Delaware Tribe of Indians applauds West Virginia Supreme Court decision affirming its jurisdiction in child welfare case

CHARLESTON, W. Va. — The leader of the Delaware Tribe of Indians is thankful justices in West Virginia took prompt action on a jurisdictional dispute in a child welfare case while the law governing it faces a constitutional challenge in the U.S. Supreme Court.

The West Virginia Supreme Court on Monday granted the Delaware Tribe of Indians its writ seeking to prohibit enforcement of a Boone County judge’s order denying the Tribe’s request to transfer a child welfare case out of state the court system and into the Delaware Tribal Court. 

In the underlying case, the parental right's of a child's non-Indian mother were terminated and the biological father, who is a member of the tribe, wishes to voluntarily give up his parental rights.

In a 4–1 opinion, the court found Judge Stacy Nowicki-Eldridge erred in relying on both the so-called “existing Indian family” doctrine and good cause exceptions to the Indian Child Welfare Act to deny the motion.

The existing Indian family exception says the act "only applies when a child is removed from his or her custodial Indian parent or from an existing 'Indian family.'" Nowicki-Eldridge adopted this minority doctrine exception in ruling that the Indian Child Welfare Act did not apply in the underlying case because the child was not removed from the custody of her father or the home of another Indian family.

Writing for the majority, Justice William Wooten said that exception, which he noted has come under "intense scrutiny" across the nation, is "plainly incompatible" with the Indian Child Welfare Act and Congress's intent in passing it, which was for the protection of Indian tribes, their resources, and their children.

The majority also disagreed with Nowicki-Eldridge's conclusion that good cause also existed to deny the transfer motion because the case had been proceeding already for three years and thus the underlying proceedings were at an "advanced stage."

“The proceeding regarding termination of the parental rights of respondent father was not at all advanced at the time the Tribe filed its motion to transfer the proceeding,” Wooton wrote. “Respondent father had not been adjudicated; indeed, neither a preliminary nor adjudicatory hearing had even been scheduled. While five months passed between March 2022 and the Tribe’s motion to transfer in August 2022, the record reveals that those months were devoted to ascertaining whether the ICWA applied to this case, and not to any consideration of the merits of the amended petition. “

Brad KillsCrow, chief of the Delaware Tribe of Indians, said, for now at least, the opinion affirms the commitment made in 1978 when Indian Child Welfare Act was passed into law and recognized the primacy tribal courts have in foster care placements and adoptions of Indian children.

“I think it’s a huge win for not only the Delaware, but also all the federally recognized tribes,” KillsCrow said.

“We are thankful for those justices for following the federal law," he added. "It speaks to our sovereignty,”

According to KillsCrow, under tribal law, the child would not necessarily be placed with Native American parents. Much like guidelines in state courts for children of other races and cultures, the tribal court would consider the best interests of the child overall.

The West Virginia high court’s opinion comes as the U.S. Supreme Court is poised to render a decision in the case of Haaland v. Brackeen, in which the state of Texas and other plaintiffs are challenging the constitutionality of the Indian Child Welfare Act. In November 2022, the Supreme Court heard oral arguments in the case dealing with whether the Act violates the equal protection clause, exceeds Congress's authority, or violates the non-delegation doctrine.

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