New Law Review Article on “Baby Veronica” case and the Indian Child Welfare Act

Indian Child Welfare Act — Termination of Parental Rights —Adoptive Couple v. Baby Girl  127 Harvard Law Review 368 (November 2013)

In the decades leading up to 1978, large numbers of Indian families were broken up through forced adoption or foster-care placement of Indian children, usually in non-Indian homes.1 To stem this “wholesale removal of Indian children,”2 Congress enacted the Indian Child Welfare Act of 19783 (ICWA), which sets rigorous standards to govern state court custody proceedings involving Indian children. Last Term, in Adoptive Couple v. Baby Girl,4 the Supreme Court held that provisions of the ICWA heightening requirements for termination of an Indian’s parental rights did not apply where the parent had never known or had custody of his child.5 More than a mere inquiry into Indian exceptionalism, the case tests the contours of parental rights, asking whether natural parents or custodial families should most warrant judicial protection. In so doing, Adoptive Couple both sustains the Court’s consistent if fragile protection of affective parenthood and suggests the interminability of the debate over biology versus care.

Read the full Harvard Law Review article.