In The Interest Of A.w. And S.w., Minor Children, Woodbury County Attorney And A.w. And S.w., Minor Children Vs. Iowa

IN THE SUPREME COURT OF IOWA
No. 60 / 06-1074
Filed November 30, 2007
IN THE INTEREST OF A.W. and S.W.,
Minor Children,
WOODBURY COUNTY ATTORNEY
and A.W. and S.W., MINOR CHILDREN,
Appellants,
vs.
IOWA ATTORNEY GENERAL
and WINNEBAGO TRIBE OF NEBRASKA,
Appellees.
Appeal from the Iowa District Court for Woodbury County, Brian L.
Michaelson, Associate Juvenile Judge.
The Woodbury County Attorney and the guardian ad litem for A.W.
and S.W. appeal from a juvenile court order authorizing the Winnebago
Tribe of Nebraska to intervene in a child-in-need-of-assistance proceeding.
REVERSED AND REMANDED.
Patrick Jennings, County Attorney, and David A. Dawson, Assistant
County Attorney, for appellant Woodbury County Attorney.
Michelle M. Dreibelbis of the Juvenile Law Center, Sioux City, for
appellants minor children.
2
Thomas J. Miller, Attorney General, and Bruce Kempkes, Assistant
Attorney General, for appellee Iowa Attorney General.
Martha M. McMinn, Sioux City, for appellee the Winnebago Tribe of
Nebraska.
3
HECHT, Justice.
The juvenile court concluded A.W. and S.W. are “Indian children” as
defined in the Iowa Indian Child Welfare Act, Iowa Code chapter 232B
(2005) (Iowa ICWA), and granted the Winnebago Tribe of Nebraska’s petition
to intervene in a child-in-need-of-assistance (CINA) proceeding. On appeal,
the county attorney and the guardian ad litem for the children whose
interests are at issue in this case challenge the Winnebago Tribe’s status as
the “Indian child’s tribe” and the constitutionality of the Iowa ICWA. We
grant the Iowa Attorney General’s motion to dismiss the county attorney’s
appeal, and we conclude the Iowa ICWA definition of “Indian child” violates
the Equal Protection Clause of the Fourteenth Amendment of the United
States Constitution. Accordingly, we reverse the juvenile court’s ruling
granting the Tribe’s petition to intervene.
I. Factual and Procedural Background.
To place into context the unique issues involved in this case, a brief
discussion of the historical background of the federal ICWA1 is useful.
Studies in the late 1960s and early 1970s showed “25 to 35% of all Indian
children had been separated from their families and placed in adoptive
families, foster care, and institutions.” Mississippi Band of Choctaw Indians
v. Holyfield, 490 U.S. 30, 32, 109 S. Ct. 1597, 1600, 104 L. Ed. 2d 29, 36
(1989) (citing Indian Child Welfare Program Hearings before the
Subcommittee on Indian Affairs of the Senate Committee on Interior and
Insular Affairs, 93d Cong., 2d Sess., 3 (statement of William Byler)
(hereinafter 1974 Hearings); H.R. Rep. No. 95-1386, p. 9 (1978)). Testimony
taken during the congressional hearings that led to the federal ICWA
legislation suggested “[t]he adoption rate of Indian children was eight times
125 U.S.C. §§ 1901–1963 (2003).
4
that of non-Indian children.” Id. (citing 1974 Hearings at 75-83). In his
1978 testimony before the Subcommittee on Indian Affairs and Public
Lands of the House Committee on Interior and Insular Affairs, Chief Calvin
Isaac of the Mississippi Band of Choctaw Indians asserted the drain of
Indian children from reservations was due to “nontribal government
authorities who have no basis for intelligently evaluating the cultural and
social premises underlying Indian home life and childrearing.” Id. (citing
Hearings on S. 1214 before the Subcommittee on Indian Affairs and Public
Lands of the House Committee on Interior and Insular Affairs, 95th Cong.,
2d Sess. (testimony of Calvin Isaac)). Chief Isaac also observed in his
hearing testimony that “[m]any of the individuals who decide the fate of
[native] children are at best ignorant of [Indian] cultural values, and at
worst contemptful of the Indian way and convinced that removal, usually to
a non-Indian household or institution, can only benefit an Indian child.” Id.
Congress enacted the federal ICWA in 1978 in response to its
rising concern in the mid-1970s over the consequences to Indian
children, Indian families, and Indian tribes of abusive child welfare
practices that resulted in the separation of large numbers of Indian
children from their families and tribes through adoption or foster care
placement, usually in non-Indian homes.
Id. at 32, 109 S. Ct. at 1600, 104 L. Ed. 2d at 36. Responding to an “Indian
child welfare crisis . . . of massive proportions,” H.R. Rep. No. 95-1386, p. 9,
Congress incorporated the following findings in the statute:
(1) that clause 3, section 8, article I of the United States
Constitution provides that “The Congress shall have Power * * *
To regulate Commerce * * * with Indian tribes” and, through
this and other constitutional authority, Congress has plenary
power over Indian affairs;
(2) that Congress, through statutes, treaties, and the general
course of dealing with Indian tribes, has assumed the
responsibility for the protection and preservation of Indian
tribes and their resources;
5
(3) that there is no resource that is more vital to the continued
existence and integrity of Indian tribes than their children and
that the United States has a direct interest, as trustee, in
protecting Indian children who are members of or are eligible
for membership in an Indian tribe;
(4) that an alarmingly high percentage of Indian families are
broken up by the removal, often unwarranted, of their children
from them by nontribal public and private agencies and that an
alarmingly high percentage of such children are placed in non-
Indian foster and adoptive homes and institutions; and
(5) that the States, exercising their recognized jurisdiction over
Indian child custody proceedings through administrative and
judicial bodies, have often failed to recognize the essential
tribal relations of Indian people and the cultural and social
standards prevailing in Indian communities and families.
25 U.S.C. § 1901 (2003). The legislation declared it federal policy to
protect the best interests of Indian children and to promote the
stability and security of Indian tribes and families by the
establishment of minimum Federal standards for the removal
of Indian children from their families and the placement of
such children in foster or adoptive homes which will reflect the
unique values of Indian culture . . . .
Id. § 1902. In defining the reach of the federal legislation, Congress defined
an “Indian child” as “any unmarried person who is under age eighteen and
is either (a) a member of an Indian tribe or (b) eligible for membership in an
Indian tribe and is the biological child of a member of an Indian tribe.” Id.
§ 1903(4).
In furtherance of the federal policy to protect Indian children and
their relationships with the tribes with which they might be affiliated, the
federal ICWA requires the court to notify an Indian child’s tribe of any child
custody proceeding involving the child, and provides for three types of tribal
involvement.2 Id. § 1912(a). First, tribes have exclusive jurisdiction over
child custody proceedings involving Indian children domiciled on the tribe’s
reservation. Id. § 1911(a). Second, state courts are required, unless good
2The “Indian child’s tribe” is “the Indian tribe in which an Indian child is a member
or eligible for membership.” 25 U.S.C. § 1903(5)(a).
6
cause otherwise dictates, to transfer to tribal court any proceeding for the
foster care placement of, or termination of parental rights to, an Indian
child not domiciled on the reservation. Id. § 1911(b). Finally, the Indian
child’s custodian and the Indian child’s tribe have the right to intervene at
any point in a state court foster care or termination proceeding. Id.
§ 1911(c).
The federal ICWA also provides substantive protections for Indian
children, parents, and Indian custodians, including placement preferences
for the families and tribes of Indian children involved in child custody
proceedings. See id. § 1915. It also allows states to apply their own
“standard[s] of protection to the rights of the parent or Indian custodian of
an Indian child” if they are higher than the federal ICWA standards. Id.
§ 1921.
In 2003, the Iowa General Assembly enacted the Iowa ICWA to “clarify
state policies and procedures regarding implementation” of the federal
ICWA. Iowa Code § 232B.2 (2007).3 The Iowa ICWA and the federal ICWA
are not completely coterminous, however, as the Iowa ICWA provides for
several areas of greater protection to Indian families and tribes. One
instance in which the Iowa ICWA purports to expand upon the protections
afforded by the federal ICWA is in the definition of “Indian child.”4 As we
3The federal ICWA does not mandate the states adopt complementary ICWA
legislation. Iowa is one of the few states to adopt comprehensive complementary ICWA
statutes, which in some areas duplicate, but in other areas expand upon, the protections
granted by the federal ICWA. See Iowa Code §§ 232B.1–232B.14; Minn. Stat. §§ 260.751–
260.835 (2007); Neb. Rev. Stat. §§ 43-1501 to 43-1516 (2007); Okla. Stat. tit. 10, §§ 40.1–
40.9 (2007).
4Iowa and Washington are the only states with broader definitions of “Indian child”
than the federal ICWA. See Wash. Rev. Code § 13.70.150(1) (2007) (permitting
appointment of an Indian child welfare advisory committee “[i]f a case involves an Indian
child, as defined by 25 U.S.C. § 1903 or by department rule or policy” (emphasis added));
Wash. Admin. Code r. 388-70-091 (2007) (defining “Indian,” in rules for foster care
planning for Indian children, as including “[a]n unenrolled Indian: A person considered to
7
have already noted, the federal ICWA defines an “Indian child” as “any
unmarried person who is under age eighteen and is either (a) a member of
an Indian tribe or (b) eligible for membership in an Indian tribe and is the
biological child of a member of an Indian tribe.” 25 U.S.C. § 1903(4). The
Iowa ICWA defines an “Indian child” as “an unmarried Indian person who is
under eighteen years of age or a child who is under eighteen years of age
that an Indian tribe identifies as a child of the tribe’s community.” Iowa Code
§ 232B.3(6) (emphasis added). Thus, unlike the federal statute, section
232B.3(6) purports to include within the definition of “Indian child” children
without regard to whether they are members of a tribe nor eligible for
membership.
The Winnebago Tribe of Nebraska is a federally recognized Indian
Tribe located in northeastern Nebraska. Children of tribe members are
eligible for membership provided they “possess at least one-fourth degree
Winnebago Indian blood.”5 To assist the Tribe’s ICWA specialists in
deciding whether a child is properly identified as a “child of the tribe’s
community” and therefore an “Indian child” under the Iowa ICWA, the
Winnebago Tribal Council adopted resolution #04-26 on January 21, 2004.
This resolution states: “[F]or purposes of determining the applicability of the
________________________________
be an Indian by a federally or nonfederally recognized Indian tribe or urban Indian/Alaskan
native community organization). Although rule 388-70-091 has been a part of the
Washington Administrative Code since 1976, it does not appear it has been subjected to a
constitutional challenge.
The Oregon statutory definition of “Indian child” appears to allow for an expansion
of the federal definition; however, it has been construed as coextensive with the federal
definition. State ex rel. State Office for Services to Children & Families v. Klamath Tribe, 11
P.3d 701, 706 (Or. Ct. App. 2000) (construing Ore. Rev. Stat. § 419A.004(13), which
includes in the definition of “Indian child” a child “covered by the terms of an Indian Child
Welfare Act agreement between Oregon and an Indian tribe,” to encompass only those
children covered by the federal ICWA).
5Winnebago Tribe of Nebraska Constitution, Art. II, sec. 1(c).
8
Iowa ICWA, any child of an enrolled Winnebago tribal member shall be
included as a child of the Winnebago tribal community.”
A.W. and S.W. were born in Sioux City, and continue to reside there.
There is no evidence in the record tending to prove the children have ever
lived on the Winnebago Reservation. They are the biological children of
Tina, an enrolled Winnebago Tribe member who possesses one-fourth
degree Winnebago blood. Anthony, the father of A.W. and S.W, is
Caucasian. A.W. and S.W. therefore possess one-eighth degree Winnebago
blood. Because they have less than one-fourth degree Winnebago blood,
A.W. and S.W. are neither enrolled nor eligible to enroll in the Winnebago
Tribe. Under the tribe’s resolution #04-26, however, A.W. and S.W. are
“children of the Winnebago tribal community” for purposes of the Iowa
ICWA because they are the children of a member.
A history of substance abuse by Tina and Anthony led the State to
temporarily remove A.W. and S.W. from their home. A petition alleging the
children were in need of assistance was filed in the juvenile court. The
Winnebago Tribe filed a motion to intervene in the proceeding, alleging, in
relevant part, A.W. and S.W. are Indian children under the Iowa ICWA. See
Iowa Code § 232B.3(6) (defining “Indian child”). The Woodbury County
Attorney and the children’s guardian ad litem resisted the Tribe’s motion to
intervene, contending: (1) the Iowa ICWA is unconstitutional because it
violates the Indian Commerce, Supremacy, and Due Process Clauses of the
United States Constitution and the Equal Protection Clauses of both the
United States and Iowa Constitutions; (2) the Winnebago Tribe’s resolution
#04-26 is not entitled to full faith and credit; and (3) the Winnebago Tribe is
not the “Indian child’s tribe,” as defined in Iowa Code section 232B.3(8).
The department of human services did not object to the Tribe’s motion to
9
intervene or the applicability of the Iowa ICWA to A.W. and S.W. The
juvenile court adjudicated A.W. and S.W. CINA under sections 232.2(6)(b),
(c)(2), (n) and (o) and scheduled a hearing on the Winnebago Tribe’s motion
to intervene.
The juvenile court held a hearing on the motion to intervene on
November 21, 2005. Because the Winnebago tribe did not appear at this
hearing or present evidence, the juvenile court held the Iowa ICWA was
inapplicable. The court also ordered that custody of the children should
remain with the department of human services for placement in foster or
relative care.
Less than five months after the hearing on the motion to intervene,
Anthony and Tina had stopped working toward substance abuse recovery
and reunification with A.W. and S.W., and the juvenile court ordered the
Woodbury County Attorney to file a termination of parental rights petition.
The Woodbury County Attorney filed a petition seeking termination of
Anthony and Tina’s parental rights with regard to both children on April 7,
2006. Notice of the filing of the petition was served on the Winnebago Tribe.
Thereafter, the juvenile court held another hearing on the Winnebago
Tribe’s motion to intervene. The court concluded the Iowa ICWA definition
of “Indian child” was neither vague nor overbroad and that it did not violate
the Supremacy, Indian Commerce, Equal Protection or Due Process
Clauses. The court also concluded: (1) the Winnebago Tribe’s resolution
#04-26 is entitled to full faith and credit, (2) the Iowa ICWA is applicable
because A.W. and S.W. are “Indian children” under section 232B.3(6), and
(3) the Winnebago Tribe may intervene as the “Indian child’s tribe” under
section 232B.5(14).
10
The guardian ad litem and the Woodbury County Attorney, claiming
to act for himself and the State of Iowa, appealed from the ruling on the
motion to intervene.6 The Iowa Attorney General moved to dismiss the
appeals, contending: (1) the guardian ad litem and the Woodbury County
Attorney are “prevailing parties” not entitled to appeal the intervention
ruling; (2) a county attorney does not have a right to file an appeal or
appear in the appellate courts in CINA proceedings without the consent of
the attorney general; (3) a county attorney does not have authority to attack
the constitutionality of state statutes, such as the Iowa ICWA. We
previously rejected the attorney general’s “prevailing party” argument by
order and directed the submission of the other two arguments with this
appeal. See Iowa R. App. P. 6.22(4) (“Resisted motions will be ruled on by
the appropriate appellate court or justice or judge thereof after the
expiration of at least seven days from the serving of the resistance, unless
such court, justice or judge orders a different time for submission of the
motion.”).
II. Motion to Dismiss.
Before reaching the merits of the appellants’ arguments, we address
the attorney general’s motion to dismiss the Woodbury County Attorney
from this appeal. The attorney general contends the Woodbury County
Attorney may not represent the State of Iowa in the appellate courts without
authorization from the attorney general. He further argues a county
attorney has no standing to challenge the constitutionality of a state
statute. The county attorney contends he is a party in interest in this
6In a later ruling, the juvenile court terminated Tina and Anthony’s parental rights
pursuant to sections 232.116(1)(b), (d), (e) and (l) (both children), (f) (S.W. only), and (h)
(A.W. only). The merits of that ruling are not at issue in this appeal. We granted leave for
interlocutory appeal on the issue of the applicability of the Iowa ICWA to these children.
11
appeal; and, in the alternative, he urges us to consider the arguments in his
brief as though he were in the status of amicus curiae.
A. Representation of the State in CINA Appeals. The offices of
attorney general and county attorney are creatures of statute, and the
respective authority of each person holding them is detailed in the Iowa
Code. See Cosson v. Bradshaw, 160 Iowa 296, 301, 141 N.W. 1062, 1063–
64 (1913) (“The duties and powers of the Attorney General are defined by
statute, and we take it that the Legislature has given to him by the statute
all the powers that in their judgment he ought to be permitted to exercise,
and they imposed upon him all the duties which, in their judgment, should
be imposed upon him as such officer.”). Iowa Code chapter 13 defines the
duties and powers of the attorney general:
It shall be the duty of the attorney general, except as
otherwise provided by law, to:
(1) Prosecute and defend all causes in the appellate
courts in which the state is a party or interested.
(2) Prosecute and defend in any other court or
tribunal, all actions and proceedings, civil or
criminal, in which the state may be a party or
interested, when, in the attorney general’s
judgment, the interest of the state requires such
action, or when requested to do so by the
governor, executive council, or general assembly.
....
(8) Supervise county attorneys in all matters
pertaining to the duties of their offices . . . .
Iowa Code § 13.2. In contrast, it is the county attorney’s duty to “[a]ppear
for the state and the county in all cases and proceedings in the courts of the
county to which the state or the county is a party . . . and appear in the
appellate courts in all cases in which the county is a party . . . .” Iowa Code
§ 331.756(2) (emphasis added). Thus, the Iowa Code, as a general
12
proposition, designates the county attorney as the representative of the
State of Iowa in the district courts, and the attorney general as the State’s
representative in the appellate courts. Absent a specific statutory directive
to the contrary, county attorneys’ appearances in the appellate courts are
limited to representation of the interests of the county.
The county attorney contends the legislature intended a different
arrangement in CINA cases. Iowa Code section 232.90(1) states “[t]he
county attorney shall represent the state in proceedings arising from a
[CINA petition] and shall present evidence in support of the petition.” The
county attorney argues this statute is a specific grant of authority to county
attorneys to represent the State in both the juvenile and the appellate
courts. We disagree. Section 232.90(1) does not mention appeals in CINA
cases, and there is nothing in the statute suggesting a legislative intent to
alter the standard division of authority between the attorney general and
county attorneys. In fact, the only specific duty of county attorneys
mentioned in the statute is the duty to “present evidence in support of the
petition,” which is a reference only to representation of the State’s interests
in the juvenile court.7 We believe if the General Assembly had intended to
grant county attorneys broader authority to represent the State’s interests
in the appellate courts in cases in which counties are not parties to the
litigation, it would have done so explicitly in section 331.756(2) or chapter
232.
7Even in the juvenile court, the county attorney does not have the exclusive
authority to represent the interests of the State. Section 232.90(2) indicates that in
instances of “disagreement between the department [of human services] and the county
attorney regarding the appropriate action to be taken [in matters pending before the
juvenile court], the department may request to be represented by the attorney general in
place of the county attorney.” The statute thus recognizes that, as they are representatives
of the same interests, when conflicts arise between the attorney general and a county
attorney regarding the prosecution of a CINA matter, the attorney general shall represent
the State’s interest even in the juvenile court.
13
The county attorney, relying on Motor Club of Iowa v. Department of
Transportation, 251 N.W.2d 510 (Iowa 1977), next argues his right of free
access to the courts will be abridged, and important interests, issues, and
arguments will be forsaken, if he is not permitted to represent the State’s
interests in CINA appeals. In Motor Club, the Iowa Department of
Transportation (IDOT) adopted a rule establishing a sixty-five-foot length
limitation for trucks. The rule was invalidated by the district court because
preconditions to the implementation of the rule were not met. 251 N.W.2d
at 512. After an appeal was filed, a majority of the seven IDOT
commissioners no longer favored the length limitation, and the IDOT thus
sought to dismiss the appeal and abide by the district court’s decision. The
attorney general refused, claiming the State of Iowa was the real party in
interest and that [the attorney general] is a constitutional officer, free to
prosecute and defend any case in which the State is a party or interested.”
Id. at 513. The attorney general also asserted “he possesse[d] complete
dominion over all litigation in which he appear[ed] in the interest of the
State.” Id.
In response to the attorney general’s “complete dominion” argument,
we first noted the general rule that an attorney for a private litigant under
the same circumstances would be required to dismiss the appeal. Id. After
acknowledging the attorney general has only the powers granted to him by
statute, we found the statutory grants of authority to the attorney general
essentially created a normal attorney-client relationship between the
attorney general and the IDOT. Thus, the attorney general did not have
“complete dominion” over the litigation, and in the eventuality of a change
in department position during the litigation, “had no power to impose his
will on the department.” Id. at 516.
 14
Unlike the relationship between the IDOT and the attorney general at
issue in Motor Club, the county attorney and attorney general do not stand
in an “attorney-client” relationship. The department of human services is
the county attorney’s “client” in CINA cases. Iowa Code § 232.90(2) (“The
county attorney shall represent the department in proceedings arising
under this division.”). In this case, the department did not wish to assail
the constitutionality of the Iowa ICWA, and it raised no objection to
intervention by the Winnebago Tribe. Under Motor Club and section
232.90(2), the county attorney had a duty to advocate the department’s
position or advise the department to request the attorney general to replace
the county attorney as the department’s representative. The county
attorney did not have the right to “assert his [independent] vision of the
state interest.” Motor Club, 251 N.W.2d at 514.
We also find dubious the county attorney’s assertion that, absent his
participation in CINA appeals, important interests, issues, and arguments
will never be raised. This contention is blunted where, as in this case, the
positions of the county attorney and guardian ad litem are parallel. Both
the county attorney and the guardian ad litem incorporate by reference the
other’s arguments. We believe the guardian ad litem is fully capable of
representing the children’s interests in this case, just as the attorney
general is fully capable of representing the State’s interests.
The county attorney further contends his obligations to implement
Iowa Code chapters 232 and 232B necessarily bestow upon him the status
of a “party in interest” in CINA cases. He cites In re K.C., 660 N.W.2d 29
(Iowa 2003) as authority for the proposition that a county attorney may
appeal from a juvenile court order directing the filing of a petition for
termination of parental rights. In that case, the guardian ad litem of the
15
affected children, the children’s parents, and the county attorney who
opposed the termination of the parents’ rights filed petitions for
interlocutory appeal. We granted the petitions. On appeal, the county
attorney contended, inter alia, she could not ethically comply with the
juvenile court’s order because the evidence would not support termination
of the parents’ rights. The State joined the guardian ad litem, the parents,
and the county attorney in asserting the juvenile court should not have
directed the county attorney to initiate termination proceedings. It is
immediately apparent that In re K.C. is distinguishable from the case now
before the court in important particulars. The State did not challenge the
legality of the county attorney’s status as a party in interest in In re K.C.,
but it has in this case. See Coralville Hotel Assocs., L.C. v. City of Coralville,
684 N.W.2d 245, 249 (Iowa 2004) (noting cases are generally decided only
on issues raised, argued, and briefed by the parties (citing Sager v. Farm
Bureau Mut. Ins. Co., 680 N.W.2d 8, 14 (Iowa 2004))). In re K.C. is therefore
inapposite, and the county attorney’s reliance on it is misplaced.
Thus, the State of Iowa, appearing in the juvenile court through the
department of human services, is a “party in interest” in CINA cases. Iowa
Code §§ 217.1, 232.90(1), (2); Iowa R. Civ. P. 1.201 (“Every action must be
prosecuted in the name of the real party in interest.”). County attorneys,
who bear a statutory duty to represent the interests of the State in the
juvenile court, do not appear as parties in interest in such cases in the
juvenile court or on appeal, just as they do not enjoy the status of parties in
many other types of cases within their statutory responsibility. See
generally Iowa Code § 331.756.
We next consider the Woodbury County Attorney’s request to appear
as an amicus curiae in this appeal. Iowa Rule of Appellate Procedure 6.18
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details the standards and procedure for filing amicus curiae briefs. Iowa R.
App. P. 6.18(1) (“A brief of an amicus curiae may be served and filed only by
leave of the appropriate appellate court granted on motion served on all
parties, at the request of the appropriate appellate court, or when
accompanied by the written consent of all parties. The brief may be
conditionally served and filed with a motion for leave. A motion for leave
shall identify the interest of the applicant and shall state the reasons a brief
of an amicus curiae is desirable.”); Iowa R. App. P. 6.18(3) (“A brief of an
amicus curiae shall not exceed 25 pages in length and shall have a green
cover.”). The county attorney has not complied with the procedural or form
requirements of rule 6.18(1) or (3), and we therefore deny his request to
appear in this case as an amicus curiae.
Despite the fact the county attorney is neither a party nor amicus
curiae, we nonetheless will consider on the merits the arguments contained
in the county attorney’s brief under the special circumstances of this case.
The parties proceeded through briefing and oral argument in this matter as
if the county attorney were a proper appellant. Before both the juvenile
court and this court, the guardian ad litem has joined in and adopted the
county attorney’s arguments as a matter of convenience and efficiency.
Iowa R. App. P. 6.14(10) (“In cases involving more than one appellant or
appellee, including cases consolidated for purposes of the appeal, any
number of either may join in a single brief, and any appellant or appellee
may adopt by reference any part of the brief of another.”). We therefore
consider the arguments made in the county attorney’s brief as if they had
been made by the guardian ad litem, whose brief incorporated them.
B. County Attorney’s Challenge to the Constitutionality of a
State Statute. Our conclusion that the county attorney is not a proper
17
party in this appeal renders moot the question of whether the county
attorney may argue against the constitutionality of the Iowa ICWA in this
case. While we typically do not decide moot issues, we have recognized an
exception to this general rule. In re S.P., 719 N.W.2d 535, 537 (Iowa 2006).
In determining whether to decide a moot issue, we consider:
(1) the private or public nature of the issue; (2) the desirability
of an authoritative adjudication to guide public officials in their
future conduct; (3) the likelihood of the recurrence of the issue;
and (4) the likelihood the issue will recur yet evade appellate
review.
Id. (citing In re T.S., 705 N.W.2d 498, 502 (Iowa 2005)). The last factor is
perhaps the most important factor, because “[i]f a matter will likely be
mooted before reaching an appellate court, the issue will never be
addressed.” State v. Hernandez-Lopez, 639 N.W.2d 226, 234 (Iowa 2002).
The standing of a county attorney, while representing the State in
litigation, to challenge the constitutionality of state statutes is an issue of
public importance. We have previously concluded neither the attorney
general nor a county may challenge the constitutionality of a state statute
while acting as a litigant. See Iowa Auto Dealers Ass’n v. Iowa State Appeal
Bd., 420 N.W.2d 460, 462 (Iowa 1988) (attorney general); Polk County v.
Iowa State Appeal Bd., 330 N.W.2d 267, 271–72 (Iowa 1983) (county). We
have not had occasion, however, to decide the question whether a county
attorney has authority to challenge a state statute while representing the
State as a litigant in the juvenile court.8 We believe this issue is likely to
recur in ICWA cases, and our decision in this case will therefore provide
needed guidance to county attorneys throughout the state as to their duties
8This is not the first juvenile court case in which a county attorney has raised a
constitutional challenge against a State statute. See, e.g., In re M.T., 714 N.W.2d 278, 281
(Iowa 2006) (declining to address the issue because the court lacked jurisdiction to hear the
appeal); In re K.C., 660 N.W.2d 29 (Iowa 2003) (addressing issues raised on appeal by a
county attorney in a case in which his authority to raise the issues was not challenged).
18
and authority as counsel for the State in such cases. And because we have
decided a county attorney has no authority to represent the State in appeals
from the juvenile court, the question will, if not decided here, continue to
evade appellate court review because it will never “last long enough for
complete judicial review.” Super Tire Eng’g Co. v. McCorkle, 417 U.S. 115,
126, 94 S. Ct. 1694, 1700, 40 L. Ed. 2d 1, 10 (1974). Therefore, we exercise
our discretion to address a county attorney’s standing to challenge the
constitutionality of a state statute while representing the State in litigation.
As discussed in the previous section of this opinion, the county
attorney and attorney general have identical interests while acting as
representatives of the State of Iowa. Given the attorney general’s statutory
duty as counsel to the General Assembly, we have stated it is inappropriate
for the attorney general to appear “as a litigant challenging an Iowa statute.”
Iowa Auto Dealers Ass’n, 420 N.W.2d at 462; State ex rel. Fletcher v.
Executive Council, 207 Iowa 923, 925, 223 N.W. 737, 738 (1929) (noting a
call by the General Assembly to the attorney general to test the
constitutionality of a legislative act “put him in a position which [was]
repugnant to his other official duties [as legal advisor to the General
Assembly]”). While a county attorney does not have a similar statutory duty
to provide counsel to the General Assembly, we see no meaningful
distinction between his position and that of the attorney general while
representing the State’s interests in litigated matters. It would be illogical
to allow a constitutional challenge of a statute by a county attorney
representing the State in district court, while precluding the attorney
general handling the same case on appeal from making the same argument.
We have also held counties, as creatures of statute, have no standing
to challenge the constitutionality of state statutory provisions. Charles
19
Hewitt & Sons Co. v. Keller, 223 Iowa 1372, 1377, 275 N.W. 94, 97 (1937)
(“Counties and other municipal corporations are, of course, the creatures of
the legislature; they exist by reason of statutes enacted within the power of
the legislature, and we see no sound basis upon which a ministerial (or, for
that matter, any other) office may question the laws of its being. The
creature is not greater than its creator, and may not question that power
which brought it into existence and set the bounds of its capacities.”);
accord Bd. of Supervisors of Linn County v. Dept. of Revenue, 263 N.W.2d
227, 232–34 (Iowa 1978). Even if the county had a particularized interest
in CINA matters, Keller denies it standing to challenge the constitutionality
of the Iowa ICWA. The county attorney’s authority to act on behalf of either
the county or the State is derived from the legislature, and he therefore may
not challenge the constitutionality of legislative acts in court while
representing the interests of the State.
Finally, the county attorney contends he may challenge the
constitutionality of state legislation because his oath of office requires him
to “support the Constitution of the United States and the Constitution of the
state of Iowa.” Iowa Code § 63.10. Our response to a similar claim in Board
of Supervisors of Linn County is sufficient to dispose of this argument: “The
answer to that course of reasoning is that his oath does not require him to
obey the Constitution as he decides, but as judicially determined.” 263
N.W.2d at 234 (quoting State ex rel. Clinton Falls Nursery Co. v. Steele
County Bd. of Comm’rs, 232 N.W. 737, 738 (Minn. 1930)).
III. Merits.
The guardian ad litem first contends the Winnebago Tribe of Nebraska
could not intervene because it is not the “Indian child’s tribe” as defined in
Iowa Code section 232B.3(8). She also raises several constitutional
20
challenges to the Iowa ICWA. We find the definition of “Indian child’s tribe”
in Iowa Code section 232B.3(8) includes tribes which have identified a child
as a “child of the tribe’s community.” Additionally, because we find
meritorious the guardian ad litem’s equal protection claim, we reserve
opinion on the remaining constitutional issues.
A. Scope of Review. We review issues of statutory construction
for errors at law. Callender v. Skiles, 591 N.W.2d 182, 184 (Iowa 1999). We
exercise de novo review of constitutional claims. Kistler v. City of Perry, 719
N.W.2d 804, 805 (Iowa 2006).
B. Section 232B.3(8). The guardian ad litem contends the
Winnebago Tribe of Nebraska is not a proper intervening tribe because it is
not the “Indian child’s tribe” as defined by the Iowa ICWA. Iowa Code
section 232B.3(8) states the “Indian child’s tribe” is “a tribe in which an
Indian child is a member or eligible for membership.” Our goal in
construing statutes is to seek a “reasonable interpretation that will best
effect the purpose of the statute.” State ex rel. Schuder v. Schuder, 578
N.W.2d 685, 687 (Iowa 1998). Although the definition of “Indian child’s
tribe” refers only to children who are “member[s] or eligible for
membership,” we believe the legislature’s use of the previously defined term
“Indian child” manifests its intent to incorporate the entire “Indian child”
definition into section 232B.3(8). Were we to hold otherwise, the expanded
definition of “Indian child” found in section 232B.3(6) would be rendered a
nullity because no tribe identifying a nonmember, noneligible child as a
“child of the tribe’s community” would ever be the “Indian child’s tribe.”
Thus, we conclude the Winnebago Tribe, as the tribe identifying A.W. and
S.W. as children of its community, would fall within the definition of “Indian
child’s tribe” under the Iowa ICWA.
21
C. Equal Protection. Because we conclude the General Assembly
intended for tribes asserting an interest in a child as a “child of the tribe’s
community” to have intervention rights, we must examine the
constitutionality of applying the Iowa ICWA to A.W. and S.W. The guardian
ad litem asserts the Iowa ICWA definition of “Indian child” violates the
Equal Protection Clauses of the United States and Iowa Constitutions
because it traverses the boundaries of the federal government’s “trust”
authority with respect to Indian tribes, and creates an impermissible racial
classification. The attorney general responds that the Iowa ICWA definition
of “Indian child” is a permissible exercise of the federal trust authority, as
delegated to the state by the federal ICWA, 25 U.S.C. § 1921.
Where, as here, equal protection challenges are asserted under both
the federal and state constitutions, it is the “exclusive prerogative of [the
Iowa Supreme Court] to determine the constitutionality of Iowa statutes
challenged under our own constitution.” Callender, 591 N.W.2d at 187.
“Thus, while federal court analysis of similar provisions in the United States
Constitution may prove helpful, those interpretations do not bind us.” Santi
v. Santi, 633 N.W.2d 312, 317 (Iowa 2001) (quoting Callender, 591 N.W.2d
at 187). Although we have reserved the right to reject the equal protection
constructs employed by the Supreme Court in its interpretation of the
Equal Protection Clause of the United States Constitution when we interpret
the equality provision found in article I, section 6 of the Iowa Constitution,
we again choose not to adopt our own analytical framework because the
parties have not asserted “an analysis that might be more compatible with
Iowa’s constitutional language.” Racing Ass’n of Cent. Iowa v. Fitzgerald,
675 N.W.2d 1, 6 (Iowa 2004).
22
Our analysis of an equal protection challenge begins with
identification of the classification at issue.9 Ames Rental Property Ass’n v.
City of Ames, 736 N.W.2d 255, 259 (Iowa 2007). The Iowa ICWA creates two
classes of children—Indian children and non-Indian children. The federal
ICWA and the Iowa ICWA only apply in CINA and termination-of-parental-
rights cases when Indian children are involved.10 Such cases involving non-
Indian children need only comply with the provisions of Iowa Code chapter
232.11 The Iowa ICWA, when combined with Winnebago tribal resolution
#04-26, places ethnic Indian children in the same class as tribal Indian
children, and separates them from other non-Indian children who are
ineligible for membership in an Indian tribe. See Morton v. Mancari, 417
U.S. 535, 554 n.24, 94 S. Ct. 2474, 2484 n.24, 41 L. Ed. 2d 290, 294 n.24
(1974) (distinguishing between members of federally recognized tribes and
individuals racially identified as “Indians”); see also John Robert Renner,
9Neither Tina nor Anthony has appealed the intervention order. Thus, our analysis
is limited to the rights of A.W. and S.W. to equal protection.
For simplicity, we will refer generally to those children who have some Indian blood
but are not members or eligible for membership in an Indian tribe as “ethnic” Indian
children. We will refer to children who are members or eligible for membership in an
Indian tribe as “tribal” Indian children. See John Robert Renner, The Indian Child Welfare
Act and Equal Protection Limitations on the Federal Power Over Indian Affairs, 17 Am. Indian
L. Rev. 129, 163 (1992).
10The Iowa ICWA makes the entire federal ICWA applicable to any child custody
proceeding involving an Indian child, as defined by the Iowa ICWA. Iowa Code § 232B.5(2)
(“The federal [ICWA] and this chapter are applicable without exception in any child custody
proceeding involving an Indian child.”).
11The Iowa ICWA, through its incorporation of the federal ICWA, provides for higher
standards than Iowa Code chapter 232 in several areas. For example, Iowa Code section
232.116(1) requires a finding of abandonment or neglect by clear and convincing evidence
to terminate parental rights. In contrast, in an ICWA case, a termination of parental rights
may only be ordered upon “a determination, supported by evidence beyond a reasonable
doubt, including testimony of qualified expert witnesses, that the continued custody of the
child by the parent or Indian custodian is likely to result in serious emotional or physical
damage to the child.” 25 U.S.C. § 1912(f).
23
The Indian Child Welfare Act and Equal Protection Limitations on the Federal
Power Over Indian Affairs, 17 Am. Indian L. Rev. 129, 168–69 (1992)
(discussing equal protection ramifications of expanding the federal ICWA
definition of “Indian child” to include ethnic Indian children) [hereinafter
Renner, Indian Child Welfare Act and Equal Protection]; Barbara Ann Atwood,
Flashpoints Under the Indian Child Welfare Act: Toward a New Understanding
of State Court Resistance, 51 Emory L. J. 587, 662 n.188 (2002).
In order to determine whether the classification of ethnic Indian
children as “Indian children” for purposes of the Iowa ICWA is a racial
classification, an understanding of the state’s authority to legislate with
respect to Indians is necessary. Due to our nation’s historical relationship
with Indian tribes, the federal government has taken upon itself a trust
relationship with Indian tribes, generally to the exclusion of any state
authority in Indian affairs:
This [federal] power is not expressly granted in so many words
by the Constitution, except with respect to regulating
commerce with the Indian tribes, but its existence cannot be
doubted. In the exercise of the war and treaty powers, the
United States overcame the Indians and took possession of
their lands, sometimes by force, leaving them an uneducated,
helpless and dependent people needing protection against the
selfishness of others and their own improvidence. Of necessity
the United States assumed the duty of furnishing that
protection and with it the authority to do all that was required
to perform that obligation and to prepare the Indians to take
their place as independent, qualified members of the modern
body politic.
Board of Comm’rs of Creek County v. Seber, 318 U.S. 705, 715, 63 S. Ct.
920, 926, 87 L. Ed. 1094, 1102–03 (1943); see also United States v. Kagama,
118 U.S. 375, 383–84, 6 S. Ct. 1109, 1114, 30 L. Ed. 228, 231 (1886)
(“[Indian tribes] owe no allegiance to the states, and receive from them no
protection. Because of the local ill feeling, the people of the states where
they are found are often their deadliest enemies. From their very weakness
24
and helplessness, so largely due to the course of dealing of the federal
government with them, and the treaties in which it has been promised,
there arises the duty of protection, and with it the power.”). Although
responsibility for maintaining this trust relationship with Indian tribes has
historically been the exclusive prerogative of the federal government, the
Supreme Court has recognized states may exercise the federal trust
authority when specifically authorized to do so by a federal statute. See
Washington v. Confederated Bands & Tribes of the Yakima Indian Nation, 439
U.S. 463, 500–01, 99 S. Ct. 740, 761, 58 L. Ed. 2d 740, 768 (1979) (holding
states, in exercising the federal trust power over Indian tribes pursuant to a
federal statute authorizing them to do so, may enact legislation that would
be an otherwise unconstitutional exercise of state power).
There are generally two situations in which states may legislate on
behalf of Indians in order to further the purposes of the federal trust
authority:
[I]n the first, the state acts under a particularized, state-
specific congressional delegation of jurisdiction; in the second,
the state acts to accommodate federal supremacy in the field
by enforcing congressionally created federal obligations toward
Indian tribes that the federal government would otherwise
enforce on its own.
Malabed v. North Slope Borough, 70 P.3d 416, 423 (Alaska 2003).
We are not presented in this case with a claim that the Iowa ICWA
constitutes an instance of state enforcement of a federal obligation to Indian
tribes. Instead, the attorney general contends the federal ICWA is a
congressional delegation of its jurisdiction over Indian affairs to the states.
See Iowa Code § 232B.2. The federal ICWA clearly invokes the federal
government’s trust authority as its basis. 25 U.S.C. § 1901(1), (2). Because
all child custody proceedings occur in state courts, the federal ICWA is
25
necessarily a delegation of the federal trust authority to the states for the
protection of Indian tribes. The General Assembly enacted the Iowa ICWA
pursuant to this delegation of the federal trust authority. Iowa Code
§ 232B.2. It therefore may legislate only within the bounds of Congress’s
authority to enact legislation favoring Indians.12
The United States Supreme Court has upheld numerous federal
statutes singling out tribal Indians for special treatment. See, e.g., Seber,
318 U.S. 705, 63 S. Ct. 920, 87 L. Ed. 2d 1094 (federally granted tax
immunity); McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 93
S. Ct. 1257, 36 L. Ed. 2d 129 (1973) (same); Morton, 417 U.S. 535, 94 S. Ct.
2474, 41 L. Ed. 2d 290 (upholding Bureau of Indian Affairs (BIA)
employment preference for members of federally recognized Indian tribes).
Morton provides the following rationale for upholding federal Indian
preferences against an equal protection challenge:
The preference is not directed towards a “racial” group
consisting of “Indians”; instead, it applies only to members of
“federally recognized” tribes. This operates to exclude many
individuals who are racially to be classified as “Indians.” In
this sense, the preference is political rather than racial in
nature.
417 U.S. at 554 n.24, 94 S. Ct. at 2484 n.24, 41 L. Ed. 2d at 302–03 n.24.
Thus, federal preferences are “granted to Indians not as a discrete racial
group, but, rather, as members of quasi-sovereign tribal entities.” Id. at
554, 94 S. Ct. at 2484, 41 L. Ed. 2d at 302–03. “As long as the special
treatment can be rationally tied to the fulfillment of Congress’ unique
obligation toward the Indians, such legislative judgments will not be
disturbed.” Id. at 555, 94 S. Ct. at 2485, 41 L. Ed. 2d at 303. The Morton
12We resolve this case on delegation grounds; therefore we state no opinion as to
whether the State of Iowa has inherent authority to enact legislation on behalf of Indian
tribes. It is axiomatic, however, that even if the State may unilaterally legislate on behalf of
Indian tribes, such legislation must comport with equal protection requirements.
26
Court held BIA employment preferences in favor of individuals who
possessed one-fourth or more degree of Indian blood and were members of
federally recognized tribes, despite the “racial” blood quantum component,
were “reasonable and rationally designed to further Indian self government,”
due to the unique role the BIA plays in tribal government. Id. (“In the sense
that there is no other group of people favored in this manner, the legal
status of the BIA is truly sui generis.”).
Subsequent United States Supreme Court and lower court decisions
confirm that Congress may constitutionally legislate only with respect to
tribal Indians. See United States v. Antelope, 430 U.S. 641, 645, 97 S. Ct.
1395, 1399, 51 L. Ed. 2d 701, 707 (1977) (“Federal regulation of Indian
tribes, therefore, is governance of once-sovereign political communities; it is
not to be viewed as legislation of a ‘racial’ group consisting of
‘Indians.’ ”(Internal quotation omitted.)); Rice v. Cayetano, 528 U.S. 495,
120 S. Ct. 1044, 145 L. Ed. 2d 1007 (2000); Peyote Way Church of God, Inc.
v. Thornburgh, 922 F.2d 1210, 1215 (5th Cir. 1991) (noting “only the
constituencies over whom the federal government considers itself guardian
enjoy the [political] preference”). In Rice v. Cayetano, the Court invalidated
a Hawaiian constitutional provision requiring members of the Office of
Hawaiian Affairs (OHA), a committee established to administer income from
lands held by the state “as a public trust” pursuant to federal statute,13 be
“Hawaiian” and be elected only by “Hawaiians.” 528 U.S. at 509–10, 120
S. Ct. at 1052–53, 145 L. Ed. 2d at 1021. As used in the Hawaiian
constitution, the term “Hawaiian” referred to “any descendant of the
aboriginal peoples inhabiting the Hawaiian Islands which exercised
13The federal statute, the Admission Act, Pub. L. 86-3, 73 Stat. 5, granted Hawaii
approximately 1.4 million acres of land “to be held ‘as a public trust’ to be managed and
disposed of for one of five purposes,” one of which was “for the betterment of the conditions
of native Hawaiians.” Rice, 528 U.S. at 507–08, 120 S. Ct. at 1052, 145 L. Ed. 2d at 1020.
27
sovereignty and subsisted in the Hawaiian Islands in 1778, and which
peoples thereafter have continued to reside in Hawaii.” Id. In response to a
nonnative Hawaiian citizen’s Fifteenth Amendment challenge to the
constitutional provision establishing OHA committee voting requirements,
the State of Hawaii invoked the Morton doctrine, claiming the federal
statute’s authorization to manage and dispose of the land “for the
betterment of native Hawaiians” authorized it to restrict voting for the OHA
trustees to native Hawaiians. Id. at 518, 120 S. Ct. at 1057, 145 L. Ed. 2d
at 1027. After expressing doubt that native Hawaiians possessed a federal
trust status similar to that of Indian tribes, the Court held even if a similar
trust authority existed and could therefore be delegated to the state,
“Congress may not authorize a State to create a voting scheme of this sort.”
Id. at 519, 120 S. Ct. at 1058, 145 L. Ed. 2d at 1027. In concluding the
constitutional provision violated the Fifteenth Amendment, the Court
stressed Morton’s requirement that, in order to avoid the label of “racial”
legislation, the preference could not be “directed towards a ‘racial’ group
consisting of ‘Indians,’ but rather only to members of ‘federally recognized’
tribes.” Id. at 519–20, 120 S. Ct. at 1058, 145 L. Ed. 2d at 1028.
While we believe the General Assembly intended the expanded
definition of “Indian child” to advance the laudatory goal of preservation of
Indian tribes, we find the challenged classification bears insufficient relation
to the traditional rationale for upholding federal Indian legislation—
advancement of tribal self-government—to be considered a “political”
classification. Because A.W. and S.W. do not qualify for tribal membership,
they do not fall within the “political” class of Indians traditionally regulated
by federal statutes. Thus, their classification as “Indian children” under the
Iowa ICWA, as “clarified” by resolution #04-26, and the consequences
28
flowing from that classification, result entirely from their ancestry, which is
“a proxy for race.”14 Rice, 528 U.S. at 514, 120 S. Ct. at 1055, 145 L. Ed.
2d at 1025. Given the limits of Congressional authority to legislate only in
favor of members of federally recognized tribes, we conclude the Iowa
ICWA’s expansion of the definition of “Indian child” to include ethnic
Indians not eligible for membership in a federally recognized tribe
constitutes a racial classification.
The determination that the Iowa ICWA definition of “Indian child” is a
racial classification does not end our analysis. Classifications based on
race are “presumptively invalid and can be upheld only upon an
extraordinary justification.” Sherman v. Pella Corp., 576 N.W.2d 312, 317
(Iowa 1998) (internal quotation omitted). We apply strict scrutiny review to
racial classifications:
whenever the government treats any person unequally because
of his or her race, that person has suffered an injury that falls
squarely within the language and spirit of the Constitution’s
guarantee of equal protection. . . . [However, w]hen race-based
action is necessary to further a compelling governmental
interest, such action does not violate the constitutional
guarantee of equal protection so long as the narrow-tailoring
requirement is also satisfied.
Grutter v. Bollinger, 539 U.S. 306, 327, 123 S. Ct. 2325, 2338, 156 L. Ed. 2d
304, 331 (2003) (citations omitted); Sanchez v. State, 692 N.W.2d 812, 817
(Iowa 2005).
As a racial classification, the Iowa ICWA definition of “Indian child”
cannot survive strict scrutiny because it is not narrowly tailored to further a
14We note the “child of the tribe’s community” clause of section 232.3(6) contains no
requirement that the child even be an “ethnic Indian.” Therefore, on its face, section
232.3(6) arguably does not create a racial classification because under this broad definition
a tribe could theoretically claim an interest in a child with no Indian blood whatsoever.
Whatever the propriety of such a claim, however, we need not address it because we are
presented here with application of the Iowa ICWA to ethnic Indian children because they
are lineal descendants of a tribal member. Due to the operation of resolution #04-26, A.W.
and S.W. have been classified as Indian children because they possess Indian blood.
29
compelling government interest. The Iowa ICWA contains a statement of
purpose which defines the state’s interest as:
cooperat[ing] fully with Indian tribes and tribal citizens in Iowa
in order to ensure that the intent and provisions of the federal
Indian Child Welfare Act are enforced. This cooperation
includes recognition by the state that Indian tribes have a
continuing and compelling governmental interest in an Indian
child whether or not the child is in the physical or legal
custody of an Indian parent, Indian custodian, or an Indian
extended family member at the commencement of a child
custody proceeding or the child has resided or domiciled on an
Indian reservation. The state is committed to protecting the
essential tribal relations and best interest of an Indian child by
promoting practices, in accordance with the federal Indian
Child Welfare Act and other applicable law, designed to prevent
the child’s voluntary or involuntary out-of-home placement
and, whenever such placement is necessary or ordered, by
placing the child, whenever possible, in a foster home, adoptive
home, or other type of custodial placement that reflects the
unique values of the child’s tribal culture and is best able to
assist the child in establishing, developing, and maintaining a
political, cultural, and social relationship with the child’s tribe
and tribal community.
Iowa Code § 232B.2. This policy statement exhibits the state’s interest in
implementing the federal trust authority articulated in the federal ICWA. As
discussed above, however, when a state acts pursuant to delegated federal
Indian trust authority, it may only legislate within the bounds of the
Congressional trust power, and the state’s interest is necessarily defined by
these federal boundaries. Thus, the only legitimate “interest” the State of
Iowa may have extends only to providing benefits to tribal Indians, and not
ethnic Indians. Morton, 417 U.S. at 554 n.24, 94 S. Ct. at 2484 n.24, 41
L. Ed. 2d at 302–03 n.24.
We believe the state’s interest in exercising the federal trust authority
to protect “essential tribal relations” is a compelling one; however, the
inclusion of ethnic Indian children is not narrowly tailored to achieve this
compelling interest, as it extends beyond the federal “political” boundary of
30
tribal membership. We conclude the federal ICWA definition of “Indian
child” represents the boundary of the federal trust authority because it is
limited to those children who are members of or are eligible for membership
in a federally recognized Indian tribe. 25 U.S.C. § 1903(4); see also Renner,
Indian Child Welfare Act and Equal Protection, 17 Am. Indian L. Rev. at 167–
69 n.237 (discussing S. 1976, 100th Cong. 1st Sess. (1987), the failed
proposal to expand the federal ICWA definition of “Indian child” to ethnic
Indians that was opposed by a former Secretary of the Interior because the
proposed measure exhibited “pure racism”). By maintaining this integral
link to tribal membership, the federal ICWA is “rationally designed to
further Indian self government” because it allows the tribe to protect its
interests in those individuals who will perpetuate the next generation of the
tribe’s existence. Morton, 417 U.S. at 555, 94 S. Ct. at 2484, 41 L. Ed. 2d at
302. The Iowa ICWA’s failure to maintain that integral link to tribal self
government results in an over-inclusive racial classification, and therefore
violates equal protection principles. See Renner, Indian Child Welfare Act
and Equal Protection, 17 Am. Indian L. Rev. at 171 (noting the over-inclusive
feature of a proposed, but rejected, amendment to the federal ICWA that
would have extended the statute’s reach beyond “those who genuinely fall
within the scope of the federal power over Indian affairs.”).
The adverse consequences of the race-based discrimination under
section 232B.3(6) for A.W. and S.W. are apparent in this case. A.W. and
S.W. have never lived on the Winnebago Reservation. There is no evidence
in the record tending to prove the children have had any relationship to the
reservation or traditional Winnebago society. Like other non-Indian
children, A.W. and S.W. are not eligible for membership in the Winnebago
Tribe. Notwithstanding these realities, section 232B.3(6) would permit the
31
classification of A.W. and S.W. as “Indian children” and permit the
Winnebago Tribe to intervene and participate as an interested party in any
court proceedings held to determine whether the children’s best interests
require placement in foster care or termination of their parents’ rights. See
Iowa Code § 232B.5(7)(c)(1). As a consequence of the classification of A.W.
and S.W. in section 232B.3(6) with Indian children who are either tribal
members or eligible for tribal membership, a party instituting juvenile court
proceedings for the purposes of placing A.W. and S.W. outside their parents’
home or terminating the parental rights of Tina and Anthony will be
burdened by substantive and procedural requirements that are not
applicable in similar proceedings affecting non-Indian children. See id.
§ 232B.9(1) (detailing placement preferences including those for members of
the tribe); id. § 232B.10 (requiring in certain instances testimony from an
expert witness with specific knowledge of the Indian tribe’s family
organization and child-rearing practices, culture, and customs); id.
§ 232B.6(6)(a) (providing termination of parental rights may be ordered only
on proof beyond a reasonable doubt that the continued custody of the child
by the child’s parent or Indian custodian is likely to result in serious
emotional or physical damage to the child). One scholar has starkly
suggested the extension of ICWA and its attendant proof requirements to
ethnic Indian children harms them because it exposes them “to more abuse
or neglect before courts can remove them from their parents.” Renner,
Indian Child Welfare Act and Equal Protection, 17 Am. Indian L. Rev. at 172.
Section 232B.3(6) expands the definition of “Indian child” far beyond
its federal ICWA counterpart. By including children who are ineligible for
tribal membership, section 232B.3(6) clearly exceeds the limits of federal
power over Indian affairs upon which the federal ICWA is based and from
32
which the Iowa ICWA is derived. In its classification of ethnic Indian
children with tribal Indian children, section 232B.3(6) provides “hardly
more than a pretense that this classification is political, rather than racial.”
Renner, Indian Child Welfare Act and Equal Protection, 17 Am. Indian L. Rev.
at 169. We conclude the race-based classification of A.W. and S.W. as
“Indian children” is not justified by a compelling state interest. Accordingly,
section 232B.3(6), as applied in this case to A.W. and S.W., violates the
Equal Protection Clause of the United States Constitution. As a separate
and independent ground for our decision, and in the exercise of our
“exclusive prerogative . . . to determine the constitutionality of Iowa statutes
challenged under our own constitution,” Callender, 591 N.W.2d at 187, we
further conclude section 232B.3(6), as applied in this case, violates the
equality provision in article I, section 6 of the Iowa Constitution.
Having concluded section 232B.3(6) is unconstitutional on equal
protection grounds as applied to A.W. and S.W., we need not address the
other claims raised by the guardian ad litem.
IV. Conclusion.
Because A.W. and S.W. are ethnic Indian children who are ineligible
for membership in the federally recognized Winnebago Tribe, the State of
Iowa may not constitutionally subject them to the provisions of the Iowa or
federal ICWA. Accordingly, we reverse the juvenile court’s order granting
the Winnebago Tribe’s motion to intervene.
REVERSED AND REMANDED.