14th Amendment


The Fourteenth Amendment

of the United States Constitution

   Because finding an attorney that is knowledgeable in Indian law and willing to take these types of cases has proven difficult for many in our position, we are providing our Case Law site, ICWA law site, and annotations of  the 14th amendment as resources for information, meant to assist lawyers or caregivers in finding what they are looking for, not as a means of giving specific legal advice. 

– We are NOT attorneys –

1. Text of the Fourteenth Amendment to the United States Constitution immediately below.

2. Following BELOW the 14th Amendment are annotations to Section One of the amendment that might concern ICWA, and which include “Rights Guaranteed…”

Marks: “……”  represent portions omitted, leaving only what might be pertinent to ICWA.  For the full text, please refer directly to the14th Amendment annotations at http://caselaw.lp.findlaw.com/data/constitution/amendment14/

3. Following BELOW the annotations are arguments concerning ICWA in the case  In re Bridget R. (1996) 41 Cal.App.4th 1483 (Bridget R.). , James R. and Colette R. v. Cindy R.et al , 01/19/96, which include the courts discussion of:

5. Text of the ICWA law

6. Legislative History of the ICWA Law


The Fourteenth Amendment

– Rights Guaranteed

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

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The Fourteenth Amendment,

Section 1, Annotations:

Rights Guaranteed: Citizens of the United States

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In the Dred Scott Case,\1\ Chief Justice Taney for the Court ruled that United States citizenship was enjoyed by two classes of individuals:

1. white persons born in the United States as descendents of “persons, who were at the time of the adoption of the Constitution recognized as citizens in the several States and [who] became also citizens of this new political body,” the United States of America, and

2. those who, having been “born outside the dominions of the United States,” had migrated thereto and been naturalized therein. The States were competent, he continued, to confer state citizenship upon anyone in their midst, but they could not make the recipient of such status a citizen of the United States. The “Negro,” or “African race,” according to the Chief Justice, was ineligible to attain United States citizenship, either from a State or by virtue of birth in the United States, even as a free man descended from a Negro residing as a free man in one of the States at the date of ratification of the Constitution.\2\ Congress, first in Sec. 1 of the Civil Rights Act of 1866 \3\ and then in the first sentence [[Page 1566]] of Sec. 1 of the Fourteenth Amendment,\4\ set aside the Dred Scott holding in a sentence “declaratory of existing rights, and affirmative of existing law. . . .”\5\ \1\Scott v. Sandford, 60 U.S. (19 How.) 393, 404-06, 417-18, 419-20 (1857). \2\The controversy, political as well as constitutional, which this case stirred and still stirs, is exemplified and analyzed in the material collected in S. Kutler, The Dred Scott Decision: Law or Politics? (1967). \3\“That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude . . . shall have the same right[s]. . . .” Ch. 31, 14 Stat. 27. \4\The proposed amendment as it passed the House contained no such provision, and it was decided in the Senate to include language like that finally adopted. Cong. Globe, 39th Cong., 1st Sess. 2560, 2768-69, 2869 (1866). The sponsor of the language said: “This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is . . . a citizen of the United States.” Id. at 2890. The legislative history is discussed at some length in Afroyim v. Rusk, 387 U.S. 253, 282-86 (1967) (Justice Harlan dissenting). \5\United States v. Wong Kim Ark, 169 U.S. 649, 688 (1898)………………………………………………………….

While clearly establishing a national rule on national citizenship and settling a controversy of long standing with regard to the derivation of national citizenship, the Fourteenth Amendment did not obliterate the distinction between national and state citizenship, but rather preserved it.\6\ The Court has accorded the first sentence of Sec. 1 a construction in accordance with the congressional intentions, holding that a child born in the United States of Chinese parents who themselves were ineligible to be naturalized is nevertheless a citizen of the United States entitled to all the rights and privileges of citizenship.\7\ Congress’ intent in including the qualifying phrase “and subject to the jurisdiction thereof,” was apparently to exclude from the reach of the language children born of diplomatic representatives of a foreign state and children born of alien enemies in hostile occupation, both recognized exceptions to the common-law rule of acquired citizenship by birth,\8\ as well as children of members of Indian tribes subject to tribal laws.\9\ The lower courts have generally held that the citizenship of the parents determines the citizenship of children born on vessels in United States territorial waters or on the high seas.\10\ ……………………………………..
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Family Relationships.

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–While the “privacy” basis of autonomy seems to be definitionally based, the Court’s drawing on the line of cases since Meyer and Pierce\289\ has “established that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.”\290\ Recognition of the protected “liberty” of the familial relationship affords the Court a principled and doctrinal basis of review of governmental regulations that adversely impact upon the ability to enter into the relationship, to maintain it, to terminate it, and to resolve conflicts within the relationship. This liberty, unlike the interest in property which has its source in statutory law, springs from the base of “intrinsic human rights, as they have been understood in `this Nation’s history and tradition.”’\291\ Being of fundamental importance, the familial relationship is ordinarily subject only to regulation that can survive rigorous judicial scrutiny, although “reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed.”\292\ Recent decisions cast light in all areas of the family relationship.

\289\Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1928). \290\Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality). Continuing the limitation of the right of privacy to family-related activities is Bowers v. Hardwick, 478 U.S. 186 (1986). \291\Smith v. Organization of Foster Families, 431 U.S. 816, 845 (1977). \292\Zablocki v. Redhail, 434 U.S. 374, 386 (1978).

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Some General Criteria What due process of law means in the procedural context depends on the circumstances. It varies with the subject matter and the necessities of the situation. Due process of law is a process which, following the forms of law, is appropriate to the case and just to the parties affected. It must be pursued in the ordinary mode prescribed by law; it must be adapted to the end to be attained; and whenever necessary to the protection of the parties, it must give them an opportunity to be heard respecting the justice of the judgment sought. Any legal proceeding enforced by public authority, whether sanctioned by age or custom or newly devised in the discretion of the legislative power, which regards and preserves these principles of liberty and justice, must be held to be due process of law.\1\ \1\Hagar v. Reclamation Dist., 111 U.S. 701, 708 (1884); Hurtado v. California, 110 U.S. 516, 537 (1884)…………………….

Ancient Use and Uniformity.

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–The requirements of due process may be ascertained in part by an examination of those settled usages and modes of proceedings existing in the common and statutory law of England during colonial times, and not unsuited to the civil and political conditions in this country. A process of law not otherwise forbidden may be taken to be due process of law if it has been sanctioned by settled usage both in England and in this country. In other words, the antiquity of a procedure is a fact of weight in its behalf. However, it does not follow that a procedure settled in English law and adopted in this country is, or remains, an essential element of due process of law.

If that were so, the procedure of the first half of the seventeenth century would be fastened upon American jurisprudence like a strait jacket, only to be unloosed by constitutional amendment. Fortunately, the States are not tied down by any provision of the Constitution to the practice and procedure which existed at the common law, but may avail [[Page 1694]] themselves of the wisdom gathered by the experience of the country to make changes deemed to be necessary.\2\ \2\Brown v. New Jersey, 175 U.S. 172, 175 (1899); Hurtado v. California, 110 U.S. 516, 529 (1884); Twining v. New Jersey, 211 U.S. 78, 101 (1908); Anderson Nat’l Bank v. Luckett, 321 U.S. 233, 244 (1944)……………………


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……….If due process is to be secured, the laws must operate alike upon all and not subject the individual to the arbitrary exercise of governmental power unrestrained by established principles of private rights and distributive justice.  Where a litigant has the benefit of a full and fair trial in the state courts, and his rights are measured, not by laws made to affect him individually, but by general provisions of law applicable to all those in like condition, he is not deprived of property without due process of law, even if he can be regarded as deprived of his property by an adverse result.\3\ .

Page 1815 – 1820)



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Testing Facially Neutral Classifications Which Impact on Minorities A classification expressly upon the basis of race triggers strict scrutiny and ordinarily results in its invalidation; similarly, a classification that facially makes a distinction on the basis of sex, or alienage, or illegitimacy triggers the level of scrutiny appropriate to it. A classification that is ostensibly neutral but is an obvious pretext for racial discrimination or for discrimination on some other forbidden basis is subject to heightened scrutiny and ordinarily invalidation.\167\

But when it is contended that a law, which is in effect neutral, has a disproportionately adverse effect upon a racial minority or upon another group particularly entitled to the protection of the equal protection clause, a much more difficult case is presented. \167\See e.g., Yick Wo v. Hopkins, 118 U.S. 356 (1886); Guinn v. United States, 238 U.S. 347 (1915); Lane v. Wilson, 307 U.S. 268 (1939); Gomillion v. Lightfoot, 364 U.S. 339 (1960). Government may make a racial classification that, for example, does not separate whites from blacks but that by focussing on an issue of racial import creates a classification that is suspect. Washington v. Seattle School Dist., 458 U.S. 457, 467-74 (1982)………………………….

It is necessary that one claiming harm through the disparate or disproportionate impact of a facially neutral law prove intent or motive to discriminate. “[A] law, neutral on its face and serving ends otherwise within the power of government to pursue, is not invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another.”\168\ In reliance upon a prior Supreme Court decision that had seemed to eschew motive or intent and to pinpoint effect as the key to a constitutional violation\169\ and upon the Court’s decisions reading congressional civil rights enactments as providing that when employment practices disqualifying disproportionate numbers of blacks are challenged, discriminatory purpose need not be proved, and [[Page 1816]] that it is an insufficient response to demonstrate some rational basis for the challenged practices,\170\ a number of lower federal courts had developed in constitutional litigation a “disproportionate impact” analysis under which a violation could be established upon a showing that a statute or practice adversely affected a class without regard to discriminatory purpose, absent some justification going substantially beyond what would be necessary to validate most other classifications.\171\ These cases were disapproved in Davis; but the Court did note that “an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it be true, that the law bears more heavily on one race than another. It is also not infrequently true that the discriminatory impact . . . may for all practical purposes demonstrate unconstitutionality because in various circumstances the discrimination is very difficult to explain on nonracial grounds.” \172\ \168\Washington v. Davis, 426 U.S. 229, 242 (1976). A classification having a differential impact, absent a showing of discriminatory purpose, is subject to review under the lenient, rationality standard. Id. at 247-48; Rogers v. Lodge, 458 U.S. 613, 617 n.5 (1982). The Court has applied the same standard to a claim of selective prosecution allegedly penalizing exercise of First Amendment rights. Wayte v. United States, 470 U.S. 598 (1985) (no discriminatory purpose shown). And see Bazemore v. Friday, 478 U.S. 385 (1986) (existence of single-race, state-sponsored 4-H Clubs is permissible, given wholly voluntary nature of membership). \169\The principal case was Palmer v. Thompson, 403 U.S. 217 (1971), in which a 5-to-4 majority refused to order a city to reopen its swimming pools closed allegedly to avoid complying with a court order to desegregate them. The majority opinion strongly warned against voiding governmental action upon an assessment of official motive, id. at 224- 26, but it also, and the Davis Court so read it as actually deciding, drew the conclusion that since the pools were closed for both whites and blacks there was no discrimination. The city’s avowed reason for closing the pools–to avoid violence and economic loss–could not be impeached by allegations of a racial motive.

See also Wright v. Council of City of Emporia, 407 U.S. 451 (1972). \170\Griggs v. Duke Power Co., 401 U.S. 424 (1971); Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). The Davis Court adhered to this reading of Title VII, merely refusing to import the statutory standard into the constitutional standard. Washington v. Davis, 426 U.S. 229, 238-39, 246-48 (1976). Subsequent cases involving gender discrimination raised the question of the vitality of Griggs, General Electric Co. v. Gilbert, 429 U.S. 125 (1976); Nashville Gas Co. v. Satty, 434 U.S. 136 (1977), but the disagreement among the Justices appears to be whether Griggs applies to each section of the antidiscrimination provision of Title VII. See Dothard v. Rawlinson, 433 U.S. 321 (1977); Furnco Const. Co. v. Waters, 438 U.S. 567 (1978). But see General Building Contractors Ass’n v. Pennsylvania, 458 U.S. 375 (1982) (unlike Title VII, under 42 U.S.C. Sec. 1981, derived from the Civil Rights Act of 1866, proof of discriminatory intent is required). \171\See Washington v. Davis, 426 U.S. 229, 244 n.12 (1976) (listing and disapproving cases). Cases not cited by the Court included the Fifth Circuit’s wrestling with the de facto/de jure segregation distinction. In Cisneros v. Corpus Christi Indep. School Dist., 467 F.2d 142, 148-50 (5th Cir. 1972) (en banc), cert. denied, 413 U.S. 920 (1973), the court held that motive and purpose were irrelevant and the “de facto and de jure nomenclature” to be “meaningless.” After the distinction was reiterated in Keyes v. Denver School District, 413 U.S. 189 (1973), the Fifth Circuit adopted the position that a decisionmaker must be presumed to have intended the probable, natural, or foreseeable consequences of his decision and thus that a school board decision, whatever its facial motivation, that results in segregation is intentional in the constitutional sense. United States v. Texas Educ. Agency, 532 F.2d 380 (5th Cir.), vacated and remanded for reconsideration in light of Washington v. Davis, 429 U.S. 990 (1976), modified and adhered to, 564 F.2d 162, reh. denied, 579 F.2d 910 (5th Cir. 1977-78), cert denied, 443 U.S. 915 (1979). See also United States v. Texas Educ. Agency, 600 F.2d 518 (5th Cir. 1979). This form of analysis was, however, substantially cabined in Massachusetts Personnel Adm’r v. Feeney, 442 U.S. 256, 278-80 (1979), although foreseeability as one kind of proof was acknowledged by Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 464-65 (1979). \172\Washington v. Davis, 426 U.S. 229, 242 (1976)………………………………………………

Both elucidation and not a little confusion followed upon application of Davis in the following Terms. Looking to a challenged zoning decision of a local board which had a harsher impact upon blacks and low-income persons than on others, the Court explained [[Page 1817]] in some detail how inquiry into motivation would work.\173\ First, a plaintiff is not required to prove that an action rested solely on discriminatory purpose; establishing “a discriminatory purpose” among permissible purposes shifts the burden to the defendant to show that the same decision would have resulted absent the impermissible motive.\174\ Second, determining whether a discriminatory purpose was a motivating factor “demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Impact provides a starting point and “[s]ometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face,” but this is a rare case.\175\ In the absence of such a stark pattern, a court will look to such factors as the “historical background of the decision,” especially if there is a series of official discriminatory actions.  The specific sequence of events may shed light on purpose, as would departures from normal procedural sequences or from substantive considerations usually relied on in the past to guide official actions. Contemporary statements of decision makers may be examined, and “[i]n some extraordinary instances the members might be called to the stand at trial to testify concerning the purpose of the official action, although even then such testimony frequently will be barred by privilege.”\176\ In most circumstances, a court is to look to the totality of the circumstances to ascertain intent. \173\Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977). \174\Id. at 265-66, 270 n.21. See also Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 284-87 (1977) (once plaintiff shows defendant acted from impermissible motive in not rehiring him, burden shifts to defendant to show result would have been same in the absence of that motive; constitutional violation not established merely by showing of wrongful motive); Hunter v. Underwood, 471 U.S. 222 (1985) (circumstances of enactment made it clear that state constitutional amendment requiring disenfranchisement for crimes involving moral turpitude had been adopted for purpose of racial discrimination, even though it was realized that some poor whites would also be disenfranchised thereby). \175\Arlington Heights, supra, at 266. \176\Id. at 267-68…………………………………

Strengthening of the intent standard was evidenced in a decision sustaining against sex discrimination challenge a state law giving an absolute preference in civil service hiring to veterans. Veterans who obtain at least a passing grade on the relevant examination may exercise the preference at any time and as many times as they wish and are ranked ahead of all nonveterans, no matter what their score. The lower court observed that the statutory and administrative exclusion of women from the armed forces until the recent past meant that virtually all women were excluded from state civil service positions and held that results so clearly foreseen [[Page 1818]] could not be said to be unintended. Reversing, the Supreme Court found that the veterans preference law was not overtly or covertly gender based; too many men are nonveterans to permit such a conclusion and there are women veterans. That the preference implicitly incorporated past official discrimination against women was held not to detract from the fact that rewarding veterans for their service to their country was a legitimate public purpose. Acknowledging that the consequences of the preference were foreseeable, the Court pronounced this fact insufficient to make the requisite showing of intent. “`Discriminatory purpose’ . . . implies more than intent as volition or intent as awareness of consequences. . . . It implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part `because of,’ not merely `in spite of,’ its adverse effects upon an identifiable group.”\177\ \177\Massachusetts Personnel Adm’r v. Feeney, 442 U.S. 256, 279 (1979). This case clearly established the application of Davis and Arlington Heights to all nonracial classifications attacked under the equal protection clause. But compare Columbus Bd. of Educ. v. Penick, 443 U.S. 449 (1979), and Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526 (1979), in the context of the quotation in the text. These cases found the Davis standard satisfied on a showing of past discrimination coupled with foreseeable impact in the school segregation area. …………………………….

Moreover, in City of Mobile v. Bolden\178\ a plurality of the Court apparently attempted to do away with the totality of circumstances test and to evaluate standing on its own each of the factors offered to show a discriminatory intent. At issue was the constitutionality of the use of multi-member electoral districts to select the city commission. A prior decision had invalidated a multi-member districting system as discriminatory against blacks and Hispanics, without considering whether its ruling was premised on discriminatory purpose or adverse impact but listing and weighing a series of factors the totality of which caused the Court to find invidious discrimination.\179\ But in the plurality opinion in Mobile, each of the factors, viewed “alone,” was deemed insufficient to show purposeful discrimination.\180\ Moreover, the plurality suggested that some of the factors thought to be derived from its precedents and forming part of the totality test in opinions of the [[Page 1819]] lower federal courts–such as minority access to the candidate selection process, governmental responsiveness to minority interests, and the history of past discrimination–were of quite limited significance in determining discriminatory intent.\181\ But, contemporaneously with Congress’ statutory rejection of the Mobile plurality standards,\182\ the Court, in Rogers v. Lodge,\183\ appeared to disavow much of Mobile and to permit the federal courts to find discriminatory purpose on the basis of “circumstantial evidence”\184\ that is more reminiscent of pre- Washington v. Davis cases than of the more recent decisions. \178\446 U.S. 55 (1980). Also decided by the plurality was that discriminatory purpose is a requisite showing to establish a violation of the Fifteenth Amendment and of the equal protection clause in the “fundamental interest” context, vote dilution, rather than just in the suspect classification context. \179\White v. Regester, 412 U.S. 755 (1972), was the prior case. See also Whitcomb v. Chavis, 403 U.S. 124 (1971). Justice White, the author of Register, dissented in Mobile, supra, 446 U.S. 94, on the basis that “the totality of the facts relied upon by the District Court to support its inference of purposeful discrimination is even more compelling than that present in White v. Register.” Justice Blackmun, id. at 80, and Justices Brennan and Marshall, agreed with him as alternate holdings, id. at 94, 103. \180\Id. at 65-74. \181\Id. at 73-74. The principal formulation of the test was in Zimmer v. McKeithen, 485 F.2d 1297, 1305 (5th Cir. 1973), aff’d on other grounds sub nom. East Carroll Parish School Bd. v. Marshall, 424 U.S. 636 (1976), and its components are thus frequently referred to as the Zimmer factors. 82By the Voting Rights Act Amendments of 1982, P.L. 97-205, 96 Stat. 131, 42 U.S.C. Sec. 1973 (as amended), see S. Rep. No. 417, 97th Congress, 2d sess. 27-28 (1982), Congress proscribed a variety of electoral practices “which results” in a denial or abridgment of the right to vote, and spelled out in essence the Zimmer factors as elements of a “totality of the circumstances” test. 83%8 U.S. 613 (1982). The decision, handed down within days of final congressional passage of the Voting Rights Act Amendments, was written by Justice White and joined by Chief Justice Burger and Justices Brennan, Marshall, Blackmun, and O’Connor. Justices Powell and Rehnquist dissented, id. at 628, as did Justice Stevens. Id. at 631. 84Id. at 618-22 (describing and disagreeing with the Mobile plurality, which had used the phrase at 446 U.S. 74). The Lodge Court approved the prior reference that motive analysis required an analysis of “such circumstantial and direct evidence” as was available. Id., 618 (quoting Arlington Heights, 429 U.S. at 266)……………………………………

Rogers v. Lodge was also a multimember electoral district case brought under the equal protection clause\185\ and the Fifteenth Amendment. The fact that the system operated to cancel out or dilute black voting strength, standing alone, was insufficient to condemn it; discriminatory intent in creating or maintaining the system was necessary. But direct proof of such intent is not required. “[A]n invidious purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another.”\186\ Turning to the lower court’s enunciation of standards, the Court approved the Zimmer formulation. The fact that no black had ever been elected in the county, in which blacks were a majority of the population but a minority of registered voters, was “important evidence of purposeful exclusion.”\187\ Standing alone this fact was not sufficient, but a historical showing of past discrimination, of systemic exclusion of blacks from the political process as well as educational seg [[Page 1820]] regation and discrimination, combined with continued unresponsiveness of elected officials to the needs of the black community, indicated the presence of discriminatory motivation.

The Court also looked to the “depressed socio-economic status” of the black population as being both a result of past discrimination and a barrier to black access to voting power.\188\ As for the district court’s application of the test, the Court reviewed it under the deferential “clearly erroneous” standard and affirmed it. \185\The Court confirmed the Mobile analysis that the “fundamental interest” side of heightened equal protection analysis requires a showing of intent when the criteria of classification are neutral and did not reach the Fifteenth Amendment issue in this case. Id. at 619 n. 6. \186\Id. at 618 (quoting Washington v. Davis, 426 U.S. 229, 242 (1976)). \187\Id. at 623-24. \188\Id. at 624-627. The Court also noted the existence of other factors showing the tendency of the system to minimize the voting strength of blacks, including the large size of the jurisdiction and the maintenance of majority vote and single-seat requirements and the absence of residency requirements……………………………………..

The Court in a jury discrimination case has also seemed to allow what it had said in Davis and Arlington Heights it would not permit.\189\ Noting that disproportion alone is insufficient to establish a violation, the Court nonetheless held that plaintiff’s showing that 79 percent of the county’s population was Spanish-surnamed while jurors selected in recent years ranged from 39 to 50 percent Spanish-surnamed was sufficient to establish a prima facie case of discrimination. Several factors probably account for the difference. First, the Court has long recognized that discrimination in jury selection can be inferred from less of a disproportion than is needed to show other discriminations, in major part because if jury selection is truly random any substantial disproportion reveals the presence of an impermissible factor, whereas most official decisions are not random.\190\ Second, the jury selection process was “highly subjective” and thus easily manipulated for discriminatory purposes, unlike the process in Davis and Arlington Heights which was regularized and open to inspection.\191\ Thus, jury cases are likely to continue to be special cases and in the usual fact situation, at least where the process is open, plaintiffs will bear a heavy and substantial burden in showing discriminatory racial and other animus. \189\Castaneda v. Partida, 430 U.S. 482 (1977). The decision was 5-to-4, Justice Blackmun writing the opinion of the Court and Chief Justice Burger and Justices Stewart, Powell, and Rehnquist dissenting. Id. at 504-507. \190\Id. at 493-94. This had been recognized in Washington v. Davis, 426 U.S. 229, 241 (1976), and Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 266 n.13 (1977). \191\Castaneda v. Partida, 430 U.S. 482, 494, 497-99 (1977).

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Section 1

Rights Guaranteed: Equal Protection and Race

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The Fourteenth Amendment “is one of a series of constitutional provisions having a common purpose; namely, securing to a race recently emancipated,
a race that through many generations had been held in slavery, all the civil
that the superior race enjoy. The true spirit and meaning of the amendments
. . . cannot be understood without keeping in view the history of the times
when they were adopted, and the general objects they plainly sought to accomplish.
At the time when they were incorporated into the Constitution, it required
little knowledge of human nature to anticipate that those who had long been
regarded as an inferior and subject race would, when suddenly raised to the
rank of citizenship,[[Page 1840]] be looked upon with jealousy and positive
dislike, and that State laws might be enacted or enforced to perpetuate the
distinctions that had before existed. . . . [The Fourteenth Amendment] was
designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race
the protection of the general government in that enjoyment, whenever it should
be denied by the States. It not only gave citizenship and the privileges
of citizenship to persons of color, but it denied to any State the power
to withhold from them the equal protection of the laws, and authorized Congress
to enforce its provision by appropriate legislation.” Thus, a state law
which on its face worked a discrimination against African Americans was void.
In addition, “[t]hough the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.”\3\

\1\Strauder v. West Virginia, 100 U.S. 303, 306-07 (1880). \2\Id. (law providing for jury service specified white males). Moreover it will not do to argue that a law that segregates the races or prohibits contacts between them discriminates equally against both races. Buchanan v. Warley, 245 U.S. 60 (1917) (ordinance prohibiting blacks from occupying houses in blocks where whites were predominant and whites from occupying houses in blocks where blacks were predominant). Compare Pace v. Alabama, 106 U.S. 583 (1883) (sustaining conviction under statute that imposed a greater penalty for adultery or fornication between a white person and an African American than was imposed for similar conduct by members of the same race, using “equal application” theory), with McLaughlin v. Florida, 379 U.S. 184, 188 (1964), and Loving v. Virginia, 388 U.S. 1, 10 (1967) (rejecting theory). \3\Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886) (discrimination against Chinese).

(page 1860)

Marriage.–Statutes which forbid the contracting of marriage between persons of different races are unconstitutional\114\ as are statutes which penalize interracial cohabitation.\115\ Similarly, a court may not deny custody of a child based on a parent’s remarriage to a person of another race and the presumed “best interests of the child” to be free from the prejudice and stigmatization that might result.\116\ \114\Loving v. Virginia, 388 U.S. 1 (1967). \115\McLaughlin v. Florida, 379 U.S. 184 (1964). \116\Palmore v. Sidoti, 466 U.S. 429 (1984)…………………………….

Judicial System.–Segregation in courtrooms is unlawful and may not be enforced through contempt citations for disobedience\117\ or through other means. Treatment of parties to or witnesses in judicial actions based on their race is impermissible.\118\ Jail inmates have a right not to be segregated by race unless there is some overriding necessity arising out of the process of keeping order.\119\ \117\Johnson v. Virginia, 373 U.S. 61 (1963). \118\Hamilton v. Alabama, 376 U.S. 650 (1964) (reversing contempt conviction of witness who refused to answer questions so long as prosecutor addressed her by her first name). \119\Lee v. Washington, 390 U.S. 333 (1968); Wilson v. Kelley, 294 F. Supp. 1005 (N.D.Ga.), aff’d, 393 U.S. 266 (1968).

(page 1861)

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– Rights Guaranteed: Equal Protection and Race

Permissible Remedial Utilizations of Racial Classifications Of critical importance in equal protection litigation is the degree to which government is permitted to take race or another suspect classification into account in order to formulate and implement a remedy to overcome the effects of past discrimination against the class. Often the issue is framed in terms of “reverse discrimination,” inasmuch as the governmental action deliberately favors members of the class and may simultaneously impact adversely [[Page 1862]] upon nonmembers of the class.\127\ While the Court in prior cases had accepted both the use of race and other suspect criteria as valid factors in formulating remedies to overcome discrmination\128\ and the according of preferences to class members when the class had previously been the object of discrimination,\129\ it had never until recently given plenary review to programs that expressly used race as the prime consideration in the awarding of some public benefit.\130\

\127\While the emphasis is upon governmental action, private affirmative actions may implicate statutory bars to uses of race. E.g., McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976), held, not in the context of an affirmative action program, that whites were as entitled as any group to protection of federal laws banning racial discrimination in employment. The Court emphasized that it was not passing at all on the permissibility of affirmative action programs. Id. at 280 n.8. In United Steelworkers v. Weber, 443 U.S. 193 (1979), the Court held that title VII did not prevent employers from instituting voluntary, race-conscious affirmative action plans. Accord, Johnson v. Transportation Agency, 480 U.S. 616 (1987). Nor does title VII prohibit a court from approving a consent decree providing broader relief than the court would be permitted to award. Local 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501 (1986). And, court- ordered relief pursuant to title VII may benefit persons not themselves the victims of discrimination. Local 28 of the Sheet Metal Workers’ Int’l Ass’n v. EEOC, 478 U.S. 421 (1986). \128\E.g., Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 22-25 (1971). \129\Programs to overcome past societal discriminations against women have been approved, Kahn v. Shevin, 416 U.S. 351 (1974); Schlesinger v. Ballard, 419 U.S. 498 (1975); Califano v. Webster, 430 U.S. 313 (1977), but gender classifications are not as suspect as racial ones.

Preferential treatment for American Indians was approved, Morton v. Mancari, 417 U.S. 535 (1974), but on the basis that the classification was political rather than racial. \130\The constitutionality of a law school admissions program in which minority applicants were preferred for a number of positions was before the Court in DeFunis v. Odegaard, 416 U.S. 312 (1974), but the merits were not reached.



In re Bridget R. (1996) 41 Cal.App.4th 1483 (Bridget R.). , James R. and Colette R. v. Cindy R.et al

Selected Portions:

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Constitutional Limitations Upon the Scope of ICWA, including Due Process, Existing Family Doctrine, Equal Protection, the Indian Commerce Clause, and Tenth Amendment arguments:

Additional text Collette v. Cindy R.

Existing Indian Family –

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…[27] California recognizes the principle that children are not merely chattels belonging to their parents, but rather have fundamental interests of their own. (In re Jasmon O. (1994) 8 Cal.4th 398, 419.) Such fundamental interests are of constitutional dimension. This principle is central to our resolution of the multiple and complex issues presented by this case.

[28] We reverse an order of the trial court made pursuant to sections 1913 and 1914 of the Indian Child Welfare Act of 1978 (25 U.S.C.A. 1901 et seq.; hereafter “ICWA” or “the Act”). The court’s order invalidated a voluntary relinquishment of parental rights respecting Bridget and Lucy R., twin two-year-old girls, and ordered the twins removed from their adoptive family, with whom they have lived since birth, and returned to the extended family of the biological father. The adoptive parents (hereafter the “R’s” or “adoptive parents”) appealed, *fn1 joined by the licensed adoption agency through which the twins were placed. *fn2

[29] The twins are of American Indian descent, and the within dispute over their prospective adoption and custody raises issues concerning the scope of ICWA. Specifically, it raises the question of whether the Act should be limited in its application, as some courts have limited it, to children who not only are of Indian descent, but also belong to an “existing Indian family.” (See, e.g., In re Adoption of Crews (1992) 118 Wash.2d 561 [825 P.2d 305]; Matter of Adoption of Baby Boy L. (1982) 231 Kan. 199 [643 P.2d 168].) We conclude that question must be answered in the affirmative.

[30] ICWA was enacted by Congress to protect the best interests of Indian children and promote the stability of Indian tribes and families. (25 U.S.C.A. Section(s) 1902; Mississippi Band of Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 32-37 [104 L.Ed. 2d 29, 109 S.Ct. 1597];

[31] Here, the twins’ biological parents, Richard A. (“Richard”) and Cindy R. (“Cindy”), initially relinquished the twins to appellant Vista Del Mar Child and Family Services (“Vista Del Mar”) pursuant to section 8700 of California’s Family Code for adoption by the R’s, a non-Indian couple. However, Richard and Cindy later purported to withdraw their consent. With the assistance of the Dry Creek Rancheria of Pomo Indians, the federally recognized Indian tribe from which Richard is descended (hereafter, the “Tribe”), they initiated proceedings under ICWA to invalidate their relinquishments of parental rights. It is undisputed that the relinquishments were not executed in the manner required by ICWA. It is also undisputed that Richard and the twins are now recognized by the Tribe as tribal members. However, the record raises substantial doubt as to whether Richard, who, at all relevant times, resided several hundred miles from the tribal reservation, ever participated in tribal life or maintained any significant social, cultural or political relationship with the Tribe.

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[32] Although urged by Vista Del Mar and the R’s to apply the “existing Indian family doctrine” in this case, and uphold the relinquishments of parental rights unless the biological parents established that they were such a family, the trial court declined to apply that doctrine or hold any hearing with respect thereto. The court simply declared the relinquishments invalid as violative of ICWA and ordered the twins placed in the custody of their paternal grandparents, who were appointed temporary guardians. The trial court also dismissed a petition by the adoptive parents to terminate the biological parent’s parental rights on the ground of abandonment. (Fam. Code, Section(s) 7822.) The court found ICWA precluded it from proceeding on that petition.

[33] As we explain, recognition of the existing Indian family doctrine is necessary in a case such as this in order to preserve ICWA’s constitutionality. We hold that under the Fifth, Tenth and Fourteenth Amendments to the United States Constitution, ICWA does not and cannot apply to invalidate a voluntary termination of parental rights respecting an Indian child who is not domiciled on a reservation, unless the child’s biological parent, or parents, are not only of American Indian descent, but also maintain a significant social, cultural or political relationship with their tribe. Because the factual issues raised by such a rule have not been resolved, we reverse the trial court’s order and remand the case for a determination of whether the twins’ biological parents had such a relationship at the time that they voluntarily acted to relinquish their parental rights under California law. In the event that the trial court, after consideration of all the evidence, determines that such a relationship did not exist, then those relinquishments will be valid and binding and ICWA will not bar any pending adoption proceedings. On the other hand, if the trial court finds that the biological parents did have a significant social, cultural or political relationship with the Tribe, and therefore the provisions of ICWA can properly be applied, then a further guardianship hearing will be required to resolve the question of whether the twins should be removed from the custody of the R’s….

[58] As noted above, ICWA applies to any child who is either: (1) a member of an Indian tribe, or (2) eligible to be a member, and the biological child of a member of a tribe. (Section(s) 1903, subd. (4).) However, some courts have declined to apply the Act where a child is not being removed from an existing Indian family, because, in such circumstances, ICWA’s underlying policies of preserving Indian culture and promoting the stability and security of Indian tribes and families are not furthered. (In re Adoption of Crews, supra, 825 P.2d 305; Matter of Adoption of Baby Boy L., supra, 643 P.2d 168.)

[59] The earliest case to articulate what later became known as the existing Indian family doctrine was Matter of Adoption of Baby Boy L., supra, 643 P.2d 168. In that case, the Kansas Supreme Court observed that the purpose of ICWA was to maintain family and tribal relationships existing in Indian homes and to set standards for removal of Indian children from an existing Indian environment. (643 P.2d at p. 175.) The court found that the child whose custody was at issue in that case had been relinquished by his non-Indian mother at birth and had never been in the custody of his Indian father. The child thus had never been part of an Indian family relationship. Preservation of an Indian family was therefore not involved in the case; consequently, ICWA did not apply. (643 P.2d at p. 175; see also Matter of Adoption of T.R.M. (Ind., 1988) 525 N.E.2d 298, 303; Claymore v. Serr (S.D., 1987) 405 N.W.2d 650, 654; In the Interest of S.A.M. (Mo., 1986) 703 S.W.2d 603, 609; Adoption of Baby Boy D. (Ok., 1985) 742 P.2d 1059, 1064, cert. den. by Harjo v. Duello (1988) 484 U.S. 1072 [98 L.Ed.2d 1005, 108 S.Ct. 1042].)

[60] While the above cases found ICWA inapplicable because the Indian child himself (or herself) had never lived in an Indian environment, other cases have focused upon the question of whether the child’s natural family was part of an Indian tribe or community or maintained a significant relationship with one. In Matter of Adoption of Crews, supra, 825 P.2d 305, a case involving facts very similar to those before us, the Supreme Court of Washington found ICWA inapplicable to an adoption proceeding where the biological parents had no substantial ties to a specific tribe, and neither the parents nor their families had resided or planned to reside within a tribal reservation, although the birth mother was formally enrolled as a tribal member. In such a situation, the court found the application of ICWA would not further the Act’s policies and purposes and would consequently not be proper. (825 P.2d at pp. 308-310; see also, Hampton v. J.A.L. (La.App., 2 Cir., 1995) 658 So.2d 331, 336, aff’d. by Supreme Court of Louisiana at 662 So.2d 478.)

[61] In California, at least two courts have recognized the existing family doctrine. In In re Wanomi P. (1989) 216 Cal.App.3d 156, the court found ICWA inapplicable by its express terms, because the tribe to which the child’s mother belonged was a Canadian tribe, not a federally recognized tribe, as required by section 1903, subdivision (8) of ICWA. (216 Cal.App.3d at p. 166.) However, the court also observed, in dictum, that regulating the unwarranted removal of children from Indian families by nontribal agencies was among the objectives of ICWA, and no evidence suggested the existence of an Indian family from which the minor was being removed. (Id. at p. 168.) Thus, the court noted that there would be no occasion for an application of ICWA. (Ibid.) In In re Baby Girl A. (1991) 230 Cal.App.3d 1611, the majority found the baby’s tribe had a right to intervene in adoption proceedings. However, the right of intervention existed under state law, independently of ICWA. (230 Cal.App.3d at pp. 1618-1619.) The court found that, upon remand of the action, the preferences for the placement of Indian children in Indian families or settings, which are provided in section 1915 of ICWA, need not be followed if the trial court found the child had no actual Indian family ties. (230 Cal.App.3d at pp. 1620-1621.)

[62] Two other California courts, however, have refused to apply the existing Indian family doctrine, or at least that version of the doctrine which holds that ICWA applies only if the child himself (or herself) has lived in an Indian family or community. In Adoption of Lindsay C., supra, 229 Cal.App.3d 404, the court characterized the doctrine as follows: “Generally speaking, [the doctrine] hold[s] the Act inapplicable in adoption proceedings involving an illegitimate Indian child who has never been a member of an Indian home or Indian culture, and who is being given up by his or her non-Indian mother.” (229 Cal.App.3d at p. 410.) The Lindsay C. court rejected the doctrine as so characterized. (Id. at pp. 415-416.) The trial court had found the tribe of the child’s unwed father had no right to notice of a pending step-parent adoption affecting the child, because he was the illegitimate child of a non-Indian mother, had always resided with the non-Indian mother, and had never been in the care or custody of the natural father, nor had any connection with Indian culture. Thus, without ever considering whether the natural father had significant ties with an Indian community, which he might one day share with the child if their family ties were not severed, the trial court concluded that no issue of the preservation of an Indian family was involved, as the child had never been a part of an Indian family. (Id. at p. 415.) The Court of Appeal rejected this reasoning and reversed. (Id. at pp. 415-416.)

[63] Likewise in In re Junious M. (1983) 144 Cal.App.3d 786, in a proceeding under (former) Civil Code section 232, the child’s mother informed the court on the third day of trial that she was of Indian descent. (144 Cal.App.3d at pp. 788-789.) The court found the mother’s tribe had a right to notice of the proceedings and a right to intervene, even though the minor had never lived in an Indian environment. “The language of the Act contains no [existing Indian family] exception to its applicability, and we do not deem it appropriate to create one judicially.” (Id at p. 796, citing A.B.M. v. M.H. (Alaska 1982) [64] 651 P.2d 1170, 1173.)” *fn10

[65] We agree that a rule which would preclude the application of ICWA to any Indian child who has not himself (or herself) lived in an Indian family does not comport with either the language or purpose of the Act. Moreover, the United States Supreme Court has implicitly rejected any such limitation on ICWA. In Mississippi Band of Choctaw Indians v. Holyfield, supra, 490 U.S. 30, the only case in which the federal high court has construed ICWA, application of the Act’s tribal jurisdiction provisions (25 U.S.C.A. Section(s) 1911, subd. (a)) was challenged by the adoptive parents of illegitimate twin babies whose parents were enrolled members of an Indian tribe and were residents of the tribal reservation. (490 U.S. at pp. 37-38.) The babies were born off of the reservation and immediately relinquished to a non-Indian family, who adopted them in the state Chancery court. The birth mother returned home to the reservation after giving birth. On a subsequent motion by the tribe to vacate the adoption on the ground that the tribal court had exclusive jurisdiction over matters affecting the children’s custody, the state court found the children had never resided, or even been physically present, on the reservation, and were thus not domiciled there. Consequently, the court found ICWA did not apply. (Ibid.) The Supreme Court reversed (Id. at p. 41), finding that (1) a general federal rule of domicile must apply for purposes of determining jurisdiction under ICWA (Id. at pp. 43-45); (2) under such rule, the children’s domicile at birth followed that of their natural mother, and she was domiciled on the reservation (Id. at pp. 47-49); (3) therefore, the tribe had exclusive jurisdiction over custody proceedings affecting the children under section 1911, subdivision (a). (Id. at p. 53.)

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[66] Holyfield establishes, by clear implication, that an application of ICWA will not be defeated by the mere fact that an Indian child has not himself (or herself) been part of an Indian family or community. However, it does not follow from Holyfield that ICWA should apply when neither the child nor either natural parent has ever resided or been domiciled on a reservation or maintained any significant social, cultural or political relationship with an Indian tribe. *fn11 To the contrary, in our view, there are significant constitutional impediments to applying ICWA, rather than state law, in proceedings affecting the family relationships of persons who are not residents or domiciliaries of an Indian reservation, are not socially or culturally connected with an Indian community, and, in all respects except genetic heritage, are indistinguishable from other residents of the state. These impediments arise from the due process and equal protection guarantees of the Fifth and Fourteenth Amendments and from the Tenth Amendment’s reservation to the states of all powers not delegated to the federal government. We must, of course, construe the statute to uphold its constitutionality. (Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades Council (1983) 485 U.S. 568, 575 [99 L.Ed.2d 645, 108 S.Ct. 1392]; Adoption of Kelsey S. (1992) 1 Cal.4th 816, 826.)


[67] a. Due Process:

[68] a. Due Process The intent of Congress in enacting ICWA was to “protect the best interests of Indian children,” as well as “promote the stability and security of Indian tribes and families.” (25 U.S.C. Section(s) 1902.) These two elements of ICWA’s underlying policy are in harmony in the circumstance in which ICWA was primarily intended to apply — where nontribal public and private agencies act to remove Indian children from their homes and place them in non-Indian homes or institutions. (See 25 U.S.C. Section(s) 1901, subd. (4).) But in cases such as this one, where, owing to noncompliance with ICWA’s procedural requirements, ICWA’s remedial provisions are invoked to remove children from adoptive families to whom the children were voluntarily given by the biological parents, the harmony is bound to be strained. Indeed, in circumstances of this kind, the interests of the tribe and the biological family may be in direct conflict with the children’s strong needs, which we find to be constitutionally protected, to remain through their developing years in one stable and loving home.

[69] An individual’s many related interests in matters of family life are compelling and are ranked among the most basic of civil rights. (Quilloin v. Walcott (1978) 434 U.S. 246, 255 [54 L.Ed.2d 511, 98 S.Ct. 549]; In re Marilyn H. (1993) 5 Cal.4th 295, 306.) The United States Supreme Court has stated that “[t]he intangible fibers that connect parent and child have an infinite variety. They are woven throughout the fabric of our society, providing it with strength, beauty and flexibility. It is self-evident that they are sufficiently vital to merit constitutional protection in appropriate cases.” (Lehr v. Robertson (1983) 463 U.S. 248, 256 [77 L.Ed.2d 614, 103 S.Ct. 985].) The high court has explained that its decisions which accord federal constitutional protection to certain parental rights rest upon “the historic respect — indeed, sanctity would not be too strong a term — traditionally accorded to the relationships that develop within the unitary family.” (Michael H. v. Gerald D. (1989) 491 U.S. 110, 123 [105 L.Ed.2d 91, 109 S.Ct. 2333].)

[70] Family rights are afforded not only procedural but also substantive protection under the due process clause. (Meyer v. Nebraska, 262 U.S. 390, 399-401 [67 L.Ed.1042, 43 S.Ct. 625] [law against teaching foreign languages in elementary schools did not serve sufficiently compelling public purpose to justify infringement of due process rights of students to acquire knowledge and of parents to control their children’s education]; Stanley v. Illinois (1972) 405 U.S. 645, 649 [31 L.Ed.2d 561, 92 S.Ct. 1208] [“[A]s a matter of due process of law, Stanley was entitled to a hearing on his fitness as a parent before his children were taken from him. . . .”]; Santosky v. Kramer (1982) 455 U.S. 745, 753 [71 L.Ed.2d 599, 102 S.Ct. 1388] [“When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.”]; Moore v. East Cleveland (1977) 431 U.S. 494, 502 [52 L.Ed.2d 531, 97 S.Ct. 1932] [local ordinance which limited occupancy of a dwelling unit to members of a nuclear family violated Due Process Clause].) Substantive due process prohibits governmental interference with a person’s fundamental right to life, liberty or property by unreasonable or arbitrary legislation. (Moore v. East Cleveland, supra, 431 U.S. at pp. 501-502; In re David B. (1979) 91 Cal.App.3d 184, 192-193.) Legislation which interferes with the enjoyment of a fundamental right is unreasonable under the Due Process Clause and must be set aside or limited unless such legislation serves a compelling public purpose and is necessary to the accomplishment of that purpose. In other words, such legislation would be subject to a strict scrutiny standard of review. (Moore v. East Cleveland, supra, 431 U.S. at p. 499; Bates v. City of Little Rock (1960) 361 U.S. 516, 524 [4 L.Ed.2d 480, 80 S.Ct. 412]; Sherbert v. Verner (1963) 374 U.S. 398, 406 [10 L.Ed.2d 965, 83 S.Ct. 1790]; see also Poe v. Ullman (1961) 367 U.S. 497, 547 [6 L.Ed.2d 989, 81 S.Ct. 1752], dis. opn of Harlan, J.)

[71] When discussing constitutional protections of family relationships, the courts have focused more often upon the rights of parents than those of children. The United States Supreme Court has declared that the interests “of a man in the children he has sired and raised . . .undeniably warrants deference” (Stanley v. Illinois, supra, 405 U.S. at p. 651; italics added) and that parents’ interest in the “care, companionship, custody and management” of their children has “`a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.’ [Citation.]” (Ibid., italics added; see also Santosky v. Kramer, supra, 455 U.S. at p. 753; Lassiter v. Department of Social Services (1981) 452 U.S. 18, 27 [68 L.Ed.2d 640, 101 S.Ct. 2153].) The California Supreme Court has likewise declared a parent’s interest in the care, custody and management of his or her children to be “a compelling one, ranked among the most basic of civil rights.” (In re Marilyn H., supra, 5 Cal.4th at p. 306; see also Adoption of Kelsey S., supra, 1 Cal.4th at pp. 830-848; In re Angelia P. (1981) 28 Cal.3d 908, 916.)

[72] However, the courts have described the constitutional principles which govern familial rights in language which strongly suggests the Constitution protects the familial interests of children just as it protects those of parents. The federal high Court has said that “the relationship between parent and child is constitutionally protected” (Quilloin v. Walcott, supra, 434 U.S. at p. 255; italics added) and also has “emphasized the paramount interest in the welfare of children and has noted that the rights of the parents are a counterpart of the responsibilities they have assumed.” (Lehr v. Robertson, supra, 463 U.S. at p. 257.) Our own Supreme Court has stated that the right of parents to the care, custody and management of their children, although fundamental, is not absolute, and has stated that “[c]hildren, too, have fundamental rights — including the fundamental right to be protected from neglect and to `have a placement that is stable [and] permanent.’ ” (In re Jasmon O., supra, 8 Cal.4th 398, 419, quoting In re Marilyn H., supra, 5 Cal.4th at p. 306.) “Children are not simply chattels belonging to the parent, but have fundamental interests of their own that may diverge from the interests of the parent.” (In re Jasmon O., supra, 8 Cal.4th at p. 419; italics added.)

[73] Moreover, as a matter of simple common sense, the rights of children in their family relationships are at least as fundamental and compelling as those of their parents. If anything, children’s familial rights are more compelling than adults’, because children’s interests in family relationships comprise more than the emotional and social interests which adults have in family life; children’s interests also include the elementary and wholly practical needs of the small and helpless to be protected from harm and to have stable and permanent homes in which each child’s mind and character can grow, unhampered by uncertainty and fear of what the next day or week or court appearance may bring. (See generally, In re Jasmon O., supra, 8 Cal.4th at p. 419.)

[74] Cases which hold that deference is to be accorded to parental rights do so in part on the assumption that children’s needs generally are best met by helping parents achieve their interests. (Santosky v. Kramer, supra, 455 U.S. at pp. 759-761; Stanley v. Illinois, supra, 405 U.S. at p. 649; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242,. 253-254; In re Angelia P., supra, 28 Cal.3d at pp. 916-917.) In some situations, however, children’s and parents’ rights conflict, and in these situations, the legal system traditionally protects the child. (Cynthia D. v. Superior Court,, supra, 5 Cal.4th at p. 254; In re Angelia P., supra, 28 Cal.3d at p. 917.)

75] Circumstances in which a parent’s and child’s interest diverge, and the child’s interests are found more compelling, include circumstances where a child has been in out-of-home placement under the jurisdiction of a dependency court for 18 months, and the parent has failed to correct the problems which caused the child to be removed from the home. (In re Jasmon O., supra, 8 Cal.4th at pp. 419-422; Cynthia D. v. Superior Court, supra, 5 Cal.4th at pp. 254-256.) In cases of this kind, the California Supreme court has ruled that a substantial likelihood that the child will suffer serious trauma if separated from the foster family can establish sufficient detriment to overcome the parents’ right to the care, custody and companionship of the child. (In re Jasmon O., supra, 8 Cal.4th at pp. 418-419.) A child’s right to remain in a stable home is also found both to be adverse to and to outweigh a parent’s interests where a natural father failed to show a commitment to the child within a reasonable time of learning of the mother’s pregnancy, but later seeks to assert parental rights and disturb an adoptive placement or step parent family in which the child is secure and thriving. (Lehr v. Robertson, supra, 463 U.S. at pp. 261-262; Quilloin v. Walcott, supra, 434 U.S. at p. 255; Adoption of Michael H., supra, 10 Cal.4th at pp. 1054-1058.) In such cases, the United States Supreme Court has ruled that the parental rights of the natural father are superseded by policies favoring preservation of the child’s existing family unit. (Quilloin v. Walcott, supra, 434 U.S. at p. 255.)

76] Both the California Supreme Court and the United States Supreme Court have also recognized that a person’s interests and rights respecting family relationships do not necessarily depend upon the existence of a biological relationship. (Lehr v. Robertson, supra, 463 U.S. at p. 261; Adoption of Michael H.,(1995) 10 Cal.4th 1043, 1057-1058.) The United States Supreme Court has stated that “[n]o one would seriously dispute” that familial interests and rights may attach to the emotional ties which grow between members of a de facto family. (Smith v. Organization of Foster Families (1977) 431 U.S. 816, 844 [53 L.Ed.2d 14, 97 S.Ct. 2094].) Both high courts have recognized that such interests and rights may outweigh biological relationships under some circumstances. (Lehr v. Robertson, supra, 463 U.S. at p. 261; Quoilloin v. Walcott, supra, 434 U.S. at p. 255; Smith v. Organization of Foster Families, supra, 431 U.S. at pp. 843-844; Adoption of Michael H., supra, 10 Cal.4th at pp. 1057-1058.) *fn12

[77] Here, the biological parents have come before the court after having voluntarily relinquished their twin girls for adoption. The biological parents claim they are entitled to reestablish their relationship with the children, because their relinquishments of parental rights were not executed in accordance with ICWA. However, any claim which they may have under the statute does not necessarily establish a claim to that deference which parental rights are generally accorded under the Constitution. A biological parent’s constitutional rights, like other constitutional rights, may be waived, provided only that the waiver is knowingly and intelligently made (D.H. Overmyer Co., Inc. v. Frick Co. (1972) 405 U.S. 174, 185-186 [31 L.Ed.2d 124, 92 S.Ct. 775]; Tyler v. Children’s Home Society (1994) 29 Cal.App.4th 511, 545), and the counselling which is required by California law before a parent may relinquish a child for adoption has been held to be sufficient to assure that any waiver of parental rights is knowing and intelligent. (Tyler v. Children’s Home Society, supra, 29 Cal.App.3d at pp. 546-547.)


…More Existing Indian Family discussion:

[78] Given the failure to comply with procedural requirements of ICWA, we cannot conclude that there has been a waiver of parental rights in this case. However, as we have observed, prior judicial decisions establish that, where a child has formed familial bonds with a de facto family with whom the child was placed owing to a biological parents’ unfitness (In re Jasmon O., supra, 8 Cal.4th at p. 418) or initial failure to establish a parent-child relationship (Lehr v. Roberston, supra, 463 U.S. at p. 261; Adoption of Michael H., supra, 10 Cal.4th at p. 1057), and where it is shown that the child would be harmed by any severance of those bonds, the child’s constitutionally protected interests outweigh those of the biological parents. (Lehr v. Robertson, supra, 463 U.S. at pp. 261-262; Adoption of Michael H., supra, 10 Cal.4th at pp. 1057-1058; In re Jasmon O., supra, 8 Cal.4th at pp. 418-419.) The rule can logically be no different where children have become bonded to a family in which they were placed after a knowing, intelligent and express relinquishment of parental rights. Inasmuch as children have a liberty interest in the continuity and stability of their homes (In re Jasmon O., supra, 8 Cal.4th at p. 419; In re Marilyn H., supra, 5 Cal.4th at p. 306), where a child’s biological parents knowingly and intelligently relinquish the child to others for the express purpose of giving the child a loving and stable home, the biological parents’ voluntary act constitutes at the very least a voluntary subordination of their constitutional rights to those of the children. The biological parents thus must rely solely upon ICWA for any claim which they might have in this matter.

[79] The interests of the Tribe in this dispute are likewise based solely upon ICWA. There neither is nor can be any claim that the Tribe’s interests are constitutionally protected. The R’s, as the prospective adoptive parents, similarly have no interests which have been found to enjoy constitutional protection. (Smith v. Organization of Foster Families, supra, 431 U.S. at pp. 838-847.)

[80] However, the twins do have a presently existing fundamental and constitutionally protected interest in their relationship with the only family they have ever known. The children are thus the only parties before the court which have such interests. Therefore, if application of ICWA would interfere with those interests, such application must be subjected to a strict scrutiny standard to determine whether it serves a compelling government purpose and whether it is actually necessary and effective to the accomplishment of that purpose. If not, then ICWA, as so applied, would deprive the children of due process of law. (Moore v. East Cleveland, supra, 431 U.S. at p. 499; Bates v. City of Little Rock, supra, 361 U.S. at p. 524; Sherbert v. Verner, supra, 374 U.S. at p. 406.)

[81] The questions which we therefore must determine are (1) whether the tribal interests which ICWA protects are sufficiently compelling under substantive due process standards to justify the impact which ICWA’s requirements will have on the twins’ constitutionally protected familial rights, and, if so, (2) whether application of ICWA, under facts of the kind presented in this case, is necessary to further that interest.

[82] We have no quarrel with the proposition that preserving American Indian culture is a legitimate, even compelling, governmental interest. At the same time, however, we agree with those courts which have held that this purpose will not be served by applying the provisions of ICWA which are at issue in this case to children whose biological parents do not have a significant social, cultural or political relationship with an Indian community. It is almost too obvious to require articulation, that “the unique values of Indian culture” (25 U.S.C. Section(s) 1902) will not be preserved in the homes of parents who have become fully assimilated into non-Indian culture. This being so, it is questionable whether a rational basis, far less a compelling need, exists for applying the requirements of the Act where fully assimilated Indian parents seek to voluntarily relinquish children for adoption. The case for applying ICWA is even weaker where assimilated parents have previously concluded a reasoned and voluntary relinquishment of a child, which was valid and has become final under state law, and the child has become part of an adoptive or prospective adoptive family. In this circumstance, the invalidation of the relinquishment manifestly can serve no purpose which is sufficiently compelling to overcome the child’s fundamental right to remain in the home where he or she is loved and well cared-for, with people to whom the child is daily becoming more attached by bonds of affection and among whom the child feels secure to learn and grow. ICWA cannot constitutionally be applied under such facts.


[83] b. Equal Protection

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[84] ICWA requires Indian children who cannot be cared for by their natural parents to be treated differently from non-Indian children in the same situation. As a result of this disparate treatment, the number and variety of adoptive homes that are potentially available to an Indian child are more limited than those available to non-Indian children, and an Indian child who has been placed in an adoptive or potential adoptive home has a greater risk than do non-Indian children of being taken from that home and placed with strangers. To the extent this disparate and sometimes disadvantageous treatment is based upon social, cultural or political relationships between Indian children and their tribes, it does not violate the equal protection requirements of the Fifth and Fourteenth Amendments. (United States v. Antelope (1977) 430 U.S. 641, 646 [51 L.Ed.2d 701, 97 S.Ct. 1395]; Moe v. Salish Kootenai Tribes (1976) 425 U.S. 463, 480-481 [48 L.Ed.2d 96, 96 S.Ct. 1634]; Morton v. Mancari (1974) 417 U.S. 535, 554 [41 L.Ed.2d 290, 94 S.Ct. 2474].) However, where such social, cultural or political relationships do not exist or are very attenuated, the only remaining basis for applying ICWA rather than state law in proceedings affecting an Indian child’s custody is the child’s genetic heritage — in other words, race.

[85] Equal protection principles regard racial classifications of all kinds as “inherently suspect” (Regents of the Univ. of California v. Bakke (1978) 438 U.S. 265, 289-290 [57 L.Ed.2d 750, 98 S.Ct. 2733] (lead opn. of Powell, J.)), indeed, “odious to a free people.” (Hirabayashi v. United States (1943) 320 U.S. 81, 100 [87 L.Ed. 1774, 63 S.Ct. 1375].) The United States Supreme Court has recently held that “all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests.” (Adarand Constructors, Inc. v. Pena (1995) __ U.S. __ [132 L.Ed.2d 158, 182, 115 S.Ct. 2097] (hereafter “Adarand”; lead opn. of O’Connor, J.); see also Miller v. Johnson (1995) __U.S. __ [132 L.Ed.2d 762, 115 S.Ct. 2475, 2482].) The same principle applies whether the group targeted by a racial classification is burdened or benefited by the classification. (Adarand, supra, 132 L.Ed.2d at p. 179.) The foregoing principles apply to federal legislation affecting Indian affairs. (Delaware Tribal Business Commission v. Weeks (1974) 430 U.S. 73, 84 [51 L.Ed.2d 173, 97 S.Ct. 911].)

[86] The Tribe and the biological parents argue that ICWA does not create a race-based classification, because application of ICWA is triggered by the child’s membership in a tribe or eligibility for membership, and depends upon the child’s genetic heritage only if the child is merely eligible for tribal membership, in which case the child must be the biological child of a tribal member. This argument is superficially appealing. However, the Tribe and the parents also argue that, under ICWA Guidelines, tribal determinations of their own membership should generally be deemed conclusive. If tribal determinations are indeed conclusive for purposes of applying ICWA, and if, as appears to be the case here, a particular tribe recognizes as members all persons who are biologically descended from historic tribal members, then children who are related by blood to such a tribe may be claimed by the tribe, and thus made subject to the provisions of ICWA, solely on the basis of their biological heritage. Only children who are racially Indians face this possibility. *fn13

[87] For purposes of determining whether a particular application of ICWA creates a racially based classification, it makes no difference that not all tribes recognize as tribal members all blood descendants of tribal members. (See, e.g., Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 52-53 [56 L.Ed.2d 106, 98 S.Ct. 1670] [tribe denied tribal membership to the children of female tribal members who married outside the tribe, but not to the children of similarly situated male tribal members].) As we have observed above, to the extent that tribal membership within the meaning of ICWA is based upon social, cultural or political tribal affiliations, it meets the requirements of equal protection. However, any application of ICWA which is triggered by an Indian child’s genetic heritage, without substantial social, cultural or political affiliations between the child’s family and a tribal community, is an application based solely, or at least predominantly, upon race and is subject to strict scrutiny under the equal protection clause. So scrutinized, and for the same reasons set forth in our discussion of the due process issue, it is clear that ICWA’s purpose is not served by an application of the Act to children who are of Indian descent, but whose parents have no significant relationship with an Indian community. If ICWA is applied to such children, such application deprives them of equal protection of the law.


[88] c. The Indian Commerce Clause and the Tenth Amendment

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[89] Congress’s authority to enact ICWA arises from clause 3 of section 8 of article I of the Constitution, “The Congress shall have power . . . to regulate Commerce . . . with the Indian tribes.” (25 U.S.C.A. Section(s) 1901, subd. (1); In re Wanomi P., supra, 216 Cal.App.3d at pp. 162-163.) This clause grants Congress plenary power over Indian affairs. (United States v. Wheeler (1978) 435 U.S. 313, 318 [55 L.Ed.2d 303, 98 S.Ct. 1079]; Morton v. Mancari, supra, 417 U.S. at pp. 551-552; Worcester v. State of Georgia (1831) 31 U.S. (6 Pet. ) 515, 559 [8 L.Ed. 483].) Indian tribes are deemed to be semi-sovereign nations under the protection of the federal government. Tribes retain attributes of sovereignty over both their members and their territories; such sovereignty is dependent on, and subordinate to, only the Federal Government, not the states. (California v. Cabazon Band of Indians (1987) 480 U.S. 202, 207 [94 L.Ed.2d 244, 107 S.Ct. 1083]; Washington v. Confederated Tribes (1980) 447 U.S. 134, 153-154 [65 L.Ed.2d 10, 100 S.Ct. 2069].)

[90] The principles of tribal self-government, grounded in notions of inherent sovereignty and in congressional policies, seek an accommodation between the interests of the tribes and the federal government on the one hand, and those of the states, on the other. (Washington v. Confederated Tribes, supra, 447 U.S. at pp. 156-157.) Thus, the Supreme Court has held nonreservation Indians are generally subject to nondiscriminatory and generally applicable state laws “[a]bsent express federal law to the contrary.” (Mescalero Apache Tribe v. Jones (1973) 411 U.S. 145, 148-149 [36 L.Ed.2d 114, 93 S.Ct. 1267].) Even on Indian reservations, state laws generally may be applied insofar as they do not interfere with reservation self-government or essential internal tribal affairs, or impair a right reserved by federal law. (Id. at p. 148.)

[91] Jurisdiction over matters of family relations is traditionally reserved to the states. (Rose v. Rose (1987) 481 U.S. 619, 625 [95 L.Ed.2d 599, 107 S.Ct. 2029]; Lehman v. Lycoming County Children’s Services (1982) 458 U.S. 502, 511-512 [73 L.Ed.2d 928, 102 S.Ct. 3231]; In re Burris (1890) 136 U.S. 586, 593-594 [34 L.Ed. 500, 10 S.Ct. 850].) Thus, where it is contended that a federal law must override state law on a matter relating to family relations, it must be shown that application of the state law in question would do “`major damage’ to `clear and substantial federal interests.’ [Citations].” (Rose v. Rose, supra, 481 U.S. at p. 625.)

[92] Under these principles, ICWA should apply rather than state laws
respecting family relations only where such application actually serves
the specific purposes for which ICWA was enacted, “to promote the stability
and security of Indian tribes and families”
(25 U.S.C. Section(s) 1902),
or the broader purposes which are served by all authorized exercises of
Congressional power under the Indian Commerce Clause, namely, the purposes
of acting as a guardian to the Indian tribes, and in so doing, protecting
Indian tribal self-government. (Morton v. Mancari, supra, 417 U.S. at pp.

[93] The recent case of United States v. Lopez ___ U.S. ___ [131 L.Ed.2d 626, 115 S.Ct. 1624] is instructive, although that case concerned the powers of Congress under the Interstate Commerce Clause, and the reach of the Indian Commerce Clause is not identical. In Lopez, the United States Supreme Court indicated that Congress’s power under the Interstate Commerce Clause to legislate in areas otherwise reserved to the states will be confined to matters which substantially affect interstate commerce. (115 S.Ct. at p. 1630.) The reasoning of Lopez logically applies with respect to the Indian Commerce Clause, indeed, to any enumerated power of Congress. Congress exceeds its authority when, acting under any of its enumerated powers, Congress legislates in matters generally within the jurisdiction of the states, in the absence of an adequate nexus to the enumerated power under which the legislation is enacted. (Cf. 115 S.Ct. at pp. 1631-1634.)

[94] No such nexus exists respecting application of ICWA to children whose families do not maintain significant relationships with an Indian tribe or community or with Indian culture. Once again, ICWA’s purpose simply is not furthered by an application of the Act to families who are of Indian descent, but who maintain no significant social, cultural or political relationships with Indian community life, and are in all respects indistinguishable from other residents of the state. Thus, if ICWA is applied to such children, that application impermissibly intrudes upon a power reserved to the states.

[95] d. Conclusion

[96] We do not believe ICWA applies only to Indian children who are domiciled on reservations. Indeed, the Act’s express terms provide for application of most of its provisions to reservation-domiciled and nonreservation-domiciled Indians alike. (Section(s) 1911, subds. (b) and (c).) Only the provision for exclusive jurisdiction in the tribal court is restricted to reservation domicilaries. (Section(s) 1911, subd. (a).) However, if the Act applies to children whose families have no significant relationship with Indian tribal culture, such application runs afoul of the Constitution in three ways: (1) it impermissibly intrudes upon a power ordinarily reserved to the states, (2) it improperly interferes with Indian children’s fundamental due process rights respecting family relationships; and (3) on the sole basis of race, it deprives them of equal opportunities to be adopted that are available to non-Indian children and exposes them, like the twin girls in this case, to having an existing non-Indian family torn apart through an after the fact assertion of tribal and Indian-parent rights under ICWA (which rights were, in this case, specifically and intentionally ignored by the biological parents now asserting them). All of this occurs in the absence of even a rational relationship to a permissible state purpose, much less a necessary connection with a compelling state purpose.

[97] We conclude that principles of substantive due process, equal protection and federalism all carry the same implication regarding the proper scope of ICWA — it can properly apply only where it is necessary and actually effective to accomplish its stated, and plainly compelling, purpose of preserving Indian culture through the preservation of Indian families. We agree with those courts which have held that ICWA’s purpose is not served by an application of the Act where the child may be of Indian descent, but where neither the child nor either parent maintains any significant social, cultural or political relationships with Indian life.

[98] 4.

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