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federal and state law, the Indian tribe's membership determination is conclusive," Judge Cynthia Aaron wrote in the unpublished opinion.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.
Assistant
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
Indians 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)
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Pala Band leadership
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Washburn confirms lack of
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Pala Band finalizes decision
to remove 154 people from the rolls (06/19)
Lawsuit urges BIA to intervene in Pala membership
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BIA urges Pala Band to
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Pala Band removes 15 percent of membership from the
rolls (2/3)
Pala Band removes an
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Editorial: Congress should stay out of
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Ousted
Pala Band members lobby for Congressional action (11/14)
Relatives of former Pala Band chairman removed from
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Correction: Pala Band did
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Pala Band disenrolls eight people, including a past
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