Guest Post: The Indian Child Welfare Act

I apologize for the fact that we didn’t have a post yesterday. I spent Tuesday night camped out on the sidewalk in front of the Supreme Court with my girlfriend and some of our friends. We got in to hear the decisions on DOMA and Prop 8, which was awesome, but then I spent the rest of the day catching up on lost sleep.

To make up for it, today I am giving you all our first guest post, courtesy of my lovely girlfriend. It’s about a case that has not received as much media attention, but has important repercussions. And it is, in its own way, international, since it deals with relations between the U.S. government and Native American nations.

For more from Christina, check out her blog at

Tuesday, the Supreme Court ruled on Adoptive Couple v. Baby Girl, a case briefly discussed in the mainstream media for the arguable reason that custody cases tug at our collective heartstrings. But this is more than a custody battle. Within the custody battle is a statute: The Indian Child Welfare Act (ICWA). And, like all statutes, its interpretation carries great importance – in this case, the fate of Baby Girl.

Relevant Statute

The Indian Child Welfare Act (ICWA) of 1978 was enacted to curtail child welfare practice that separated Indian children from their tribes and put them in non-Indian homes. It says that a parent’s rights cannot be involuntarily terminated without a “heightened showing that serious harm to the Indian child” will result from the “continued custody” of the child. 25 USC §1912(f).


Here, the Birth Mother and the Biological Father (Bio Dad) separated while she was pregnant (she would not get married), Bio Dad agreed to relinquish his parental rights via text message when Birth Mother asked him to pay child support or give up his rights. He provided no financial support during the pregnancy. Baby Girl was placed with Adoptive Couple (Couple) from South Carolina through a private agency. They supported the Birth Mother through her pregnancy and, once Baby Girl was placed with them, they served Bio Dad with adoption papers four months later. He signed the papers, but admitted he thought he was relinquishing rights to Birth Mother, not the Couple. The next day, he contacted a lawyer, saying he did not consent to Baby Girl’s adoption. The South Carolina Family Court awarded custody to Bio Dad and Baby Girl was placed back with him, at 27 months. They had never met before. The State Supreme Court affirmed this ruling, holding that Bio Dad met the definition of “parent” under ICWA, that § 1912(d) and (f) barred the termination of his parental rights and that if his rights had been terminated, the adoption-placement preference would applied.

Holding (Justice Alito)

Bio Dad is a “parent” under the ICWA but §1912(f) and (d) do not bar the termination of his parental rights. The Court looks to the strict language of the state, arguing that “continued custody” implies that there was a pre-existing state of custody, which Bio Dad did not have here. Therefore, §1912(f) does not apply. The Court looks to why the ICWA was enacted – to prevent unwarranted removal of Indian children from their families. They say this is not the case here. The “breakup of the Indian family” discussed in §1902 refers to a discontinued relationship that is not applicable here either ‑ Bio Dad ended his relationship with the Birth Mother during her pregnancy. He did not seek to adopt Baby Girl and neither did other members of the Cherokee Nation. Alito writes, “As the State Supreme Court read [the statute], a biological Indian father could abandon his child in utero and refuse any support for the birth mother – perhaps contributing to the mother’s decision to put up the child for adoption – and then play his ICWA trump card at the eleventh hour to override the mother’s decision and the child’s best interests.”

Concurring (Justice Thomas)

Constitutional avoidance, he writes, supports the majority’s outcome. He claims, however, that the issue is whether the Constitution grants Congress the power to override state custody law whenever an Indian is involved. Congress may regulate commerce under the Indian Commerce Clause, which only applies to commercial interactions. To apply the ICWA to the child custody proceedings would be unconstitutional.


Alito’s majority claims that the dissent’s “torrent of words” attempts to “obscure the fact that its interpretation simply cannot be squared with the statutory text.” Scalia’s dissent argues that the Court demeans the rights of parenthood.

Sotamyor’s dissent touches on the difficulties involved in reading the ICWA. She writes that the majority is not willing to accept the consequences their holding will have beyond the specific facts presented in this case. Instead, they dissect one phrase from the statute and argue around it, incorrectly understanding the intent of the Act whilst doing so. Just because this father may have terminated his parental rights and expressed his unwillingness to pay child support, does not mean that all Indian parents who find themselves at the mercy of this ICWA reading will. The majority’s reading transforms the ICWA into “an illogical piecemeal scheme.”

So instead, Sotamayor looks to the entire text holistically in order to clarify the ambiguities and the avoidance that the majority so heavily relies on. She argues that under the statute Bio Dad is a “parent” whose “parent-child relationship” is subject to the ICWA protections. She notes that nothing in the text indicates that the blood relationship, which is not contest here, should be excluded from “familial relationships” which ICWA aims to protect. She cites language from Congress regarding the intent of the statute that “there is no resource more vital to the continued existence and integrity of Indian tribes than their children” §1901(3). This issue is not just hypothetical – NPR’s spring feature on the ICWA illuminated instances in which the statute had been ignored. The statute and its protection are central to Indian health and welfare issues today.

What does this all mean?

The majority cites the intent of the statute as one of the reasons they have reversed and remanded the South Carolina Supreme Court’s opinion. However, they are reading the intent as that of a custody case, saying that the ICWA is de and not looking to the intent which asks the State to help keep Indian families together. We have a history of wrongly deciding what is in the best interest of Indian families, and that may be what we are doing again here. They focus on the strict definition of “custodial” parent rights, saying that the Bureau of Indian Affairs (BIA) intended to only protect a custodial parent’s rights.  

Interpretation that relies on strict meaning of the statute allows a narrow focus that can damn even the actual intent of the statute. As Breyer writes in his concurring opinion, sure the statute does not directly explain how to “treat an absentee Indian father who had next-to-no involvement with his child in the first few months of her life.” But would we expect it to? And in its absence (the avoidance that the opinion cites), there is nothing to protect parental rights in a situation such as this.

Reference to the “ICWA trump card” harkens back to Scalia’s discussion of non-white racial entitlement because God forbid we ever give a historically disenfranchised class some sort of legal protection. Sotomayor intimates this with dismay, writing that the majority makes “analytically unnecessary references to the fact that Baby Girl is 3/256 Cherokee,” as if, for some reason, she does not really fall under the ICWA.  The facts presented here are tricky, even more so because they involve a young child. But as Sotamayor writes in her dissent, this decision has implications far beyond this specific case.

These implications can be easy to ignore when you look at the facts which are those of a child being shuffled from home to home. The media (see Doctor Phil’s coverage of the case which was later slammed by native media outlets) has embraced the emotional nature of the case and managed to portray Baby Girl  as a case about “Who is the right parent?” rather than a look to the enforcement and future of an important statute for Indian health and welfare. Any student of the law will tell you the facts are important. But let’s not forget the law, too.

“Even happy families do not always fit the custodial-parent mold for which the majority would reserve ICWA’s substantive protections; unhappy families all too often do not. They are families nonetheless.” – Justice Sotomayor’s dissent

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