as: 682 N.W.2d 81, 2004 WL 573793 (Iowa App.))
Court's decision is referenced in a "Decisions Without Published Opinions"
table in the North Western Reporter. See FI IA R
6.14(5) for rules regarding the use and citation of unpublished
Court of Appeals of Iowa.
the Interest of K.B. and K.A., Minor Children,
& Fox Tribe of the Mississippi in Iowa, Appellant.
of Indian tribe employee, whose employment required her to render
opinions on the tribe's behalf regarding tribal membership eligibility, would
be imputed to Indian tribe for purposes of determining whether
children were eligible for membership in tribe, and thus were
Indian children within meaning of Indian Child Welfare Act (ICWA).
25 U.S.C.A. § 1903(4).
state law will generally be preempted when it conflicts with
express terms of federal law and sufficiently injures the objectives
of a federal program, or does major damage to clear
and substantial federal interests, when the state law is one
affecting Indian tribes, courts must consider the nature of any
competing state, federal and tribal interests; in such cases state
jurisdiction over an action or issue is preempted if it
interferes or is incompatible with federal and tribal interests reflected
in federal law, unless the state interests at stake are
sufficient to justify the assertion of state authority.
an Indian tribe has a statutory right of intervention under
Indian Child Welfare Act (ICWA), state-law doctrines of estoppel may
not be applied to deprive it of that right. 25
U.S.C.A. § 1901
who had not yet reached five years of age were
not eligible for membership in Indian tribe under provision of
tribe's constitution and bylaws that permitted Indian membership for person
who had "resided on the reservation for a period of
five years," and thus children were not Indian children within
meaning of Indian Child Welfare Act (ICWA), even though alleged
tribal resolution stated that such provision should not be applied
in a manner that would preclude membership of children who
had not yet attained the age of five; record was
insufficient to permit determination of whether resolution had been adopted
in accordance with tribal constitution or under a proper exercise
of tribal council's authority. 25 U.S.C.A. § 1903(4).
Appeal from the Iowa District Court for Marshall County, Victor
G. Lathrop, Associate Juvenile Judge.
A Native American tribe appeals from the district court's denial
of its motion to intervene in two termination of parental
rights cases. AFFIRMED.
Thomas Grabinski, Grinnell, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General,
and Jennifer Miller, County Attorney, for appellee State.
Chad Frese of Fairall, Fairall, Kaplan & Frese, L.L.P., Marshalltown,
for mother and appellees Interveners Kevin and Ann Jones.
John Swain, Marshalltown, for minor child K.B..
Steven Kloberdanz, Marshalltown, for minor child K.A..
Heard by HUITINK, P.J., and ZIMMER and MILLER, JJ.
The Sac and Fox Tribe of the Mississippi in Iowa
(Tribe) appeals from the juvenile court's denial of its motion
to intervene in two termination of parental rights cases that
involve children the Tribe alleges are Indian children within the
context of the federal Indian Child Welfare Act (ICWA). We
affirm the juvenile court.
Background Facts and Proceedings.
Kadance, born February 1, 2001, and Kristopher, born January 26,
2002, are the children of Kristie, a Tribe member. Neither
child is a Tribe member, and neither Kadance's father Dale,
nor Kristopher's father, Christopher, is a Native American.
The State initiated child in need of assistance (CINA) proceedings,
first in regard to Kadance, then in regard to Kristopher.
The Tribe received proper notice of each CINA proceeding. In
each case the Tribe took the position, through Sandra Morrison,
an ICWA Social Worker employed by the Tribe's family services
organization, that the child was neither an enrolled member of
the Tribe nor eligible for enrollment,
[FN1] and thus not an Indian child for the purposes
[FN2] The juvenile court adjudicated both Kadance and Kristopher
as children in need of assistance. In Kadance's case, the
court made specific findings that ICWA was not applicable.
[FN3] Neither CINA adjudication was appealed.
Throughout these proceedings various participants and the court have alternatively
referred to "enrollment" and "membership." Enrollment is not necessarily the
same as membership. See
Matter of Adoption of Riffle,
277 Mont. 388, 922 P.2d 510, 513 (Mont.1996) (citations omitted)
("Enrollment and membership are not synonymous. Enrollment is a common
but not exclusive evidentiary means of determining membership in a
tribe.") However, for the purposes of these proceedings, we consider
references to enrollment or enrollment eligibility to be references to
membership or membership eligibility.
The record reveals the Tribe also checked with the enrollment
office of the Sac and Fox Nation of Oklahoma to
see if the children were eligible to be enrolled there.
The children were not eligible for enrollment.
Our review is somewhat limited by the fact that neither
CINA file is part of the record on appeal.
In December 2001 the State filed a petition to terminate
Kristie and Dale's parental rights to Kadance. When the matter
came on for hearing in February 2002, Kristie and Dale
stipulated to the allegations in the petition. During the hearing
Sandra Morrison once again confirmed that Kadance was not eligible
for enrollment in the Tribe. In its order terminating Kristie
and Dale's parental rights, the juvenile court stated that "all
parties are in agreement that the Indian Child Welfare Act
is not applicable to Kandance...." The termination order was not
In December 2002 the State filed a petition to terminate
Kristie and Christopher's parental rights to Kristopher. The petition was
still pending when, in February 2003, the Tribe filed a
motion to intervene in both termination cases. In its motion,
the Tribe reversed its position regarding each of the children.
The Tribe now claimed the children were eligible for enrollment,
based on one of the two membership provisions in its
constitution, as well as a 1997 resolution that defined eligibility
for the purposes of ICWA.
In a March 2003 order the juvenile court denied the
Tribe's motion to intervene. The court determined that, despite the
resolution, under the plain language of the Tribe's constitution and
by-laws the children were not eligible for enrollment. The following
day the court terminated Kristie and Christopher's parental rights to
Kristopher. The Tribe filed an interlocutory appeal,
which was granted by the supreme court.
Scope of Review.
We review the denial of a motion to intervene for
the correction of errors at law. In
619 N.W.2d 340, 342 (Iowa 2000).
ICWA is applicable in a State court proceeding to terminate
parental rights if the child involved in the proceeding is
an "Indian child." [FN4]
25 U.S.C. § 1903(1)(ii),
(4) (2001). ICWA defines an Indian child as a person
under eighteen years of age, unmarried, and "either (a) a
member of an Indian tribe or (b) is eligible for
membership in an Indian tribe and is the biological child
of a member of an Indian tribe...." Id.
If the termination proceeding does involve an Indian child, then
the tribe of which that child is or is eligible
to become a member has a statutory "right to intervene
at any point in the proceeding." [FN5]
25 U.S.C. §§ 1903(5),
1911(c). Thus, the key question on appeal is whether the
Tribe met its burden to show Kadance and Kristopher are
Indian children as defined by ICWA. See in re J.D.B.,
584 N.W.2d 577, 582 (Iowa Ct.App.1998) (citations omitted) (" '[I]t
is incumbent upon the party asserting applicability of ICWA to
prove the child meets the criteria under ICWA." ').
The Tribe spends significant time discussing the Iowa Indian Child
Welfare Act, which was enacted after the initiation of the
termination proceedings now before us. See
Iowa Code ch. 232B (Supp.2003). However,
as there is no indication the legislature intended chapter 232B
to apply retroactively, and as chapter 232B clearly deals with
substantive rights, it has no applicability in these proceedings. See
Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd. v. Shell
606 N.W.2d 370, 375 (Iowa 2000). Our concern is solely
with the interpretation and applicability of the federal act.
ICWA further requires that the Indian tribe, band, nation, or
group be federally recognized. See
25 U.S.C. § 1903(8).
The Sac and Fox Tribe of the Mississippi in Iowa
is so recognized.
Estoppel. As an initial
matter the State contends that, in light of the Tribe's prior assertions
that Kadance and Kristopher were not eligible for membership,
[FN6] the doctrines of equitable estoppel, judicial estoppel and estoppel
by acquiescence prevent the Tribe from now asserting the children are
in fact eligible for membership.
[FN7] The Tribe responds, in essence, that its statutory right of intervention
under ICWA preempts these state-law doctrines. However, this argument
presupposes the children are in fact eligible for membership, and thus
ICWA applies to the termination proceedings. See
J.D.B., 584 N.W.2d
at 582 ("The provisions of ICWA do not apply until the court determines
the children are 'Indian' as defined in ICWA."). As will be discussed
in the next portion of our opinion, we conclude ICWA did not apply to
the termination proceedings in this matter. While we could accordingly
decline to address the State's estoppel arguments, we believe an analysis
of the issue would be beneficial to the resolution of some future ICWA-related
The Tribe points out Sandra Morrison is not one of
its members, and contends it should not be bound by
her mistaken interpretation of the Tribe's membership provisions. However, the
limited record before us indicates Morrison was employed by the
Tribe in a position that required her to render opinions,
on the Tribe's behalf, regarding membership eligibility. Under such circumstances,
it is entirely proper to impute Morrison's statements to the
e.g., Wilson v. Liberty Mut. Group,
666 N.W.2d 163, 166 (Iowa 2003) (judicial estoppel); Rubes
v. Mega Life & Health Ins. Co.,
642 N.W.2d 263, 271 (Iowa 2002) (estoppel by acquiescence); Johnson
301 N.W.2d 750, 754 (Iowa 1981) (equitable estoppel).
We have previously addressed the issue of a potential conflict
between ICWA and Iowa law in an appeal from the
termination of parental rights. In In
this court considered the question of whether Iowa's error preservation
would apply in a proceeding governed by ICWA. Id.
at 581. We concluded ICWA neither expressly nor impliedly preempted
our rules of error preservation, and that "[t]o have our
procedural rules preempted by federal law, would serve no greater
purpose under ICWA." Id.
Although we continue to hold to our analysis in that
case, we conclude the circumstances presented in this matter require
us to reach a different conclusion regarding the applicability of
the doctrines of estoppel.
a general proposition, state law will be preempted when it "
'conflicts with the express terms of federal law' and 'sufficiently injure[s]
the objectives of [a] federal program[,]' " or does " 'major
damage' to 'clear and substantial' federal interests." In
re Marriage of Trickey,
589 N.W.2d 753, 756-57 (Iowa Ct.App.1998) (citation omitted). However,
when the state law is one affecting Indian tribes, courts must consider
the nature of any competing state, federal and tribal interests. See
New Mexico v. Mescalero Apache Tribe,
462 U.S. 324, 333-34, 103 S.Ct. 2378, 2386-87, 76 L.Ed.2d 611, 619-20
(1983). In such cases state jurisdiction over an action or issue is preempted
if "it interferes or is incompatible with federal and tribal interests
reflected in federal law, unless the state interests at stake are sufficient
to justify the assertion of state authority." Id.
One of the primary purposes of ICWA is "to protect
the best interests of Indian children and to promote stability
and security of Indian tribes and families
by the establishment of minimum Federal standards for the removal
of Indian children from their families...." 25 U.S.C. § 1902.
In seeking to promote tribal interests, Congress provided tribes with
two broad and largely uncircumscribed rights regarding intervention in termination
of parental rights proceedings. As previously noted, an Indian child's
tribe has the right to intervene "at any point" in
a proceeding to terminate parental rights. Id.
In addition, if a tribe can show that a termination
occurred in violation of the tribe's right of intervention, the
tribe may petition for invalidation of the termination. Id.
Clearly, state law that would preclude a tribe from exercising
its statutory right of intervention would interfere with the tribal
interests evidenced by ICWA.
must therefore balance the competing state and tribal interests. Mescalero
Apache Tribe, 462 U.S.
at 333-34, 103 S.Ct. at 2386-87, 76 L.Ed.2d. at 619-20. It is clear that
a tribe's interest in participating in a proceeding involving the future
of an Indian child is not only significant, but one which the federal
government seeks to vigorously protect. See
State ex rel. Juvenile Dept. of Lane County v. Shuey,
119 Or.App. 185, 850 P.2d 378, 381 (Or.Ct.App.1993) ("Tribal participation
in state custody proceedings involving Indian children is essential to
effecting the purposes of the ICWA."). The State's interest in judicial
economy and avoiding duplicative proceedings pales in comparison. Accordingly,
we conclude that when a tribe has a
statutory right of intervention under ICWA, state-law doctrines of estoppel
may not be applied to deprive it of that right. However, for the reasons
which follow, we conclude that in this case the Tribe failed to establish
a statutory right of intervention.
Eligibility for Enrollment.
Before we address the question of whether Kadance and Kristopher
were "Indian children" within the meaning of ICWA, we feel
the need to clarify the role of the courts in
such determinations. We agree with the Tribe that it is
"the arbitrator[ ] of [its] own membership." In
498 N.W.2d 417, 422 (Iowa Ct.App.1993). We also agree the
courts should respect a Tribe's interpretation of its membership provisions.
However, a Tribe's discretion to declare that a particular child
meets previously-articulated eligibility criteria cannot be without limits. When a
tribe formally adopts membership criteria, the courts must ultimately be
guided by those criteria in determining whether the tribe has
met its burden of establishing that a particular child is
an Indian child within the meaning of ICWA. See
In re J.D.B.,
584 N.W.2d 577, 582 (Iowa Ct.App.1998) (indicating that while it
is a tribe's burden to present evidence of eligibility, ultimate
determination of ICWA's applicability is matter for the court).
We therefore turn to the
Tribe's membership provisions. Article II, Section 1 of the Constitution
and Bylaws of the Sac and Fox Tribe of the Mississippi in Iowa defines
tribal membership. The Tribe concedes none
of the provisions of Section 1 apply to Kadance or Kristopher.
[FN8] The Tribe argues, however, that Kadance and Kristopher are eligible
for membership in the Tribe pursuant to Article II, Section 2:
In general terms, membership is limited to enrolled members as
listed in a 1937 census, and children of male tribal
2. Persons who are descendants of members of this Tribe
but not entitled to membership under Section 1 may be
adopted into the Sac and Fox Tribe by a majority
vote of the Tribal Council, providing that such persons have
resided on the reservation for a period of five years.
The application for membership into the Tribe shall be made
by self, parents, or guardians to the Membership Committee of
the Tribal Council, and thereupon the said committee shall investigate
for the Tribal Counsel to determine the desirability of adoption.
Persons adopted under this section shall not be entitled to
hold office under this Constitution or participate in the payments
resulting from the treaties of the Tribe with the United
States, but may enjoy other privileges of tribal members.
We cannot agree with the Tribe's position. By its very
terms, Section 2 cannot apply to Kadance and Kristopher. Neither
child has reached five years of age
and therefore has not "resided on the reservation for a
period of five years." [FN9]
The Tribe contends the court must recognize the children's potential,
prospective right to membership. However, ICWA defines an Indian child
as one who "is eligible" for membership, demonstrating an intent
that an Indian child be presently eligible for membership. Kadance
and Kristopher are not presently eligible for membership in the
Tribe under Section 2.
At the time of the district court hearing on the
motion to intervene, Kristopher did live on the reservation with
extended family members, but was only one year old. Kadance
had never lived on the reservation, other than for periods
of visitation with extended family members.
The Tribe next relies on Sac and Fox Tribal Resolution
No. 26, 1997.
[FN10] That document
The tribe made no mention of this resolution during the
CINA proceedings, when it informed the juvenile court the children
were not eligible for membership in the Tribe.
and clarifies that ... Section 2 is not intended to
apply in a manner
that would preclude eligibility for membership of children of Sac
and Fox descent who have not yet attained the age
of 5 and whose father is not an enrolled Sac
and Fox member; and ... that, for purposes of the
Indian Child Welfare Act of 1978, the Tribe hereby considers
all children of Sac and Fox descent regardless of age
and residence to be eligible for membership in the Tribe
until such point that enrollment is denied....
If this resolution was in fact adopted by the Tribe's
governing council in the exercise of its authority, it must
be given full force and effect by the courts. See
Iowa Code § 1.14
(2001). ICWA also requires courts to give full faith and
credit to a public act or record of the Tribe
to the extent that the courts would accord full faith
and credit to the public act or record of another
entity. 21 U.S.C. § 1911(d).
Upon careful review of the rather limited record in this
case, we conclude the Tribe has not established the resolution
is of binding effect. See
584 N.W.2d at 582 (citations omitted) (" '[I]t is incumbent
upon the party asserting applicability of ICWA to prove the
child meets the criteria under ICWA.' "). The portion of
the Tribe's Constitution and Bylaws that apparently governs resolutions, Article
X, was not made a part of the record in
either termination proceeding. We are therefore unable to ascertain if
the resolution was in fact adopted in accordance with the
Tribe's Constitution and Bylaws or under a proper exercise of
the tribal council's authority.
[FN11] Nor are we able
to determine what effect such a resolution has under tribal
The record reveals the resolution is not dated. Blank spaces
on the certification page for the location, time and particulars
of the vote are not filled in. In addition, while
the certification page calls for the signature of the "Chairman,"
it is signed by the "Vice Chairman, T.C." We also
note the resolution calls for its review and approval by
the Bureau of Indian Affairs (BIA) pursuant to Article X,
Section 2 of the Tribe's Constitution and Bylaws, and provides
an area on the certification page for the signature of
the Area Director of the BIA's Minneapolis Area Office. That
signature line is blank. Although the Tribe's Executive Director submitted
a letter to the court stating the BIA's approval was
not required, the absence of Article X from the record
precludes us from confirming this conclusion. The deficiencies just mentioned
are particularly troublesome because the language of the resolution appears
to contravene rather than clarify the language appearing in Article
II, section 2 of the Tribe's Constitution and Bylaws.
The Tribe has failed it its burden to demonstrate that
ICWA is applicable to these termination proceedings. Accordingly, it had
no statutory right of intervention. We affirm the juvenile court's
denial of the Tribe's motion
Although the Tribe forwards an alternative claim that the juvenile
court should have allowed it to intervene under Iowa Rule
of Civil Procedure 1.407, the record indicates this issue was
neither raised to, nor ruled on, by the juvenile court.
Accordingly, it is not preserved for our review. See
In re C.D.,
508 N.W.2d 97, 100 (Iowa Ct.App.1993).
682 N.W.2d 81 (Table), 2004 WL 573793 (Iowa App.)