In re A.W., No. 06-1074.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtHecht
PartiesIn the Interest of A.W. and S.W., Minor Children, Woodbury County Attorney and A.W. and S.W., Minor Children, Appellants, v. Iowa Attorney General and Winnebago Tribe of Nebraska, Appellees.
Docket NumberNo. 06-1074.
Decision Date30 November 2007
741 N.W.2d 793
In the Interest of A.W. and S.W., Minor Children,
Woodbury County Attorney and A.W. and S.W., Minor Children, Appellants,
v.
Iowa Attorney General and Winnebago Tribe of Nebraska, Appellees.
No. 06-1074.
Supreme Court of Iowa.
November 30, 2007.

[741 N.W.2d 796]

Patrick Jennings, County Attorney, and David A. Dawson, Assistant County Attorney, for appellant Woodbury County Attorney.

Michelle M. Dreibelbis of the Juvenile Law Center, Sioux City, for appellants minor children.

Thomas J. Miller, Attorney General, and Bruce Kempkes, Assistant Attorney General, for appellee Iowa Attorney General.

Martha M. McMinn, Sioux City, for appellee the Winnebago Tribe of Nebraska.

HECHT, Justice.


The juvenile court concluded A.W. and S.W. are "Indian children" as defined in the Iowa Indian Child Welfare Act, Iowa Code chapter 232B (2005) (Iowa ICWA), and granted the Winnebago Tribe of Nebraska's petition to intervene in a child-in-need-of-assistance (CINA) proceeding. On appeal, the county attorney and the guardian ad litem for the children whose interests are at issue in this case challenge the Winnebago Tribe's status as the "Indian child's tribe" and the constitutionality of the Iowa ICWA. We grant the Iowa Attorney General's motion to dismiss the county attorney's appeal, and we conclude the Iowa ICWA definition of "Indian child" violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. Accordingly, we reverse the juvenile court's ruling granting the Tribe's petition to intervene.

I. Factual and Procedural Background.

To place into context the unique issues involved in this case, a brief discussion of the historical background of the federal ICWA1 is useful. Studies in the late 1960s and early 1970s showed "25 to 35%

741 N.W.2d 797

of all Indian children had been separated from their families and placed in adoptive families, foster care, and institutions." Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32, 109 S.Ct. 1597, 1600, 104 L.Ed.2d 29, 36 (1989) (citing Indian Child Welfare Program Hearings before the Subcommittee on Indian Affairs of the Senate Committee on Interior and Insular Affairs, 93d Cong., 2d Sess., 3 (statement of William Byler) (hereinafter 1974 Hearings); H.R.Rep. No. 95-1386, p. 9 (1978)). Testimony taken during the congressional hearings that led to the federal ICWA legislation suggested "[t]he adoption rate of Indian children was eight times that of non-Indian children." Id. (citing 1974 Hearings at 75-83). In his 1978 testimony before the Subcommittee on Indian Affairs and Public Lands of the House Committee on Interior and Insular Affairs, Chief Calvin Isaac of the Mississippi Band of Choctaw Indians asserted the drain of Indian children from reservations was due to "nontribal government authorities who have no basis for intelligently evaluating the cultural and social premises underlying Indian home life and childrearing." Id. (citing Hearings on S. 1214 before the Subcommittee on Indian Affairs and Public Lands of the House Committee on Interior and Insular Affairs, 95th Cong., 2d Sess. (testimony of Calvin Isaac)). Chief Isaac also observed in his hearing testimony that "[m]any of the individuals who decide the fate of [native] children are at best ignorant of [Indian] cultural values, and at worst contemptful of the Indian way and convinced that removal, usually to a non-Indian household or institution, can only benefit an Indian child." Id.

Congress enacted the federal ICWA in 1978 in response to its

rising concern in the mid-1970s over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.

Id. at 32, 109 S.Ct. at 1600, 104 L.Ed.2d at 36. Responding to an "Indian child welfare crisis . . . of massive proportions," H.R.Rep. No. 95-1386, p. 9, Congress incorporated the following findings in the statute:

(1) that clause 3, section 8, article I of the United States Constitution provides that "The Congress shall have Power * * * To regulate Commerce * * * with Indian tribes" and, through this and other constitutional authority, Congress has plenary power over Indian affairs;

(2) that Congress, through statutes, treaties, and the general course of dealing with Indian tribes, has assumed the responsibility for the protection and preservation of Indian tribes and their resources;

(3) that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe;

(4) that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and

(5) that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations

741 N.W.2d 798

of Indian people and the cultural and social standards prevailing in Indian communities and families.

25 U.S.C. § 1901 (2003). The legislation declared it federal policy to

protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture. . . .

Id. § 1902. In defining the reach of the federal legislation, Congress defined an "Indian child" as "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." Id. § 1903(4).

In furtherance of the federal policy to protect Indian children and their relationships with the tribes with which they might be affiliated, the federal ICWA requires the court to notify an Indian child's tribe of any child custody proceeding involving the child, and provides for three types of tribal involvement.2 Id. § 1912(a). First, tribes have exclusive jurisdiction over child custody proceedings involving Indian children domiciled on the tribe's reservation. Id. § 1911(a). Second, state courts are required, unless good cause otherwise dictates, to transfer to tribal court any proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled on the reservation. Id. § 1911(b). Finally, the Indian child's custodian and the Indian child's tribe have the right to intervene at any point in a state court foster care or termination proceeding. Id. § 1911(c).

The federal ICWA also provides substantive protections for Indian children, parents, and Indian custodians, including placement preferences for the families and tribes of Indian children involved in child custody proceedings. See id. § 1915. It also allows states to apply their own "standard[s] of protection to the rights of the parent or Indian custodian of an Indian child" if they are higher than the federal ICWA standards. Id. § 1921.

In 2003, the Iowa General Assembly enacted the Iowa ICWA to "clarify state policies and procedures regarding implementation" of the federal ICWA. Iowa Code § 232B.2 (2007).3 The Iowa ICWA and the federal ICWA are not completely coterminous, however, as the Iowa ICWA provides for several areas of greater protection to Indian families and tribes. One instance in which the Iowa ICWA purports to expand upon the protections afforded by the federal ICWA is in the definition of "Indian child."4 As we have already noted,

741 N.W.2d 799

the federal ICWA defines an "Indian child" as "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." 25 U.S.C. § 1903(4). The Iowa ICWA defines an "Indian child" as "an unmarried Indian person who is under eighteen years of age or a child who is under eighteen years of age that an Indian tribe identifies as a child of the tribe's community." Iowa Code § 232B.3(6) (emphasis added). Thus, unlike the federal statute, section 232B.3(6) purports to include within the definition of "Indian child" children without regard to whether they are members of a tribe nor eligible for membership.

The Winnebago Tribe of Nebraska is a federally recognized Indian Tribe located in northeastern Nebraska. Children of tribe members are eligible for membership provided they "possess at least one-fourth degree Winnebago Indian blood."5 To assist the Tribe's ICWA specialists in deciding whether a child is properly identified as a "child of the tribe's community" and therefore an "Indian child" under the Iowa ICWA, the Winnebago Tribal Council adopted resolution #04-26 on January 21, 2004. This resolution states: "[F]or purposes of determining the applicability of the Iowa ICWA, any child of an enrolled Winnebago tribal member shall be included as a child of the Winnebago tribal community."

A.W. and S.W. were born in Sioux City, and continue to reside there. There is no evidence in the record tending to prove the children have ever lived on the Winnebago Reservation. They are the biological children of Tina, an enrolled Winnebago Tribe member who possesses one-fourth degree Winnebago blood. Anthony, the father of A.W. and S.W, is Caucasian. A.W. and S.W. therefore possess one-eighth degree...

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32 practice notes
  • In re Adoption of C.D., No. 20070171.
    • United States
    • United States State Supreme Court of North Dakota
    • June 26, 2008
    ...an Indian child is involved in the case. See, e.g., 25 U.S.C. § 1912; In re A.G.-G., 899 P.2d 319, 321 (Colo.Ct.App.1995); In re A.W., 741 N.W.2d 793, 807 (Iowa 2007); In re Anderson, 176 Or.App. 311, 31 P.3d 510, 512 (2001). "Indian child" is defined in 25 U.S.C. § "Indian child" means any......
  • Bd. of Water Works Trs. of Des Moines v. Sac Cnty. Bd. of Supervisors, No. 16-0076
    • United States
    • United States State Supreme Court of Iowa
    • January 27, 2017
    ...of any act of the Legislature diminishing its revenues, amending its charter, or even dissolving it entirely."); see also In re A.W., 741 N.W.2d 793, 805 (Iowa 2007) ("The county attorney's authority to act on behalf of either the county or the State is derived from the legislature, and he ......
  • Planned Parenthood of the Heartland v. Reynolds ex rel. State, No. 17-1579
    • United States
    • United States State Supreme Court of Iowa
    • June 29, 2018
    ...In re Det. of Garren , 620 N.W.2d 275, 286 (Iowa 2000), with Mitchell County v. Zimmerman , 810 N.W.2d 1, 16–18 (Iowa 2012), In re A.W. , 741 N.W.2d 793, 811 (Iowa 2007), Spiker v. Spiker , 708 N.W.2d 347, 352 (Iowa 2006), In re S.A.J.B. , 679 N.W.2d 645, 650–51 (Iowa 2004), Lamberts v. Lil......
  • Minor v. State, No. 09–1010.
    • United States
    • United States State Supreme Court of Iowa
    • June 15, 2012
    ...has a duty to advocate for the position of DHS and may not “ ‘assert his [independent] vision of the state interest.’ ” In re A.W., 741 N.W.2d 793, 803 (Iowa 2007) (citation omitted); see alsoIowa Code § 232.90(2). In that case, we considered whether a county attorney could appeal a juvenil......
  • Request a trial to view additional results
32 cases
  • In re Adoption of C.D., No. 20070171.
    • United States
    • United States State Supreme Court of North Dakota
    • June 26, 2008
    ...an Indian child is involved in the case. See, e.g., 25 U.S.C. § 1912; In re A.G.-G., 899 P.2d 319, 321 (Colo.Ct.App.1995); In re A.W., 741 N.W.2d 793, 807 (Iowa 2007); In re Anderson, 176 Or.App. 311, 31 P.3d 510, 512 (2001). "Indian child" is defined in 25 U.S.C. § "Indian child" means any......
  • Bd. of Water Works Trs. of Des Moines v. Sac Cnty. Bd. of Supervisors, No. 16-0076
    • United States
    • United States State Supreme Court of Iowa
    • January 27, 2017
    ...of any act of the Legislature diminishing its revenues, amending its charter, or even dissolving it entirely."); see also In re A.W., 741 N.W.2d 793, 805 (Iowa 2007) ("The county attorney's authority to act on behalf of either the county or the State is derived from the legislature, and he ......
  • Planned Parenthood of the Heartland v. Reynolds ex rel. State, No. 17-1579
    • United States
    • United States State Supreme Court of Iowa
    • June 29, 2018
    ...In re Det. of Garren , 620 N.W.2d 275, 286 (Iowa 2000), with Mitchell County v. Zimmerman , 810 N.W.2d 1, 16–18 (Iowa 2012), In re A.W. , 741 N.W.2d 793, 811 (Iowa 2007), Spiker v. Spiker , 708 N.W.2d 347, 352 (Iowa 2006), In re S.A.J.B. , 679 N.W.2d 645, 650–51 (Iowa 2004), Lamberts v. Lil......
  • Minor v. State, No. 09–1010.
    • United States
    • United States State Supreme Court of Iowa
    • June 15, 2012
    ...has a duty to advocate for the position of DHS and may not “ ‘assert his [independent] vision of the state interest.’ ” In re A.W., 741 N.W.2d 793, 803 (Iowa 2007) (citation omitted); see alsoIowa Code § 232.90(2). In that case, we considered whether a county attorney could appeal a juvenil......
  • Request a trial to view additional results

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