Justices asked to revisit Indian family law

At least one Indiana Court of Appeals judge believes the state’s highest court should revisit how it applies a three-decade
old statute to tribal Indian family adoption issues inside Indiana.

Ruling today on the case of In Re The Adoption of D.C. v. J.C. and A.C., No. 49A02-0909-CV-862, the panel unanimously affirmed
a Marion County probate judge’s decision to allow a stepfather to adopt an 11-year-old boy who’d lived with him
since birth.

The case presented a family law issue about the Indian Child Welfare Act of 1978, 25 U.S.C. § 1901-1963 (1982), which
is aimed at protecting the interests of tribal children and promoting stability and security to those tribes and families
by minimizing their removal from those environments.

Stepfather J.C. had petitioned Marion Superior Court to adopt D.C., who’d been living with him since birth in 1998
after the mother S.C. had separated from his biological father. Mother and stepfather had custody of the child until the mother’s
death in 2005. A few months before that, stepfather had obtained S.C.’s notarized consent to adopt D.C. Stepfather later
remarried and his new wife joined the petition, arguing that biological father’s consent wasn’t needed under Indiana
state law where they lived because the man hadn’t communicated or provided support significantly through the years.

But biological father contested D.C.’s adoption under ICWA, arguing the law should be applied because he was a member
of the Sitka Tribe of Alaska, an older son now living with him had enrolled in that tribe, and D.C. would be eligible for
enrollment at some point. Another elder child was originally part of this case, but at age 15 that child went to live with
biological father and was removed as part of the petition.

Marion Superior Judge Tanya Walton Pratt found ICWA to be inapplicable because there was no “removal” from custody
within an Indian family as contemplated by the law, and that the Indiana Supreme Court has found it applies when a tribal
Indian child is being removed from an existing Indian environment.

The Court of Appeals found that it was in the child’s best interests to stay with stepfather in Indiana, since he’d
cared for D.C. without interruption for the 11 years before this adoption matter. In addition, the court noted that biological
father had not objected to custody and had extremely limited contact while accumulating tens of thousands of dollars in unpaid
child support payments. The appellate judges also found biological father’s adoption consent wasn’t required.

Significantly, though, the appellate court declined to accept biological father’s invitation to go against 1988 Indiana
Supreme Court precedent in analyzing and evaluating the ICWA application. More than 20 years ago in Matter of Adoption
of T.R.M., 525 N.E. 2d 298, 303 (Ind. 1988), Indiana joined other states in how it applies that act to Indian children
being removed from their existing environments.

While agreeing with the majority, Judge Michael Barnes wrote a concurring opinion that invited the state’s justices
to do exactly that and join more recent national trends in applying the law. In the past decade courts, including those in
Kansas and Oklahoma, have overruled the previous ruling that they and Indiana had originally based their applications on.

“In fact, the validity of the existing Indian family doctrine has repeatedly been called into question, and many courts
have now abandoned the doctrine,” Judge Barnes wrote. “We do not have the authority to overrule our supreme court,
and we must apply the existing Indian family doctrine in this case. However, given the controversy surrounding the existing
Indian family doctrine, I encourage our supreme court to revisit its applicability in Indiana.”