High Court Limits Scope of Indian Child Welfare Act

Amidst a slate of higher-profile decisions, the United States Supreme Court ruled in a 5-4 decision today that the Indian Child Welfare Act (ICWA) only applies in situations where a child is being removed from a Native American household, and does not protect the rights of a biological parent with no active role in a child’s life.

Some legal experts expect courts to less frequently use ICWA now as a factor in custody determinations and adoption proceedings.

The decision will likely “caution some but not all state judges to consider ICWA’s application more carefully,” said University of California-Berkeley Law Professor Joan Hollinger, in an e-mail to the Chronicle.

Adoptive Couple v Baby Girl arose in the South Carolina Supreme Court because a mother in Oklahoma agreed to allow a South Carolina couple to adopt her child. The baby’s father, who is a registered member of the Cherokee Nation and was never involved in the life of the child, learned of the planned adoption and objected.

The South Carolina court concurred with the father’s assertion that he was protected under ICWA. The adoption was halted, and the father was granted custody of his daughter.

Today, the high court ruled that ICWA did not bar the adoption because the father did not have a role in the child’s life before his objection in the proceeding. The case has been remanded back to the state court, meaning that final custody of the girl has not been awarded to either the adoptive couple or the biological father yet.

The court’s majority honed in on the law’s use of the word “continued” in describing the parties protected by the law.

“The adjective ‘continued’ plainly refers to a pre-existing state under ordinary dictionary definitions,” wrote Justice Samuel Alito, for the majority. “When an Indian parent abandons an Indian child prior to birth and that child has never been in the Indian parent’s legal or physical custody, there is no ‘relationship’ to be ‘discontinued.’”

ICWA’s role in state-initiated removals of Indian children is appropriate, Hollinger said, but it “should not be allowed to trump state procedural and substantive laws” in private adoption proceedings like the one involved in this case. “And most states DO give lots of protection to bio-dads who have manifested some concern and involvement with their bio-children,” Hollinger said.

Justices Sonia Sotomayor, Ruth Bader Ginsburg, Elena Kagan and Antonin Scalia dissented in the decision, taking issue with the majority’s focus and interpretation of the phrase “continued custody.”

“The majority begins its analysis by plucking out of context a single phrase from the last clause…and then builds its entire argument upon it,” Sotomayor wrote.

President Jimmy Carter signed ICWA in 1978 after Congress found “an alarmingly high percentage of Indian families [were being] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies.”

But South Carolina’s interpretation of the law would create a situation that forgave parental non-involvement at the last minute, Alito wrote. “A biological Indian father could abandon his child in utero and refuse any support for the birth mother…and then could play his ICWA trump card at the eleventh hour to override the mother’s decision and the child’s best interests.”

In a separate opinion, Scalia criticized that line of reasoning for demeaning the import of parenthood:

“We do not inquire whether leaving a child with his parents is ‘in the best interest of the child.’ It sometimes is not; he would be better off raised by someone else. But parents have their rights, no less than children do. This father wants to raise his daughter, and the statute amply protects his right to do so. There is no reason in law or policy to dilute that protection.”

John Kelly is the editor-in-chief of The Imprint

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