As early as 1923, the United States Supreme Court held that a parent's right to make decisions concerning the upbringing of their children is a liberty interest protected by the Constitution.' A state is not to inject itself into the private realm of family to question the ability of a parent to make decisions concerning the rearing of their children so long as the parent is fit and adequately responsible to provide for the care of their children. 2 However, if a parent is unable to take care of their child, the state has an obligation to remove that child.3 In the 2006 case, In re Phoenix, Sonya, a mother of three children, had her parental rights terminated after it was shown by clear and convincing evidence that her continued custody would result in harm to the children. 4 On appeal, the mother challenged the termination as a violation of her Equal Protection rights. As the mother of non-Indian children, her parental rights could be terminated by a showing of clear and convincing evidence5 while the Nebraska Indian Child Welfare Act ("NICWA" or "Act") requires a showing of evidence beyond a reasonable doubt before the rights of a parent of an Indian child can be terminated.6 Sonya claimed that the differing standards of proof were based upon an impermissible racial classification in violation of both the Equal Protection Clause of the U.S. Constitution and the Nebraska Constitution.7 The Nebraska Supreme Court held that there was no equal protection claim since the classification of "Indian" was a political classification, not a racial one, based upon the historic sovereignty of Indian tribes.8 While the Nebraska Supreme Court was correct in following a long line of historic precedent upholding legislation which singled out Indians for special treatment under the law, the Court only addressed how the NICWA impacts parents of non-Indian children in its analysis. The other side of the issue is how the NICWA impacts the constitutional rights of parents of Indian children. This Note focuses on how the statutory provisions of the NICWA potentially infringe upon the rights of Indian children's parents. Specifically, this Note explores where parental rights currently stand in America's jurisprudence and how a potential substantive due process claim by the parent of an Indian child may be analyzed by a Nebraska court. Part II of the Note discusses the legal and historical background of the federal and Nebraska Indian Child Welfare Act and offers and an explanation of the Nebraska Supreme Court's decision in Phoenix. Part III is an analysis of how the rights of parents of Indian children differ from that of parents of non-Indian children when it comes to voluntarily placing their child up for adoption and why the restrictions on the rights of parents of Indian children violates the Due Process Clause. Part III also discusses how a Nebraska court may analyze a due process claim brought by the parents of an Indian child by looking at whether there is a due process right to be protected, what level of protection the parental right should receive, and what countervailing interests the State may have in upholding the NICWA. While this Note does not provide a definitive conclusion to the parental rights issues outline, hopefully the Note will encourage readers to consider the ramifications of the NICWA and will show the NICWA is actually harming those it was, in part, designed to help.
Katherine S. Vogel,
In Re Phoenix L., 270 Neb. 870, 708 N.W.2d 786 (2006): An Analysis of Parental Rights and the Nebraska Indian Child Welfare Act,
86 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol86/iss2/7