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    Wisconsin Lawyer
    September 01, 2013


    How to submit Letters to the Editor: Wisconsin Lawyer provides a forum for members to express ideas, concerns, and opinions on law-related subjects. Limit to 500 words; find writing guidelines at Submit to Wisconsin Lawyer “Letters,” P.O. Box 7158, Madison, WI 53707-7158; or (include “Letters” in the subject line).

    Recent U.S. Supreme Court Decision Limits Rights of Indian Fathers and Tribes, but Wisconsin Law Remains in Effect

    In its recent decision Adoptive Couple v. Baby Girl, Case #12-399, the U.S. Supreme Court effectively limited certain protections for unwed biological Indian fathers who have not yet paid child support for, or physically engaged with, their newborn Indian child. Congress passed the Indian Child Welfare Act (ICWA) in 1978 as a result of the grossly disproportionate, and often unwarranted, removal of Indian children from their families and their tribes. Today’s statistics demonstrate that these removals continue at a disproportionate rate. Additionally, statistics demonstrate continued high rates of noncompliance by state courts with the provisions of the ICWA. Congress crafted the ICWA, in part, to prevent exactly what occurred in Adoptive Couple, in which an Indian birth father’s child was placed for adoption without his consent or the consent of the Cherokee Nation.

    Perhaps most puzzling about the Court’s decision to limit the rights of Indian fathers and their tribes is the manner in which it was achieved. The Court did not employ the canons of statutory construction, by reading the statute in full and giving it plain meaning. Instead, the majority parceled out passages that allowed it to arrive at its conclusion. In part, the majority focused on the language of 25 U.S.C. § 1912(d) and the words “to prevent the breakup of the Indian family” to determine that where, as here, the biological father had no familial relationship with the child, the ICWA protections did not attach. The Court failed to address the fact that the biological father of Baby Girl, Dusten Brown, could not physically engage the child on account of active duty in the armed services.

    Notwithstanding the physical absence of the father, the decision permits a biological mother to place a child for adoption before the father has an opportunity to meet his child, thereby circumventing the ICWA. This now means the ICWA protections are limited because the child was not in an Indian family, by no fault of his or her father or tribe. This is problematic in states such as Wisconsin where nonmarital fathers have no rights to their children until after paternity is established by a court order, leaving these children without the protections of the ICWA despite having a ready, willing, and able biological father who could care for the child.

    The Court also parceled out the language “continued custody of the child by the parent” contained in 25 U.S.C. § 1912(f) in finding the ICWA’s provisions did not apply to Baby Girl and her father. This language is intended to address the standard by which a court must proceed in any effort to terminate parental rights, for under the ICWA a court may not terminate parental rights “in the absence of a determination, supported by evidence beyond a reasonable doubt … that the continued custody of the child by the parent … is likely to result in serious emotional or physical damage to the child.” The majority determined this standard did not apply because there was no custody to be continued, but failed to address how “continued custody” operates pre-birth and how a putative father, such as Mr. Brown, could establish legal custody concurrent with a birth mother’s decision to terminate her own.

    Much has been made in this case of Baby Girl’s status as an Indian child. As a matter of federal law and established Supreme Court precedent, each Indian nation has the authority to determine its own membership criteria. See Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). The Cherokee Nation determines membership by lineal descent. Because the birth father Dusten Brown is a citizen of the Cherokee Nation, his daughter Baby Girl is eligible for membership, and thus the protections of the ICWA apply.

    Federal law, in recognizing a tribe’s sovereign authority to determine its membership, does not consider minimum contacts with the family or tribe, or the existence of an Indian family. The ICWA permits a tribe to intervene and obtain party status in such matters. To be effective, however, the party seeking to terminate parental rights should give the tribe timely notice and accurate information as to the child’s and parents’ names and dates of birth. In Adoptive Couple, the Cherokee Nation was provided inaccurate information and untimely notice, thereby preventing its earlier intervention.

    Misconceptions about the ICWA are many and each colors the analysis of this case. A bare majority of the Court reached the decision that an unwed Indian father is without recourse to protect his interests as a parent, and his child’s future in his or her Indian family and tribe. The stark reality of the Court’s decision is this: a non-Indian birth mother can select an adoptive couple, and so long as the child is placed before the biological Indian father can engage the infant as a member of his or her Indian family, the child will be lost to family and tribe forever. Despite Congress’s attempt to prevent these kinds of removals by including both involuntary and voluntary actions in the ICWA, the Court’s decision facilitates private, often for-profit, adoptions of Indian children. Additionally, this decision disregards the rights of fathers to their children by ignoring the realities of relationships in the modern world.

    Fortunately, the decision is a narrow one. The ICWA remains intact and most of its protective provisions remain undisturbed in voluntary and involuntary proceedings. Moreover, the decision does not affect Wisconsin, as the Supreme Court did not affect 25 U.S.C. § 1921, which permits state law to supersede the federal act in situations in which state law, such as the Wisconsin Indian Child Welfare Act, provides higher protections. Therefore, Wisconsin’s Indian Child Welfare Act, the WICWA, remains in full effect for state court proceedings involving Indian children.

    [Note: Kris Goodwill is a State Bar Indian Law Section board member, which approved this letter.]

    Courtney Allensworth & Kris Goodwill
    Lac Courte Oreilles Legal Department, Hayward

    It Is Not Open Season on Wisconsin’s Wetlands

    One may misread the Wisconsin Supreme Court’s decision in Rock-Koshkonong Lake District v. State of Wisconsin Department of Natural Resources, and give it a more expansive interpretation than it deserves. The case pitted lakefront property owners against the DNR over the agency’s setting of a lake level and its impact on adjacent wetlands and lakefront property owners’ interests.

    Resolution of the case hinged on statutory interpretation to determine whether the DNR can consider wetlands above the ordinary high water mark when determining water levels under Wis. Stat. section 31.02(1). The court held the DNR had the statutory authority to do so, but failed to consider economic impacts to private lakefront owners, and remanded the case to consider this missing element.

    There has been much buzz in the media about the court’s opining on the meaning of the state’s public trust doctrine and its role in the outcome of this case. The public trust doctrine places a duty on the state – primarily the legislature and DNR – to protect navigable waters for the public’s use and enjoyment. This doctrine is in place to ensure that everyone’s ability to access, boat, fish and hunt, and navigate on Wisconsin’s lakes, rivers, and streams is constitutionally protected. The court decided in 1972 in Just v. Marinette County that lands near navigable waters exist in a special relationship to the state such that private activities on nonnavigable wetlands and shorelands can be regulated to protect the public trust in navigable waters. Two years ago, in Lake Beulah Management District v. DNR, the court made the logical extension of this concept to groundwater, holding that the DNR must regulate groundwater pumping that impacts navigable waters. While the court produced a lot of verbiage on the topic, Lake Koshkonong did not overrule these precedents.

    As astutely pointed out by Justice Crooks’ dissenting opinion, the holding that the DNR can regulate impacts to nonnavigable wetlands when setting a lake level relied on an interpretation of statutory language. The majority’s opining about the basis for the statute being founded on the police power of the state or the public trust doctrine was wholly unnecessary. This section of the opinion resulted in confusing the question of the legislature’s constitutional duty to protect navigable waters from harms caused by private activities on nonnavigable wetlands. The muddying of public trust jurisprudence should not be overblown. As this reasoning was unnecessary to the outcome of the decision, it can be properly characterized as dicta that future courts aren’t bound to follow. The duty of the state to protect navigable waters for public uses still extends to controlling activities on nonnavigable waters that will harm downstream or adjacent waterways. While the court has signaled how it will handle future challenges that directly confront the legislature’s public trust duties, it is not open season on Wisconsin’s wetlands.

    Melissa K. Scanlan
    Associate Dean Environmental Law Program
    Associate Professor, Vermont Law School

    Notice to Readers: Contribute to the Dialog: Share Your Reactions to Wisconsin Lawyer Articles Through New Online Comment Feature

    Tweeting, texting, news feeds, Facebook posts … technologies used for instantaneous interaction with friends, colleagues, and special-interest communities are part of everyday life. Visit a news website and you’ll likely find readers’ reactions to various articles. Now, when visiting, State Bar members can post comments to Wisconsin Lawyer, homepage news, and InsideTrack articles.

    Have you ever wanted to immediately respond to the author of a Wisconsin Lawyer article to tell her she got it right or missed an important point, or to ask a burning question about the topic? Now, you can log on to WisBar, and add your comment in the comment box at the end of each article. It’s as simple as typing your comment and clicking on the “Post” button.

    Add your comment and the legal community benefits from the exchange – whether it is with the author, or reader to reader. Use the comments feature to share your insight, positioning yourself as a resource on a topic.

    Give it a try. We suggest including your name and affiliation in the post to give your comment context and credibility. We look forward to the conversation with you.

    Wisconsin Lawyer editorial board and staff

    State Bar Disregarded Bylaw in Recent ABA Delegate Election

    At the Board of Governors (the Board) meeting on June 12, 2013, one of the agenda items was the election of a State Bar delegate to the American Bar Association. Two candidates were running for the position; both made short presentations. I was not closely familiar with either candidate, but both seemed very qualified. However, only one candidate was a member of the ABA, which is a qualification for election under State Bar Bylaw article III, section 11(c).

    When this deficiency was raised, the State Bar’s executive director informed the Board that the bylaw’s ABA membership requirement for election as an ABA delegate is routinely disregarded by the Board as a matter of practice, and a candidate is required to join the ABA only after he or she is elected. The election proceeded, and the non-ABA member (who was also a member of the Board) was elected.

    My heart and my apology go out to the candidate who played by the rules and was not elected. How can the State Bar expect the public to listen to the Bar’s preaching about the importance of the rule of law, when the Bar itself routinely disregards its own bylaw? How embarrassing and hypocritical. What a sad day for the State Bar of Wisconsin. What a shame for the State Bar Board of Governors.

    Steve Levine
    Board of Governors, District 9, Madison

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