Jennifer Delgado – The Daily Iowan
Issue date: 12/11/07 Section: Metro
The Iowa Supreme Court ruled Nov. 30 (2007) that the state’s definition of an “Indian child” is an ethnic classification breaking the 14th Amendment equal-protection clauses in both state and federal Constitutions.
In the future, Iowa will have to come up with a new definition of what constitutes an “Indian child” – one that could possibly be based on tribal membership, UI law Professor Ann Estin said.
The decision comes after a custody case that began in Woodbury County, Iowa, involving two children born in Sioux City. The state removed the children from their home because of their parents’ record of substance abuse. Their mother is a member of the Winnebago tribe; their father is white.
The Winnebago tribe, located in northeastern Nebraska, tried to intervene in the custody proceedings, claiming the children fit the definition of “Indian child” under Iowa law and should be returned to the tribe. But because of this new ruling, the tribe cannot legally get involved in the custody battle.
In the Winnebago tribe, children of members are only eligible for membership if they have at least one-fourth degree Winnebago blood – the two children are only one-eighth degree.
In 2004, the Winnebago tribe passed a resolution stating that the offspring are seen as “children of the Winnebago tribal community” because their mother is a member.
“The Winnebago tribe tried to establish this definition, but the court won’t let it fly,” said Estin, who teaches Indian law.
According to the Iowa Indian Child and Welfare Act, any unmarried Indian who is under the age of 18 or a child who is under 18 that an Indian tribe identifies as a child of their community. Enacted in 2003, its purpose is to clarify state procedures and policies for the federal act. Estin said she believes this ruling is not a step backwards because the federal legislation is still in place, which trumps the state legislation. The 1978 federal law is similar to the Iowa statue but includes Indians who are eligible for membership and who are biological children of a tribal member.’ Estin said a law based on ethnicity is difficult to uphold, and the Iowa statute has gone beyond the federal law.
“The biggest problem is Iowa’s definition of an Indian child is it turns on the child’s ethnicity,” she said. “If Iowa wants to revise the Iowa Indian Child and Welfare Act, it has a clear signal from the Supreme Court that it’s going to have to have some tie to tribal membership.”