Armell, In Interest of

• Citation: 141 Ill.Dec. 14,194 Ill.App.3d 31,550 N.E.2d 1060
• Decision Date: 16 January 1990
• Docket Number: No. 1-88-1003,1-88-1003
• Parties: , 141 Ill.Dec. 14 In the Interest of Eleanor ARMELL, a minor.
• Court: United States Appellate Court of Illinois

Page 1060

550 N.E.2d 1060

194 Ill.App.3d 31, 141 Ill.Dec. 14

In the Interest of Eleanor ARMELL, a minor.

No. 1-88-1003.

Appellate Court of Illinois,

First District, Second Division.

Jan. 16, 1990.

Rehearing Denied Feb. 13, 1990.

Office of the Public Guardian, Helene M. Snyder, Patrick T. Murphy, of counsel, for appellant.

Sidley & Austin, Diane B. LaPlante, of counsel, for appellee.

Craig Dorsay, Native American Program, Robert Golten, of counsel, for amicus curiae.

Presiding Justice DiVITO delivered the opinion of the court:

The Public Guardian appeals from the circuit court order dismissing the neglect and dependency proceeding in the juvenile court and transferring the case to the jurisdiction of the tribal court of the Prairie Band of Potawatomi Indians (Potawatomi tribe) pursuant to the provisions of the Indian Child Welfare Act (ICWA) (92 Stat. 3069, 25 U.S.C. §§ 1901-1963 (1978)). As attorney for the minor respondent, the Public Guardian contends that: (1) under the provisions of the ICWA, good cause existed for the circuit court not to transfer jurisdiction of the case; (2) if the ICWA is interpreted to permit jurisdiction by the tribal court, it is unconstitutional; and (3) the circuit court lacked subject matter jurisdiction.

On April 15, 1985, Eleanor Armell, who was born on November 5, 1981, and was then 3 1/2 years old, was found going through a garbage can in an alley in the Uptown neighborhood of Chicago. Eleanor was found to have an active, untreated case of tuberculosis. Michelle Powless, Eleanor's undomiciled mother, could not be found until sometime later.

The Division of Child Protective Services, a division of the Illinois Department of Children and Family Services (DCFS), conducted an investigation which included interviews with a relative and social workers from various social agencies, including American Indian Organizations and the Winnebago tribe. The investigation, at that time, indicated that Eleanor's deceased father, Powless, and Eleanor belonged to the Winnebago tribe. Pursuant to the provisions of the ICWA, that tribe was notified and became involved in the case.

On April 17, 1985, after a hearing in the juvenile court, temporary custody of Eleanor was awarded to DCFS which then placed her with her maternal great aunt. On May 3, 1985, after removal from her aunt's home at her aunt's request, Eleanor was placed in the foster home of Petty Officer and Mrs. Paul Swett in Great Lakes, Illinois. An American Indian and a member of the Menomenee tribe, Mrs. Swett immediately involved Eleanor in the activities of the Menomenee tribe and has continued to educate Eleanor about her Indian heritage and culture.

After temporary custody had been given to DCFS, the case was continued to give the Winnebago tribe an opportunity to intervene. On September 20, 1985, Powless objected to a motion by the Winnebago tribe to transfer the case to its tribal court pursuant to the ICWA. That objection by Eleanor's mother effectively barred transfer of the case to the Winnebago tribal court. (See 25 U.S.C. § 1911(b) (1978).) On May 5, 1987, the Winnebago tribe again intervened and again filed a petition to transfer jurisdiction and dismiss the case. On July 20, 1987, Powless again objected to the transfer of jurisdiction to the Winnebago tribal court.

On October 6, 1987, the date set for trial, the Winnebago tribe filed an emergency motion to stay foster care placement, arguing that placement with the foster family was improper because the "minor child presently is placed in a foster care placement with a family where the father is not Native American and the mother is not Winnebago or Potawatomi." This motion provided the first indication that Michelle Powless was not a Winnebago Indian, but a Potawatomi Indian. The circuit court continued the case pending notification of the Potawatomi tribe to determine whether Eleanor's mother was a Potawatomi and, if so, to ascertain if the Potawatomi tribe wished to intervene.

On October 21, 1987, the Potawatomi tribe informed the court that Powless was an enrolled member of the Prairie Band of Potawatomi Indians and that Eleanor was not a member, but was eligible for enrollment in the tribe. On November 17, 1987, the Potawatomi tribe entered an appearance and filed a motion to transfer jurisdiction and dismiss the case. On December 10, 1987, Eleanor was enrolled as a member of the tribe, without the knowledge or consent of her temporary custodian, DCFS. On December 18, 1987, pursuant to the Potawatomi tribe's motion for transfer, Powless, through her counsel the Public Defender, informed the court that she did not object to transfer of jurisdiction. Neither the Winnebago tribe nor the State's Attorney objected to transfer. DCFS made no response. The Public Guardian, as Eleanor's attorney, objected to transfer, asserting that "good cause" existed for Illinois to retain jurisdiction of this case because it would not be in the child's best interest for the Potawatomi tribe to exercise jurisdiction.

The Public Guardian then sought discovery to present certain evidence to the court. After Powless and the Winnebago tribe objected, arguing that there were no factual issues and that only legal issues were involved, the circuit court quashed the notices of deposition which had been sent by the Public Guardian.

On March 18, 1988, after presentation of written briefs and oral arguments, the circuit court found that good cause did not exist for Illinois to retain jurisdiction of this case and ordered that jurisdiction be transferred to the Potawatomi tribal court. The Public Guardian filed a notice of appeal on the same day, and the circuit court granted a stay of the order until March 31, 1988. On that day, the Public Guardian, as counsel for Eleanor, filed an emergency motion with this court for stay of the circuit court order. This court initially granted a temporary stay pending receipt of briefs on the issue, and, on April 13, 1988, this court denied a permanent stay. On April 18, 1988, the Public Guardian filed a motion for supervisory order with the Illinois Supreme Court requesting a stay of the circuit court order. The Potawatomi tribe filed its objection to this motion on April 23, 1988. On April 27, 1988, while there was no stay of the circuit court order in effect, the Potawatomi tribal court convened and affirmatively accepted jurisdiction of the proceeding. After the tribal court ordered that temporary custody of Eleanor be awarded to the tribe's social service agency pending an investigation to determine the best possible placement for her, that agency determined that Eleanor should remain with her present foster parents while it made its investigation.

On May 3, 1988, the Illinois Supreme Court entered a supervisory order staying enforcement of the circuit court's order pending the appeal. Subsequently, on May 13, 1988, the Public Guardian requested that the circuit court set a status hearing in the juvenile case. Counsel for the Potawatomi tribe, counsel for the Winnebago tribe, the State's Attorney, and the Public Defender as Powless' lawyer responded to this motion by arguing that the May 3, 1988 order of the Illinois Supreme Court staying all proceedings was unenforceable because the Potawatomi tribal court had entered its order on April 27, 1988, which effectively deprived the supreme court of jurisdiction. The circuit court refused to enter an order and struck the case from its call, stating it did not have jurisdiction and that it needed further direction from the Illinois Supreme Court.

The Public Guardian then filed a motion in the supreme court for a further supervisory order. Relying upon the April 27, 1988 tribal court order and the provision of the ICWA which requires states to give full faith and credit to tribal court orders in child custody proceedings (25 U.S.C. § 1911(d) (1978)), the Potawatomi tribe, joined by the State's Attorney and the Public Defender, filed a motion for reconsideration of the supervisory order. On August 24, 1988, the Illinois Supreme Court entered an order affirming its previous entry of the supervisory order.

During the pendency of this case, Eleanor has continued to live in the home of Petty Officer and Mrs. Swett. In the summer of 1987, Swett was transferred to California. Because of her highly adverse reaction to the prospect of removal from the Swett home, Eleanor was allowed by DCFS and the court, over the objections of the Winnebago tribe, to move to California with the Swett family. Eleanor has therefore lived with her foster family for more than half of her 8 years of life. The Indian Child Welfare Act (ICWA)

The ICWA of 1978 (92 Stat. 3069, 25 U.S.C. §§ 1901-1963 (1978)), was enacted to prevent the results of the separation of large numbers of Indian children from their families and tribes caused by adoption or foster care placement in non-Indian homes by state child welfare entities. The Congressional findings that were incorporated into the ICWA reflect the sentiment that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children. (25 U.S.C. § 1901 (1978).) Hence, the ICWA provides Indian tribes jurisdiction to determine child placement and adoption.

At the core of the ICWA are its provisions concerning jurisdiction over Indian child custody proceedings. Section 1911 provides a dual jurisdictional scheme. Section 1911(a) establishes exclusive jurisdiction in the tribal courts for proceedings concerning an Indian child "who resides or is domiciled within the reservation of such tribe ...". Section 1911(b), the section applicable to the case at bar, creates tribal jurisdiction in cases involving children not domiciled on the reservation. It states:

"In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of...