In the Matter of the Dependency of Z.J.G. and M.E.J.G., minor children DEPARTMENT OF CHILDREN, YOUTH, & FAMILIES, Respondent, v. SCOTT JAMES GREER, Appellant
No. 98003-9
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
September 3, 2020
EN BANC
FILE
IN CLERK‘S OFFICE
SUPREME COURT, STATE OF WASHINGTON
SEPTEMBER 3, 2020
CHIEF JUSTICE
THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
SEPTEMBER 3, 2020
SUSAN L. CARLSON
SUPREME COURT CLERK
ICWA and WICWA were enacted to remedy the historical and persistent state-sponsored destruction of Native families and communities. These are baseline protections, passed as a step toward rectifying the horrific wrongs of widespread removal of Native children from their families and states’ consistent failure to provide due process to tribes. The acts provide specific protections for Native children in child welfare proceedings and are aimed at preserving the children‘s relationships with their families, Native communities, and identities. The acts also require states to send notice to tribes so that tribes may exercise their independent rights and interests to protect their children and, in turn, the continuing existence of tribes as thriving communities for generations to come.
During a child custody proceeding, if a court has a ”
At issue in this case is whether the court had “reason to know” that M.G and Z.G. were Indian children at a 72-hour shelter care hearing. We hold that a trial court has “reason to know” that a child is an Indian child when a participant in the proceeding indicates that the child has tribal heritage. We respect that tribes determine membership exclusively, and state courts cannot establish who is or is not eligible for tribal membership on their own. Further, we follow the canon of construction for interpreting statutes that deal with issues affecting Native people and tribes, which requires that we construe these statutes in favor of the tribes. Finally, we are bound by the statutory language and implementing regulations of ICWA and WICWA, and we interpret these
Here, participants in a shelter care hearing indicated that M.G. and Z.G. had tribal heritage. The trial court had “reason to know” that M.G. and Z.G. were Indian children, and it erred by failing to apply ICWA and WICWA standards to the proceeding. We reverse.
I. FACTS AND PROCEDURAL HISTORY
A. Factual Background
On June 27, 2018, the Kent Police Department removed minor children, Z.G. and M.G., from the care of their parents, S.G. (father) and L.G. (mother). The police took the children into protective custody due to concerns of neglect and unsanitary living conditions. At the time, Z.G. was 21 months old, and M.G. was 2 years old. On June 29, 2018, the Department of Children, Youth, and Families (the Department) filed dependency petitions for Z.G. and M.G. In the petitions, the Department stated:
Based upon the following, the petitioner knows or has reason to know the child is an Indian child as defined in
RCW 13.38.040 and25 U.S.C. § 1903(4) , and the Federal and Washington State Indian Child Welfare Acts do apply to this proceeding:Mother has Tlingit-Haida4 heritage and is eligible for membership with Klawock Cooperative Association. She is also identified as having Cherokee heritage on her paternal side. Father states he may have native heritage with Confederated Tribes of the Umatilla in Oregon.
The petitioner has made the following preliminary efforts to provide notice of this proceeding to all tribes to which the petitioner knows or has reason to know the child may be a member or eligible for membership if the biological parent is also a member:
Inquiry to tribes has been initiated. Worker has called Central Council Tlingit Haida regarding this family and petition. Further inquiry and notification to tribes ongoing.
Clerk‘s Papers (CP) at 2 (emphasis added).
On July 2 and 3, 2018, a shelter care hearing took place to determine whether the children could be immediately and safely returned home while the adjudication of the dependency was pending.
The father, S.G., testified that it was his understanding that the children‘s mother is of Central Council of the Tlingit and Haida Indian Tribes of Alaska (Tlingit & Haida) heritage and that she is eligible for tribal membership in the Klawock Cooperative Association of American Indians (KCA). He also testified that the mother has Cherokee heritage
The mother testified that she was eligible for tribal membership in Tlingit & Haida and that her children were also eligible for tribal membership in the same tribes. She also indicated that she was not an enrolled member of a federally recognized tribe at that time.
In its oral ruling, the court determined:
So just as a threshold issue, as far as the application of ICWA, based on testimony of the social workers, frankly, as well as the testimony of both the parents, I‘m going to make a finding that ICWA does not apply to these cases at this point based on the evidence presented and the reasonable cause standard.
Id. at 118. The court went on to apply the non-ICWA emergency removal standard and found that the Department met its burden to show “that there‘s a serious risk of substantial harm to the boys in this case.” Id. The court did not utilize the placement preferences outlined in ICWA and, instead, placed Z.G. and M.G. in licensed foster care, despite the availability of placements that were culturally appropriate.5 In the court‘s written shelter care order, the court found, “Based upon the following, there is not a reason to know the child is an Indian child ... : Mother and father are not enrolled members in a federally recognized tribe. Maternal grandmother is enrolled member, Department continuing to investigate. Mother believes she‘s eligible for tribal membership.” CP at 10.
After the children had been in licensed foster care for close to a month, on July 30, 2018, Tlingit & Haida successfully intervened in the case on behalf of KCA. KCA determined that M.G. and Z.G. are tribally enrolled members. The court later entered a dependency order as to the father‘s parental rights and, consistent with the tribal intervention, determined that there was “reason to know” Z.G. and M.G. were Indian children, and applied ICWA and WICWA. Id. at 19, 59.
B. Procedural History
The father moved for discretionary review of the shelter care order.6 The Court of Appeals commissioner granted review and found that although the father‘s appeal of the shelter care order was technically moot, the issues were of continuing and substantial public interest, so review was appropriate.7
The
The father sought review in this court, which we granted. 195 Wn.2d 1008 (2020).
II. ANALYSIS
A. Standard of Review
The applicability of ICWA and WICWA is a question of law we review de novo. In re Adoption of T.A.W., 186 Wn.2d 828, 840, 383 P.3d 492 (2016). Statutory and regulatory interpretation is also a question of law that we review de novo. Columbia Riverkeeper v. Port of Vancouver USA, 188 Wn.2d 80, 90, 392 P.3d 1025 (2017). “We interpret administrative regulations using rules of statutory construction.” Id. The purpose of our inquiry is to determine legislative intent and interpret the statutory provisions in a way that carries out that intent. Id. at 91. We first consider the statute‘s plain language. T.A.W., 186 Wn.2d at 840. “‘If the plain language is subject to only one interpretation, our inquiry ends because plain language does not require construction.‘” Id. (quoting HomeStreet, Inc. v. Dep‘t of Revenue, 166 Wn.2d 444, 451, 210 P.3d 297 (2009)). Plain meaning “is derived from the context of the entire act as well as any ‘related statutes which disclose legislative intent about the provision in question.‘” Jametsky v. Olsen, 179 Wn.2d 756, 762, 317 P.3d 1003 (2014) (quoting Dep‘t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11, 43 P.3d 4 (2002)). However, if the statute is subject to more than one reasonable interpretation, we “may resort to statutory construction, legislative history, and relevant case law for assistance in discerning legislative intent.” Id. (quoting Christensen v. Ellsworth, 162 Wn.2d 365, 373, 173 P.3d 228 (2007)).
ICWA and WICWA are interpreted coextensively, barring specific differences in their statutory language. T.A.W., 186 Wn.2d at 844. If the federal and state protections differ, we apply the more protective provision.
Our plain language analysis requires an understanding of the context in which the contested provision is found, and the purposes of each act must guide our interpretation, so we begin with the background to the passage of each act. See T.A.W., 186 Wn.2d at 841.
B. Background of ICWA and WICWA8
Congress passed ICWA in 1978 in response to a lengthy and concerted effort by
The removal of Native children from their homes happened without due process or notice to the tribes. H.R. REP. NO. 95-1386, at 11 (1978); ICWA Proceedings, 81 Fed. Reg. at 38,780. Often, state officials—frequently supported by private, for-profit adoption agencies—would remove a Native child without notice to tribal authorities or an explanation to the parents, resulting in gross violations of due process, which were “quite commonplace when ... dealing with Indian parents and Indian children.” 1974 Senate Hearings at 67 (testimony of Bertram Hirsch, Staff Attorney, Association of American Indian Affairs). Washington State also engaged in removals without due process, which left tribes and families without a way to find their children. The children themselves would often never learn of their true homes, and many were not raised with the knowledge that they were Native children or tribal members. In 1974, tribal leaders testified before Congress about the problems Native families and tribes faced under current state child welfare practices. Mel Sampson recounted a statement of an adopted child who said, “My second grade teacher was the one that told me I was an Indian.... My adoptive parents told me when I was between the age of 9 and 10 ... not mentioning a tribe or where I was from.” Id. at 117 (statement of Mel Sampson, Northwest Affiliated Tribes, Washington State; accompanied by Louie Cloud, Vice Chairman, Yakima9 Tribal Council). Roger R. Jim Sr. explained multiple occasions of Native children being removed from their homes in Washington and taken across the country for adoptions without tribal notice. Id. at 119 (statement of
The states’ widespread removal of Indian children without notice presented a serious threat not only to the family and children but also to the existence of tribes as self-governing communities. ICWA Proceedings, 81 Fed. Reg. at 38,781. This form of removal compounded the traumatic effect of a centuries-long practice of separating Native families and children from each other and their tribes of origin. Congress addressed this ongoing crisis of removal and adoption by incorporating robust notice provisions into ICWA to ensure that tribes have the opportunity to intervene in proceedings that separate tribal children from their families. Id.;
Without notice, tribes cannot exercise these rights. Congress sought to preserve the integrity of tribes as self-governing and sovereign entities by ensuring, through notice, that tribes can act to protect the future and integrity of both the tribes themselves and their families. See ICWA Proceedings, 81 Fed. Reg. at 38,781. Congress‘s passage of ICWA protected not only the sovereignty of tribes but their continued existence.
Removal caused—and continues to cause—lasting trauma for both individuals and tribes, as well as a disconnection between individuals and their tribal communities. Ramona Bennett, Chairwoman of the Puyallup Tribe of Indians, recounted to the Senate the long-lasting trauma that removals have on Native children and Native families:
[M]any of these adopted ones come back to me. Some are our tribal members. Many of them are from Indian nations all over the country. They tell horror stories about the things that have happened to them, including their lack of identity, their loss of self-esteem; it is a real tragedy.
These kids are in foster care or out of Indian communities, and they find themselves never being appreciated and never measuring up. They are accepted only if they compromise themselves as Indian human beings, compromise themselves and alter their values.
1977 Senate Hearings at 164 (statement of Ramona Bennett, Chairwoman, Puyallup Tribe). This trauma was particularly widespread in Washington. In a 1976 report, Washington was listed as one of the 10 worst states by rate of Indian placements, with 13 times more Indian children placed in foster and adoptive care compared to non-Indian children. TASK FORCE FOUR: FED., STATE, & TRIBAL JURISDICTION, 94TH CONG., REP. ON FEDERAL, STATE, AND TRIBAL JURISDICTION 181, 238 (Comm. Print 1976), https://www.narf.org/nill/documents/icwa/federal/lh/76rep/76rep.pdf [https://perma.cc/TJK2-Z76E].10
The impacts of the removal of Native children on tribes has been studied fairly extensively, but the impact on individual Native children has been studied less so. In 2017, the first study to compare the mental health outcomes of Native adoptees and White adoptees showed that Native adoptees have unique experiences. Based on its preliminary quantitative research, the study concluded,
It appears that AI [(American Indian)] adoptees are even more vulnerable to mental health problems within the adoptee population. AI adoptees compared to White adoptees were more likely to report alcohol addiction, alcohol recovery, drug addiction, drug recovery, self-assessed eating disorder, eating disorder diagnosis, self-injury, suicidal ideation, and suicide attempt.
Ashley L. Landers, Sharon M. Danes, Kate Ingalls-Maloney, Sandy White Hawk, American Indian and White Adoptees: Are There Mental Health Differences?, 24 AM. INDIAN &
As Landers et al. note, “storytelling is a major activity in AI culture, having adoptees seek the stories of their own ancestors begins to fill the ‘hole’ created by being torn from their families of origin. AI adoptees sharing their own stories gives relevance to their history and elicits more healing.” Id. at 70. One of the study‘s authors, Sandy White Hawk, speaks nationally and tells her story of removal from her biological home. She recalls being pulled out from under a table where she had hidden from the White man and woman who came to her house to take her; at 18 months, she was removed from her family and adopted by this White couple, and she was raised in a town in which she was the only Native person. She endured abuse at home and abuse at school. It was not until her adult years that she learned where she had come from and began a decades-long process of returning to her Sicangu Lakota homeland, where she reconnected with her brother and other relatives and learned the Lakota language. Her mother died young, mourning, as White Hawk says, “not having her baby with her.”11 White Hawk has become a national expert on the unique adoption trauma Native children, who are now adults, have suffered, and she is the leader of a movement toward the repatriation of Native adoptees, many of whom have no idea which tribes they come from or the circumstances of their removal. The storytelling and repatriation processes White Hawk describes are critical to healing the wounds created by these long-term policies of removal. ICWA is meant to prevent the trauma of removal in the first instance, whenever possible.
Yet, since the passage of ICWA, state courts have undermined ICWA protections and ignored tribes’ exclusive role in determining their own membership. For example, state courts created an exception to the application of ICWA by determining that ICWA should not apply when it finds that an Indian child is not part of an “existing Indian family.” In re Adoption of Baby Boy L., 231 Kan. 199, 205-07, 643 P.2d 168 (1982), overruled by In re A.J.S., 288 Kan. 429, 204 P.3d 543 (2009); accord In re Adoption of T.R.M., 525 N.E.2d 298, 303 (Ind. 1988); Claymore v. Serr, 405 N.W.2d 650, 654 (S.D. 1987); In re Adoption of Baby Boy D, 1985 OK 93, 742 P.2d 1059, 1064, overruled in part by In re Baby Boy L., 2004 OK 93, 103 P.3d 1099. Before applying ICWA protections to a proceeding, state courts would examine the child and their family and unilaterally determine the “Indian-ness” of each. ICWA Proceedings, 81 Fed. Reg. at 38,782. Even if the court knew the child was a member of a tribe, if the state court deemed that the child was not from an “existing Indian family,” it would deny ICWA protections. Baby Boy L., 231 Kan. at 202-06. As a result, even children who met the statutory definition of “Indian child,” their families, and their tribes were denied the protections that Congress established. ICWA Proceedings, 81 Fed. Reg. at 38,782.
This court endorsed the “existing Indian family” exception in In re Adoption of Infant Boy Crews, 118 Wn.2d 561, 825 P.2d 305 (1992), overruled in part by T.A.W., 186 Wn.2d at 858. In Crews, Tammy Crews attempted to vacate the order terminating her parental rights. Id. at 565. Crews grew up in Washington and was unaware of her specific tribal affiliation at the time her parental rights were terminated. Id. at 563, 565. On appeal, the Choctaw Nation of Oklahoma intervened in the case and determined that both Crews and the child were members. Id. at 566.
We determined that since the child “has never been a part of an existing Indian family unit or any other Indian community,” ICWA did not apply. Id. at 569. In concluding that there was no “existing Indian family unit” to protect, we reasoned that “[n]either Crews nor her family has ever lived on the Choctaw reservation in Oklahoma and there are no plans to relocate the family from Seattle to Oklahoma.” Id. Further, “there is no allegation by Crews or the Choctaw Nation that, if custody were returned to Crews, [the child] would grow up in an Indian environment,” and “Crews has shown no substantive interest in her Indian
This is precisely the type of reasoning a correct application of ICWA would prevent. One of ICWA‘s main purposes was to interrupt state policies that contributed to the large scale and ongoing genocide of Native people, through the removal of children, which was part of assimilationist policies begun in the 1800s to “Kill the Indian and Save the Man.”12 Yet we relied on the success of those very policies to deny ICWA‘s protections. Id. at 565. We commented that Crews “testified that her family does not regularly participate in any Indian practices or events,” relying on the family‘s lack of connection with a tribal community in order to justify denying ICWA and WICWA protections that were clearly applicable. Id.
It was not until decades later, in 2016, in In re Adoption of T.A.W., that we overruled Crews and reconsidered our adoption of the “existing Indian family” exception. 186 Wn.2d at 858. However, the Bureau of Indian Affairs’ (BIA) regulations confirm that Crews was wrong when it was decided; “there is not an ‘existing Indian family’ exception to ICWA.” ICWA Proceedings, 81 Fed. Reg. at 38,815. In fact, the first time the BIA exercised its authority to create binding regulations, it did so in response to decisions and policies of state courts that impermissibly lowered the protections of ICWA, such as the invalid “existing Indian family” exception. Id. at 38,782.
In 2011, Washington joined several other states in enacting its own version of ICWA. In general, these statutes may clarify ICWA or add protections to child custody proceedings involving Indian children, but they may not lower ICWA protections.
Washington still has work to do. As of 2015, American Indian and Alaskan Native children in Washington were represented in foster care at a rate 3.6 times greater than they were in the general child population of the state. NAT‘L COUNCIL OF JUVENILE & FAMILY COURT JUDGES, DISPROPORTIONALITY RATES FOR CHILDREN OF COLOR IN FOSTER CARE 6 (2015), https://www.ncjfcj.org/wp-content/uploads/2017/09/NCJFCJ-Disproportionality-TAB-2015_0.pdf [https://perma.cc/4BVH-G6PC]. This was well above the national average. Id. Regrettably, the disproportionate rate of representation of Native children in the Washington state child welfare system has not changed significantly since 2008, when the Washington State Institute for Public Policy (WSIPP) published Racial Disproportionality in Washington State‘s Child Welfare System. MARNA MILLER, WASH. STATE INST. FOR PUB. POLICY, RACIAL DISPROPORTIONALITY IN WASHINGTON STATE‘S CHILD WELFARE SYSTEM (2008) https://www.wsipp.wa.gov/ReportFile/1018/wsipp_Racial-Disproportionality-in-Washington-States-Child-Welfare-System_Full-Report.pdf [https://perma.cc/FV7M-D29Y]. WSIPP found that Native children were almost five times more likely than White children to be removed
C. “Reason To Know” under ICWA and WICWA
Law enforcement officers may take a child into custody without a court order if there is probable cause to believe that the child is abused or neglected and if the child might be injured if it were necessary to first obtain a court order.
During a child custody proceeding, ICWA and WICWA provide mechanisms to protect tribal interests and prevent the improper removal of Indian children.13 Tribes have the right to exercise their jurisdiction over child custody proceedings involving Indian children or to intervene as a party in a state court proceeding.
ICWA also provides increased protections for Indian children. These protections include identifying placement preferences within the child‘s tribal community.
When a court has a “reason to know” a child is or may be an Indian child, it must apply ICWA and WICWA standards. At the commencement of a child custody proceeding, the court is obligated to inquire from each participant whether there is a “reason
1. We Adopt a Broad Interpretation of “Reason To Know”
We hold that a court has a “reason to know” that a child is an Indian child when any participant in the proceeding indicates that the child has tribal heritage. We adopt this interpretation of the “reason to know” standard because it respects a tribe‘s exclusive role in determining membership, comports with the canon of construction for interpreting statutes that deal with issues affecting Native people and tribes, is supported by the statutory language and implementing regulations, and serves the underlying purposes of ICWA and WICWA. Further, tribal membership eligibility varies widely from tribe to tribe, and tribes can, and do, change those requirements frequently. State courts cannot and should not attempt to determine tribal membership or eligibility. This is the province of each tribe, and we respect it.
First, our holding fully respects a tribe‘s sovereign role in determining its own membership. Determining tribal membership is under the exclusive jurisdiction of a tribe. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n.32, 98 S. Ct. 1670, 56 L. Ed. 2d 106 (1978). “A tribe‘s right to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community.” Id. “The determination of whether a child is an Indian child turns on Tribal citizenship or eligibility for citizenship. . . . [T]hese determinations are ones that Tribes make in their sovereign capacity and [the rule] requires courts to defer to those determinations.”
As the Department points out,
the trigger for treating the child as an “Indian child” is the reason to know that the child is an Indian child . . . [which] is not based on the race of the child, but rather indications that the child and her parent(s) may have a political affiliation with a Tribe.
Second, finding a “reason to know” when a participant indicates a child has tribal heritage comports with the canons of construction applicable to statutes that deal with issues affecting Native people and tribes. The “‘canons of construction applicable in Indian law are rooted in the unique trust relationship between the United States and the Indians.‘” Blackfeet Tribe of Indians, 471 U.S. at 766 (quoting Oneida County v. Oneida Indian Nation, 470 U.S. 226, 247, 105 S. Ct. 1245, 84 L. Ed. 2d 169 (1985)). One canon is directly applicable in this case: “statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.” Id. (citing McClanahan v. Ariz. State Tax Comm‘n, 411 U.S. 164, 174, 93 S. Ct. 1257, 36 L. Ed. 2d 129 (1973); Choate v. Trapp, 224 U.S. 665, 675, 32 S. Ct. 565, 56 L. Ed. 941 (1912)). We are required to construe the “reason to know” standard liberally in favor of notice, and any doubt about the “reason to know” standard should be resolved in favor of tribes. When there is a possibility of political affiliation due to heritage, we interpret “reason to know” in favor of notice to tribes when tribal heritage is indicated.
Moreover, this more expansive understanding of “reason to know” is also supported by the statutory provisions and implementing regulations that promote the early and expansive application of ICWA and WICWA. Federal regulations promote “compliance with ICWA from the earliest stages of a child-welfare proceeding.”
Recently passed federal regulations list factors that indicate a “reason to know” that a child is an Indian child.
- Any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that the child is an Indian child;
- Any participant in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child;
- The child who is the subject of the proceeding gives the court reason to know he or she is an Indian child;
- The court is informed that the domicile or residence of the child, the child‘s parent, or the child‘s Indian custodian is on a reservation or in an Alaska Native village;
- The court is informed that the child is or has been a ward of a Tribal court; or
- The court is informed that either parent or the child possesses an identification card indicating membership in an Indian Tribe.
Id. The BIA encourages courts to interpret these factors expansively. GUIDELINES FOR IMPLEMENTING THE INDIAN CHILD WELFARE ACT, supra, at 11. Under both ICWA and WICWA, an “Indian child” is defined as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.”
The purposes behind ICWA support a broad understanding of the “reason to know” standard. One animating principle behind the act is the recognition that “States . . . have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.”
As discussed above, the history of abusive removals without notice to tribes and the historical failure of state courts to provide proper due process to Native families means that tribal members may not have knowledge of their political affiliation with a tribe. The BIA recognizes this reality in
While a broad interpretation serves the statute‘s purposes, a narrow interpretation would undermine the protection of Indian children and tribes. The “reason to know” finding triggers the requirement of formal notification to tribes.
Finally, our interpretation is consistent with the way other states interpret the “reason to know” standard. For example, in In re N.D., 46 Cal. App. 5th 620, 622-24, 259 Cal. Rptr. 3d 826 (2020), a California court of appeals found that when a father and mother indicated that they both had Native heritage, but “did not know the tribes in which that heritage existed,” the court had “reason to know” the children might be Indian children. The court found that the agency, at a minimum, was required to send notice to the BIA. Id. at 624. In North Carolina, a court of appeals found that a record indicating that the child‘s mother had “potential ‘Cherokee’ and ‘Bear foot’ Indian heritage was sufficient to put the trial court on notice and provided ‘reason to know that an “Indian child” [was] involved.‘” In re A.P., 260 N.C. App. 540, 546, 818 S.E.2d 396 (2018) (quoting
We interpret the “reason to know” standard consistent with these cases. Doing so comports with ICWA‘s policy of establishing “minimum Federal standards” that apply consistently throughout the states.
2. WICWA Provides an Equal and Alternative Basis for Reversal
Although we conclude that the language and legislative purposes of both ICWA and WICWA require the finding that a court has “reason to know” a child is an Indian child when a participant in the proceeding indicates that the child has tribal heritage, we also conclude that WICWA alone necessitates the same result. WICWA‘s language and definitions require this reading. Thus, we hold that WICWA is an independent basis, regardless of ICWA, to find that a court has “reason to know” a child is or may be an Indian child when a participant in the proceeding indicates that the child has tribal heritage.
The statutory protections of WICWA apply when a court has reason to know “the child is or may be an Indian child.”
Under WICWA, an “Indian child” is defined as “an unmarried and unemancipated Indian person who is under eighteen years of age 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.”
3. The Trial Court Had “Reason To Know” M.G. and Z.G. Were Indian Children under Both ICWA and WICWA
In this case, the trial court had a clear “reason to know” that M.G. and Z.G. were Indian children. At least three participants in the proceeding indicated that the children had tribal heritage. The Department‘s own petition stated that there was a reason to know that M.G. and Z.G. were Indian children, noting that the “[m]other has Tlingit-Haida heritage and is eligible for membership with Klawock Cooperative Association. She is also identified as having Cherokee heritage on her paternal side. Father states he may have native heritage with Confederated Tribes of the Umatilla in Oregon.” CP at 2. Social worker Summers incorporated the petition into his testimony. This testimony about the Department‘s investigation into the children‘s tribal heritage qualifies as a participant in the proceeding informing the court that it has “discovered information indicating that the child is an Indian child.”
The trial court erred when it found there was no “reason to know” M.G. and Z.G. were Indian children and erred by applying the non-ICWA removal standard to the shelter care proceeding. CP at 12 (finding that “[t]he child is in need of shelter care because there is reasonable cause to believe . . . [t]he release of the child would present a serious threat of substantial harm to the child“). Instead, the court should have applied the heightened ICWA and WICWA standards, which require that continued emergency removal be necessary “to prevent imminent physical damage or harm to the child.”
With the correct “reason to know” finding, ICWA and WICWA standards should have applied to this case “until it [was] determined on the record that the child[ren did] not meet the definition of an ‘Indian child.‘”
The trial court had reason to know that M.G. and Z.G. were Indian children under both ICWA and WICWA because participants in the proceeding indicated that they had tribal heritage. Accordingly, we reverse.
III. CONCLUSION
Decisions to remove children from the care of their parents are some of the most consequential decisions judicial officers make. When those decisions impact a Native American tribe, those decisions reach beyond the individual family, affecting the continuation of a culture. We recognize that our rulings addressing dependency cases have far-reaching effects on children, their parents, the out-of-home placements in which dependent children reside, and the manner in which courts and judicial officers manage these complex cases. But, as the United States Supreme Court stated recently, “[T]he magnitude of a legal wrong is no reason to perpetuate it.” McGirt v. Oklahoma, ___ U.S. ___, 140 S. Ct. 2452, 2480, 207 L. Ed. 2d 985 (2020). We will not perpetuate an understanding of “reason to know” that undermines the purposes of ICWA.
We hold that a trial court has “reason to know” that a child is an Indian child when a participant in the proceeding indicates that the child has tribal heritage. A broad interpretation of “reason to know” is necessary to respect a tribe‘s exclusive role in determining membership, comport with the canon of construction for interpreting statutes that deal with issues affecting Native people and tribes, comply with the statutory language and implementing regulations, and serve the underlying purposes of ICWA and WICWA. We hold that here the trial court had “reason to know” Z.G. and M.G. were Indian children. Accordingly, we reverse the Court of Appeals and remand this case to the trial court for further proceedings in accordance with this opinion.
Montoya-Lewis, J
WE CONCUR:
Stephens, C.J.
González, J.
Johnson, J.
Gordon McCloud, J.
Madsen, J.
Yu, J.
Owens, J.
Whitener, J.