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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1291%3A7

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1990
- **Citation:** 495 U.S. 948

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1291%3A7. Public record. Not legal advice.