GM 13-006

Supreme Court to Hear Indian Child Welfare Act Case

On January 4, 2013, the United States Supreme Court agreed to review the case of Adoptive Couple v. Baby Girl, a South Carolina adoption case involving the Indian Child Welfare Act (ICWA) that has received a great deal of media attention. The case raises questions about the applicability of ICWA when the Indian parent is an unwed father, but it also implicates fundamental federal Indian law principles that protect Indian laws and programs against constitutional challenges. The Supreme Court will hear the case in April.

The case concerns a child who was born in Oklahoma to an unwed Indian father and non-Indian mother. Before the child was born, the mother and father’s relationship ended and the father indicated that he would relinquish his parental rights. Later, without notifying the father, the mother decided to put the baby up for adoption. The adoptive couple was present at the child’s birth and cared for her from that point on, moving her to South Carolina approximately eight days after her birth and initiating an adoption proceeding there. The father was first notified of the pending adoption four months later, when he was served with process papers related to the adoption action. He then challenged the adoption in both Oklahoma and South Carolina. The South Carolina Family Court determined that, under the ICWA, the father was entitled to custody of the child, and ordered that the child be returned to him. By that time, the child was two years old. The South Carolina Supreme Court affirmed the family court’s order.

The adoptive couple argues, and has asked the Supreme Court to rule, that the ICWA does not apply when an unwed, non-Indian mother of an Indian child voluntarily puts her child up for adoption and the child has never lived with an Indian family or in an Indian community. This argument is based on the so-called “existing Indian family” doctrine that has been adopted by seven states but rejected by nineteen others, including the South Carolina Supreme Court in this case. The existing Indian family doctrine, as its name suggests, posits that ICWA was designed only to prevent the breakup of existing Indian families where the child would have grown up with strong ties to his or her tribal culture. Where the father is the only Indian parent but never lived with the child, the doctrine assumes that there is no Indian family or tribal ties to protect. Opponents of the existing Indian family doctrine say that the ICWA itself does not require an “existing Indian family” and that the doctrine ignores the tribe’s independent rights and interests with regard to the child under the ICWA.

The adoptive couple also argues that the father cannot receive the protections that the ICWA extends to the parent of an Indian child because the father did not meet the state law definition of “parent” since he had relinquished his parental rights under state law, though the father disputes their interpretation. The Supreme Court has thus been asked to determine whether ICWA’s definition of “parent” incorporates state law requirements for acknowledging or establishing paternity with respect to unwed fathers.

The petition for certiorari and the supporting brief filed by the guardian ad litem for the child also challenge the constitutionality of the ICWA as applied by the South Carolina Supreme Court, and ask the Supreme Court to hold that the existing Indian family doctrine must be applied to prevent the ICWA from becoming an unconstitutional race-based preference for Native Americans. The case thus potentially implicates the scope of the Supreme Court’s critical holding in Morton v. Mancari, which protects federal Indian laws and programs from equal protection challenges on the grounds that they are based on the political status of Indians as members of federally recognized tribes, rather than on race. Under Mancari, federal Indian laws and programs are subject to a lower standard of judicial review, and therefore more likely to survive a constitutional challenge, than other laws that are deemed to classify individuals based solely or primarily on race or ancestry. If the Supreme Court decides to take up this issue and reconsider the scope of Mancari, it could have major repercussions even outside the ICWA context.

Many tribes and Indian organizations are participating in the Native American Rights Fund-sponsored Tribal Supreme Court Project to plan activities in response to the grant of certiorari in this case. Please let us know if we may provide further information or assistance regarding this case or its potential implications.