In The Interest Of A.w. And S.w., Minor Children, Woodbury County Attorney And A.w. And S.w., Minor Children Vs. Iowa

IN THE SUPREME COURT OF IOWA

No. 60 / 06-1074

Filed November 30, 2007

IN THE INTEREST OF A.W. and S.W.,

Minor Children,

WOODBURY COUNTY ATTORNEY

and A.W. and S.W., MINOR CHILDREN,

Appellants,

vs.

IOWA ATTORNEY GENERAL

and WINNEBAGO TRIBE OF NEBRASKA,

Appellees.

Appeal from the Iowa District Court for Woodbury County, Brian L.

Michaelson, Associate Juvenile Judge.

The Woodbury County Attorney and the guardian ad litem for A.W.

and S.W. appeal from a juvenile court order authorizing the Winnebago

Tribe of Nebraska to intervene in a child-in-need-of-assistance proceeding.

REVERSED AND REMANDED.

Patrick Jennings, County Attorney, and David A. Dawson, Assistant

County Attorney, for appellant Woodbury County Attorney.

Michelle M. Dreibelbis of the Juvenile Law Center, Sioux City, for

appellants minor children.

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Thomas J. Miller, Attorney General, and Bruce Kempkes, Assistant

Attorney General, for appellee Iowa Attorney General.

Martha M. McMinn, Sioux City, for appellee the Winnebago Tribe of

Nebraska.

3

HECHT, Justice.

The juvenile court concluded A.W. and S.W. are “Indian children” as

defined in the Iowa Indian Child Welfare Act, Iowa Code chapter 232B

(2005) (Iowa ICWA), and granted the Winnebago Tribe of Nebraska’s petition

to intervene in a child-in-need-of-assistance (CINA) proceeding. On appeal,

the county attorney and the guardian ad litem for the children whose

interests are at issue in this case challenge the Winnebago Tribe’s status as

the “Indian child’s tribe” and the constitutionality of the Iowa ICWA. We

grant the Iowa Attorney General’s motion to dismiss the county attorney’s

appeal, and we conclude the Iowa ICWA definition of “Indian child” violates

the Equal Protection Clause of the Fourteenth Amendment of the United

States Constitution. Accordingly, we reverse the juvenile court’s ruling

granting the Tribe’s petition to intervene.

I. Factual and Procedural Background.

To place into context the unique issues involved in this case, a brief

discussion of the historical background of the federal ICWA1 is useful.

Studies in the late 1960s and early 1970s showed “25 to 35% of all Indian

children had been separated from their families and placed in adoptive

families, foster care, and institutions.” Mississippi Band of Choctaw Indians

v. Holyfield, 490 U.S. 30, 32, 109 S. Ct. 1597, 1600, 104 L. Ed. 2d 29, 36

(1989) (citing Indian Child Welfare Program Hearings before the

Subcommittee on Indian Affairs of the Senate Committee on Interior and

Insular Affairs, 93d Cong., 2d Sess., 3 (statement of William Byler)

(hereinafter 1974 Hearings); H.R. Rep. No. 95-1386, p. 9 (1978)). Testimony

taken during the congressional hearings that led to the federal ICWA

legislation suggested “[t]he adoption rate of Indian children was eight times

125 U.S.C. §§ 1901–1963 (2003).

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that of non-Indian children.” Id. (citing 1974 Hearings at 75-83). In his

1978 testimony before the Subcommittee on Indian Affairs and Public

Lands of the House Committee on Interior and Insular Affairs, Chief Calvin

Isaac of the Mississippi Band of Choctaw Indians asserted the drain of

Indian children from reservations was due to “nontribal government

authorities who have no basis for intelligently evaluating the cultural and

social premises underlying Indian home life and childrearing.” Id. (citing

Hearings on S. 1214 before the Subcommittee on Indian Affairs and Public

Lands of the House Committee on Interior and Insular Affairs, 95th Cong.,

2d Sess. (testimony of Calvin Isaac)). Chief Isaac also observed in his

hearing testimony that “[m]any of the individuals who decide the fate of

[native] children are at best ignorant of [Indian] cultural values, and at

worst contemptful of the Indian way and convinced that removal, usually to

a non-Indian household or institution, can only benefit an Indian child.” Id.

Congress enacted the federal ICWA in 1978 in response to its

rising concern in the mid-1970s over the consequences to Indian

children, Indian families, and Indian tribes of abusive child welfare

practices that resulted in the separation of large numbers of Indian

children from their families and tribes through adoption or foster care

placement, usually in non-Indian homes.

Id. at 32, 109 S. Ct. at 1600, 104 L. Ed. 2d at 36. Responding to an “Indian

child welfare crisis . . . of massive proportions,” H.R. Rep. No. 95-1386, p. 9,

Congress incorporated the following findings in the statute:

(1) that clause 3, section 8, article I of the United States

Constitution provides that “The Congress shall have Power * * *

To regulate Commerce * * * with Indian tribes” and, through

this and other constitutional authority, Congress has plenary

power over Indian affairs;

(2) that Congress, through statutes, treaties, and the general

course of dealing with Indian tribes, has assumed the

responsibility for the protection and preservation of Indian

tribes and their resources;

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(3) that there is no resource that is more vital to the continued

existence and integrity of Indian tribes than their children and

that the United States has a direct interest, as trustee, in

protecting Indian children who are members of or are eligible

for membership in an Indian tribe;

(4) that an alarmingly high percentage of Indian families are

broken up by the removal, often unwarranted, of their children

from them by nontribal public and private agencies and that an

alarmingly high percentage of such children are placed in non-

Indian foster and adoptive homes and institutions; and

(5) that the States, exercising their recognized jurisdiction over

Indian child custody proceedings through administrative and

judicial bodies, have often failed to recognize the essential

tribal relations of Indian people and the cultural and social

standards prevailing in Indian communities and families.

25 U.S.C. § 1901 (2003). The legislation declared it federal policy 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 . . . .

Id. § 1902. In defining the reach of the federal legislation, Congress defined

an “Indian child” as “any unmarried person who is under age eighteen and

is either (a) a member of an Indian tribe or (b) eligible for membership in an

Indian tribe and is the biological child of a member of an Indian tribe.” Id.

§ 1903(4).

In furtherance of the federal policy to protect Indian children and

their relationships with the tribes with which they might be affiliated, the

federal ICWA requires the court to notify an Indian child’s tribe of any child

custody proceeding involving the child, and provides for three types of tribal

involvement.2 Id. § 1912(a). First, tribes have exclusive jurisdiction over

child custody proceedings involving Indian children domiciled on the tribe’s

reservation. Id. § 1911(a). Second, state courts are required, unless good

2The “Indian child’s tribe” is “the Indian tribe in which an Indian child is a member

or eligible for membership.” 25 U.S.C. § 1903(5)(a).

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cause otherwise dictates, to transfer to tribal court any proceeding for the

foster care placement of, or termination of parental rights to, an Indian

child not domiciled on the reservation. Id. § 1911(b). Finally, the Indian

child’s custodian and the Indian child’s tribe have the right to intervene at

any point in a state court foster care or termination proceeding. Id.

§ 1911(c).

The federal ICWA also provides substantive protections for Indian

children, parents, and Indian custodians, including placement preferences

for the families and tribes of Indian children involved in child custody

proceedings. See id. § 1915. It also allows states to apply their own

“standard[s] of protection to the rights of the parent or Indian custodian of

an Indian child” if they are higher than the federal ICWA standards. Id.

§ 1921.

In 2003, the Iowa General Assembly enacted the Iowa ICWA to “clarify

state policies and procedures regarding implementation” of the federal

ICWA. Iowa Code § 232B.2 (2007).3 The Iowa ICWA and the federal ICWA

are not completely coterminous, however, as the Iowa ICWA provides for

several areas of greater protection to Indian families and tribes. One

instance in which the Iowa ICWA purports to expand upon the protections

afforded by the federal ICWA is in the definition of “Indian child.”4 As we

3The federal ICWA does not mandate the states adopt complementary ICWA

legislation. Iowa is one of the few states to adopt comprehensive complementary ICWA

statutes, which in some areas duplicate, but in other areas expand upon, the protections

granted by the federal ICWA. See Iowa Code §§ 232B.1–232B.14; Minn. Stat. §§ 260.751–

260.835 (2007); Neb. Rev. Stat. §§ 43-1501 to 43-1516 (2007); Okla. Stat. tit. 10, §§ 40.1–

40.9 (2007).

4Iowa and Washington are the only states with broader definitions of “Indian child”

than the federal ICWA. See Wash. Rev. Code § 13.70.150(1) (2007) (permitting

appointment of an Indian child welfare advisory committee “[i]f a case involves an Indian

child, as defined by 25 U.S.C. § 1903 or by department rule or policy” (emphasis added));

Wash. Admin. Code r. 388-70-091 (2007) (defining “Indian,” in rules for foster care

planning for Indian children, as including “[a]n unenrolled Indian: A person considered to

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have already noted, the federal ICWA defines an “Indian child” as “any

unmarried person who is under age eighteen and is either (a) a member of

an Indian tribe or (b) eligible for membership in an Indian tribe and is the

biological child of a member of an Indian tribe.” 25 U.S.C. § 1903(4). The

Iowa ICWA defines an “Indian child” as “an unmarried Indian person who is

under eighteen years of age or a child who is under eighteen years of age

that an Indian tribe identifies as a child of the tribe’s community.” Iowa Code

§ 232B.3(6) (emphasis added). Thus, unlike the federal statute, section

232B.3(6) purports to include within the definition of “Indian child” children

without regard to whether they are members of a tribe nor eligible for

membership.

The Winnebago Tribe of Nebraska is a federally recognized Indian

Tribe located in northeastern Nebraska. Children of tribe members are

eligible for membership provided they “possess at least one-fourth degree

Winnebago Indian blood.”5 To assist the Tribe’s ICWA specialists in

deciding whether a child is properly identified as a “child of the tribe’s

community” and therefore an “Indian child” under the Iowa ICWA, the

Winnebago Tribal Council adopted resolution #04-26 on January 21, 2004.

This resolution states: “[F]or purposes of determining the applicability of the

________________________________

be an Indian by a federally or nonfederally recognized Indian tribe or urban Indian/Alaskan

native community organization). Although rule 388-70-091 has been a part of the

Washington Administrative Code since 1976, it does not appear it has been subjected to a

constitutional challenge.

The Oregon statutory definition of “Indian child” appears to allow for an expansion

of the federal definition; however, it has been construed as coextensive with the federal

definition. State ex rel. State Office for Services to Children & Families v. Klamath Tribe, 11

P.3d 701, 706 (Or. Ct. App. 2000) (construing Ore. Rev. Stat. § 419A.004(13), which

includes in the definition of “Indian child” a child “covered by the terms of an Indian Child

Welfare Act agreement between Oregon and an Indian tribe,” to encompass only those

children covered by the federal ICWA).

5Winnebago Tribe of Nebraska Constitution, Art. II, sec. 1(c).

8

Iowa ICWA, any child of an enrolled Winnebago tribal member shall be

included as a child of the Winnebago tribal community.”

A.W. and S.W. were born in Sioux City, and continue to reside there.

There is no evidence in the record tending to prove the children have ever

lived on the Winnebago Reservation. They are the biological children of

Tina, an enrolled Winnebago Tribe member who possesses one-fourth

degree Winnebago blood. Anthony, the father of A.W. and S.W, is

Caucasian. A.W. and S.W. therefore possess one-eighth degree Winnebago

blood. Because they have less than one-fourth degree Winnebago blood,

A.W. and S.W. are neither enrolled nor eligible to enroll in the Winnebago

Tribe. Under the tribe’s resolution #04-26, however, A.W. and S.W. are

“children of the Winnebago tribal community” for purposes of the Iowa

ICWA because they are the children of a member.

A history of substance abuse by Tina and Anthony led the State to

temporarily remove A.W. and S.W. from their home. A petition alleging the

children were in need of assistance was filed in the juvenile court. The

Winnebago Tribe filed a motion to intervene in the proceeding, alleging, in

relevant part, A.W. and S.W. are Indian children under the Iowa ICWA. See

Iowa Code § 232B.3(6) (defining “Indian child”). The Woodbury County

Attorney and the children’s guardian ad litem resisted the Tribe’s motion to

intervene, contending: (1) the Iowa ICWA is unconstitutional because it

violates the Indian Commerce, Supremacy, and Due Process Clauses of the

United States Constitution and the Equal Protection Clauses of both the

United States and Iowa Constitutions; (2) the Winnebago Tribe’s resolution

#04-26 is not entitled to full faith and credit; and (3) the Winnebago Tribe is

not the “Indian child’s tribe,” as defined in Iowa Code section 232B.3(8).

The department of human services did not object to the Tribe’s motion to

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intervene or the applicability of the Iowa ICWA to A.W. and S.W. The

juvenile court adjudicated A.W. and S.W. CINA under sections 232.2(6)(b),

(c)(2), (n) and (o) and scheduled a hearing on the Winnebago Tribe’s motion

to intervene.

The juvenile court held a hearing on the motion to intervene on

November 21, 2005. Because the Winnebago tribe did not appear at this

hearing or present evidence, the juvenile court held the Iowa ICWA was

inapplicable. The court also ordered that custody of the children should

remain with the department of human services for placement in foster or

relative care.

Less than five months after the hearing on the motion to intervene,

Anthony and Tina had stopped working toward substance abuse recovery

and reunification with A.W. and S.W., and the juvenile court ordered the

Woodbury County Attorney to file a termination of parental rights petition.

The Woodbury County Attorney filed a petition seeking termination of

Anthony and Tina’s parental rights with regard to both children on April 7,

2006. Notice of the filing of the petition was served on the Winnebago Tribe.

Thereafter, the juvenile court held another hearing on the Winnebago

Tribe’s motion to intervene. The court concluded the Iowa ICWA definition

of “Indian child” was neither vague nor overbroad and that it did not violate

the Supremacy, Indian Commerce, Equal Protection or Due Process

Clauses. The court also concluded: (1) the Winnebago Tribe’s resolution

#04-26 is entitled to full faith and credit, (2) the Iowa ICWA is applicable

because A.W. and S.W. are “Indian children” under section 232B.3(6), and

(3) the Winnebago Tribe may intervene as the “Indian child’s tribe” under

section 232B.5(14).

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The guardian ad litem and the Woodbury County Attorney, claiming

to act for himself and the State of Iowa, appealed from the ruling on the

motion to intervene.6 The Iowa Attorney General moved to dismiss the

appeals, contending: (1) the guardian ad litem and the Woodbury County

Attorney are “prevailing parties” not entitled to appeal the intervention

ruling; (2) a county attorney does not have a right to file an appeal or

appear in the appellate courts in CINA proceedings without the consent of

the attorney general; (3) a county attorney does not have authority to attack

the constitutionality of state statutes, such as the Iowa ICWA. We

previously rejected the attorney general’s “prevailing party” argument by

order and directed the submission of the other two arguments with this

appeal. See Iowa R. App. P. 6.22(4) (“Resisted motions will be ruled on by

the appropriate appellate court or justice or judge thereof after the

expiration of at least seven days from the serving of the resistance, unless

such court, justice or judge orders a different time for submission of the

motion.”).

II. Motion to Dismiss.

Before reaching the merits of the appellants’ arguments, we address

the attorney general’s motion to dismiss the Woodbury County Attorney

from this appeal. The attorney general contends the Woodbury County

Attorney may not represent the State of Iowa in the appellate courts without

authorization from the attorney general. He further argues a county

attorney has no standing to challenge the constitutionality of a state

statute. The county attorney contends he is a party in interest in this

6In a later ruling, the juvenile court terminated Tina and Anthony’s parental rights

pursuant to sections 232.116(1)(b), (d), (e) and (l) (both children), (f) (S.W. only), and (h)

(A.W. only). The merits of that ruling are not at issue in this appeal. We granted leave for

interlocutory appeal on the issue of the applicability of the Iowa ICWA to these children.

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appeal; and, in the alternative, he urges us to consider the arguments in his

brief as though he were in the status of amicus curiae.

A. Representation of the State in CINA Appeals. The offices of

attorney general and county attorney are creatures of statute, and the

respective authority of each person holding them is detailed in the Iowa

Code. See Cosson v. Bradshaw, 160 Iowa 296, 301, 141 N.W. 1062, 1063–

64 (1913) (“The duties and powers of the Attorney General are defined by

statute, and we take it that the Legislature has given to him by the statute

all the powers that in their judgment he ought to be permitted to exercise,

and they imposed upon him all the duties which, in their judgment, should

be imposed upon him as such officer.”). Iowa Code chapter 13 defines the

duties and powers of the attorney general:

It shall be the duty of the attorney general, except as

otherwise provided by law, to:

(1) Prosecute and defend all causes in the appellate

courts in which the state is a party or interested.

(2) Prosecute and defend in any other court or

tribunal, all actions and proceedings, civil or

criminal, in which the state may be a party or

interested, when, in the attorney general’s

judgment, the interest of the state requires such

action, or when requested to do so by the

governor, executive council, or general assembly.

....

(8) Supervise county attorneys in all matters

pertaining to the duties of their offices . . . .

Iowa Code § 13.2. In contrast, it is the county attorney’s duty to “[a]ppear

for the state and the county in all cases and proceedings in the courts of the

county to which the state or the county is a party . . . and appear in the

appellate courts in all cases in which the county is a party . . . .” Iowa Code

§ 331.756(2) (emphasis added). Thus, the Iowa Code, as a general

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proposition, designates the county attorney as the representative of the

State of Iowa in the district courts, and the attorney general as the State’s

representative in the appellate courts. Absent a specific statutory directive

to the contrary, county attorneys’ appearances in the appellate courts are

limited to representation of the interests of the county.

The county attorney contends the legislature intended a different

arrangement in CINA cases. Iowa Code section 232.90(1) states “[t]he

county attorney shall represent the state in proceedings arising from a

[CINA petition] and shall present evidence in support of the petition.” The

county attorney argues this statute is a specific grant of authority to county

attorneys to represent the State in both the juvenile and the appellate

courts. We disagree. Section 232.90(1) does not mention appeals in CINA

cases, and there is nothing in the statute suggesting a legislative intent to

alter the standard division of authority between the attorney general and

county attorneys. In fact, the only specific duty of county attorneys

mentioned in the statute is the duty to “present evidence in support of the

petition,” which is a reference only to representation of the State’s interests

in the juvenile court.7 We believe if the General Assembly had intended to

grant county attorneys broader authority to represent the State’s interests

in the appellate courts in cases in which counties are not parties to the

litigation, it would have done so explicitly in section 331.756(2) or chapter

232.

7Even in the juvenile court, the county attorney does not have the exclusive

authority to represent the interests of the State. Section 232.90(2) indicates that in

instances of “disagreement between the department [of human services] and the county

attorney regarding the appropriate action to be taken [in matters pending before the

juvenile court], the department may request to be represented by the attorney general in

place of the county attorney.” The statute thus recognizes that, as they are representatives

of the same interests, when conflicts arise between the attorney general and a county

attorney regarding the prosecution of a CINA matter, the attorney general shall represent

the State’s interest even in the juvenile court.

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The county attorney, relying on Motor Club of Iowa v. Department of

Transportation, 251 N.W.2d 510 (Iowa 1977), next argues his right of free

access to the courts will be abridged, and important interests, issues, and

arguments will be forsaken, if he is not permitted to represent the State’s

interests in CINA appeals. In Motor Club, the Iowa Department of

Transportation (IDOT) adopted a rule establishing a sixty-five-foot length

limitation for trucks. The rule was invalidated by the district court because

preconditions to the implementation of the rule were not met. 251 N.W.2d

at 512. After an appeal was filed, a majority of the seven IDOT

commissioners no longer favored the length limitation, and the IDOT thus

sought to dismiss the appeal and abide by the district court’s decision. The

attorney general refused, claiming the State of Iowa was the real party in

interest and that [the attorney general] is a constitutional officer, free to

prosecute and defend any case in which the State is a party or interested.”

Id. at 513. The attorney general also asserted “he possesse[d] complete

dominion over all litigation in which he appear[ed] in the interest of the

State.” Id.

In response to the attorney general’s “complete dominion” argument,

we first noted the general rule that an attorney for a private litigant under

the same circumstances would be required to dismiss the appeal. Id. After

acknowledging the attorney general has only the powers granted to him by

statute, we found the statutory grants of authority to the attorney general

essentially created a normal attorney-client relationship between the

attorney general and the IDOT. Thus, the attorney general did not have

“complete dominion” over the litigation, and in the eventuality of a change

in department position during the litigation, “had no power to impose his

will on the department.” Id. at 516.

14

Unlike the relationship between the IDOT and the attorney general at

issue in Motor Club, the county attorney and attorney general do not stand

in an “attorney-client” relationship. The department of human services is

the county attorney’s “client” in CINA cases. Iowa Code § 232.90(2) (“The

county attorney shall represent the department in proceedings arising

under this division.”). In this case, the department did not wish to assail

the constitutionality of the Iowa ICWA, and it raised no objection to

intervention by the Winnebago Tribe. Under Motor Club and section

232.90(2), the county attorney had a duty to advocate the department’s

position or advise the department to request the attorney general to replace

the county attorney as the department’s representative. The county

attorney did not have the right to “assert his [independent] vision of the

state interest.” Motor Club, 251 N.W.2d at 514.

We also find dubious the county attorney’s assertion that, absent his

participation in CINA appeals, important interests, issues, and arguments

will never be raised. This contention is blunted where, as in this case, the

positions of the county attorney and guardian ad litem are parallel. Both

the county attorney and the guardian ad litem incorporate by reference the

other’s arguments. We believe the guardian ad litem is fully capable of

representing the children’s interests in this case, just as the attorney

general is fully capable of representing the State’s interests.

The county attorney further contends his obligations to implement

Iowa Code chapters 232 and 232B necessarily bestow upon him the status

of a “party in interest” in CINA cases. He cites In re K.C., 660 N.W.2d 29

(Iowa 2003) as authority for the proposition that a county attorney may

appeal from a juvenile court order directing the filing of a petition for

termination of parental rights. In that case, the guardian ad litem of the

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affected children, the children’s parents, and the county attorney who

opposed the termination of the parents’ rights filed petitions for

interlocutory appeal. We granted the petitions. On appeal, the county

attorney contended, inter alia, she could not ethically comply with the

juvenile court’s order because the evidence would not support termination

of the parents’ rights. The State joined the guardian ad litem, the parents,

and the county attorney in asserting the juvenile court should not have

directed the county attorney to initiate termination proceedings. It is

immediately apparent that In re K.C. is distinguishable from the case now

before the court in important particulars. The State did not challenge the

legality of the county attorney’s status as a party in interest in In re K.C.,

but it has in this case. See Coralville Hotel Assocs., L.C. v. City of Coralville,

684 N.W.2d 245, 249 (Iowa 2004) (noting cases are generally decided only

on issues raised, argued, and briefed by the parties (citing Sager v. Farm

Bureau Mut. Ins. Co., 680 N.W.2d 8, 14 (Iowa 2004))). In re K.C. is therefore

inapposite, and the county attorney’s reliance on it is misplaced.

Thus, the State of Iowa, appearing in the juvenile court through the

department of human services, is a “party in interest” in CINA cases. Iowa

Code §§ 217.1, 232.90(1), (2); Iowa R. Civ. P. 1.201 (“Every action must be

prosecuted in the name of the real party in interest.”). County attorneys,

who bear a statutory duty to represent the interests of the State in the

juvenile court, do not appear as parties in interest in such cases in the

juvenile court or on appeal, just as they do not enjoy the status of parties in

many other types of cases within their statutory responsibility. See

generally Iowa Code § 331.756.

We next consider the Woodbury County Attorney’s request to appear

as an amicus curiae in this appeal. Iowa Rule of Appellate Procedure 6.18

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details the standards and procedure for filing amicus curiae briefs. Iowa R.

App. P. 6.18(1) (“A brief of an amicus curiae may be served and filed only by

leave of the appropriate appellate court granted on motion served on all

parties, at the request of the appropriate appellate court, or when

accompanied by the written consent of all parties. The brief may be

conditionally served and filed with a motion for leave. A motion for leave

shall identify the interest of the applicant and shall state the reasons a brief

of an amicus curiae is desirable.”); Iowa R. App. P. 6.18(3) (“A brief of an

amicus curiae shall not exceed 25 pages in length and shall have a green

cover.”). The county attorney has not complied with the procedural or form

requirements of rule 6.18(1) or (3), and we therefore deny his request to

appear in this case as an amicus curiae.

Despite the fact the county attorney is neither a party nor amicus

curiae, we nonetheless will consider on the merits the arguments contained

in the county attorney’s brief under the special circumstances of this case.

The parties proceeded through briefing and oral argument in this matter as

if the county attorney were a proper appellant. Before both the juvenile

court and this court, the guardian ad litem has joined in and adopted the

county attorney’s arguments as a matter of convenience and efficiency.

Iowa R. App. P. 6.14(10) (“In cases involving more than one appellant or

appellee, including cases consolidated for purposes of the appeal, any

number of either may join in a single brief, and any appellant or appellee

may adopt by reference any part of the brief of another.”). We therefore

consider the arguments made in the county attorney’s brief as if they had

been made by the guardian ad litem, whose brief incorporated them.

B. County Attorney’s Challenge to the Constitutionality of a

State Statute. Our conclusion that the county attorney is not a proper

17

party in this appeal renders moot the question of whether the county

attorney may argue against the constitutionality of the Iowa ICWA in this

case. While we typically do not decide moot issues, we have recognized an

exception to this general rule. In re S.P., 719 N.W.2d 535, 537 (Iowa 2006).

In determining whether to decide a moot issue, we consider:

(1) the private or public nature of the issue; (2) the desirability

of an authoritative adjudication to guide public officials in their

future conduct; (3) the likelihood of the recurrence of the issue;

and (4) the likelihood the issue will recur yet evade appellate

review.

Id. (citing In re T.S., 705 N.W.2d 498, 502 (Iowa 2005)). The last factor is

perhaps the most important factor, because “[i]f a matter will likely be

mooted before reaching an appellate court, the issue will never be

addressed.” State v. Hernandez-Lopez, 639 N.W.2d 226, 234 (Iowa 2002).

The standing of a county attorney, while representing the State in

litigation, to challenge the constitutionality of state statutes is an issue of

public importance. We have previously concluded neither the attorney

general nor a county may challenge the constitutionality of a state statute

while acting as a litigant. See Iowa Auto Dealers Ass’n v. Iowa State Appeal

Bd., 420 N.W.2d 460, 462 (Iowa 1988) (attorney general); Polk County v.

Iowa State Appeal Bd., 330 N.W.2d 267, 271–72 (Iowa 1983) (county). We

have not had occasion, however, to decide the question whether a county

attorney has authority to challenge a state statute while representing the

State as a litigant in the juvenile court.8 We believe this issue is likely to

recur in ICWA cases, and our decision in this case will therefore provide

needed guidance to county attorneys throughout the state as to their duties

8This is not the first juvenile court case in which a county attorney has raised a

constitutional challenge against a State statute. See, e.g., In re M.T., 714 N.W.2d 278, 281

(Iowa 2006) (declining to address the issue because the court lacked jurisdiction to hear the

appeal); In re K.C., 660 N.W.2d 29 (Iowa 2003) (addressing issues raised on appeal by a

county attorney in a case in which his authority to raise the issues was not challenged).

18

and authority as counsel for the State in such cases. And because we have

decided a county attorney has no authority to represent the State in appeals

from the juvenile court, the question will, if not decided here, continue to

evade appellate court review because it will never “last long enough for

complete judicial review.” Super Tire Eng’g Co. v. McCorkle, 417 U.S. 115,

126, 94 S. Ct. 1694, 1700, 40 L. Ed. 2d 1, 10 (1974). Therefore, we exercise

our discretion to address a county attorney’s standing to challenge the

constitutionality of a state statute while representing the State in litigation.

As discussed in the previous section of this opinion, the county

attorney and attorney general have identical interests while acting as

representatives of the State of Iowa. Given the attorney general’s statutory

duty as counsel to the General Assembly, we have stated it is inappropriate

for the attorney general to appear “as a litigant challenging an Iowa statute.”

Iowa Auto Dealers Ass’n, 420 N.W.2d at 462; State ex rel. Fletcher v.

Executive Council, 207 Iowa 923, 925, 223 N.W. 737, 738 (1929) (noting a

call by the General Assembly to the attorney general to test the

constitutionality of a legislative act “put him in a position which [was]

repugnant to his other official duties [as legal advisor to the General

Assembly]”). While a county attorney does not have a similar statutory duty

to provide counsel to the General Assembly, we see no meaningful

distinction between his position and that of the attorney general while

representing the State’s interests in litigated matters. It would be illogical

to allow a constitutional challenge of a statute by a county attorney

representing the State in district court, while precluding the attorney

general handling the same case on appeal from making the same argument.

We have also held counties, as creatures of statute, have no standing

to challenge the constitutionality of state statutory provisions. Charles

19

Hewitt & Sons Co. v. Keller, 223 Iowa 1372, 1377, 275 N.W. 94, 97 (1937)

(“Counties and other municipal corporations are, of course, the creatures of

the legislature; they exist by reason of statutes enacted within the power of

the legislature, and we see no sound basis upon which a ministerial (or, for

that matter, any other) office may question the laws of its being. The

creature is not greater than its creator, and may not question that power

which brought it into existence and set the bounds of its capacities.”);

accord Bd. of Supervisors of Linn County v. Dept. of Revenue, 263 N.W.2d

227, 232–34 (Iowa 1978). Even if the county had a particularized interest

in CINA matters, Keller denies it standing to challenge the constitutionality

of the Iowa ICWA. The county attorney’s authority to act on behalf of either

the county or the State is derived from the legislature, and he therefore may

not challenge the constitutionality of legislative acts in court while

representing the interests of the State.

Finally, the county attorney contends he may challenge the

constitutionality of state legislation because his oath of office requires him

to “support the Constitution of the United States and the Constitution of the

state of Iowa.” Iowa Code § 63.10. Our response to a similar claim in Board

of Supervisors of Linn County is sufficient to dispose of this argument: “The

answer to that course of reasoning is that his oath does not require him to

obey the Constitution as he decides, but as judicially determined.” 263

N.W.2d at 234 (quoting State ex rel. Clinton Falls Nursery Co. v. Steele

County Bd. of Comm’rs, 232 N.W. 737, 738 (Minn. 1930)).

III. Merits.

The guardian ad litem first contends the Winnebago Tribe of Nebraska

could not intervene because it is not the “Indian child’s tribe” as defined in

Iowa Code section 232B.3(8). She also raises several constitutional

20

challenges to the Iowa ICWA. We find the definition of “Indian child’s tribe”

in Iowa Code section 232B.3(8) includes tribes which have identified a child

as a “child of the tribe’s community.” Additionally, because we find

meritorious the guardian ad litem’s equal protection claim, we reserve

opinion on the remaining constitutional issues.

A. Scope of Review. We review issues of statutory construction

for errors at law. Callender v. Skiles, 591 N.W.2d 182, 184 (Iowa 1999). We

exercise de novo review of constitutional claims. Kistler v. City of Perry, 719

N.W.2d 804, 805 (Iowa 2006).

B. Section 232B.3(8). The guardian ad litem contends the

Winnebago Tribe of Nebraska is not a proper intervening tribe because it is

not the “Indian child’s tribe” as defined by the Iowa ICWA. Iowa Code

section 232B.3(8) states the “Indian child’s tribe” is “a tribe in which an

Indian child is a member or eligible for membership.” Our goal in

construing statutes is to seek a “reasonable interpretation that will best

effect the purpose of the statute.” State ex rel. Schuder v. Schuder, 578

N.W.2d 685, 687 (Iowa 1998). Although the definition of “Indian child’s

tribe” refers only to children who are “member[s] or eligible for

membership,” we believe the legislature’s use of the previously defined term

“Indian child” manifests its intent to incorporate the entire “Indian child”

definition into section 232B.3(8). Were we to hold otherwise, the expanded

definition of “Indian child” found in section 232B.3(6) would be rendered a

nullity because no tribe identifying a nonmember, noneligible child as a

“child of the tribe’s community” would ever be the “Indian child’s tribe.”

Thus, we conclude the Winnebago Tribe, as the tribe identifying A.W. and

S.W. as children of its community, would fall within the definition of “Indian

child’s tribe” under the Iowa ICWA.

21

C. Equal Protection. Because we conclude the General Assembly

intended for tribes asserting an interest in a child as a “child of the tribe’s

community” to have intervention rights, we must examine the

constitutionality of applying the Iowa ICWA to A.W. and S.W. The guardian

ad litem asserts the Iowa ICWA definition of “Indian child” violates the

Equal Protection Clauses of the United States and Iowa Constitutions

because it traverses the boundaries of the federal government’s “trust”

authority with respect to Indian tribes, and creates an impermissible racial

classification. The attorney general responds that the Iowa ICWA definition

of “Indian child” is a permissible exercise of the federal trust authority, as

delegated to the state by the federal ICWA, 25 U.S.C. § 1921.

Where, as here, equal protection challenges are asserted under both

the federal and state constitutions, it is the “exclusive prerogative of [the

Iowa Supreme Court] to determine the constitutionality of Iowa statutes

challenged under our own constitution.” Callender, 591 N.W.2d at 187.

“Thus, while federal court analysis of similar provisions in the United States

Constitution may prove helpful, those interpretations do not bind us.” Santi

v. Santi, 633 N.W.2d 312, 317 (Iowa 2001) (quoting Callender, 591 N.W.2d

at 187). Although we have reserved the right to reject the equal protection

constructs employed by the Supreme Court in its interpretation of the

Equal Protection Clause of the United States Constitution when we interpret

the equality provision found in article I, section 6 of the Iowa Constitution,

we again choose not to adopt our own analytical framework because the

parties have not asserted “an analysis that might be more compatible with

Iowa’s constitutional language.” Racing Ass’n of Cent. Iowa v. Fitzgerald,

675 N.W.2d 1, 6 (Iowa 2004).

22

Our analysis of an equal protection challenge begins with

identification of the classification at issue.9 Ames Rental Property Ass’n v.

City of Ames, 736 N.W.2d 255, 259 (Iowa 2007). The Iowa ICWA creates two

classes of children—Indian children and non-Indian children. The federal

ICWA and the Iowa ICWA only apply in CINA and termination-of-parental-

rights cases when Indian children are involved.10 Such cases involving non-

Indian children need only comply with the provisions of Iowa Code chapter

232.11 The Iowa ICWA, when combined with Winnebago tribal resolution

#04-26, places ethnic Indian children in the same class as tribal Indian

children, and separates them from other non-Indian children who are

ineligible for membership in an Indian tribe. See Morton v. Mancari, 417

U.S. 535, 554 n.24, 94 S. Ct. 2474, 2484 n.24, 41 L. Ed. 2d 290, 294 n.24

(1974) (distinguishing between members of federally recognized tribes and

individuals racially identified as “Indians”); see also John Robert Renner,

9Neither Tina nor Anthony has appealed the intervention order. Thus, our analysis

is limited to the rights of A.W. and S.W. to equal protection.

For simplicity, we will refer generally to those children who have some Indian blood

but are not members or eligible for membership in an Indian tribe as “ethnic” Indian

children. We will refer to children who are members or eligible for membership in an

Indian tribe as “tribal” Indian children. See John Robert Renner, The Indian Child Welfare

Act and Equal Protection Limitations on the Federal Power Over Indian Affairs, 17 Am. Indian

L. Rev. 129, 163 (1992).

10The Iowa ICWA makes the entire federal ICWA applicable to any child custody

proceeding involving an Indian child, as defined by the Iowa ICWA. Iowa Code § 232B.5(2)

(“The federal [ICWA] and this chapter are applicable without exception in any child custody

proceeding involving an Indian child.”).

11The Iowa ICWA, through its incorporation of the federal ICWA, provides for higher

standards than Iowa Code chapter 232 in several areas. For example, Iowa Code section

232.116(1) requires a finding of abandonment or neglect by clear and convincing evidence

to terminate parental rights. In contrast, in an ICWA case, a termination of parental rights

may only be ordered upon “a determination, supported by evidence beyond a reasonable

doubt, including testimony of qualified expert witnesses, that the continued custody of the

child by the parent or Indian custodian is likely to result in serious emotional or physical

damage to the child.” 25 U.S.C. § 1912(f).

23

The Indian Child Welfare Act and Equal Protection Limitations on the Federal

Power Over Indian Affairs, 17 Am. Indian L. Rev. 129, 168–69 (1992)

(discussing equal protection ramifications of expanding the federal ICWA

definition of “Indian child” to include ethnic Indian children) [hereinafter

Renner, Indian Child Welfare Act and Equal Protection]; Barbara Ann Atwood,

Flashpoints Under the Indian Child Welfare Act: Toward a New Understanding

of State Court Resistance, 51 Emory L. J. 587, 662 n.188 (2002).

In order to determine whether the classification of ethnic Indian

children as “Indian children” for purposes of the Iowa ICWA is a racial

classification, an understanding of the state’s authority to legislate with

respect to Indians is necessary. Due to our nation’s historical relationship

with Indian tribes, the federal government has taken upon itself a trust

relationship with Indian tribes, generally to the exclusion of any state

authority in Indian affairs:

This [federal] power is not expressly granted in so many words

by the Constitution, except with respect to regulating

commerce with the Indian tribes, but its existence cannot be

doubted. In the exercise of the war and treaty powers, the

United States overcame the Indians and took possession of

their lands, sometimes by force, leaving them an uneducated,

helpless and dependent people needing protection against the

selfishness of others and their own improvidence. Of necessity

the United States assumed the duty of furnishing that

protection and with it the authority to do all that was required

to perform that obligation and to prepare the Indians to take

their place as independent, qualified members of the modern

body politic.

Board of Comm’rs of Creek County v. Seber, 318 U.S. 705, 715, 63 S. Ct.

920, 926, 87 L. Ed. 1094, 1102–03 (1943); see also United States v. Kagama,

118 U.S. 375, 383–84, 6 S. Ct. 1109, 1114, 30 L. Ed. 228, 231 (1886)

(“[Indian tribes] owe no allegiance to the states, and receive from them no

protection. Because of the local ill feeling, the people of the states where

they are found are often their deadliest enemies. From their very weakness

24

and helplessness, so largely due to the course of dealing of the federal

government with them, and the treaties in which it has been promised,

there arises the duty of protection, and with it the power.”). Although

responsibility for maintaining this trust relationship with Indian tribes has

historically been the exclusive prerogative of the federal government, the

Supreme Court has recognized states may exercise the federal trust

authority when specifically authorized to do so by a federal statute. See

Washington v. Confederated Bands & Tribes of the Yakima Indian Nation, 439

U.S. 463, 500–01, 99 S. Ct. 740, 761, 58 L. Ed. 2d 740, 768 (1979) (holding

states, in exercising the federal trust power over Indian tribes pursuant to a

federal statute authorizing them to do so, may enact legislation that would

be an otherwise unconstitutional exercise of state power).

There are generally two situations in which states may legislate on

behalf of Indians in order to further the purposes of the federal trust

authority:

[I]n the first, the state acts under a particularized, state-

specific congressional delegation of jurisdiction; in the second,

the state acts to accommodate federal supremacy in the field

by enforcing congressionally created federal obligations toward

Indian tribes that the federal government would otherwise

enforce on its own.

Malabed v. North Slope Borough, 70 P.3d 416, 423 (Alaska 2003).

We are not presented in this case with a claim that the Iowa ICWA

constitutes an instance of state enforcement of a federal obligation to Indian

tribes. Instead, the attorney general contends the federal ICWA is a

congressional delegation of its jurisdiction over Indian affairs to the states.

See Iowa Code § 232B.2. The federal ICWA clearly invokes the federal

government’s trust authority as its basis. 25 U.S.C. § 1901(1), (2). Because

all child custody proceedings occur in state courts, the federal ICWA is

25

necessarily a delegation of the federal trust authority to the states for the

protection of Indian tribes. The General Assembly enacted the Iowa ICWA

pursuant to this delegation of the federal trust authority. Iowa Code

§ 232B.2. It therefore may legislate only within the bounds of Congress’s

authority to enact legislation favoring Indians.12

The United States Supreme Court has upheld numerous federal

statutes singling out tribal Indians for special treatment. See, e.g., Seber,

318 U.S. 705, 63 S. Ct. 920, 87 L. Ed. 2d 1094 (federally granted tax

immunity); McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 93

S. Ct. 1257, 36 L. Ed. 2d 129 (1973) (same); Morton, 417 U.S. 535, 94 S. Ct.

2474, 41 L. Ed. 2d 290 (upholding Bureau of Indian Affairs (BIA)

employment preference for members of federally recognized Indian tribes).

Morton provides the following rationale for upholding federal Indian

preferences against an equal protection challenge:

The preference is not directed towards a “racial” group

consisting of “Indians”; instead, it applies only to members of

“federally recognized” tribes. This operates to exclude many

individuals who are racially to be classified as “Indians.” In

this sense, the preference is political rather than racial in

nature.

417 U.S. at 554 n.24, 94 S. Ct. at 2484 n.24, 41 L. Ed. 2d at 302–03 n.24.

Thus, federal preferences are “granted to Indians not as a discrete racial

group, but, rather, as members of quasi-sovereign tribal entities.” Id. at

554, 94 S. Ct. at 2484, 41 L. Ed. 2d at 302–03. “As long as the special

treatment can be rationally tied to the fulfillment of Congress’ unique

obligation toward the Indians, such legislative judgments will not be

disturbed.” Id. at 555, 94 S. Ct. at 2485, 41 L. Ed. 2d at 303. The Morton

12We resolve this case on delegation grounds; therefore we state no opinion as to

whether the State of Iowa has inherent authority to enact legislation on behalf of Indian

tribes. It is axiomatic, however, that even if the State may unilaterally legislate on behalf of

Indian tribes, such legislation must comport with equal protection requirements.

26

Court held BIA employment preferences in favor of individuals who

possessed one-fourth or more degree of Indian blood and were members of

federally recognized tribes, despite the “racial” blood quantum component,

were “reasonable and rationally designed to further Indian self government,”

due to the unique role the BIA plays in tribal government. Id. (“In the sense

that there is no other group of people favored in this manner, the legal

status of the BIA is truly sui generis.”).

Subsequent United States Supreme Court and lower court decisions

confirm that Congress may constitutionally legislate only with respect to

tribal Indians. See United States v. Antelope, 430 U.S. 641, 645, 97 S. Ct.

1395, 1399, 51 L. Ed. 2d 701, 707 (1977) (“Federal regulation of Indian

tribes, therefore, is governance of once-sovereign political communities; it is

not to be viewed as legislation of a ‘racial’ group consisting of

‘Indians.’ ”(Internal quotation omitted.)); Rice v. Cayetano, 528 U.S. 495,

120 S. Ct. 1044, 145 L. Ed. 2d 1007 (2000); Peyote Way Church of God, Inc.

v. Thornburgh, 922 F.2d 1210, 1215 (5th Cir. 1991) (noting “only the

constituencies over whom the federal government considers itself guardian

enjoy the [political] preference”). In Rice v. Cayetano, the Court invalidated

a Hawaiian constitutional provision requiring members of the Office of

Hawaiian Affairs (OHA), a committee established to administer income from

lands held by the state “as a public trust” pursuant to federal statute,13 be

“Hawaiian” and be elected only by “Hawaiians.” 528 U.S. at 509–10, 120

S. Ct. at 1052–53, 145 L. Ed. 2d at 1021. As used in the Hawaiian

constitution, the term “Hawaiian” referred to “any descendant of the

aboriginal peoples inhabiting the Hawaiian Islands which exercised

13The federal statute, the Admission Act, Pub. L. 86-3, 73 Stat. 5, granted Hawaii

approximately 1.4 million acres of land “to be held ‘as a public trust’ to be managed and

disposed of for one of five purposes,” one of which was “for the betterment of the conditions

of native Hawaiians.” Rice, 528 U.S. at 507–08, 120 S. Ct. at 1052, 145 L. Ed. 2d at 1020.

27

sovereignty and subsisted in the Hawaiian Islands in 1778, and which

peoples thereafter have continued to reside in Hawaii.” Id. In response to a

nonnative Hawaiian citizen’s Fifteenth Amendment challenge to the

constitutional provision establishing OHA committee voting requirements,

the State of Hawaii invoked the Morton doctrine, claiming the federal

statute’s authorization to manage and dispose of the land “for the

betterment of native Hawaiians” authorized it to restrict voting for the OHA

trustees to native Hawaiians. Id. at 518, 120 S. Ct. at 1057, 145 L. Ed. 2d

at 1027. After expressing doubt that native Hawaiians possessed a federal

trust status similar to that of Indian tribes, the Court held even if a similar

trust authority existed and could therefore be delegated to the state,

“Congress may not authorize a State to create a voting scheme of this sort.”

Id. at 519, 120 S. Ct. at 1058, 145 L. Ed. 2d at 1027. In concluding the

constitutional provision violated the Fifteenth Amendment, the Court

stressed Morton’s requirement that, in order to avoid the label of “racial”

legislation, the preference could not be “directed towards a ‘racial’ group

consisting of ‘Indians,’ but rather only to members of ‘federally recognized’

tribes.” Id. at 519–20, 120 S. Ct. at 1058, 145 L. Ed. 2d at 1028.

While we believe the General Assembly intended the expanded

definition of “Indian child” to advance the laudatory goal of preservation of

Indian tribes, we find the challenged classification bears insufficient relation

to the traditional rationale for upholding federal Indian legislation—

advancement of tribal self-government—to be considered a “political”

classification. Because A.W. and S.W. do not qualify for tribal membership,

they do not fall within the “political” class of Indians traditionally regulated

by federal statutes. Thus, their classification as “Indian children” under the

Iowa ICWA, as “clarified” by resolution #04-26, and the consequences

28

flowing from that classification, result entirely from their ancestry, which is

“a proxy for race.”14 Rice, 528 U.S. at 514, 120 S. Ct. at 1055, 145 L. Ed.

2d at 1025. Given the limits of Congressional authority to legislate only in

favor of members of federally recognized tribes, we conclude the Iowa

ICWA’s expansion of the definition of “Indian child” to include ethnic

Indians not eligible for membership in a federally recognized tribe

constitutes a racial classification.

The determination that the Iowa ICWA definition of “Indian child” is a

racial classification does not end our analysis. Classifications based on

race are “presumptively invalid and can be upheld only upon an

extraordinary justification.” Sherman v. Pella Corp., 576 N.W.2d 312, 317

(Iowa 1998) (internal quotation omitted). We apply strict scrutiny review to

racial classifications:

whenever the government treats any person unequally because

of his or her race, that person has suffered an injury that falls

squarely within the language and spirit of the Constitution’s

guarantee of equal protection. . . . [However, w]hen race-based

action is necessary to further a compelling governmental

interest, such action does not violate the constitutional

guarantee of equal protection so long as the narrow-tailoring

requirement is also satisfied.

Grutter v. Bollinger, 539 U.S. 306, 327, 123 S. Ct. 2325, 2338, 156 L. Ed. 2d

304, 331 (2003) (citations omitted); Sanchez v. State, 692 N.W.2d 812, 817

(Iowa 2005).

As a racial classification, the Iowa ICWA definition of “Indian child”

cannot survive strict scrutiny because it is not narrowly tailored to further a

14We note the “child of the tribe’s community” clause of section 232.3(6) contains no

requirement that the child even be an “ethnic Indian.” Therefore, on its face, section

232.3(6) arguably does not create a racial classification because under this broad definition

a tribe could theoretically claim an interest in a child with no Indian blood whatsoever.

Whatever the propriety of such a claim, however, we need not address it because we are

presented here with application of the Iowa ICWA to ethnic Indian children because they

are lineal descendants of a tribal member. Due to the operation of resolution #04-26, A.W.

and S.W. have been classified as Indian children because they possess Indian blood.

29

compelling government interest. The Iowa ICWA contains a statement of

purpose which defines the state’s interest as:

cooperat[ing] fully with Indian tribes and tribal citizens in Iowa

in order to ensure that the intent and provisions of the federal

Indian Child Welfare Act are enforced. This cooperation

includes recognition by the state that Indian tribes have a

continuing and compelling governmental interest in an Indian

child whether or not the child is in the physical or legal

custody of an Indian parent, Indian custodian, or an Indian

extended family member at the commencement of a child

custody proceeding or the child has resided or domiciled on an

Indian reservation. The state is committed to protecting the

essential tribal relations and best interest of an Indian child by

promoting practices, in accordance with the federal Indian

Child Welfare Act and other applicable law, designed to prevent

the child’s voluntary or involuntary out-of-home placement

and, whenever such placement is necessary or ordered, by

placing the child, whenever possible, in a foster home, adoptive

home, or other type of custodial placement that reflects the

unique values of the child’s tribal culture and is best able to

assist the child in establishing, developing, and maintaining a

political, cultural, and social relationship with the child’s tribe

and tribal community.

Iowa Code § 232B.2. This policy statement exhibits the state’s interest in

implementing the federal trust authority articulated in the federal ICWA. As

discussed above, however, when a state acts pursuant to delegated federal

Indian trust authority, it may only legislate within the bounds of the

Congressional trust power, and the state’s interest is necessarily defined by

these federal boundaries. Thus, the only legitimate “interest” the State of

Iowa may have extends only to providing benefits to tribal Indians, and not

ethnic Indians. Morton, 417 U.S. at 554 n.24, 94 S. Ct. at 2484 n.24, 41

L. Ed. 2d at 302–03 n.24.

We believe the state’s interest in exercising the federal trust authority

to protect “essential tribal relations” is a compelling one; however, the

inclusion of ethnic Indian children is not narrowly tailored to achieve this

compelling interest, as it extends beyond the federal “political” boundary of

30

tribal membership. We conclude the federal ICWA definition of “Indian

child” represents the boundary of the federal trust authority because it is

limited to those children who are members of or are eligible for membership

in a federally recognized Indian tribe. 25 U.S.C. § 1903(4); see also Renner,

Indian Child Welfare Act and Equal Protection, 17 Am. Indian L. Rev. at 167–

69 n.237 (discussing S. 1976, 100th Cong. 1st Sess. (1987), the failed

proposal to expand the federal ICWA definition of “Indian child” to ethnic

Indians that was opposed by a former Secretary of the Interior because the

proposed measure exhibited “pure racism”). By maintaining this integral

link to tribal membership, the federal ICWA is “rationally designed to

further Indian self government” because it allows the tribe to protect its

interests in those individuals who will perpetuate the next generation of the

tribe’s existence. Morton, 417 U.S. at 555, 94 S. Ct. at 2484, 41 L. Ed. 2d at

302. The Iowa ICWA’s failure to maintain that integral link to tribal self

government results in an over-inclusive racial classification, and therefore

violates equal protection principles. See Renner, Indian Child Welfare Act

and Equal Protection, 17 Am. Indian L. Rev. at 171 (noting the over-inclusive

feature of a proposed, but rejected, amendment to the federal ICWA that

would have extended the statute’s reach beyond “those who genuinely fall

within the scope of the federal power over Indian affairs.”).

The adverse consequences of the race-based discrimination under

section 232B.3(6) for A.W. and S.W. are apparent in this case. A.W. and

S.W. have never lived on the Winnebago Reservation. There is no evidence

in the record tending to prove the children have had any relationship to the

reservation or traditional Winnebago society. Like other non-Indian

children, A.W. and S.W. are not eligible for membership in the Winnebago

Tribe. Notwithstanding these realities, section 232B.3(6) would permit the

31

classification of A.W. and S.W. as “Indian children” and permit the

Winnebago Tribe to intervene and participate as an interested party in any

court proceedings held to determine whether the children’s best interests

require placement in foster care or termination of their parents’ rights. See

Iowa Code § 232B.5(7)(c)(1). As a consequence of the classification of A.W.

and S.W. in section 232B.3(6) with Indian children who are either tribal

members or eligible for tribal membership, a party instituting juvenile court

proceedings for the purposes of placing A.W. and S.W. outside their parents’

home or terminating the parental rights of Tina and Anthony will be

burdened by substantive and procedural requirements that are not

applicable in similar proceedings affecting non-Indian children. See id.

§ 232B.9(1) (detailing placement preferences including those for members of

the tribe); id. § 232B.10 (requiring in certain instances testimony from an

expert witness with specific knowledge of the Indian tribe’s family

organization and child-rearing practices, culture, and customs); id.

§ 232B.6(6)(a) (providing termination of parental rights may be ordered only

on proof beyond a reasonable doubt that the continued custody of the child

by the child’s parent or Indian custodian is likely to result in serious

emotional or physical damage to the child). One scholar has starkly

suggested the extension of ICWA and its attendant proof requirements to

ethnic Indian children harms them because it exposes them “to more abuse

or neglect before courts can remove them from their parents.” Renner,

Indian Child Welfare Act and Equal Protection, 17 Am. Indian L. Rev. at 172.

Section 232B.3(6) expands the definition of “Indian child” far beyond

its federal ICWA counterpart. By including children who are ineligible for

tribal membership, section 232B.3(6) clearly exceeds the limits of federal

power over Indian affairs upon which the federal ICWA is based and from

32

which the Iowa ICWA is derived. In its classification of ethnic Indian

children with tribal Indian children, section 232B.3(6) provides “hardly

more than a pretense that this classification is political, rather than racial.”

Renner, Indian Child Welfare Act and Equal Protection, 17 Am. Indian L. Rev.

at 169. We conclude the race-based classification of A.W. and S.W. as

“Indian children” is not justified by a compelling state interest. Accordingly,

section 232B.3(6), as applied in this case to A.W. and S.W., violates the

Equal Protection Clause of the United States Constitution. As a separate

and independent ground for our decision, and in the exercise of our

“exclusive prerogative . . . to determine the constitutionality of Iowa statutes

challenged under our own constitution,” Callender, 591 N.W.2d at 187, we

further conclude section 232B.3(6), as applied in this case, violates the

equality provision in article I, section 6 of the Iowa Constitution.

Having concluded section 232B.3(6) is unconstitutional on equal

protection grounds as applied to A.W. and S.W., we need not address the

other claims raised by the guardian ad litem.

IV. Conclusion.

Because A.W. and S.W. are ethnic Indian children who are ineligible

for membership in the federally recognized Winnebago Tribe, the State of

Iowa may not constitutionally subject them to the provisions of the Iowa or

federal ICWA. Accordingly, we reverse the juvenile court’s order granting

the Winnebago Tribe’s motion to intervene.

REVERSED AND REMANDED.