Federal Jurisdiction, Examination, Fall 1994, Eric Janus

Part I. Answer the following question. Limit your answer to this part to no more than 6 typed pages, double spaced.

Question. Comment on the following passage:

The body of Supreme Court decisions shaping the law governing federal courts is pulled by two sets of tensions. On the one hand, the relation between state and nation, encapsulated in the term "federalism," exerts a powerful influence. On the other, the relation between the legislative and judicial branches of the federal government is deeply implicated as well. It can be argued that the Court's respect for the division of power between state and nation has often distorted its view of the proper division of power between the Court and the Congress.

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In 1995, Congress amends the Indian Child Welfare Act (ICWA) to read, in pertinenet part, as follows:

Section 100. Definitioin: An "Indian child" means the biological child of a person who is an enrolled member of an Indian Tribe.

Section 200. In any proceeding involving the custody of an Indian child, the following standards shall apply:

(a) The child shall not be removed from his or her home unless good cause is hown beyonjd a reasonasble doubt, or upon a showing of a valid waiver of parental rights.

(b) No Indian child shall be placed with a non-Indian family for foster care or adoption unless it is shown that no suitable and willing Indian family can be found.

(c) In all such proceedings, the court shall provide legal consel to the chiuld and to the parents.

Section 300. The provisions of this law shall be enforced by any court of competent jurisdiction.

Section 400. Any Indian tribe of which such a child is an enrolled member, and the parents of such a child, shall have standing to enforce the provisions of this law.

C, an Indian child, who is a citizen of Minnesota, is placed for adoption with P and Q, who are both non-Indians and citizens of Wisconsin. C's mother and father, M and F, who are citizens of Minnesota, and members of the Mille Lacs Band of Chipewa Indians (MLBCI), have signed "waiver" forms which purport to consent to the adoption. P and Q have Petitioned the State District Court for the State of Minnesota to adopt C.

MLBCI brings an action in the Mille Lacs Tribal Court against P and Q seeking an injunction against the adoption. P and Q object to the court's jurisdiction. The court rejects the jurisdictional objection, finds that there are suitable Indian families willing and able to adopt C, and thus issues an injunction against P and Q's adoption.

M and F seek to intervene in P and Q's state court adoption action for the purpose of challenging the validity of their "waiver". They have no lawyer. In their petition, they as the state court to appoint a lawyer for them. The State court grants their motion to intervene but denies their request for appointment of counsel. After a hearing at which P and Q are not represented by counsel, the court finds that their "waiver" was valid. The court then finds that the proceedings are not governed by the ICWA, and grants P and Q's petition for adoption.

What rights do P, Q, M, F, MLBCI, and C have to obtain vindication of their respective rights, or block vindication of others' rights, in a federal court?