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Iowa court rules definition of Indian child unconstitutional

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    Iowa court rules definition of Indian child unconstitutional By Travis Coleman Dec. 01, 2007 DES MOINES, Iowa (AP) -- The Iowa Supreme Court ruled Friday that
    Message 1 of 1 , Dec 1, 2007
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      Iowa court rules definition of Indian child unconstitutional
      By Travis Coleman
      Dec. 01, 2007
      DES MOINES, Iowa (AP) -- The Iowa Supreme Court ruled Friday that a state law defining an Indian child is overly broad and violates equal protection clauses in federal and state constitutions.

      The court, in ruling whether the Winnebago Tribe of Nebraska may intervene in the parental custody case of two Sioux City children, concluded that a 2003 state law exceeded the limits of governmental power in Indian affairs. The law includes the definition of Indian children as those of mixed blood who are not eligible for tribal membership.

      The court said Iowa's overinclusive law amounts to a racial classification that violates the 14th Amendment's equal protection clause and the Iowa Constitution's similar protections.

      Frank LaMere, a member of the Winnebago tribe who has worked with the Iowa Department of Human Services, said he wanted to review the decision before commenting on it but questioned why Woodbury County and state authorities wanted to interfere in the tribe’s efforts to take care of the children.

      “The court’s decision is definitely a step backwards for American Indian children in the Iowa foster care system, which is already overrepresented,” said David E. Simmons, director of government affairs and advocacy for the National Indian Child Welfare Association in Portland, Ore. “Every child should have the right to have their culture considered in determining how to best care for them, and this decision effectively ends that opportunity for many American Indian children in Iowa. It also reduces the chance that their tribes will be available to protect and promote their well-being.”

      The Iowa Indian Child Welfare Act defines an Indian child as "an unmarried Indian person who is under 18 years of age or a child who is under 18 years of age that an Indian tribe identifies as a child of the tribe's community."

      The Winnebago Tribe considers children of tribal members eligible for membership if they possess at least one-fourth degree Winnebago Indian blood. In January 2004, the tribe passed a resolution that said any child of an enrolled Winnebago tribal member shall be considered a child of the Winnebago tribal community.

      The case originated in Woodbury County as a custody case involving two children who were born in Sioux City to an enrolled member of the Winnebago tribe and a white man.

      The children have one-eighth degree Winnebago blood and are ineligible for inclusion in the tribe. However, Iowa's law and the tribal resolution consider them "children of the Winnebago tribal community" because their mother is a tribal member.

      Court documents said both parents have a record of substance abuse. The state removed the children from their home, and eventually the juvenile court moved to terminate the parents’ rights. A petition was filed by the Woodbury County attorney on April 7, 2006, and a notice was filed with the Winnebago Tribe.

      At a hearing on the tribe's motion to intervene, the court concluded that Iowa's definition of Indian child was neither vague nor overbroad and did not violate federal or state constitutions. The judge concluded that the children qualified as Indian children under the state law and permitted the tribe to intervene in the case.

      Woodbury County attorneys appealed.

      The Iowa Attorney General's Office moved to dismiss the appeal, saying the county attorney's office was not entitled to take a case to appellate court without first getting permission of the Iowa attorney general.

      The Supreme Court ruled that county attorneys cannot pursue appeals from juvenile court alone but agreed to consider arguments in the case. In making the ruling, the Supreme Court ordered the case back to juvenile court and reversed the judge's ruling permitting the Winnebago Tribe to intervene.

      The Iowa attorney general's office said in a statement that it was reviewing the decision.

      The Woodbury County attorney and tribal officials did not immediately return calls seeking comment Friday.

      Stacy L. Leeds, a law professor at the University of Kansas and director of the Tribal Law and Government Center, said only Iowa, Washington and Oklahoma have Indian child laws broader than the federal law.

      Leeds said the court ruling likely means such cases in Iowa will revert back to using the federal definition of an Indian child.

      "It will mean that in Iowa some of the cases that were getting treatment under the Indian Child Welfare Act, those individuals will just get the same treatment as any other child in a custody case," she said.

      Another result could be that tribes may reconsider their membership requirements.

      "It might force the hand of tribes that want this class of children protected, it might force those tribes to rethink their citizenship or membership requirements," Leeds said. "In this case, had the tribe just made their blood quantum lower, these kids would have been squarely within the federal standards."

      Membership rules vary greatly among American Indian tribes, she said. Some require members to be half or more Indian by blood, and others have a decendency rule without a blood requirement.

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