The Supreme Court of Montana has ruled that the Indian Child Welfare Act applies to third party custody arrangements in which a Native American parent allows the courts to place their child in the care of a family member. The ruling overturns previous case law in the state that had said ICWA did not apply in these types of custody agreements made privately among family members without child welfare involvement.
The case in question., In re the Matter of L.R.J., C.M.J., AND C.S.J., involves an Indigenous mother whose three children were placed with their paternal grandparents through a custody agreement that required the parents to participate in several types of counseling before they could petition the court to be reunited. Four years later, the mother withdrew her agreement to the parenting plan and demanded her children be returned to her, arguing that ICWA allowed her to do so.
The bedrock federal law, which is designed to shield Native families from unnecessary separations, states that: “Any parent or Indian custodian may withdraw consent to a foster care placement under State law at any time and, upon such withdrawal, the child shall be returned to the parent or Indian custodian.” But the district court overseeing the case denied the mother’s request, stating that the federal law did not apply in internal family disputes, per the 1980 case In re Bertelson.
Montana’s Supreme Court overruled that decision, determining that ICWA did apply to the case at hand. Since the custody agreement did not allow for the children to be returned to their parents on demand, the court found, it constituted a foster care placement as defined by law rather than an internal family dispute. While the court reversed the lower court’s ruling that ICWA did not apply to the case, it did not grant the mother’s request to have her children back, instead ordering further ICWA-compliant proceedings to determine whether returning the children was appropriate.
Kate Fort, director of the Indian Law Clinic at Michigan State University, noted the significance of the court’s decision: “These type of third party cases are particularly important to keep an eye on, as agencies often push cases in this direction to avoid filing a petition on a parent,” she said in a post made to the Turtle Talk blog.
This clarification of ICWA’s jurisdiction comes at a time when the law as a whole is under threat. The U.S. Supreme Court is currently weighing the 45-year-old law’s future in Brackeen v. Haaland, which contends that ICWA is unconstitutional because it discriminates against potential foster and adoptive parents on the basis of race. ICWA’s defenders maintain that the law’s protections are based on political standing and tribal sovereignty, not race. A decision in the case is expected this spring.
One of the main challenges to ICWA leveled by plaintiffs in the Brackeen case is that it unconstitutionally commandeers states into carrying out federal law. Attorneys representing the federal government and several tribes pushed back, arguing that ICWA must be enforced in court proceedings that do not involve state agencies, such as custody arrangements within families or private adoptions.
