general decided whether independent counsel should be appointed by the panel, an investiga- tion could be influenced by the executive branch. An attorney general might have been reluctant to recommend the prosecution of a political ally. However, if enough sources exerted sufficient pressure, the attorney general could be forced to avoid the appearance of favoritism by requesting the appointment of independent counsel. The appointment of independent counse l was often politically charged, in large part because independent counsel investigated ex- ecutive branch officials and their political operatives. When p oliticians are investigated, an invariable response is that the investigation is politically motivated. Nevertheless, most politicians considered independent coun sel to be crucial to conveying at least the appearance of propriety in the executive branch. The danger of independent counsel is that they may be called for on a regular basis by politicians who are opposed to the president, for the sole purpose of demoralizing the executive branch and gaining an electoral advantage. Once appointed, independent counsel could proceed as any other prosecutor. Counsel filed criminal charges in the U.S. District Court for the District of Columbia and had the power to SUBPOENA witness es, and to grant immunity to witnesses. Under the Ethics Act, only the attorney general could fire independent counsel. Inde- pendent counsel could be dismissed only for GOOD CAUSE or because a physical or mental condition prevented counsel from performing the position’s duties. Dismissed independent counsel had the right to appeal to the U.S. District Court fo r the District of Columbia. The first government officials investigated under the new Ethics Act were two officials in the administration of President JIMMY CARTER. After investigating allegations of dru g use and conflict of interest, the independent counsel declined to file criminal charges. In May 1986 an official in the administra- tion of President RONALD REAGAN mounted a challenge to the Ethics Act. Theodore B. Olson, a former assistant attorney general in the administration, argued that the executive branch had the power to conduct all criminal investigations, and that it was unconstitutional for Congress to give the JUDICIARY the power to appoint independent prosecutors. The U.S. Supreme Court disagreed, RULING that the Ethics Act was constitutional because the attorney general, an officer within the executive branch, had the power to remove independent counsel and therefore retained ultimate control (Morri- son v. Olson, 487 U.S. 654, 108 S. Ct. 2597, 101 L. Ed. 2d 569 [1988]). The list of federal government officials investigated or prosecuted by independent counsel under the Ethics Act is long and ever growing. In December 1987 Michael Deaver, former aide to President Reagan, was convicted of perjury after prosecution by independent counsel. In February 1988 Lyn Nofziger, another presidential aide, was convicted of ethical viola- tions. Nofziger’s conviction was later overturned on appeal. President Reagan’s attorney general EDWIN MEESE III resigned in July 1988 after an investigation by independent counsel James McKay. Although Meese was not prosecuted, McKay stated in his report to the panel that he believed that Meese had broken the law by helping a company in which Meese owned stock, Wedtech Corporation, to solicit contracts with the U.S. military. In December 1986, before he resigned, Meese appointed Lawrence E. Walsh as inde- pendent counsel to investigate and prosecute wrongdoing in the burgeoning Iran-Contra scandal, which involved trading arms to Ira- nians and diverting the proceeds to fund a covert war in Nicaragua. Walsh was able to obtain several convictions of high-level Reagan administration officials, but some of those were overturned on appeal. The administratio n of President BILL CLINTON was heavily investigated by independent coun- sel. In 1994, Donald C. Smaltz was appointed as independent counsel to investigate Clinton’s secretary of agriculture, Mike Espy . The inde- pendent counsel was directed to investigate whether Espy had accepted gift s from organiza- tions and individuals with business pending before the DEPARTMENT OF AGRICULTURE and whether Espy had committed any crimes con- nected to, or arising out of, the investigation, such as OBSTRUCTION OF JUSTICE and false testimony or statements. In October 1994, just a few months after Smaltz began work, Espy resigned his office. Nevertheless, the investigation of Espy and GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 408 INDEPENDENT COUNSEL several associates continued. Over the next four years, Smaltz spent more than $17 million to bring 30 counts of corruption against Espy. At Espy’s 1998 trial, Smaltz produced 70 prosecu- tion witnesses, yet a jury to ok just nine hours to acquit Espy on all 30 counts. In January 1994 Robert Fiske Jr. was appointed as independent counsel to investigate the death of White House counsel Vincent Foster and alleged financial misconduct by Clinton and the first lady, HILLARY RODHAM CLINTON.Because the Ethics Act had lapsed, Attorney General JANET RENO herself chose Fiske. When Congress reauthorized the Ethics Act, Reno submitted the matter to the panel, which appointed a new independent counsel, KENNETH W. STARR. Starr, a former U.S. solicitor general and U.S. district court judge, worked on the Clinton investigation until 1999. He obtained convic- tions against a number of Clinton associates, but it was not until 1998 that he ensnared President Clinton. Allegations of a sexual affair with a White House intern shifted Starr’s work. In January 1998 Clinton was deposed for the SEXUAL HARASSMENT lawsuit filed by Paula Jones. At the deposition, Clinton denied that there had been a sexual relationship with intern Monica Lewinsky. In August 1998 he changed his story when called before Starr’s GRAND JURY, but he still would not give details. In the fall, Starr sent his report to the House of Repr esentatives and testified before a House panel. Starr accused the president of having had a sexual affair with the intern. The report, which contained graphic sexual descriptions from Lewinsky, claimed that Clinton had committed perjury and obstruction of justice, and that he had abused his presiden- tial power in an effort to keep the affair from coming to light. This report led to the House passing ARTICLES OF IMPEACHMENT in December 1998. Clinton was acquitted of the charges by the Senate in February 1999. By the end of Starr ’s investigation, very few people in Congress or the White House had positive feelings about the Ethics in Govern- ment Act. The 1980s and 1990s had seen independent counsel spend years and millions of dollars on seemingly open-ended investiga- tions of official misconduct, usually with little to show for it. Even Starr agreed that the law should expire, testifying to that effect before Congress in April 1999. With no congressional support for its continuation, the act was allowed to expire on June 30, 1999. Although bills have been introduced seeking to curtail the powers of future independent counse l while requiring greater accountability, Congress has not acted. With the lapsing of the Ethics in Govern- ment Act, the Department of Justice resumed appointing special counsel to investigate alleged criminal acts by executive branch members. The department’s Office of Special Counsel has conducted several high-profile investigations into matters including the leaking of the identity of undercover CIA agent Valerie Plame Wilson by members of the Bush Administration. Patrick Fitzgerald, U.S. Attorney for Northern Illinois, was appointed special counsel in December 2003 to investigate the so-called Plame Affair. His investigation ultimately led to the prosecution and conviction of Lewis “Scooter” Libby, Vice President Dick Cheney’s chief of staff in 2007. Congress and Independent Counsel When Congress is in session, independent coun- sel do not investigate or prosecute the criminal activities of members of Congress. Instead, Congress polices its members through ethics committees and can expel a member with a two-thirds vote of the member’s chamber (U.S. Const. art. I, § 5, cl. 2). Members of Congress cannot be arrested while Congress is in session, except for treason, felony, or BREACH OF THE PEACE (§ 6, cl. 1). When Congress is not in session, members of Congress are not exempt, and they may be prosecuted in the jurisdiction where an alleged offense occurred. Congress may also investigate official wrongdoing in the executive branch. When Congress and independent counsel are investi- gating the same persons or events, the matter can become a political tug-of-war, and one investi- gation can run afoul of the other. For example, if Congress grants immunity to a witness who is under investigation by independent counsel, it becomes difficult for independent counsel to prosecute the witness. State or Local Independent Counsel Independent counsel also may be appointed at the state or local level. In Alaska, for example, executive branch officials may be investigated by independent counsel who is appointed by a special personnel board. Governor Sarah Palin was investigated in 2008 by an independent counsel while she was running for Vice President for allegedly seeking to have her GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION INDEPENDENT COUNSEL 409 former brother-in-law fired from the state police department. The independent counsel exonerated her of ethics violations just days before the presidential election. In its broadest sense, the term independent counsel can describe any atto rney who is appointed by one party to represent, prosecute, or bring suit against someone who is connected with that party. For example, in Alaska, a municipal school board is represented by a municipal attorney. If the municipal attorney has a conflict of interest in a particular matter, the school board may appoint independent counsel for that particular matter (§ 29.20.370). Thus, if the municipal attorney owns stock in a construction company that is hired by the school board, the school board might seek a different attorney to handle legal issues associ- ated with that company, in order to avoid the appearance of collusion between government and private business. The new attorney would be called an independent counsel, to describe his or her independence in the matter. FURTHER READINGS Danner, Allison Marston. 2003. “Navigating Law and Politics: The Prosecutor of the International Criminal Court and the Independent Counsel.” Stanford Law Review 55. Kutler, Stanley I. 1994. “In the Shadow of Watergate: Legal, Political, and Cultural Implications.” Nova Law Review 18. Greenberg, Gerald S., ed. 2000. Historical Encyclopedia of U.S. Independent Counsel Investigations New York: Greenwood Press. Sels, John van Loben. 1995. “From Watergate to White- water: Congressional Use Immunity and Its Impact on the Independent Counsel.” Georgetown Law Journal 83. Solloway, Robert G. 1988. “The Institutionalized Wolf: An Analysis of the Unconstitutionality of the Independent Counsel Provisions of the Ethics In Government Act of 1978.” Indiana Law Review 21. Plame Wilson, Valerie. 2008. Fair Game: How a Top CIA Agent Was Betrayed by Her Own Government.New York: Simon & Schuster. CROSS REFERENCE Congress of the United States. INDEPENDENT PARTIES The current two-party system of Democrats and Republicans evolved during the mid–nineteenth century. Before that, the Democrats squared off against the Whigs, led by HENRY CLAY and DANIEL WEBSTER . The WHIG PARTY was founded around 1834 to oppose the populist policies of Democratic president ANDREW JACKSON.Its members objected to Jackson’s views on banking and the designation of federal funds, among other things. Although the United States has a firmly established two-party system, independent par- ties play an important role in U.S. politics. Democrats and Republicans win the vast majority of federal, state, and local elections, but independent candidates often reflect popu- lar attitudes and concerns. Most independent parties—also known as third parties—begin in response to a specific issue, candidate, or political philosophy. Although Whig presidential candidates were successful in 1840 ( WILLIAM HENRY HARRISON) and 1848 ( ZACHARY TAYLOR), the party survived for less than 40 years. In the 1850s, the Republicans entered the political scene as independents. After Repub lican Abraham Lincoln’s victory in the 1860 U.S. presidential race, the REPUBLICAN PARTY replaced the Whig party as the main party opposing the Democrats. Many northern Whigs joined the Republicans, whereas southern Whigs became aligned with the Democrats. The platforms and purposes of independent parties, both past and present, vary tremen- dously. Some independent parties, such as the SOCIALIST PARTY, the Communist Party, and the LIBERTARIAN PARTY, were formed to promote their political world views rather than a single issue or a charismatic leader. The Socialist Party, founded in 1901, has been relatively l ong- lasting. Its heyday was around 1912, when its candidate, EUGENE V. DEBS, received about six percent of the popular vote in the presidential election. That same year, more than 1,000 Socialists held elected positions throughout the United States. Other independent parties were founded by dissident progressives from one or both of the major parties. In 1912 progressives in the Republican Party broke off and formed the PROGRESSIVE PARTY, also known as the Bull Moose Party, naming former U.S. president THEODORE ROOSEVELT as its presidential candidate. Roose- velt lost to Democratic nominee Woodrow Wilson in the general election. In 1924 another progressive party, called the League for Progressive Political Action, was launched. This party backed Senator ROBERT M. LA FOLLETTE of Wisconsin, who received 16 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 410 INDEPENDENT PARTIES percent of the popular vote while losing to Republican incumbent CALVIN COOLIDGE. In 1948 progressives in the DEMOCRATIC PARTY formed another Progressiv e Party. It supported Henry A. Wallace in an unsuccessful bid to unseat incumbent Democratic president HARRY S. TRUMAN. Other offshoots of the two major parties include the Locofocos, or Equal Rights Party, and the Mugwumps. The Locofocos emerged from the Democratic Party in the early nineteenth century. They supported stricter bank regulation and antitrust laws. The Mug- wumps broke from the Republican Party in the 1884 presidential campaign and supported the Democratic nominee Grover Cleveland. Their name was derived from the Algonquian word for big chief. The Mugwumps’ defection con- tributed to the Democrats’ victory. Some independent candidates transcend their party affiliation. Billionaire H. Ross Perot captured the public’s attention during the 1992 presidential election, which was won by Demo- crat BILL CLINTON. Of the 19 million U.S. citizens who voted for Perot, few cast their ballot in support of his independent party. People voted for Perot, the person, as an alternative to Clinton and the Republican incumbent GEORGE H.W. BUSH. Perot ran again as an independent in 1996. An independent candidate and a specific issue are often inextricably linked. This was the case in 1968, with Alabama governor GEORGE WALLACE and his American Independent Party. Wallace was a vocal opponent of CIVIL RIGHTS. His position on segregation and states’ rights and his bold personality were the sum total of the party. Other important social issues have spawned independent parties. Before the CIVIL WAR, the Liberty Party was created by abolitionists to outlaw SLAVERY. Similarly, the Free-Soil Party— which later became part of the Republican Party—was started in 1848 to prevent the extension of slavery into new U.S. territories and states. Bigotry was the driving force behind the Know-Nothing Party —also called the American Party—formed in 1849 to pursue discrimination against immigrants and Roman Catholics. The name referred to the secrecy surrounding the group: Members were instructed to say, “I don’t know,” if asked about the party. The PROHIBITION PARTY was formed in 1869 by temperance activists who wanted to ban the sale and consumption of alcohol. On the other end of the ideological spectrum were the Dixiecrats. Led by Strom Thurmond, these were a group of southern Democrats who were opposed to President Truman’s civil rights policies. The Dixiecrats splintered from the main party in 1948. The effect of an independent party on a presidential race varies. In 1912 independent candidate Theodore Roosevelt of the Bull Moose Party, won more votes than Republican nominee WILLIAM HOWARD TAFT, and in effect delivered the election to Democratic challenger Woodrow Wilson. In other presidential elec- tions, i ndependents made barely a ripple. For example, in 1872 the Prohibition party candi- date received a mere 5,600 votes. In the remarkable presidential election of 2000, independent candidates played prominent and controversial roles. On the political right, author and media commentator PATRICK BUCHA- NAN ran on the REFORM PARTY ticket, espousing a mixture of social conservatism, labor support, and international isolationism. On the left, progressive activist and consumer advocate RALPH NADER received the GREEN PARTY nomina- tion. Declaring the two main parties to be almost identical, Nader appealed to liberals and youth with his idealistic speeches on corporate influence and the erosion of democracy. Although neither third-party candidate was invited to the official presidential debates between Democrat AL GORE and Republican GEORGE W. BUSH, no one foresaw their ultimate impact upon the election. After the bitter deadlock in Florida between Gore and Bush produced ballot disputes, recounts, and law- suits, the totals in that critical state revealed that Nader had taken enough votes there and elsewhere to tip the decision to Bush. Further- more, Buchanan also scored heavily in a Gore stronghold, leading the conservative candidate to explain that the votes were probably due to poorly designed ballots. In terms of sheer votes, both Nader and Buchanan fared poorly. Nader captured only three percent of the vote, and Buchanan less than onepercent.Asaresult,neitheroftheirparties qualified for federal matching funds for the 2004 elections, a fate surely likely to hamper their effectiveness at a time when money is of major significance in running political campaigns. Nader in particular earned the enmity of many Democrats who viewed him as a spoiler. Even his former allies took to the pages of The Nation and other liberal publications to GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION INDEPENDENT PARTIES 411 denounce him for undermining Gore’s chances. Nader was unrepentant. In his 2002 book, Crashing the Party: How to Tell the Truth and Still Run for President, Nader defended his candidacy as an intellectually and morally superior choice to what he deemed the corrup- tion of the Democrats and Republicans. In the 2004 election, Nader ran as an independent, rather than the Green Party candi- date. Nader was accompanied on the ballot by several other third-party candidates, including Michael Peroutka of the CONSTITUTION PARTY, Michael Badnarik of the Libertarian Party, and David Cobb of the Green Party. Although Nader fared the best of the third-party candidates, earning third place in the election, he garnered a mere 0.38 percent of the vote. To the extent that the 2004 election reflected a declining interest in independent parties, that trend continued into the following presidential election. In 2008 Nader again ran as an indepen- dent candidate, accompanied on the ballot by Bob Barr for the Libertarian Party, Chuck Baldwin for the CONSTITUTION Party,and Cynthia McKinney for the Green Party. Again, Nader came in third, earning 0.56 percent of the vote. With the exception of Nader, the 2008 third-party candi- dates were given little media attention. Some critics fault the media for ignoring those candi- dates altogether, thereby eliminating them from any discussion related to the race. If the contemporary appeal of independent parties has proven underwhelming, their ability to influence close races is one argument for their significance.Thisimpactisfeltevenmoresharply in an age of vast voter apathy. For all the hubbub generated by the 2000 election controversy, only 51 percent of registered voters bothered to vote that year. Independent parties may find that their ability to control slight percentage points in elections translates into broader political power to shape debate and even to nudge the main- stream parties toward their positions. Some c itizens are reluctant to vote for an independent candidate, believing that such a gesture is futile. Indeed, the odds of winning either the popular or electoral vote are slim. Still, the politic al dialogue genera ted by independent candidates is a mean ingful con- tribution to the democratic proces s. Even when independent candidates lose the election, the public is treated to ideas and perspectives that are seldom broached by the mainstream parties. FURTHER READINGS Bass, Harold F. 2000. Historical Dictionary of United States Political Parties. Lanham, MD: Scarecrow Press, Inc. Cohen, Ted. 2002. “Nader: It’s Too Early to Decide on ‘04 Run.” Portland Press Herald (June 20): 10B. Douglas, William. 2000. “Unapologetic Nader Faces Anger over His Fla. Role.” Newsday (November 9): A48. Engelhardt, Joel, and Scott McCabe. 2001. “Over-Votes Cost Gore the Election in Florida: A Palm Beach Post Analysis of 19,125 Ballots That Were Punched More Than Once.” The Palm Beach Post (March 11): 1A. “Reform Party Eyes Survival Challenge: Conference Hopes to Revive Fortunes.” 2001. The Washington Times (July 26). Thornburgh, Nathan. 2008. “Could Third-Party Candidates Be Spoilers?” Time (November 3): 10B. Thornburgh, Nathan. 2008. “Can the Libertarians Go Mainstream?” Time (May 21) Wilson, James Q. 1992. American Government: Institutions and Policies. Lexington, MA: Heath. CROSS REFERENCE Election Campaign Financing INDETERMINATE That which is uncertain or not particularly designated. INDEX A book containing references, alphabetically arranged, to the contents of a series or collection of documents or volumes; or a section (normally at the end) of a single volume or set of volumes containing such references to its contents. Statistical indexes are also used to track or measure changes in the economy (for example, the Consumer Price Index) and movement in stock markets (for example, Standard & Poor’s Index). Such indexes are usually keyed to a base year, month, or other period of comparison. In mortgage financing, the term is used to determine adjustable-rate mortgage (ARM) inter- est rates after the discount period ends. Common indexes for ARMs are one-year Treasury securities and the national average cost of funds to savings and loan associations. INDEX TO LEGAL PERIODICALS The set of volumes that lists what has appeared in print from 1926 to the present in the major law reviews and law-oriented magazines in various countries—usually organized according to author, title, and subject, an d containing a table of cases. The Index to Legal Periodicals, published by the H. W. Wilson Company of New York, aids GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 412 INDETERMINATE individuals who are conducting legal research by enabling them to search the contents of past and currently published periodicals, thereby providing access to secondary source materials. The index is bound every three years, with annual supplements and ADVANCE SHEETS for every month except September. The Index to Legal Periodicals is also available in an on-line form through the Online Computer Library Center, Inc., based in Dublin, Ohio. The database contains records of articles from more than 900 journals and more than 1,400 mono- graphs; the total number of records exceeds 500,000. The earliest articles date back to 1981. FURTHER READINGS “Index to Legal Periodicals Full Text.” 2009. H.W. Wilson Web site. Available online at http://www.hwwilson. com/Databases/legal.htm; http://www.hwwilson.com (accessed September 5, 2009). Kunz, Christina L., et al. 2008. The Process of Legal Research. 7th ed. New York: Wolters Kluwer Law & Business. INDIAN CHILD WELFARE ACT The Indian Child Welfare Act (ICWA), passed by Congress in 1978, intended to limit the historical practice of removing Native American children from their tribe and family and placing them in a non-Indian family or institution (25 U.S.C.A. §§ 1901–1963). The stated purpose of the act is to “[p]rotect the best interests of Indian children and to promote the stability and security of Indian tribes.” The act seeks to achieve these goals through three principal methods: by establishing minimum federal standards for when Indian children can be removed from their family; by placing children who are removed in a foster or adoptive home that reflects the unique values of Indian culture; and by providing assistan ce to family services programs operated by Indian tribes. The impetus behind the passage of the ICWA was a widespread recognition of the failure of the federal government’s historical policy of removing Indian children from their family and tribe and attempting to assimilate them into white culture by placing them in a white family or institution. Since the late 1800s, a large percentage of Indian children had been taken from their home and placed in a boarding school off their tribal reservation in order to teach them white culture and practices. In many cases government authorities removed Indian children from their family because of vague allegations of neglect, when in fact the chil- dren’s treatment reflected cultural differences in child rearing practices, and not neglect or abuse. In addition, the practice of removing Indian children from their tribe placed the very existence of the tribes in JEOPARDY. The ICWA was written with the belief that it was in the best interests of Indian children for them to remain with their tribe and maintain their Indian heritage. To foster this goal, the ICWA enacts minimal federal standards for when Indian children can be removed from their family and seeks to ensure that children who are removed are placed in a foster or adoptive home that reflects the unique values of Indian culture. Examples of these standards include giving custodial preference to a child’s extended family or tribal members, requiring remedial programs to prevent the breakup of Indian families, and requiring proof “beyond a reasonable doubt” th a t continued custody of a child will result in serious emotional or physical harm to the child. To prevent a resumption of the practice of removing Indian children from their home, Congress, in the ICWA, gave tribal courts exclusive jurisdiction over the adoption and custody of Indian children who reside or are domiciled within their tribe’s reservation, unless some federal law provides to the contrary (domiciled refers to a permanent residence while residing may be in a temporary residence). One such contrary law is Public Law 280 (28 U.S.C. A. § 1360). This law made certain tribes in Alaska, California, Minnesota, Nebraska, Ore- gon, and Wisconsin subject to state jurisdiction. ICWA allows these tribes to reassume jurisdic- tion over CHILD CUSTODY proceedings by peti- tioning the secretary of the interior. Tribes also have exclusive jurisdiction over such proceedings when they involve an Indian child who is a ward of the tribal court, regardless of where the child resides. Custody proceedings covered by the act include foster care placement, the termination of parental rights, and pre- adoptive and adoptive placement; the act does not govern custody proceedings in DIVORCE settlements. The ICWA applies both to children who are tribal members and to children who are eligible for tribal membership; eligibility for tribal membership is determined by individual tribes. In cases involving Indian children who neither reside nor are domiciled within a tribal reservation, tribal courts and state courts possess CONCURRENT JURISDICTION. This question of juris- diction has resulted in several important JUDICIAL interpretations of the ICWA. One significant interpretation was the 1989 U.S. Supreme Court GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION INDIAN CHILD WELFARE ACT 413 decision Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S. Ct. 1597, 104 L. Ed. 2d 29, which declared that because Congress had clearly enacted the law to protect Native American families and tribes, tribal jurisdiction preempted both state authority and the wishes of the parents of the children at issue. The case involved twins born off the reservation to unmarried parents, who voluntarily consented to having the children adopted by a non-Indian family. The Supreme Court ruled that children born to unmarried parents are considered to share the domicile of the mother, and since the mother in this case was domiciled on the reservation, the tribal court had jurisdiction over the placement of the children, even if it opposed the parents’ wishes. In a significant state case, the Minnesota Supreme Court in August 1994 followed the reasoning in Holyfield, rejecting a white couple’s petition to adopt three Ojibwa (also called Chippewa or Anishinabe) sisters (In re S. E. G., 521 N.W.2d 357). The court ruled in favor of the Leech Lake band of Chippewa, which had contested the adoption, holding that the ICWA dictated that adopted Indian children should be raised within their own culture. Although non- Indian families may adopt Indian children in very limited circumstances if they prove there is “good cause,” the court held that such GOOD CAUSE cannot be based on the European value of family permanence. In some cases, however, courts have given less weight to the provisions of the ICWA, instead RULING in favor of state jurisdiction over Indian children. In 1995, for examp le, the Illinois Supreme Court ruled that the ICWA does not mandate exclusive jurisdiction for tribal co urts in custody hearings when the location of the children’s domicile is in question. In re Adoption of S. S. & R. S., 167 Ill. 2d 250, 212 Ill. Dec. 590, 657 N.E.2d 935, involved two children of an unmarried Indian mother and non-Indian father, who had been living with their father. When the father died, his sister and brother-in-law sought to adopt the children. The mother’s tribe, the Fort Peck tribe in Montana, objected and claimed juris- diction over the proceeding. The Illinois Supreme Court ruled against the tribe, holding that because the children had never been domiciled on the mother’s reservation and because the mother had “abandoned” the children, state law preceded tribal court juris- diction. The court thus limited the scope of the ICWA in Illinois. FURTHER READINGS Bennett, Michele K. 1993. “Native American Children: Caught in the Web of the Indian Child Welfare Act.” Hamline Law Review 16 (spring). Gallagher, Brian D. 1994. “Indian Child Welfare Act of 1978: The Congressional Foray into the Adoption Process.” Northern Illinois Univ. Law Review 15 (fall). Goldsmith, Donna J. 2002. “In the Best Interests of an Indian Child: The Indian Child Welfare Act.” Juvenile & Family Court Journal 53 (fall). Graham, Lorie. 2008. “Reparations and the Indian Child Welfare Act.” Harvard Human Rights Journal 21; Suffolk Univ. Law School Research Paper No. 07-22. Available online at http://papers.ssrn.com/sol3/papers. cfm?abstract_id=1126774; website home page: http:// papers.ssrn.com (accessed August 1, 2009). Hemp, Susan J. 1996. “State Court versus Tribal Court Jurisdiction in an Indian Child Custody Case.” Illinois Bar Journal 84 (April). Jones, B.J., and John G. Richardson. 1997. The Indian Child Welfare Act: A Cultural and Legal Education Program. Williamsburg, VA: National Center for State Courts. Ujke, David M. 1993. “Tribal Court Jurisdiction in Domestic Relations Matters Involving Indian Children: Not Just a Matter of Comity.” Wisconsin Lawyer 66 (August). CROSS REFERENCES Child Custody; Native American Rights. INDICIA Signs; indications. Circumstances that point to the existence of a given fact as probable, but not certain. For example, indicia of partnership are any circumstances which would induce the belief that a given person was in reality, though not technically, a member of a given firm. The term is much used in CIVIL LAW in a sense nearly or entirely synonymous with CIRCUMSTANTIAL EVIDENCE. It denotes facts that give rise to inferences, rather than the inferences themselves. INDICTMENT A written accusation charging that an individual named therein has committed an act or omitted to do something that is punishable by law. An indictment is found and presented by a GRAND JURY legally convened and sworn. It originates with a prosecutor and is issued by the grand jury against an individual who is charged with a crime. Before such individual GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 414 INDICIA CERTIFICATE OF NOTICE PMAM 1. Mailing it through the U.S. Postal Service. 2. Attaching it to an Order for Arrest to be served on the defendant. 3. Other: (specify) I certify that I issued a copy of this Notice to the defendant named above at the address shown by: AOC-CR-215, Rev. 10/04 ©2004 Administrative Office of the Courts Date Deputy CSC Assistant CSC Clerk Of Superior Court STATE OF NORTH CAROLINA Deputy CSC Assistant CSC Clerk Of Superior Court File No. Original-File Copy-Defendant (Over) NOTICE OF RETURN OF BILL OF INDICTMENT In The General Court Of Justice Superior Court Division County STATE VERSUS G.S. 15A-630, 15A-941(d) Signature To The Defendant Named Above: Take notice that the grand jury of the county named above has returned the attached True Bill(s) of Indictment charging you with the offense(s) specified. You are informed that there are important time limitations on your right to discovery of the evidence against you. (See G.S. 15A-902, which is printed on the reverse.) This Notice is issued upon the order of the presiding judge. You will be arraigned on the charges contained in this Indictment only if you file a written request for arraignment with the Clerk of Superior Court not later than twenty-one (21) days after the Indictment is served on you. If you do not file a written request for arraignment within that time, the court will enter a not guilty plea on your behalf. You must appear in Superior Court at the date, time and place shown below to answer the charges in this Indictment. NOTE: If an earlier court date is set in a release order, you must appear at that time also. Signature NOTE: Attach True Bill(s) of Indictment and a copy of the Order of Arrest, if appropriate. Name And Address Of Defendant Date Of Hearing Time Of Hearing Place Of Hearing Date Issued Indictment [continued] A sample indictment. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION INDICTMENT 415 A sample indictment (continued). ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. Indictment A party seeking discovery under this Article must, before filing any motion before a judge, request in writing that the other party comply voluntarily with the discovery request. A written request is not required if the parties agree in writing to voluntarily comply with the provisions of Article 48 of Chapter 15A of the General Statutes. Upon receiving a negative or unsatisfactory response, or upon the passage of seven days following the receipt of the request without response, the party requesting discovery may file a motion for discovery under the provisions of this Article concerning any matter as to which voluntary discovery was not made pursuant to request. G.S. 15A-902 Discovery Procedure “(a) AOC-CR-215, Side Two, Rev. 10/04 ©2004 Administrative Office of the Courts To the extent that discovery authorized in this Article is voluntarily made in response to a request or written agreement, the discovery is deemed to have been made under an order of the court for the purposes of this Article. (b) If a defendant is represented by counsel, the defendant may as a matter of right request voluntary discovery from the State under subsection (a) of this section not later than the tenth working day after either the probable-cause hearing or the date the defendant waives the hearing. If a defendant is not represented by counsel, or is indicted or consents to the filing of a bill of information before the defendant has been afforded or waived a probable-cause hearing, the defendant may as a matter of right request voluntary discovery from the State under subsection (a) of this section not later than the tenth working day after the later of: (d) The defendant’s consent to be tried upon a bill of information, or the service of notice upon the defendant that a true bill of indictment has been found by the grand jury, or (1) For the purposes of this subsection a defendant is represented by counsel only if counsel was retained by or appointed for the defendant prior to or during a probable-cause hearing or prior to execution by the defendant of a waiver of a probable-cause hearing. The appointment of counsel.(2) A motion for discovery under this article must be heard before a superior court judge.(c) (e) The State may as a matter of right request voluntary discovery from the defendant, when authorized under this Article, at any time not later than the tenth working day after disclosure by the State with respect to the category of discovery in question. (f) A motion for discovery made at any time prior to trial may be entertained if the parties so stipulate or if the judge for good cause shown determines that the motion should be allowed in whole or in part.” G.S. 15A-941(d) Arraignment Before Judge Only Upon Written Request A defendant will be arraigned in accordance with this section only if the defendant files a written request with the clerk of superior court for an arraignment not later than 21 days after service of the bill of indictment. If a bill of indictment is not required to be served pursuant to G.S. 15A-630, then the written request for arraignment must be filed not later than 21 days from the date of the return of the indictment as a true bill. Upon the return of the indictment as a true bill, the court must immediately cause notice of the 21-day time limit within which the defendant may request an arraignment to be mailed or otherwise given to the defendant and to the defendant’s counsel of record, if any. If the defendant does not file a written request for arraignment, then the court shall enter a not guilty plea on behalf of the defendant.” “(d) GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 416 INDICTMENT may be convicted, the charge must be proved at trial BEYOND A REASONABLE DOUBT. The purpose of an indictment is to inform an accused individual of the charge against him or her so that the person will be able to prepare a defense. INDIRECT EVIDENCE Probative matter that does not proximately relate to an issue but that establishes a hypothesis by showing various consistent facts. CROSS REFERENCE Evidence. INDISPENSABLE PARTY An individual who has an interest in the substantive issue of a legal action of such a nature that a final decree cannot be handed down without that interest being affected or without leaving the controversy in a condition whereby its final determination would be totally unconscionable. For example, a HUSBAND AND WIFE seeking to dissolve a MARRIAGE are indispensable parties to their own DIVORCE action. INDIVIDUAL RETIREMENT ACCOUNT The individual retirement account (IRA) is a means by whi ch an individual can receive cer- tain federal tax advantages while investing for retirement. The federal government has several reasons for encouraging individuals to save money for their retirement. For one, the average life span of a U.S. citizen continues to increase. Assum- ing that the average age of retirement does not change, workers who retire face more years of retirement and more years to live without a wage or salary. Uncertainty over the future of the federal SOCIAL SECURITY system is another reason. U.S. workers generally contribute deductions from their paychecks to the Social Security fund. In theory, this money will come back to them, usually upon their retirement. But a substantial number of politicians, economists, and scholars contend that the Social Security fund is being drained faster than it is being filled and that it will go broke in a number of years, leaving retirees to survive without government assistance. Regardless of its future, many people consider the retirement benefits of Social Security to be inadequate, and they look for other methods of funding their retirement years. Many employers offer retirement plans. These plans vary in form but generally offer retirement funds that grow with continue d employment. Yet this benefit is not always available to workers. A changing economy has caused some employers to cut back on retire- ment plans or to cut them out completely. Often, part-time, new, or temporary workers do not qualify for an employer’s retirement plan, and individuals who are self-employed may not choose this job benefit or be able to afford it. To help people prepare for their retirement, Congress in 1974 established individual retire- ment accounts (IRAs) ( EMPLOYEE RETIREMENT INCOME SECURITY ACT [ERISA][codified in scat- tered sections of 5, 18, 26, and 29 U.S.C.A.]). These accounts may take a variety of forms, such as savings accounts at a bank, certificates of deposit, or mutual fun ds of stocks. Initially, IRAs were available only to people who were not participating in an employer-provided retirement plan. That changed in 1981, when Congress expanded the IRA provisions to include anyone, regardless of participation in an employer’s retirement plan (Economic Recovery Tax Act [ERTA][codified in scattered Percentage Distribution of Assets in IRAs, by Amount of Assets and Type of IRA, in 2007 Persons with assets in IRAs Persons with assets in traditional IRAs Persons with assets in Roth IRAs 0 5 10 15 20 25 30 35 40 17 17 38 Less than $10,000 16 18 27 $10,000 to $24,999 16 18 16 $25,000 to $49,999 16 15 11 $50,000 to $99,999 18 16 5 $100,000 to $249,999 17 16 3 $250,000 or more Total assets Percentage of people with IRAs SOURCE: Investment Company Institute, Research Fundamentals, “Additional Data on IRA Ownershi p in 2007,” vol. 17, no. 1A, Januar y 2008. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION INDIVIDUAL RETIREMENT ACCOUNT 417 . indictment. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION INDICTMENT 4 15 A sample indictment (continued). ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. Indictment A. Roth IRAs 0 5 10 15 20 25 30 35 40 17 17 38 Less than $10,000 16 18 27 $10,000 to $24,999 16 18 16 $ 25, 000 to $49,999 16 15 11 $50 ,000 to $99,999 18 16 5 $100,000 to $249,999 17 16 3 $ 250 ,000 or more Total. party backed Senator ROBERT M. LA FOLLETTE of Wisconsin, who received 16 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 410 INDEPENDENT PARTIES percent of the popular vote while losing to Republican