Wednesday, 23 May 2012

The Message of Silence: US Supreme Court cert denial undermines exercise of self-determination


The news that the United States Supreme Court has declined to hear an appeal from the 10th Circuit Court of Appeal on tribal membership in determining the applicability of the Indian Child Welfare Act is disappointing but not surprising.

The Supreme Court has heard only one case on the Indian Child Welfare Act, since the Act was passed in 1978. That of course was the case of Mississippi Band of Choctaw Indians v Holyfield , 490 US 30 (1989) where the exclusive tribal court jurisdiction over a child who lived or whose parents lived on the tribal lands was upheld. There, the US Supreme Court set aside an adoption that was done in contravention of the jurisdictional provisions of the Indian Child Welfare Act. It was the first and so far only time that the US Supreme Court has spoken on the Act. But through the cases it fails to take, it also speaks.

Whilst the case decided in the 10th Circuit Court of Appeals turns on the membership of a child to a tribe, there are disturbing undertones to the decision. The Indian Child Welfare Act says that a tribe’s determination of a child’s membership is determinative of the status of the child. And under ICWA, if a child is a member of a federally recognised tribe, ICWA applies. The federal law has no caveats, no ifs, no ands, no buts to qualify the very straightforward determination of when and whether ICWA applies. Tribes determine their own membership criteria and ICWA requires courts to abide by that. This is an example of self-determination in action.

And this has given courts great angst since the Act was passed. A not so apocryphal statement from judges might be “What do you mean that I cannot decide who is an Indian?” Having to recognise indigenous self-determination seems to rankle with some judges. And this was what gave rise to the judicially created “existing Indian family doctrine”, which is on the wane but still in use in a few states.


The gist of the 10th Circuit reasoning to not apply ICWA is that the “wrong” kind of membership was in existence. But it is not for the state or federal courts to determine how a tribe classifies or determines its membership. The United States Supreme Court denial of certiorari to this case keeps alive the sort of thinking that allowed the existing Indian family doctrine to flourish. The reasoning undermines and is contrary to not only the plain language of ICWA but to the exercise of self-determination. In its failure to speak, the US Supreme Court has spoken very loudly.


(prior blog posts on the Indian Child Welfare Act and the existing Indian family doctrine here, here, and here)

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