923, the United States Supreme Court held that a parent's right to make decisions concerning the upbringing of their children is a liberty interest protected by the Constitution.(fn1) A state is not to inject itself into the private realm of family to question the ability of a parent to make decisions concerning the rearing of their children so long as the parent is fit and adequately responsible to provide

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for the care of their children.(fn2) However, if a parent is unable to take care of their child, the state has an obligation to remove that child.(fn3) In the 2006 case, In re Phoenix, Sonya, a mother of three children, had her parental rights terminated after it was shown by clear and convincing evidence that her continued custody would result in harm to the children.(fn4) On appeal, the mother challenged the termination as a violation of her Equal Protection rights. As the mother of non-Indian children, her parental rights could be terminated by a showing of clear and convincing evidence(fn5) while the Nebraska Indian Child Welfare Act ("NICWA" or "Act") requires a showing of evidence beyond a reasonable doubt before the rights of a parent of an Indian child can be terminated.(fn6) Sonya claimed that the differing standards of proof were based upon an impermissible racial classification in violation of both the Equal Protection Clause of the U.S. Constitution and the Nebraska Constitution.(fn7)

The Nebraska Supreme Court held that there was no equal protection claim since the classification of "Indian" was a political classification, not a racial one, based upon the historic sovereignty of Indian tribes.(fn8) While the Nebraska Supreme Court was correct in following a long line of historic precedent upholding legislation which singled out Indians for special treatment under the law, the Court only addressed how the NICWA impacts parents of non-Indian children in its analysis. The other side of the issue is how the NICWA impacts the constitutional rights of parents of Indian children.

This Note focuses on how the statutory provisions of the NICWA potentially infringe upon the rights of Indian children's parents. Specifically, this Note explores where parental rights currently stand in America's jurisprudence and how a potential substantive due process claim by the parent of an Indian child may be analyzed by a Nebraska court. Part II of the Note discusses the legal and historical background of the federal and Nebraska Indian Child Welfare Act and offers and an explanation of the Nebraska Supreme Court's decision in Phoenix. Part III is an analysis of how the rights of parents of Indian children differ from that of parents of non-Indian children when it comes to voluntarily placing their child up for adoption and why the restrictions on the rights of parents of Indian children violates the Due Process Clause. Part III also discusses how a Nebraska court may analyze a due process claim brought by the parents of an Indian

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child by looking at whether there is a due process right to be protected, what level of protection the parental right should receive, and what countervailing interests the State may have in upholding the NICWA. While this Note does not provide a definitive conclusion to the parental rights issues outline, hopefully the Note will encourage readers to consider the ramifications of the NICWA and will show the NICWA is actually harming those it was, in part, designed to help.

II. BACKGROUND

A. The Indian Child Welfare Act

The Indian Child Welfare Act ("ICWA" or "the Act")(fn9) was enacted on the federal level in 1978 in response to tribal outcry concerning the high rate of removal of Indian children from their homes and tribes. The separation of Indian children from their families started in the 1800s when Indian children were placed in boarding schools run by whites in an effort to assimilate them into mainstream white society.(fn10) Tribes claim that this "assimilation" policy was sustained through the 1960s and 1970s, when, prior to the passage of the ICWA, twenty-five to thirty-five percent of all Indian children were separated from their families and placed into foster care or adoptive homes through state court proceedings.(fn11) By 1978, evidence revealed that eighty-five percent of Indian children in foster care were placed in non-Indian foster care homes and ninety percent of adopted Indian children were adopted by non-Indian families.(fn12) By the 1970s, Indian children faced a disproportionate risk of being placed in foster care or adopted by persons of different ethnic backgrounds. As summarized in a House Report on the ICWA, "The wholesale separation of Indian children from their families is perhaps the most tragic and destructive aspect of American Indian life today."(fn13)

The biggest concern with the high rate of removal of Indian children from their homes was the devastating impact it could potentially have on the future of the tribe. During the congressional hearings on the ICWA, Calvin Issac, tribal chief of the Mississippi Band of Choctaw Indians, testified as follows: 462

Culturally, the chances of Indian survival are significantly reduced if our children, the only real means for the transmission of the tribal heritage, are to be raised in non-Indian homes and denied exposure to the ways of their People. Furthermore, these practices seriously undercut the tribes' ability to continue as self-governing communities. Probably in no area is it more important that tribal sovereignty be respected than in an area as socially and culturally determinative as family relationships.(fn14)

Evidence presented at the congressional hearings pointed to ignorance and hostility of state child social workers and judges towards Indian cultures and beliefs.(fn15) Particularly, "the failure of non-Indian social workers to understand the role of the extended family in Indian society" concerned tribal authorities.(fn16) State social workers might view a child as abandoned - grounds for terminating the parental rights - if the child is placed with persons outside the nuclear family. But, Indian culture considers all members of the tribe as "family" to care for the child and would claim that an Indian child can never in fact be "abandoned."(fn17) 463

Through the creation of the ICWA, Congress hoped to impart the importance of sensitivity to tribal culture on state social agencies when rendering child welfare decisions and also to respect tribal sovereignty. The ICWA declares that "there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children."(fn18) The ICWA states further that its purpose is

to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture . . . .(fn19)

To protect both Indian families and the future of the tribe, the ICWA was designed to regulate proceedings for the termination of parental rights, adoptions, and foster care placement of Indian children.(fn20) The ICWA is unique in that it places federal and tribal law into family law 463

which is traditionally an area reserved for the state governments.(fn21) The overriding goal of protecting, preserving, and advancing the integrity of America's Indian tribes is promoted by the ICWA through provisions relating to (1) jurisdiction and tribal participation in child custody proceedings,(fn22) (2) heightened standards for foster care placement and for termination of parental rights,(fn23) (3) preferences for placement of American Indian children,(fn24) and (4) support of American Indian children and family programs.(fn25)

The statutory provisions of the ICWA operate under the assumption that keeping Indian children within their native community is not only in the best interest of the child, but also compatible with the goal of protecting and promoting tribal integrity.(fn26) As one court has stated, "The Act is based on the assumption that protection of the Indian child's relationship to the tribe is in the child's best interest."(fn27) Evidence has shown that Indian children placed in non-American Indian homes have serious adjustment problems and struggle to cope in white society despite being raised in a purely white environment without exposure to any of their cultural identity.(fn28) In contrast, Indian children who grow up within their native tribe are exposed to the tribe's language, culture, economic activity, and the values and activities...