Two children who were disenrolled by the Pala Band of Mission Indians
cannot be protected by the Indian Child Welfare Act
, a California appeals court ruled on Tuesday.
The tribe formally objected in July 2009 when K.P. and Kristopher were put up for adoption. Their mother, Michelle T., is enrolled.
But sometime during the proceedings, the tribe disenrolled the children.
As a result, they are no longer considered "Indian," the court determined.
"Under federal and state law, the Indian tribe's membership determination is conclusive," Judge Cynthia Aaron wrote in the unpublished opinion. "The record shows that enrollment is a prerequisite for Pala Band membership, and that the Pala Band determined that K.P. and Kristopher are not members of its tribe."
Since the children aren't "Indian," the heightened standards of ICWA do not apply in the dispute, Aaron said. So the court upheld a termination of Michelle's parental rights over her objections.
Secretary Kevin Washburn addresses the National Congress of American Indians
annual convention in San Diego, California, on October 19, 2015. Photo by Indianz.Com (CC BY-NC-SA 4.0)
Michelle tried to argue that the tribe's enrollment decision's are subject to review by the Bureau of Indian Affairs
. A federal judge has rejected that view
but the case is currently pending before the 9th Circuit Court of Appeals
Separately, the 9th Circuit has rejected a different disenrollment lawsuit
filed by former members who tried to sue individual tribal leaders rather than the tribe itself.
Assistant Secretary Kevin Washburn, the head of the BIA, has been a strong advocate for ICWA. Just last month, he told the National Congress of American
annual convention in San Diego, California, that the law remains under attack by non-Indian interests.
"It is in the best interest of children not to be stolen from their tribal communities," Washburn said. "I think that's just a fundamental principle."
Washburn's position on disenrollment, though, inadvertently contributed to the negative decision this week. The court cited his 2013 letter
in which he said the BIA lacked the authority to review the Pala Band's membership matters.
More directly, the court relied on the ICWA guidelines
that Washburn issued in February. In that document -- which does not carry the force of law -- the BIA urged state courts and state agencies to defer to tribes in determining who is and who isn't an "Indian."
"A state court may not substitute its own determination for that of the tribe regarding a child's membership or eligibility for membership in a tribe," Judge Aaron wrote, mirroring language from the guidance.
The ICWA guidelines define an "Indian child" as follows:
Indian child means any unmarried person who is under age eighteen and is either: (1) a member of an Indian tribe; or (2) eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe.
In a section titled, "Who makes the determination as to whether a child is a member of a tribe?" the document reads:
The State court may not substitute its own determination regarding a child’s membership or eligibility for membership in a tribe or tribes.
California Court of Appeal Decision:
In re K.P. et al.
(November 10, 2015)
Pala Band takes steps to
improve placement of foster children
(10/13) 9th Circuit won't
interfere in Pala Band's disenrollment dispute
(03/17) Pala Band leadership
disputes ouster by group of tribal members
(05/21) Washburn confirms lack of
authority in disenrollment case
(06/13) Pala Band finalizes decision
to remove 154 people from the rolls
(06/19) Lawsuit urges BIA to intervene in Pala membership
(03/19) BIA urges Pala Band to
reinstate eight who were disenrolled
(02/29) Pala Band removes 15 percent of membership from the
(2/3) Pala Band removes an
additional 154 people from its rolls
(2/2) Editorial: Congress should stay out of
Pala Band members lobby for Congressional action
(11/14) Relatives of former Pala Band chairman removed from
(9/6)Correction: Pala Band did
not remove former leader from rolls
(9/1) Pala Band disenrolls eight people, including a past
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