Reply Brief — Indian Child Welfare Coordinator of the Juvenile Court v. Chester County Department of Social Services

INU. FUTILE

FILED

can APR 22 1991

Supreme Court of the United Statesie of me Cent

October Term, 1991 a

s.,

-_

INDIAN CHILD WELFARE COORDINATOR

OF THE JUVENILE COURT OF THE

CHEYENNE RIVER SIOUX TRIBE, ET AL.

Vv. Petitioners,

CHESTER COUNTY DEPARTMENT

OF SOCIAL SERVICES, ET AL.

Respondents.

,

—

Petition For Writ Of Certiorari

To The Supreme Court of South Carolina

s.

—

REPLY TO RESPONDENT'S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

é.

—_

"Scott B. McELroy

Mark C. Van Norman

*“Counsel of Record

Greene, Meyer & McE: roy, P.C.

1007 Pearl Street, Suite 240

Boulder, Colorado 80302

(303) 442-2021

Steven C. Emery

Tripat ATTORNEY

CHEYENNE River Sioux Trine

P.O. Box 590

Eagle Butte, South Dakota 57625

(605) 964-4155

Counsel for Petitioner,

Indian Child Welfare

Coordinator of the

Juvenile Court of

the Cheyenne River

Sioux Tribe

COCKLE LAW SRIEF PRINTING CO. GO) 275.0666

OR CALL COLLECT (402) 342-281

TABLE OF CONTENTS

Page

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1. Petitioner Has Satisfied the Requirements of Rule

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a. The State Supreme Court’s Decision is Directly

Contrary to the Congressional Mandate of the

ICWA and the Teaching of Holyfield.......... 2

b. The State Supreme Court Reversed the Policy

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TABLE OF AUTHORITIES

Page

Cases

In Matter of T.S., 801 P.2d 77 (Mont. 1990) ........... 4

In re Adoption of Halloway, 732 P.2d 962 (Utah 1986) ..... 5

Kennerly v. District Court, 400 U.S. 423 (1971)......... 3

Mississippi Band of Choctaws v. Holyfield, 490 U.S.

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Rice v. Rehner, 463 U.S. 713 (1983) ................... 3

STATUTES AND TREATIES

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United States Supreme Court Rule 10................ 1

MISCELLANEOUS

H. R. No. 95-1386 (1978), reprinted in 1978 U‘S.

Code Cong. & Admin. News, pp. 7530, 7544..... 2,3

King Island Native Community v. Montana, Petition

for Certiorari filed February, 1991, at6............ 4

INTRODUCTION

The petition for a writ of certiorari to the Supreme

Court of South Carolina was timely filed on March 11,

1991, and the guardian ad litem’s brief in opposition to

the petition was received April 15, 1991. Ordinarily, it

would not be necessary to file a reply brief, but the

guardian raises several procedural and substantive points

that call for rebuttal.!

1. Petitioner Has Satisfied the Requirements of Rule

10

The guardian ad litem argues that petitioners have

not met the requirements of United States Supreme Court

Rule 10, which provides, in pertinent part, that a writ of

certiorari may be granted when “a state court. . . has

decided a federal question in a way that conflicts with

applicable decisions of this Court.”2 The guardian is

' The guardian has submitted an affidavit which purports

to record the testimony of two of the Indian children. Respon-

dent’s Brief, App. 1-2. This affidavit is both hearsay and out-

side the record and is entitled to no consideration. The

affidavit does, however, reflect the close alliance of interests

between the guardian and the non-Indian_foster parents. Pcti-

tioner’s Brief at 4-5 n.2.

2 Respondent also argues that the Petitioner has not com-

plied with Supreme Court Rule 14(h). The Petitioner has, how-

ever, complied with the rule. The Petitioner’s Statement of the

Case notes that the Tribe has sought transfer of this case to

tribal court since June, 1984, and the essential controversy is

the “persistent refusal of the South Carolina appellate courts to

recognize the congressional mandate of the Indian Child Wel-

fare Act of 1978” and transfer the case to tribal court. Peti-

tioner’s Brief at 2-3.

clearly mistaken. In this case, the Supreme Court of South

Carolina disregarded this Court’s decision in Mississippi

Band of Choctaws v. Holyfield, 490 U.S. 30 (1989), without

so much as a reference.

a. The State Supreme Court’s Decision is Directly

Contrary to the Congressional Mandate of the

ICWA and the Teaching of Holyfield

Title 25 U.S.C. § 1911(b) mandates transfer of jurisdic-

tion from state court to tribal court, absent “good cause”

to the contrary, to prevent “the wholesale separation of

Indian children from their families” and communities by

state courts and state agencies. House Report No.

95-1386, p. 9 (1978), reprinted in 1978 U.S. Code Cong. &

Admin. News, pp. 7530, 7544 (hereinafter “House

Report”); Holyfield, supra at 45 n.18. In essence, the

Respondent argues that, because the term “good cause” is

not expressly defined by the ICWA, state courts are free

to define that term “flexibly” without reference to the

overriding purposes of the Act.? That is flatly wrong.

The views of the House Committee on Interior and

Insular Affairs, and Chairman Udall, the principal spon-

sor of the bill, are the most authoritative guides to the

3 The guardian ad litem also argues that the rights of the

children as Indians, their Indian mother and the tribe under 25

U.S.C. §§ 1912 and 15, need not be considered until the paren-

tal termination proceeding, Respondent's Brief at 18, yet this

argument runs directly against the language of the House

Report, p. 21. Moreover, the guardian ignores the fact that if

the tribe were given an opportunity to try to rehabilitate the

parents and reunite the family, there might be no need for the

termination hearing. See Petitioner’s Brief at 21.

construction of the statute. Rice v. Rehner, 463 U.S. 713,

728 (1983); Kennerly v. District Court, 400 U.S. 423, 429 n.5

(1971). The House Report’s section-by-section analysis

explains that 25 U.S.C. § 1911(b) must be applied to fully

protect the federal rights which Congress created to pro-

tect Indian families and tribes:

This section is intended to permit a State court

to apply a modified doctrine of forum non con-

veniens, in appropriate cases, to insure that the

rights of the child as an Indian, the Indian parents or

custodians, and the tribe are fully protected.

House Report, p. 21 (emphasis added). In carrying out

the congressional mandate to fully protect the rights of

the children as Indians, the Indian parent and the tribe,

under 25 U.S.C. § 1911(b), state courts must consider

which forum is better able to protect those rights by: a)

making active efforts to rehabilitate the parents and

reunite the family, 25 U.S.C. § 1912(d)4; b) providing for

Indian foster or adoptive placement, see 25 U.S.C. § 1915;

4 The guardian ad litem admits that after the family court

made findings of sexual abuse at a preliminary hearing on

foster placement in February, 1986, state social services

stopped all efforts to rehabilitate the parents and reunite the

family. Respondent's Brief at 16. And, the state supreme court

failed to even consider that, based on the mother’s residence

on the Reservation in South Dakota, only the tribal court could

hope to successfully rehabilitate her. Petitioner’s Brief at 20

(Tribe’s expert has a 90% success rate in treating abusive

parents).

and c) conducting Indian child custody proceedings in

accordance with tribal social and cultural standards.*®

Nevertheless, the Supreme Court of South Carolina

ignored the presumption in favor of tribal court jurisdic-

tion and the congressional mandate to fully protect the

rights of the children as Indians, the rights of their Indian

mother and their tribe. Instead, upon a cold record, the

state court reversed the family court and entered its own

findings de novo: 1) “The foster parents . . . would like to

adopt” the Indian children; 2) To overcome the Indian

placement preference of 25 U.S.C. § 1915(a), “the foster

parents will inevitably utilize the testimony of neighbors,

friends, family, social workers, and psychologists to show

their fitness as parents, to show how well the children have

adjusted to their foster homes, and to show the impact on

the children of removing them from their foster homes;

and 3) “Since the Tribe does not have to overcome the

> Another recent state supreme court decision similarly

ignores Congress’s direction to “fully protect” the rights of the

Indian child, Indian parent and Indian tribe. In Matter of T.S.,

801 '°P.2d 77 (Mont. 1990), the Supreme Court of Montana

ignored the Indian child’s connection to the native community

and the tribe’s connection to the child in favor of “a best

interests of the child” test which gave preference to the mainte-

nance of an existing foster placement.

According to the family court, the child was, by the time of

the trial court’s decision, “adapted to her home now, and the

foster family desires to adopt her as soon as possible.” King

Island Native Community v. Montana, Petition for Certiorari filed

February, 1991, at 6. In Matter of T.S., supra, provides another

example of a state court making the interests of temporary

foster parents paramount to the interests of the natural Indian

parent, the child and the tribe.

preference, it seems likely that fewer witnesses from

South Dakota will be involved.” Petitioner’s App. at 6-7

(emphasis added). This rationale would lead to the same

conclusion in every case involving non-Indian foster par-

ents: denial of tribal court jurisdiction.

b. The State Supreme Court Reversed the Policy of

the ICWA

In light of the congressional purpose animating the

ICWA, the state supreme court’s extreme solicitude for

the interests of the non-Indian foster parents and con-

comitant derogation of the rights of the children as

Indians, their Indian mother and the tribe are egregious

violations of ICWA and this Court's decision in Holyfield.

The Holyfield Court explained:

The ICWA “[s]eeks to protect the rights of the

Indian child as an Indian and the rights of the

Indian community and tribe in retaining its chil-

dren in its society.” It does so by establishing “a

Federal policy that, where possible, an Indian

child should remain in the Indian community,”

and by making sure that Indian child welfare

determinations are not based on a “white, mid-

dle-class standard which, in many cases, fore-

closes placement with [an] Indian family.”

490 U.S. at 36 (citations omitted). The “receptivity of the

non-Indian forum to non-Indian placement of an Indian

child is precisely one of the evils at which the ICWA was

aimed.” Holyfield, supra at 45 n.18, quoting In re Adoption

of Halloway, 732 P.2d 962, 969 (Utah 1986).

Yet, despite this clear statement, the state supreme

court changed the rights of the children as Indians and

the rights of their tribe - which Congress had granted

expressly to preserve their cultural and communal ties -

into an almost insurmountable barrier to presumptive

tribal court jurisdiction. Unquestionably, the result was

that non-Indian foster placements were preserved at the

-expense of these Indian children’s ties to their family,

their community and their tribe. If allowed to stand, the

state court’s decision will render the heart of the ICWA,

25 U.S.C. § 1911(b), a dead letter.

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bs

CONCLUSION

The Court should grant the petition for certiorari

because the state supreme court’s decision directly con-

flicts with this Court’s decision in Holyfield, supra, and

casts a pall over the most fundamental Indian interests —

“the future and integrity of Indian tribes and Indian

families.” Holyfield, supra at 45 n.18, quoting Chairman

Jaall.

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For these reasons, the Petitioner respectfully requests

this Court to grant the writ of certiorari.

Dated: April 22, 1991

Respectfully submitted,

Scott B. McELroy

Mark C. VAN NorMAN

Greene, Meyer & McELroy, P.C.

1007 Pearl Street, Suite 240

Boulder, Colorado 80302

(303) 442-2021

STEVEN C. EMERY

Tribal Attorney

Cheyenne River Sioux Tribe

P. O. Box 590

Eagle Butte, South Dakota 57625

(605) 964-4155

Counsel for Petitioner, Indian

Child Welfare Coordinator of

the Juvenile Court of the

Cheyenne River Sioux Tribe

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