On June 25, the Supreme Court decided only its second case interpreting the Indian Child Welfare Act (ICWA) (in 1989 the Court strongly upheld the Act in Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989)).
In the 2013 case, the Court continued to apply ICWA but its restrictive interpretation of the Act seems to have limited Congress' original intentions for ICWA to protect Indian children from adoptions to non-Indian families and tribal community interests in protecting and retaining their youngest citizens.
The Association on American Indian Affairs wrote about the case, in part:
the case involves a dispute between a Cherokee father, Dusten Brown, and a non-Indian prospective adoptive couple seeking to adopt his child. The South Carolina courts had applied the Indian Child Welfare Act (ICWA), held that the father was a fit parent, and returned custody to him about 18 months ago. By a 5-4 vote, the Supreme Court reversed the South Carolina Supreme Court and remanded the case for further hearings before the South Carolina trial court to determine who should have custody of Veronica. . . .
Jack Trope, Executive Director of AAIA [said] "It is unfortunate, however, that the uncertainty regarding Veronica's future has been prolonged by the decision and that the Court adopted a problematic interpretation of some ICWA provisions. The Court did not adopt arguments asserting that ICWA is unconstitutional, however, so the decision is narrower than it could have been."
In short, the Court held that
- the heightened standard of proof for termination of parental rights in ICWA does not apply when a parent has never had prior legal or physical custody (although Justice Breyer in his concurrence suggests that there may be exceptions to this rule),
- active efforts are not required to prevent the breakup of an Indian family when a parent abandons a child before birth and has never had physical or legal custody of the child, although the section may apply to a non-custodial parent in other factual circumstances, and
- adoption placement preferences are not triggered until a party within the placement preferences (relative, tribal member, or other Indian person) seeks to adopt the child.
Contrary to some media reports, the Court did not adopt the Existing Indian Family Exception (EIF). The EIF, which has been followed by a small minority of states, provides that the Act does not apply when there has not been a prior Indian family. Rather, the Court appeared to accept the dissent's view that many provisions of the Act, such as the notice, transfer and consent provisions, would still apply in cases involving biological fathers regardless of whether they ever had custody."
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