In re Santos Y

In In re Santos Y. (2001) 92 Cal.App.4th 1274, the child, who had a multi-ethnic heritage and was eligible for tribal membership through his mother, who had no ongoing contact with the tribe, had been out of his parents' custody since birth and in a non-Indian home with his de facto parents since he was three months old. The juvenile court terminated parental rights and ordered him placed with an Indian family in Minnesota. (Id. at pp. 1279-1281.) The Court of Appeal discussed the child's constitutional right to remain with his de facto parents and held in that case application of the placement preferences of the ICWA violated substantive due process and equal protection guarantees. (Id. at pp. 1314-1323.) The Court addressed the analysis known as the "existing Indian family doctrine," under which a number of states declined to apply the ICWA where the child in question had never been part of an Indian home or culture. In response to the conflict created by the "existing Indian family doctrine," and upon a finding that Indian children are vital to the continued existence and integrity of Indian tribes, the California Legislature enacted section 360.6 subdivision (c) in 1998. That section provides that: "A determination by an Indian tribe that an unmarried person, who is under the age of 18 years, is either (1) a member of an Indian tribe or (2) eligible for membership in an Indian tribe and a biological child of a member of an Indian tribe shall constitute a significant political affiliation with the tribe and shall require the application of the federal Indian Child Welfare Act to the proceedings." ( 360.6, subd. (c).) In Santos Y., the Court found the ICWA to be unconstitutional as applied where Santos's only contact with the Minnesota tribe was his one-quarter Indian blood. Santos's contact with his mother was minimal; he had been in placement since birth with a family that now wanted to adopt him at the age of two and a half. While the mother had been enrolled in a Minnesota tribe as a child, she had lived her adult life in Oregon and California, and was not involved with the tribe. Moreover, the recommended placement by the Minnesota tribe was with a distant relative who had never met the child.