The U.S. Supreme Court and the Indian Child Welfare Act

U.S. Supreme Court

Updated August 5, 2013

The South Carolina Supreme Court ruled on July 17 that the child at the center of the U.S. Supreme Court ruling on June 25 in Adoptive Couple vs. Baby Girl, must be returned to her adoptive parents. The case involved the 1978 Indian Child Welfare Act (ICWA), a law intended to prevent the breakdown of Native American families. With this decision, the state court sent the case to the family court judge in Charleston for expedited finalization of the adoption and transfer to the adoptive couple. Although the father and the Cherokee Nation appealed, the court awarded custody to the adoptive couple.

The couple issued a statement through their attorney,"We are thrilled that after 18 long months, our daughter finally will be coming home. We look forward to seeing Veronica’s smiling face in the coming days and will do everything in our power to make her homecoming as smooth as possible. We also want to thank everyone who has supported us throughout this ordeal. Our prayers have been answered.” 

The biological father also responded to the decision, “Our family is shocked and deeply saddened that the South Carolina Supreme Court has refused to allow Veronica's best interest to be considered. Even worse, that Court issued an order they acknowledge will cause my daughter to suffer harm.... I will not voluntarily let my child go through that, no parent would. I am her father and it is my job to protect her. My family and I continue to pray that the justice system bring justice to Veronica.”

The father has taken steps to retain custody, including the filing of an application for a postponement of the order with the US Supreme Court. This request was rejected without comment.  He is also seeking custody through the state of Oklahoma.  His wife and parents had already been granted guardianship through the Cherokee court system in preparation for his deployment and service in the National Guard. 

Others have added their voices. The child's birth mother who had supported the adoptive couple in their efforts to gain custody filed a suit against the federal government in South Carolina federal court challenging the consitutionality of ICWA.  She claims the law's placement preferences violate equal protection provisions because race is a consideration.

Most recently,the Native American Rights Fund filed a civil rights lawsuit with the Family Court in the Ninth Judicial Circuit, V.B. v. Daniel E. Martin. on behalf of the child. The suit cites the South Carolina state court’s failure to hold a hearing to determine the best interests of the girl before finalizing the adoption.  NARF contends that as the child is a tribal member and an “Indian Child” under ICWA she has a federally protected right to such a hearing.

The results of the decision in Adoptive Couple vs. Baby Girl  left questions that will be addessed in state courts over the coming months.  As the child and her biological father reside in Oklahoma and have undertaken legal action there, the arguments will now be heard by that state's system. The Oklahoma court will be asked to consider the enforcement of the South Carolina court's adoption order. In making their determination, they are expected to apply standards used in all adoption cases, including consideration of the best interests of the child.  Ultimately, it will be up to these state justices to decide whether or not to give full faith and credit to the South Carolina order and approve the custody transfer. 

The case originally centered on Native American parental rights under the federal ICWA.  A woman from Oklahoma agreed to allow a couple from South Carolina to adopt her unborn child. The child's biological father, an enrolled member of a federally-recognized tribe, was not involved. When he learned of the plan for adoption, however, the father attempted to gain custody.  Because he was a registered member of an Indian tribe the lower court ruled ICWA applied and blocked the adoption. The South Carolina Supreme Court gave custody to the father and that decision was appealed to the U.S. Supreme Court.

In a 5-4 decision, the court sent the case back to the South Carolina court, ruling that ICWA did not apply in this case. They reasoned that because the father had relinquished his rights before the child’s birth and before the adoption agreement between the mother and adoptive couple had been struck, there was no violation of ICWA. The justices were presented with two different interpretations of the law. The biological father's attorneys argued that the law applies whenever the court is considering the termination of parental rights for a Native American parent. The couple who wanted to adopt the baby contended the law was originally passed to prevent Indian children from being removed from their homes by government officials against the will of the biological parents. The majority went with the second interpretation. The state court in South Carolina then decided the adoption should proceed and that South Carolina couple be given custody of the child. A planned civiil rights lawsuit filed by three national organizations on behalf of th child may affect this outcome.

What is the Indian Child Welfare Act?
The 1978 Indian Child Welfare Act (ICWA) was designed to protect Native American families by making it more difficult to remove children from their homes. In addition, the act aims to preserve tribal culture and ensure tribal jurisdiction. The law applies to Indian children who are the subject of a child welfare proceeding such as foster care, adoption placements or termination of parental rights. These children must be members of a federally recognized tribe or eligible for membership in such a tribe. ICWA grants tribes jurisdiction over these cases, sets minimum federal standards for the removal of Indian children from their homes and establishes a preference system when out-of-home placements are necessary. If a tribe chooses to cede concurrent jurisdiction, state child welfare caseworkers and court officials are obligated to abide by ICWA requirements.

How was ICWA applied in Baby Veronica Case?
The South Carolina court’s ruling was based on its determination that ICWA had been violated. The newborn child was placed with the couple at birth by her non-Indian biological mother. Four months later, her biological father, a member of the Cherokee Nation in Oklahoma, asked the South Carolina court for custody. He claimed he had not been informed the placement was permanent and that his rights had been violated. In returning the then 2-year-old child to her father, the state justices found his rights under federal ICWA law outweighed state laws governing adoption. The adoptive couple appealed the decision and the U.S. Supreme Court agreed to consider the case as Adoptive Couple v. Baby Girl. The Supreme Court reasoned ICWA, a law designed to preserve Indian families and culture, did not apply in this case as the father had relinquished his rights before the child’s birth and before the adoption agreement was final. Because the child had not actually been removed from an Indian home, ICWA was not relevant and the adoption could proceed.

What are the implications for states and the role of state legislators?
As the Supreme Court based its ruling on a very specific aspect of an individual case, the underlying federal law remained unchanged. States still are required to follow ICWA and work to ensure that Native American families are kept together. Federal law 25 U.S.C. 1921 allows states to implement their own ICWA provisions to clarify or even enhance federal protections for Indian families. NCSL has identified at least six states—Iowa, Michigan, Minnesota, Nebraska, Oklahoma and Washington—that have implemented their own state ICWA laws expanding ICWA to mandate that an Indian child be kept in or returned to an existing Indian family or environment. The Supreme Court decision appears to leave these enhanced state ICWA statutes intact at this time. 
 
States without a well-defined state ICWA law may now find themselves addressing questions similar to those posed by the adoptive family in South Carolina. This will allso likely be the case for states that have codified only certain provisions of the federal ICWA, rather than adopting an overaching statute. These include Alabama, Alaska, Arizona, California, Colorado, Delaware, Florida, Idaho, Indiana, Kansas, Louisiana, Maine, Mississippi, Missouri, Montana, New Mexico, Nevada, North Carolina, North Dakota, Oregon, South Carolina, South Dakota, Tennessee, Utah, Vermont, Wisconsin and Wyoming. In these states, the most common approach has been to legislate specific issues related to ICWA implementation, such as acknowledging that Indian children are subject to the federal ICWA or emphasizing that certain state codes are not applicable to Indian children. 

Will the Supreme Court’s decision affect lower court challenges to ICWA?
It is still unclear how the ruling in Adoptive Couple v. Baby Girl will affect other judicial rulings. The Supreme Court’s decision upheld ICWA and the federal protection of Indian children, families and culture. In spite of its ruling against the father in this case, the court implied that many key aspects of the law, including notice, transfer and consent provisions, would still apply to biological fathers. Still, because the justices were careful to preserve the act while denying custody to an Indian parent, there may now be challenges based on narrow circumstances, particularly in states lacking their own comprehensive ICWA statutes. 

The South Carolina Court's decision to order the finalization of adoption proceedings without consideration of other issues still leaves open the questions of the biological father's status under South Carolina state law and of whether or not the adoption is in the child's best interests as outlined in state law. The joint civil rights lawsuit is based on the courts failure ot require a best interst hearing.

The Arizona Court of Appeals in Navajo Nation v. Arizona Department of Economic Security, recently upheld the placement of a Navajo boy with a non-Indian family. The Navajo Nation objected but the Arizona court found there was good cause for the placement in spite of the federal ICWA.  More recently, on June 21, 2013, the Alaska Supreme Court supported and clarified ICWA in Native Village of Tununak v. State. The court declared that clear and convincing evidence was required if the state sought to deviate from ICWA’s adoptive placement preferences.  Until this ruling, the state had relied on a weaker standard of proof. The court also updated the language describing placement standards so that the criterion for suitability for placement is now specified as “the prevailing social and cultural standards of the Indian community.”