Re: ICWA IS IN DANGER
Brian H. Zygo (b.zygo@mail.utexas.edu)
4 Feb 1996 22:48:03 GMT
In article <m0tiRDk-000JQ7C@rmii.com>, fouche@rmii.com (Marie Fouche) says:
>
> b.zygo@mail.utexas.edu (Brian H. Zygo) writes:
>>
>> The California Court of Appeals recently ruled that ICWA is
>> unconstitutional, they based it on racial grounds and applied strict
>> scrutiny.
>
> Really? I didn't hear that it was ruled unconstitutional...actually, I
> think it wasn't. You are talking about the Rosts and Adams case aren't you?
> I spoke with an ICWA lawyer about this case today. What they did was, at
> least how it was explained to me, was they created a criteria to be
> considered Indian. The biological father lost the case, because the courts
> didn't feel he was Indian enough so then the ICWA didn't apply. If they
> would have considered him to be Indian, then the ICWA would have applied
> and he would have won the case. The criteria was something like you had to
> participate in Tribal Politics, take part in religious ceremonies on a
> regular basis, read Indian newspapers, etc. Now as far as I know, not one
> white person lost a case, because they weren't "white" enough. Hopefully,
> the case will be appealed to the California Supreme Court.
I admit, I have not had a chance to read this case yet:
In re Bridget R., 1996 Cal. App. Lexis 37.
A friend of mine was downloading it from Lexis the other day (it is a
very long opinion) and he told me what our Prof. had said about the case.
So, maybe something got lost along the way, but the impression I got
was the Court felt the act dealt with racial classification, and thus
required strict scrutiny.
I'm currently working on another project, but hopefully I'll get a chance
to read the case before the end of the month.
Brian Z.