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In re A.B.6/17/2003
ts "can serve no purpose which is sufficiently compelling to overcome the child's fundamental right to remain in the home where he . . . 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."
Santos, 112 Cal.Rptr.2d at 726.
The court also concluded ICWA violated the child's equal protection rights:
"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." The test we apply is whether the classification serves a "compelling governmental interest" and is "narrowly tailored" to achieve its goal.
The facts upon which we relied in concluding that application of the ICWA to this Minor constituted a violation of substantive due process lead to the conclusion that application of the ICWA to the Minor constitutes a violation of equal protection of the laws under the Fifth and Fourteenth Amendments to the United States Constitution. The record reflects that the Minor has no association with the Tribe other than genetics, i.e., his one-quarter "Minnesota Chippewa blood" from an enrolled bloodline of the Tribe. Whether we characterize this genetic association as racial, ethnic, or ancestry, a determination based on "blood," on its face invokes strict scrutiny to determine whether the classification serves a compelling governmental interest and is narrowly tailored to achieve that interest. We find that it does not.
Santos, 112 Cal.Rptr.2d at 730 (citations omitted).
[ ] The court further concluded there was not a substantial nexus between ICWA and the Indian Commerce Clause because
Application of the ICWA to a child whose only connection with an Indian tribe is a one-quarter genetic contribution does not serve the purpose for which the ICWA was enacted, "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families". For the reasons discussed above, as applied to this minor, the ICWA impermissibly intrudes on a power reserved to the states, their care of dependent children.
Santos, 112 Cal.Rptr.2d at 731 (citations omitted).
[ ] The decision by the California Court of Appeals in Santos was based, in large part, on an existing Indian Family exception to ICWA, in which courts have addressed tensions between the best interests of Indian children, families, and tribes by refusing to apply ICWA to situations in which an Indian child is not being removed from an existing Indian family with a significant connection to the Indian community. Santos, 112 Cal.Rptr.2d at 715-17. The Santos court recognized a split of authority between state courts adopting the existing Indian Family exception and state courts declining to adopt the exception. See Santos, at 716-17 n.16 (stating nine courts had adopted the exception and nine had rejected it).
[ ] To the extent Santos relies on an existing Indian Family exception, we reject that analysis because it is contrary to the plain language of ICWA, which was enacted not only to preserve interests of Indian children and Indian families, but also to protect a tribe's interest in the welfare of its children and the maintenance of its culture. See 25 U.S.C. §§ 1901, 1902. The judicial adoption of an exception to ICWA would thwart a tribe's interest in its Indian children and ignore the plain language of ICWA, which does not requir
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