Amicus Curiae Brief — Cook Inlet Tribal Council v. Catholic Social Services, Inc.

No. 89 = 1520

IN THE

SUPREME COURT OF THE UNITED

OCTOBER TERM, 1989

COOK INLET TRIBAL COUNCIL,

C.A.A. AND C.H.Fs,

A TRIBAL INDIAN MOTHER

AND HER MINOR CHILD

PETITIONERS,

V.

CATHOLIC SOCIAL SERVICES, INC.,

C.G. AND S.G.

RESPONDENTS.

PETITION FOR A WRIT OF CERTIORARI

TO THE ALASKA SUPREME COURT

BRIEF AMICI CURIAE OF THE TANANA IRA

NATIVE COUNCIL; QUINAULT INDIAN NATION;

(additional amici on inside cover)

IN SUPPORT OF PETITIONER

Yvonne T. Knight

Counsel! of Record

Patrice Kunesh-Hartman

Robert T. Anderson

Steven C. Moore

Native American Rights Fund

1506 Broadway

Boulder, CO 80302

(303) 447-8760

Counsel for Amici Curlae

April 1990

AMICI

CONFEDERATED TRIBES OF THE COLVILLE

RESERVATION;

THE KARUK TRIBE OF CALIFORNIA;

ROHNERVILLE BEAR VALLEY WIYOT RANCHERIA

OF CALIFORNIA

No. 89 - 1520

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

COOK INLET TRIBAL COUNCIL,

C.A.A. AND C.M.F.,

A TRIBAL INDIAN MOTHER

AND HER MINOR CHILD

PETITIONERS,

Vv.

CATHOLIC SOCIAL SERVICES, INC.,

C.G. AND S.G.

RESPONDENTS.

PETITION FOR A WRIT OF CERTIORARI

TO THE ALASKA SUPREME COURT

BRIEF AMICI CURIAE OF THE TANANA IRA

NATIVE COUNCIL; QUINAULT INDIAN NATJON;

(additional amici on inside cover)

IN SUPPORT OF PETITIONER

Yvonne T. Knight

Counsel of Record

Patrice Kunesh-Hartman

Robert T. Anderson

Steven C. Moore

Native American Rights Fund

1506 Broadway

Boulder, CO 80302

(303) 447-8760

Counsel for Amici Curiae

April 1990

AMICI

CONFEDER2ATED TRIBES OF THE COLVILLE

RESERVATION;

THE KARUK TRIBE OF CALIFORNIA;

ROHNERVILLE BEAR VALLEY WIYOT RANCHERIA

OF CALIFORNIA

TABLE OF AUTHORITIES

I.

TABLE OF CONTENTS

THIS COURT SHOULD REVIEW THE

DECISION BELOW TO CORRECT THE

ALASKA SUPREME COURT’S

MISCONSTRUCTION OF THE PLAIN

LANGUAGE OF THE INDIAN CHILD

WELFARE ACT. cccccccccsccccvccccscccces

A. The Alaska Supreme Court

Erred in Holding That

Indian Tribes Do Not Have

a Right of Intervention in

Voluntary Custody Proceedings....

B. The Tribe’s Right to

Intervene to Protect the

Tribal Membership of its

Children is an Interest

Entitled to Due Process

Protections Including

ST oo

The Tribe’s right to

intervene is an interest

protected by the Due

a SO”

i Notice is required under

Due Process principles to

protect essential Tribal

ea ee

23 fe Se i et oe ee oe Oe a i

II. THE ALASKA DECISION THREATENS A

UNIFORM APPLICATION OF THE

INDIAN CHILD WELFARE ACT... ccccccccecs 15

eee es ee ee ee re 2 eee rar ee 19

TABLE OF AUTHORITIES

CASES

Abbott Laboratories v. Portland Retail

Druggists Ass’n, 425 U.S. 1 (1976)........ 8

Board of Regents v. Roth, 408 U.S.

eee ea) o-das a a O00 ea eee Oe we ee eke a 9, 10

Catholic Social Services, Inc. v.

C.A.A., 783 P.2d 1159 (Alaska 1989)....3, 5

Cherokee Intermarriage Cases, 203 U.S.

Te CET 6awivooe Veh oes eee eka wera eei 10

Choctaw Nation v. United States,

See -Wemwe Gee CARS 106 eb OC6.6 66.64% 40 00 eS 8

E.A. v. State, 523 P.2d 1210

Ce 2 ee Pa 0-6-6 60 ae ee eee 00 oe eee eee 6

Goldberg v. Kelley, 397 U.S 254 (1970)..... 13

Gross Vv. Lopes, 419 U.S. 565 (19758) .scccces aa

In re Adoption of Halloway 732 P.2d

POE CAGE LE SOR eROC GE CKD RAO DUO Dee baw es ea es HI

Lassiter v. Department of Social

Saerviges 265e U.8. SE CASRE be oc ken cacceses 12

May v. Anderson 345 U.S. 528 (1953)........ 12

ii

Mississippi Band of Choctaw Indians

v. Holyfield, 490 U.S. , 108

$.ct. 1597, 104 L.Ed.2d 29

€5 > } eer nrenre se res Te Se She Ome 26, 29

Mullane v. Central Hanover Bank & Trust

Ca. , 339 U.Bc. 306 CIiSsO) 6s cs bsccveceeeee ees 14

Santa Clara Pueblo v. Martinez,

436 U.S. 49 (4197S) cccccevesseestesensceceus 10

Santosky v. Kramer, 455 U.S. 745 (1982)....12

Sherbert v. Verner, 374 U.S 398 (1963)..... 13

Stanley v. Illinois, 405 U.S. 645 (1972)...11

United States v. Wheeler, 435 U.S. 313

(1978) oc ccccccvcccccccccseccccesccssccces 10

UNITED STATES CONSTITUTION

C.8. Goma. Bee. BLY S ko ccsvcanisveasesene .)

FEDERAL STATUTES

96 U50. & AONE 1956s cas sce eeecaeee 11

5 U.0.6. S BB voces caceenisse eee 7

25: U. 8.0. & 2008 CAE ic csc esses eee 4

25-006, SAAS 0 osc ks ca xh 405 so eee 6

STATE STATUTES & RULES

Mich. Court Rules 5.980 (A)(2) (1989)...... 18

Minn. Stat. § 257.353 (1989)... ce eeeveees 18

Wash. Rev. Code § 26.33.09 (2) (1989)...... 18

iii

Ene aaa.

LEGISLATIVE & ADMINISTRATIVE MATERIALS

H.R. Rep. No. 1386, 95th Cong., 2d Sess.

reprinted in 1978 U.S. Code Cong.

en Ce Fes 0 6 eee 8H 66S ROR CO KOs 6, 14

OTHER AUTHORITIES

Coeur D’Alene Tribe of Idaho - State

of Idaho Indian Child Welfare Act

AGTOGMONE . ccc ccc ccenccccccsccccccceesece 18

lv

INTEREST OF THE AMICI CURIAE

Amici curiae are federally recognized

Indian tribes from the State of Alaska and

other states. Amici have substantial

interests in preventing their state courts

from following the precedent established by

the Alaska Supreme Court in this case.

Alaska tribal amici have a particular

interest in the resolution of the issues

before this Court since the decision of the

Alaska Supreme Court has an immediate and

adverse impact upon those tribes’ rights

under the Indian Child Welfare Act

(hereinafter the ICWA or the Act).

The Alaska Supreme Court decision at

once denies tribes the right to intervene and

the right to notice in voluntary proceedings.

This holding is patently inconsistent with

the plain language of the ICWA which grants

Indian tribes the express right to intervene

in any state court proceeding resulting in

the termination of parental rights to an

sinsaennaeniesnietiesiereaiaitsnetnaneeeattnneenteentniittenittesillle

Indian child, whether or not the parent has

consented to the termination. And although

the ICWA does not expressly grant tribes the

right to receive notice of voluntary

termination proceedings, that right is, by

force of due process principles, a

concomitant right to the right to intervene

in voluntary proceedings.

Furthermore, the decision below creates

a loophole in the ICWA which significantly

undermines the Act’s purposes. The decision

will allow those determined to avoid tribal

participation in voluntary termination

proceedings to shop for a state forum where

tribal intervention and notice to tribes is

not required. This practice defeats a

uniform application of the ICWA and

frustrates the efforts of states who

implement the Act by providing for tribal

intervention and notice in both voluntary and

involuntary proceedings.

REASCNS FOR GRANTING THE WRIT

I. THIS COURT SHOULD REVIEW THE DECISION

BELOW TO CORRECT THE ALASKA SUPREME

COURT’S MISCONSTRUCTION OF THE PLAIN

LANGUAGE OF THE INDIAN CHILD WELFARE

ACT.

A. The Alaska Supreme Court Erred in

Holding That Indian Tribes Do Not

Have a Right of Intervention in

Voluntary Termination Proceedings.

In the case at bar, Catholic Social

Services, Inc. v. C.A.A., 783 P.2d 1159, 1160

(Alaska 1989), the Aiaska Supreme Court found

that "Congress explicitly granted

intervention rights to tribes in involuntary

termination proceedings but did not do so in

voluntary termination proceedings." This

finding of no right to intervene in voluntary

termination proceedings is a glaring

misconstruction of the plain language of the

Indian Child Welfare Act. Based on this

erroneous construction, the Alaska court

further held that the Tribe had no right to

notice in voluntary proceedings. This Court

should accept review of the decision below in

order to correct this blatant error.

3

The ICWA provides in pertinent part

that, "{i]n any State court proceeding for

the . . . termination of parental rights to,

an Indian child. . . the Indian child’s

tribe shall have the right to intervene at

any point in the proceeding." 25 U.S.C. §

1911(c) (emphasis added). The Act defines

"termination of parental rights" to mean "any

action resuiting in the termination of the

parent-child relationship." 25 U.S.C. § 1903

(1)(ii). Thus, by its plain language, the

Act grants tribes the right to intervene in

any proceeding for the termination of

parental rights, whether voluntary or

involuntary in nature.’

In the instant case, the trial court

agreed with this construction of the Act’s

terms and set aside the Indian mother’s

voluntary relinquishment of her parental

rights, which had resulted in a "termination

*There is no language in the Act which

restricts the Tribe’s right to intervene

solely to involuntary proceedings.

+

of the parent-child relationship", for

failure to provide notice to the Tribe.’

However, the Alaska Supreme Court rejected

the trial court’s finding and, having

erroneously concluded’ that the Tribe had no

right to intervene, the Court further

determined that the Tribe was not entitled to

notice in voluntary proceedings. Catholic

Social Services, 783 P.2d at 1160.* The

*This Brief adopts and incorporates the

Petitioners’ Petition for a Writ of

Certiorari. The facts referred to herein are

set forth in the Statement of the Case, Pet.

Brief at 2-8.

* The provision in the Bureau of Indian

Affairs’ .interpretive guidelines, relied upon

by the Alaska Supreme Court, does not support

the court’s decision that there is no right

to intervene in voluntary proceedings. The

BIA provision merely paraphrases the language

of the Act which mandates both intervention

and notice in involuntary proceedings. That

provision is not inconsistent with the

position that the ICWA grants to tribes the

right to intervene in voluntary as well as

involuntary proceedings.

Whether the Alaska Supreme Court would

have held that notice is required if it had

properly construed the ICWA to grant the

right to intervene in voluntary proceedings

is unknown. Interestingly, however, the

Alaska Supreme Court has recognized that the

interests of grandparents in the ICWA’S

5

per curium opinion never discussed or even

cited to § 1911(c) of the Act which

explicitly provides for intervention by the

Tribe in any proceeding.

Moreover, the Alaska Supreme Court’s

decision significantly frustrates the

purposes of the ICWA, which was enacted to

remedy the devastating impact on tribes of

the massive removal of their children and

subsequent placement into non-Indian homes.

See H.R. Rep. No. 1386, 95th Cong., 2d Sess.

reprinted in 1978 U.S. Code Cong. & Admin.

News 7530-31 (hereinafter House Report). The

Act is intended to ensure a tribal role in

all Indian child custody proceedings for the

purpose of promoting "the stability and

placement preference give rise to due process

protection. E.A. v. State, 523 P.2d 1210,

1215 (Alaska 1981). And in that case, the

court held that "[iJ]Jn order that the

grandparents may effectively assert their

statutory right to preference at [adoptive]

proceedings, we further hold that they have a

due process right to notice and an

Opportunity to be heard ...."™ Id. at

1215-1216.

security of Indian tribes and tiabiies

" 25 U.S.C. § 1902. This purpose is

severely undermined by the Alaska Supreme

Court’s decision because it denies tribes the

right to intervene in voluntary termination

proceedings. This decision is clearly

inconsistent with both the language of the

Act and its congressional intent.

Indeed, this Court has recognized that

Congress intended the ICWA to "reach

voluntary as well as involuntary removal of

Indian children... ." Mississippi Band of

Choctaw Indians v. Holyfield, 490 U.S. :

108 $.Ct. 1597, 104 L.Ed.2d 29, 48 n. 25

(1989) (hereinafter Holyfield). The Court in

Holyfield also acknowledged that the

substantive provisions of the Act were not

restricted to involuntary removal of Indian

children, but also extend "in cases where the

parents consented to an adoption, because of

the concerns going beyond the wishes of

individual parents." Id. at 47 - 48

(emphasis added).

If there is any doubt whether the ICWA

grants tribes the right to intervene in

voluntary proceedings, the Act should be

liberally construed to effect Congress’s

intent to promote the stability and security

of Indian tribes and families. Abbott

Laboratories v. Portland Retail Druggists

Ass‘’n, 425 U.S. 1, 12 (1976). Furthermore,

as this Court has found, federal laws dealing

specifically with Indian affairs are

liberally construed in favor of preserving

Indian rights. Choctaw Nation v. United

States, 318 U.S. 423, 431-31 (1943). These

principles of statutory construction mandate

interpreting the ICWA to grant tribes the

right to intervene in voluntary termiantion

proceedings.

“The substantive provisions are listed

in Holyfield and include the Tribe’s right to

intervene. Id.

B. The Tribe’s Right to Intervene to

Protect the Tribal Membership of

its Children is an Interest

Entitled to Due Process Protections

Including the Right to Notice.

- The Tribe’s right to intervene

is an interest protected by

the Due Process Clause.

The Tribe’s right to intervene in state

proceedings involving their children is

protected by principles of due process. As

this Court stated in Board of Regents v.

Roth, 408 U.S. 564, 569 (1972): "The

requirements of the procedural due process

apply cnly to the deprivation of interests

encompassed by the Fourteenth Amendment’s

protection of liberty and property."” In

Roth the Supreme Court set out the test for

identifying a protected property interest:

To have a property interest in a

benefit, a person clearly must have more

than an abstract need or desire for it.

He must have more than a unilateral

expectation of it. He must instead,

have a legitimate claim of entitlement

“U.S. Const. Amend. XIV § 1 declares:

"No State shall .. . deprive any person of

life, liberty or property, without due

proces@ of law... << «”

9

to it. It is the purpose of the ancient

institution of property to protect those

claims upon which people rely in their

daily lives, reliance that must not be

arbitrarily undermined.

408 U.S. at 577. As discussed below, the

Tribe’s interest in protecting its tribal

membership and, in particular, the membership

interests of its children, meets the Roth

test and therefore is entitled to treatment

aS a property interest protected by

constitutional due process.

This Court has long and consistently

recognized that one of an Indian tribe’s most

basic rights is its authority as a "distinct,

independent political communit[y]", "to

define its own membership for tribal

purposes." Santa Clara Pueblo v. Martinez,

436 U.S. 49, 72 n. 32 (1978). Accord United

States v. Wheeler, 435 U.S. 313, 327 n. 18

(1978); Cherokee Intermarriage Cases, 203

U.S. 76 (1906). It is undeniable that tribes

rely upon their children for their vitality

and for their continued ability to exist as

10

distinct political communities. As Congress

recognized in enacting the ICWA, "there is no

resource that is more vital to the continued

existence and integrity of Indian tribes than

their children." § 1901(3). As this Court

has further recognized, one of the

fundamental purposes of the ICWA is to

strengthen and expand tribes’ power to

protect this critical interest:

The protection of [the tribe’s ability

to assert its interest in its children}

is at the core of the ICWA, which

recognizes that the tribe has an

interest in the child which is distinct

from but on a parity with the interest

of the parents . ‘

Holyfield, 104 L.Ed.2d at 49, citing In re

Adoption of Halloway, 732 P.2d 962, 969-970

(1986) ‘emphasis added). Hence, the ICWA

empowers tribes to assert their interests in

their children in state forums on a parity

with the natural parents.

This Court previously has established

that the parent-child relationship is

entitled to due process protection. In

42

Santosky v. Kramer, 455 U.S. 745 (1982), the

Court expressly resolved that "state

intervention to terminate the relationship

between [a parentj and [the] child must be

accomplished by procedures meeting the

requisites of the Due Process Clause." Id. at

753, citing Lassiter v. Department of Social

Services, 1452 U.S. 18, 37 (1981). See also

Stanley v. Illinois, 405 U.S. 645, 651

(1972), quoting May v. Anderson, 345 U.S.

528, 533 (1953) (The right to raise one’s

children is "far more precious .. . than

property rights.") (emphasis added).

Since the ICWA recognizes that the

Tribe’s interest in protecting the tribal-

child relationship is "on a parity" with the

parental interest in protecting the parent-

child relationship, the tribal interest, like

the parental interest, is entitled to due

12

process protection.® As we discuss next, the

right to notice, under principles of due

process, is a concomitant right to the tribal

right to intervene in voluntary termination

proceedings, notwithstanding the lack of

express language in the ICWA granting a right

to notice in such proceedings.

r Notice is required under Due

Process principles to protect

essential Tribal interests.

In order for tribes effectively to

assert their statutory rights to intervene to

protect their interests in the membership of

children, tribes must be afforded the due

process right to notice and an opportunity to

be heard.

“The Tribe’s interest in asserting its

rights under the ICWA is as important as

other interests this Court has recognized as

protectable property interests. Some of

these recognized protected property interests

include continued welfare benefits, Goldberg

v. Kelley, 397 U.S 254 (1970); unemployment

compensation, Sherbert v. Verner, 374 U.S 398

(1963); and school attendance, Gross v.

Lopez, 419 U.S. 565 (1975).

13

ae

This Court has determined that "an

elementary and fundamental requirement of due

process in any proceeding which is to be

accorded finality is notice reasonably

calculated, under all the circumstances, to

apprise interested parties of the pendency of

the action and afford them an opportunity to

present their objections." Mullane v.

Central Hanover Bank & Trust Co., 339 U.S.

306, 314 (1950) (citations omitted). Notice

is particularly important in effectuating the

tribal right to intervene in ICWA proceedings

in state forums because of the inherent

antagonism between tribes and states in the

area of social services. The legislative

history of the ICWA demonstrates Congress’s

appreciation of this situation and notes that

"the conflict between Indian and non-Indian

social systems operates to defeat due

process." House Report at 7535.

In ICWA cases, due process principles

safeguard both the parental and the tribal

14

interests against arbitrary deprivation.

Therefore, if the Act’s intervention

provision is to have any meaning at all, the

concomitant right to notice should be applied

to protect the tribal interests in both

voluntary and involuntary proceedings under

the ICWA.

Moreover, the burden of such a notice

requirement is minimal compared to the

serious risk of depriving the Tribe an

opportunity to participate ina fair hearing.

All that is required is that a simple letter

be mailed to the child’s tribe. Certainly,

these procedures do not place an undue burden

on the state to comply with due process.’

II. THE ALASKA DECISION THREATENS A UNIFORM

APPLICATION OF THE INDIAN CHILD WELFARE

ACT.

In the Holyfield decision, this Court

repeatedly noted the importance of a uniform

‘Currently, several states require

notice in voluntary as well as involuntary

proceedings. See discussion infra at p.17-

18.

15

application of the ICWA. 104 L.Ed.2d 43-46

("{Fjederal statutes are generally intended

to have a uniform nationwide application

-"). The Holyfield case involved a tribal

member’s attempt to circumvent the ICWA by

deliberately choosing a state forum that

construed the Act’s domicile provisions such

that the Act would not apply to the tribal

member’s situation. In rejecting the notion

that states are free to interpret the ICWA’s

domicile provisions differently, the Court

sought to eliminate a loophole that would

have allowed individuals to evade the

precepts of the ICWA merely by transporting

their children across jurisdictional lines.

As this Court reasoned:

(T]ribal jurisdiction under [the Act]

was not meant to be defeated by the

actions of individual members of the

tribe for Congress was concerned not

solely about the interests of Indian

children and families, but also about

the impact on the tribes themselves of

the large numbers of Indian children

adopted by non-Indians.

Id. at 47.

16

In the instant case, the Alaska decision

creates a Similar threat to a uniform

application of the ICWA. Under the Alaska

precedent, a social services agency or an

Indian parent, whose child is subject to the

ICWA, could avoid the reach of the Act by

transporting the child to a jurisdiction

which does not require notice to tribes in

voluntary proceedings. In that instance, a

termination of parental rights or an adoption

could take place without the tribe even

knowing of it. Such a result is clearly

contrary to the purposes of the Act of

promoting extensive tribal participation in

all phases of ICWA proceedings.

Unlike Alaska, several states have

either enacted statutes requiring notice to

tribes of voluntary Indian child custody

proceedings or have construed the ICWA to

require such notice. For example, the

Minnesota Indian Family Preservation Act

requires that, "{w]hen an Indian child is

av

———

voluntarily placed in foster care, the local

service agency involved in the decision to

place the child shall give notice of the

placement to the child’s parents, tribal

social service agency, and the Indian

custodian within seven days of placement."

Minn. Stat. § 257.353 (1989). See also Mich.

Court Rules 5.980 (A)(2) (1989); Wash. Rev.

Code § 26.33.09 (2) (1989). The State of

Idaho has an Indian Child Welfare Agreement

with the Coeur d’Alene Tribe which

specifically requires that the Tribe receive

"complete information" of all child custody

proceedings.

Thus, as in Holyfield, there is a dire

need for the Court to ensure a uniform

application of the ICWA’s intervention and

notice provisions.

18

CONCLUSION

In light of the Alaska Supreme Court’s

misconstruction of the plain language of the

ICWA and its resulting denial of the due

process right of notice to tribes of

voluntary termination proceedings, and in

light of the need for a uniform application

of the ICWA, this Court should grant the

petition for certiorari and reverse the

Alaska Supreme Court’s decision.

Respectfully Submitted,

Yvonne T. Knight

Counsel of Record

Patrice Kunesh-Hartman

Robert T. Anderson

Steven C. Moore

Native American Rights

Fund

1506 Broadway

Boulder, CO 80302

(303) 447-8760

Counsel for Amici Curiae

19