Supreme Court

Supreme Court Won’t Take up Race-Based Challenge to Indian Child Welfare Act

Without comment, the U.S. Supreme Court denied a petition in S.S. v. Colorado River Indian Tribes. The action, which came in an order list on Monday morning, lets stand a decision from Arizona, where opponents of ICWA tried to undermine the landmark law by claiming it is based on “race.” The Arizona Court of Appeals rejected that contention in a January 12 decision. And the Colorado River Indian Tribes, whose attorneys participated in the case to protect two children who have been involved in a custody dispute, noted that the “race” issue has long been settled.

Read the full article at the website.

Read related coverage from the Navajo Hopi Observer website, the Havasu News-Herald website and the Cronkite News website at AZ PBS.

Case petitioned to U.S. Supreme Court: R.P. v. LA County Department of Children and Family Services

R.P. v. LA County Department of Children and Family Services
U.S. Supreme Court Briefs and Pleadings
Docket No. 16-500

Question Presented: The questions presented are: (1) Whether ICWA applies where the child has not been removed from an Indian family or community. (2) Whether ICWA’s adoptive placement preferences, 25 U.S.C.1915(a), require removal from a foster placement made under 1915(b), for the purpose of triggering the adoptive placement preferences contained in 1915(a). (3) Whether the state courts erred in holding that “good cause” to depart from ICWA’s placement preferences must be proved by “clear and convincing evidence” – contrary to the text and structure of the state and the decision of at least one other state court of last resort – or otherwise erred in their interpretation of “good cause.”

History: Petition was filed on 10/07/2016.

Rulings Below: In re Alexandria P., Court of Appeal, Second Dist., Div. 5, California 1 Cal.App.5th 331. The Court of Appeal, Kriegler, J., held that:
1) trial court did not exceed scope of remand or disregard law of the case by considering impact on child’s cultural identity if she were to remain foster parents;
2) good cause to depart from ICWA’s placement preferences did not exist as a matter of law;
3) substantial evidence supported finding that there was no good cause to depart from ICWA’s placement preferences;
4) any error in excluding full report prepared by bonding and attachment expert was harmless;
5) trial court did not abuse its discretion in considering social worker’s report without allowing foster parents to cross-examine him; and
6) trial court did not abuse its discretion by denying foster parents’ request to present additional evidence or testimony.

A Guide to the Supreme Court Decision in “Adoptive Couple v. Baby Girl” (NICWA, AAIA)

The United States Supreme Court recently issued its opinion in the case of Adoptive Couple v. Baby Girl. This document is designed to:
  • Summarize the decision — what the case held about the Indian Child Welfare Act (ICWA), what it did not hold, and what it implied.
  • Provide advocates for tribes, birth parents (particularly unwed fathers) and Indian children with possible responses to the decision, including:
    • Legal arguments to address issues raised by the Court’s legal holding.
    • Analysis of the potential for state law (primarily through state ICWAs or the equivalent) to address the issues raised by the United States Supreme Court decision, and minimize its negative impact upon tribes and Indian families and children.
    • Information about tribal-state ICWA agreements and the role of such agreements in mitigating the effects of the Court’s decision.

See the full legal analysis document at the Turtle Talk website.

Challenge to child’s adoption fails (Supreme Court, “Baby Veronica”)

The Supreme Court, over the dissents of two Justices, cleared the way Friday afternoon for a South Carolina couple to adopt the child known publicly as “Baby Veronica.”  In a three-sentence order, the full Court turned aside — without an explanation — the plea by the birth father to delay a state court ruling permitting the transfer of the child from him; he is a member of the Cherokee Nation.

The order is available from the link above. Read more at SCOTUS blog.

Opinion: Baby Veronica Belongs With Her Adoptive Parents

On July 12, 2013, Christy Maldonado, the birth mother in the Supreme Court case, Adoptive Couple v. Baby Girl, told her side of the story in the Washington Post.

In the summer of 2009, I made the most difficult decision of my life: to place my baby, Veronica Rose, with adoptive parents. Many know her as “Baby Girl” or “Baby Veronica” because her adoptive parents and I fought all the way to the Supreme Court for Veronica’s right to be treated like a human being — not property owned by a Native American tribe.

Read the opinion piece at the Washington Post website.

Read a response to Ms. Maldonado’s piece at  Baby Veronica’s Birth Mother Finally Speaks Out About Court Case (Indian Country Today, 7/15)

Latest News Coverage of Recent Supreme Court Decision in “Adoptive Couple v. Baby Girl”

Supreme Court Thwarts ICWA Intent in Baby Veronica Case (Indian Country Today) 6/25/2013

US Supreme Court Case Reignites Discussion Over Welfare of American Indian Children (Washington Post) 6/26/2013

Happy Ruling for Adoptive Couple, Uncertainty for Baby Girl (NPR) 6/26/2013

The Court Got Baby Veronica Wrong ( 6/26/2013

Ruling on Adopted Indian Kids Threatens Tribes, Some Say (USA Today) 6/26/2013

Maine AG Dismayed Over High Court’s Decision in Indian Custody Case (Bangor Daily News) 6/28/2013


News Stories on the “Adoptive Couple v. Baby Girl” Decision from the U.S. Supreme Court

A split decision on ‘Baby Veronica’ court battle (Tulsa World) 6/26/13.

Supreme Court Strikes a Hard Blow to Tribal Sovereignty in Adoption Case (Common Dreams) 6/26/13.

Supreme Court says Native American child doesn’t have to be given to biological father (Washington Post) 6/25/13.

Justices Rule in Favor of Adoption of Indian Child (NY Times) 6/25/13.

U.S. Supreme Court issues decision in Adoptive Couple v. Baby Girl (NARF Blog) 6/25/13.

Court: Child isn’t required to go to Indian father. (Anchorage Daily News) 6/25/13.

Cherokee Chief: Baby girl should remain with biological father ( 6/25/13.

Supreme Court Rules 5-4 In Favor of Capobiancos in Baby Veronica Case (Indian Country Today) 6/25/13.

Collection of Reactions on Baby Girl Case (Turtle Talk Blog) 6/25/13.

Read more here:


U.S. Supreme Court Reverses and Remands Adoptive Couple v. Baby Girl to S.C. Supreme Court

Find the opinion here. Commentary will be published soon on the blog.

The syllabus from the ruling:
“The Indian Child Welfare Act of 1978 (ICWA), which establishes federal standards for state-court child custody proceedings involving Indian children, was enacted to address “the consequences . . . of abusive child welfare practices that [separated] Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes,” Mississippi Band of Choctaw Indians v. Holyfield, 490 U. S. 30, 32. As relevant here, the ICWA bars involuntary termination of a parent’s rights in the absence of a heightened showing that serious harm to the Indian child is likely to result from the parent’s “continued custody” of the child, 25 U. S. C. §1912(f);conditions involuntary termination of parental rights with respect toan Indian child on a showing that remedial efforts have been made toprevent the “breakup of the Indian family,” §1912(d); and provides placement preferences for the adoption of Indian children to membersof the child’s extended family, other members of the Indian child’s tribe, and other Indian families, §1915(a). While Birth Mother was pregnant with Biological Father’s child, their relationship ended and Biological Father (a member of the Cherokee Nation) agreed to relinquish his parental rights. Birth Mother put Baby Girl up for adoption through a private adoptionagency and selected Adoptive Couple, non-Indians living in South Carolina. For the duration of the pregnancy and the first four months after Baby Girl’s birth, Biological Father provided no financial assistance to Birth Mother or Baby Girl. About four months after Baby Girl’s birth, Adoptive Couple served Biological Father with notice of the pending adoption. In the adoption proceedings, Biological Father sought custody and stated that he did not consent to the adoption.
Following a trial, which took place when Baby Girl was two years old, the South Carolina Family Court denied Adoptive Couple’sadoption petition and awarded custody to Biological Father. At the age of 27 months, Baby Girl was handed over to Biological Father, whom she had never met. The State Supreme Court affirmed, concluding that the ICWA applied because the child custody proceeding related to an Indian child; that Biological Father was a “parent” under the ICWA; that §§1912(d) and (f) barred the termination of his parental rights; and that had his rights been terminated, §1915(a)’sadoption-placement preferences would have applied.
1. Assuming for the sake of argument that Biological Father is a“parent” under the ICWA, neither §1912(f) nor §1912(d) bars the termination of his parental rights. Pp. 6–14.
(a) Section 1912(f) conditions the involuntary termination of parental
rights on a heightened showing regarding the merits of the parent’s “continued custody of the child.” The adjective “continued” plainly refers to a pre-existing state under ordinary dictionary definitions.
The phrase “continued custody” thus refers to custody that a parent already has (or at least had at some point in the past). As a result, §1912(f) does not apply where the Indian parent never had custody of the Indian child. This reading comports with the statutory text, which demonstrates that the ICWA was designed primarily to counteract the unwarranted removal of Indian children from Indian families. See §1901(4). But the ICWA’s primary goal is not implicated
when an Indian child’s adoption is voluntarily and lawfully initiated
by a non-Indian parent with sole custodial rights. Nonbinding guidelines issued by the Bureau of Indian Affairs (BIA) demonstrate that the BIA envisioned that §1912(f)’s standard would apply only to termination of a custodial parent’s rights. Under this reading, Biological
Father should not have been able to invoke §1912(f) in this case because he had never had legal or physical custody of Baby Girl as of the time of the adoption proceedings. Pp. 7–11. (b) Section §1912(d) conditions an involuntary termination of parental rights with respect to an Indian child on a showing “that active efforts have been made to provide remedial services . . . designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.” Consistent with this text, §1912(d) applies only when an Indian family’s “breakup” would be precipitated by terminating parental rights. The term “breakup” refers in this context to“[t]he discontinuance of a relationship,” American Heritage Dictionary 235 (3d ed. 1992), or “an ending as an effective entity,” Webster’s Third New International Dictionary 273 (1961). But when an Indian parent abandons an Indian child prior to birth and that child hasnever been in the Indian parent’s legal or physical custody, there is Cite as: 570 U. S. ____ (2013) no “relationship” to be “discontinu[ed]” and no “effective entity” to be“end[ed]” by terminating the Indian parent’s rights. In such a situation,
the “breakup of the Indian family” has long since occurred, and§1912(d) is inapplicable. This interpretation is consistent with the explicit congressional purpose of setting certain “standards for the removal of Indian children from their families,” §1902, and with BIA Guidelines. Section 1912(d)’s proximity to §§1912(e) and (f), which both condition the outcome of proceedings on the merits of an Indian child’s “continued custody” with his parent, strongly suggests that the phrase “breakup of the Indian family” should be read in harmony with the “continued custody” requirement. Pp. 11–14.
2. Section 1915(a)’s adoption-placement preferences are inapplicable in cases where no alternative party has formally sought to adopt the child. No party other than Adoptive Couple sought to adopt Baby Girl in the Family Court or the South Carolina Supreme Court. Biological Father is not covered by §1915(a) because he did not seek toadopt Baby Girl; instead, he argued that his parental rights should not be terminated in the first place. And custody was never sought by Baby Girl’s paternal grandparents, other members of the Cherokee Nation, or other Indian families. Pp. 14–16. 398 S. C. 625, 731 S. E. 2d 550, reversed and remanded.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and BREYER, JJ., joined. THOMAS, J., and BREYER, J., filed concurring opinions. SCALIA, J., filed a dissenting opinion. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG and KAGAN, JJ., joined, and in which SCALIA, J., joined in part.”

The Fight for Baby Veronica, A Multi-Part Series (Indian Country Today)

The Baby Veronica Case, recently argued before the U.S. Supreme Court, is one of the most important Indian legal battles of the last generation. It is the story of Dusten Brown, a member of the Cherokee Nation, who has invoked the Indian Child Welfare Act to prevent Christina Maldonado, the non-Indian mother of his baby daughter, Veronica, from putting their child up for adoption by Matt and Melanie Capobianco of South Carolina.

That bare outline does not begin to describe the convoluted dimensions of the case formally known as Adoptive Couple v. Baby Girl. Its drama includes an unplanned pregnancy, a broken engagement, charges of bad faith, an adoption agency that did not comply with federal Indian law, a couple who fought to adopt a child who was never legally eligible, and even the intervention of the Cherokee Nation

Read more at the Indian Country Today website:
The Fight for Baby Veronica, Part1 (May 6, 2013)
The Fight for Baby Veronica, Part 2 (May 13, 2013)
The Fight for Baby Veronica, Part 3 (June 4, 2013)
The Fight for Baby Veronica, Part 4 (June 12, 2013)
The Fight for Baby Veronica, Part 5 (June 17, 2013)

Indian Country Today Media

“Adoptive Couple v. Baby Girl:” Two-and-a-Half Ways To Destroy Indian Law (Michigan Law Review)

The constitutionality of ICWA is based on two propositions: First, these special laws for Indians are not race based. And second, Congress has the authority to issue special laws with regard to Indian people and tribes. If the Baby Girl Court rejected either of these positions, not only would ICWA be unconstitutional, most of Indian law would fall as well.

Read the full article by Marcia Zug at the Michigan Law Review website.

Continuing Media Coverage of “Baby Veronica” Case

High-Profile Custody Case
New York Times
To the Editor: Re (editorial, April 16): Your editorial about the case now before the United States Supreme Court says the child should be returned by the biological father, Dusten Brown, to her putat…

Baby Veronica and the Law of Race
Indian Country Today Media Network
Upon reading my first column on the Baby Veronica oral argument, a policy wonk friend of mine wrote, “This is not about race. It is about treachery.” She could be right. If you searched the Cherokee N…

April 23, 2013 Petition for Cert Filed in “Nebraska v. Elise M. ” (12-1278)

Supreme Court BuildingOn April 23, 2013, petition for certiorari was filed with the Supreme Court for Nebraska v. Elise M., a Nebraska case that looks at:

(1) Whether ICWA prohibits a state court from considering the ’best interests of the child”  when determining whether “good cause” exists to deny the transfer of an ongoing child welfare case.
(2) Whether ICWA requires a state court to treat a motion to terminate parental rights as a “new proceeding” for purposes of determining whether “good cause” exists to deny the transfer of an ongoing child welfare case

Learn more  at the National Indian Law Library Supreme Court Bulletin and the Tribal Supreme Court Project.

Media Coverage of the Supreme Court Hearing in “Adoptive Couple v. Baby Girl”

SCOTUS to rule in Baby Veronica case by midsummer
Live 5 WCSC  2013/04/16
WASHINGTON, DC (WCSC)- After listening to an hour and a half of oral arguments, Supreme Court justices officially submitted Baby Veronica custody case hearing at the national level. Now it’s a waiting game …

Adoption Case Brings Rare Family Law Dispute To Supreme Court
Take the usual agony of an adoption dispute. Add in the disgraceful U.S. history of ripping Indian children from their Native American families. Mix in a dose of initial fatherly abandonment. And ther…

Supreme Court Takes on ICWA
Indian Country Today Media Network
JUSTICE SCALIA: Your — your argument assumes that the phrase in the statute “to prevent the breakup of the Indian family” only applies where -where the father has custody. I don’t — I don’t know why…

Justices Hear Case of Adopted Indian Child
New York Times
WASHINGTON A Supreme Court argument on Tuesday over the fate of a 3-year-old girl operated on three levels: as a wrenching adoption dispute, as a technical parsing of a complex federal law meant to pr…

Supreme Court conflicted about what law dictates for Baby Veronica
Washington Post
Supreme Court justices appeared deeply conflicted Tuesday as they considered the fate of Baby Veronica, whose adoptive parents were ordered to return her to the Native American father who once gave up…

Supreme Court hears custody dispute over adopted girl
Los Angeles Times (CA)
April 17–WASHINGTON — The Supreme Court was asked Tuesday to decide who should raise a 3 1/2-year-old girl who was given up by her single mother: the South Carolina couple who adopted her at birth o…

Second Read-Through of Baby Veronica Transcript (Turtle Talk)

This second read-through, by Matthew Fletcher and Kate Fort, incorporates a broader analysis of how the argument went on the merits.  Specifically, it addresses: Best Interests of the Child, Interpretation of Sections 1912(d) and (f), Assorted Weirdness — Chief Justice Roberts Edition, Assorted Weirdness — Adoptive Parents as Victim.Turtle Talk logo

Due Diligence Radio Program about “Adoptive Couple v. Baby Girl”

On The Voice of Russia, American Edition, radio station, the Due Diligence show interviewed three attorneys about the Adoptive Couple v. Baby Girl case.  Interviews included:

  • Phillip J. McCarthy, who represents the American Academy of Adoption Attorneys and wrote an amicus brief supporting the adoptive couple,
  • Lori Alvino McGill, a constitutional attorney for Latham & Watkins LLP who wrote an amicus brief, and
  • Robert Clinton, the foundation professor of law at Sandra Day O’Connor College of Law at Arizona State University.

Listen to all three interviews at the program’s website.

Commentary on “Adoptive Couple v. Baby Girl” in Michigan Law Review

The Michigan Law Review just published an opinion piece: Adoptive Couple v. Baby Girl: Two-and-a-Half Ways To Destroy Indian Law.

Article excerpt: “In December 2011, Judge Malphrus of the South Carolina family court ordered Matt and Melanie Capobianco to relinquish custody of Veronica, their two-year-old, adopted daughter, to her biological father, Dusten Brown. A federal statute known as the Indian Child Welfare Act (“ICWA”) mandated Veronica’s return.  However, the court’s decision to return Veronica pursuant to this law incited national outrage and strident calls for the Act’s repeal….”
Read the article on the Michigan Law Review website.
See other related articles on the Turtle Talk blog.

Supreme Court Transcript Now Available

Cover of Supreme Court Transcript

A transcript for today’s oral argument in Adoptive Parents v. Baby Girl can be found here.  Audio recordings of oral arguments heard by the U.S. Supreme Court are made available to the public at the end of each argument week. If you are interested in learning more about the case or reading briefs that were filed by both sides, click here.

April 15, 2013: Teleconference on ICWA Supreme Court Case

Supreme Court BuildingThe Tribal Supreme Court Project – the Native American Rights Fund (NARF) and the National Congress of American Indians (NCAI) – along with the National Indian Child Welfare Association (NICWA), will host a national teleconference and briefing to review the arguments before the U.S. Supreme Court in Adoptive Couple v. Baby Girl.

During the call, participants will hear from a variety of individuals, legal experts, and leaders regarding the case before the Supreme Court on Tuesday, April 16, 2013.

 To call in to this operated assisted call dial (877) 856-2376

Click here to RSVP in advance.

 Schedule of Call

  • Introductory Statements by Tribal Supreme Court Project – NARF & NCAI – and NICWA
  • Statement by Chief Bill John Baker of the Cherokee Nation
  • Statements by John Nichols & Shannon Jones – Legal Representation for Brown Family
  • Statements by Amicus Briefs in Support
    • Casey Family Programs Brief – Martin Guggenheim
    • Adult Adoptees Brief – Diane Tells His Name
    • History of ICWA – Terry Cross, National Indian Child Welfare Association
  • Question & Answer Session for Media

Casey Family Programs Press Release on “Adoptive Couple v. Baby Girl”

Casey Family Programs logoCasey Family Programs releases a press release on Adoptive Couple v. Baby Girl case before the U.S. Supreme Court:

SEATTLE – Casey Family Programs with the support of 17 other national child welfare organizations has filed an amicus brief with the U.S. Supreme Court in support of the Indian Child Welfare Act (ICWA).  The case of Adoptive Couple v. Baby Girl, now before the Supreme Court, calls into question the constitutionality of the Indian Child Welfare Act.

The coalition of philanthropic and nonprofit organizations represents decades of frontline experience working to improve the lives of vulnerable children and their families. The group supports ICWA because it has helped establish the values and practices that have become central to effective child welfare practice. In particular, this law reinforces the important role that families and communities play when determining the best interests of children in their care.

See the entire press release.

Indian Affairs, Adoption, and Race: The Baby Veronica Case Comes to Washington (The Atlantic)

The United States Supreme Court next Tuesday hears argument in a head-spinning case that blends the rank bigotry of the nation’s past with the glib sophistry of the country’s present. The case is about a little girl and a Screenshot from The AtlanticNation, a family and a People. The question at the center of it has been asked (and answered) over and over again on this blessed continent for the past 400 years: Is the law of the land going to preclude or permit yet another attempt to take something precious away from an Indian?

See the entire article.

U.S. Supreme Court hears “Baby Veronica” case next week

U.S. Supreme Court hears “Baby Veronica” case next week.
16 months ago, a South Carolina court ordered the adoptive parents of a child known to many as “Baby Veronica” to give her to her biological father who lives in Bartlesville.
Since then, this case has been tied up in the courts.. read more.

NARF, NCAI, and NICWA coordinate filing of amicus (friends of the court) briefs in “Adoptive Couple v. Baby Girl”

US SupremeCourtBackground: Adoptive Couple v. Baby Girl is a case in which the South Carolina Supreme Court held that a Native American (Indian) child could not be adopted by non-Indian parents without complying with the requirements of the Indian Child Welfare Act (ICWA). The court ordered the child returned to her biological father after she had lived with her adoptive parents from birth until 2 years of age.

In 2009, a couple from South Carolina sought to adopt an Indian child from her non-Indian single mother in Oklahoma. The biological father contested the adoption on the grounds that he was not properly notified in accordance with ICWA, and won his cases in trial court and on appeal with the state supreme court. The case has received extensive coverage in the national media, and spurred calls for Congress to review and make amendments to the 1978 law.

On October 1, 2012, the adoptive couple petitioned the United States Supreme Court to review the case. On January 4, 2013, the court granted certiorari and will hear the case on April 16, 2013.


For Immediate Release
March 29, 2013

Media Contacts:
Thom Wallace – National Congress of American Indians
O (202) 466-7767 ext. 207
C (202) 754-0466

Nicole Adams – National Indian Child Welfare Association
O (503) 222-4044 ext. 133
C (503)754-0466

Adoptive Couple v. Baby Girl

Amicus Briefs in Support of Brown Family Include U.S. Solicitor General, 19 States, and Broad Coalition of Supporters

Twenty-Four Briefs Call for Brown Family—Daughter, Veronica, and
Father, Dusten—to Remain Together and
Indian Child Welfare Act to Remain Intact

Brown Family, Who Have Prevailed in Every Court So Far, Will Have
Fate Decided by the Supreme Court in a Case to be Heard on April 16th

Washington, DC—The United States federal government and 19 states are among a broad coalition who filed amicus briefs yesterday with the United States Supreme Court supporting the rights of Native American father Dusten Brown and his daughter, Veronica, to remain together as a family, calling for the nation’s highest court to uphold a previous South Carolina Supreme Court decision. The well-being of Veronica, the Brown family, and the importance of the Indian Child Welfare Act (ICWA) is a focus of all the briefs.

The case Adoptive Couple v. Baby Girl, to be heard by the Supreme Court on April 16, 2013, involves a South Carolina couple seeking review of a South Carolina Supreme Court ruling and attempting to force Dusten Brown, a member of the Cherokee Nation, to give his daughter Veronica up for adoption. Mr. Brown, who is now raising Veronica at their home in Oklahoma, has prevailed in every court that has considered this matter, including the South Carolina Family Court and the South Carolina Supreme Court.

Joining the U.S. Solicitor General Donald Verrilli and 19 states, including 18 state attorneys general, are a large array of groups who submitted 24 separate briefs in all. The overwhelming support includes 17 former and current members of Congress; Casey Family Programs, the Children’s Defense Fund, and 16 other child welfare organizations; the American Civil Liberties Union; broad coalitions of psychology associations, child advocates, and legal experts; adult Native American adoptees; and tribal amicus briefs which include 333 American Indian tribes.

“The broad base of support in this case is historic. In the history of the work of the Tribal Supreme Court Project, no Indian law case has generated more of a unified message to the Supreme Court about Indian law,” said Richard Guest, staff attorney for the Native American Rights Fund (NARF), noting the outpouring of interest and support for Veronica, the Brown family, and ICWA.

Many of the briefs highlight the findings of the South Carolina Family Court, which found that “the birth father is a fit and proper person to have custody of his child” who “has convinced [the Court] of his unwavering love for this child,” and were upheld by the South Carolina Supreme Court.

The amicus brief of the United States federal government emphasized the importance of ICWA, stating that “the United States has a substantial interest in the case because Congress enacted ICWA in furtherance of ‘the special relationship between the United States and the Indian tribes and their members and the Federal responsibility to Indian people.'” The brief further defends the constitutionality of ICWA, arguing that “ICWA, which is predicated on Congress’s considered judgment that application of its protections serves the best interests of Indian children and protects vital interests of their parents and Tribes, does not violate any substantive due process protections.” It concludes that “[t]he South Carolina courts properly awarded custody of Baby Girl to Father.”

In the brief of leading national child welfare organizations, the best interest of the child is highlighted, in addition to the value of ICWA.

No one understands the human toll custody disputes can take more than amici, 18 child welfare organizations who have dedicated literally scores of years to the on-the-ground development and implementation of best practices and policies for child placement decision making. Amici have seen up close what works, and what does not. In amici’s collective judgment, ICWA works very well and, in fact, is a model for child welfare and placement decision making that should be extended to all children. Much forward progress in the child welfare area would be damaged by rolling the law back.

A brief from Arizona Attorney General Tom Horne was joined by attorneys general from 17 other states—Alaska, California, Colorado, Connecticut, Georgia, Idaho, Illinois, Maine, Michigan, Mississippi, Montana, New Mexico, New York, North Dakota, Oregon, Washington, and Wisconsin— and argued against interference in the relationship between states and tribes in matters regarding ICWA, asserting, “States and tribes have collaborated to ensure that the mandates and spirit of ICWA are fulfilled…. Early and complete compliance with ICWA ensures the security and stability of adoptive families as well as tribes and Indian families.” The State of Minnesota Department of Human Services also filed a brief.

Not one state submitted briefs in support of Adoptive Couple.

“This brief includes nine Republican and nine Democrat attorneys general,” said John Dossett, National Congress of American Indians (NCAI) general counsel. “Party affiliation does not matter. The federal trust responsibility is a nonpartisan commitment, which includes support for the rights of American Indian families and tribal governments to protect their Indian children—and in this case, for a loving father to be with his daughter and for her to be with her family.”

Seventeen current and former members of Congress also reflected this bipartisan support, noting in their brief the circumstances that led to the enactment of ICWA in 1978, as well as asserting Congress’s exclusive power to legislate with respect to Indian tribes. It stated:

In 1978, Congress enacted ICWA in direct response to state adoption policies that were draining Indian tribes of their future citizens. Such practices threatened the very existence of Indian tribes. Without children to grow up as their citizens, tribes would be left with no one to speak their language, carry on their traditions and culture, or participate in their tribal governments…. Ultimately, any decision limiting Congress’s authority to pass legislation like ICWA…would effectively preclude Congress from exercising its plenary authority in Indian affairs, and render Congress unable to fulfill its historic duties as trustee to the Indian tribes.

Terry Cross, executive director of the National Indian Child Welfare Association (NICWA), commended former Senator James Abourezk for taking the lead on the brief, stating, “Senator Abourezk sponsored the bill that became ICWA because he recognized that the widespread removal of Indian children from their homes was a continuation of forced assimilation practices that had no place in our society. His leadership today sends an unmistakable message that there is unified support in defending his law from those who would return to the pre-ICWA era.”

Two national tribal amicus briefs were submitted. The first, focused on the legislative history and importance of ICWA, was submitted by the Association on American Indian Affairs, NCAI, and NICWA, who were joined by 30 Indian tribes and five Indian organizations. A second national tribal amicus brief addresses the constitutional issues raised by the petitioners and also includes 24 tribal nations and organizations. The members of the Tribal Supreme Court Project—NARF and NCAI—in partnership with NICWA, joined together to organize the briefs in support of the father. In all, 333 tribes submitted briefs in support of the father.

Oral arguments for Adoptive Couple v. Baby Girl will be held on April 16, with a decision expected shortly thereafter.

All of the briefs filed by supporters of Dusten Brown’s right to raise his daughter can be found at:

All filings for the case can be found at:

More information about the case can be found at:

Court Documents for “Adoptive Couple v. Baby Girl” (12-399)

The Tribal Supreme Court Project (a project of the Native American Rights Fund in partnership with the National Congress of American Indians) is providing copies of court documents for the Supreme Court case Adoptive Couple v. Baby Girl (12-399).   The page includes a link to the court’s docket sheet, lower court opinions and briefs, and briefs that have been filed in the US SupremeCourtcase.  The case index page is available at

DOJ submits brief in support of Cherokee father in ICWA case (

As anticipated, the Department of Justice has filed an amicus brief in Adoptive Couple v. Baby Girl, an Indian Child Welfare Act case that’s before the U.S. Supreme Court. The brief supports Dusten Brown, a member of the Cherokee Nation whose rights are at issue in the case. Government attorneys urged the Supreme Court to affirm a South Carolina decision that prevented Brown’s biological daughter from being adopted by a non-Indian couple.

Read more and access the brief at

Feb 13, 2013 Webinar: Understanding “Adoptive Parents v. Baby Girl”

Date: Wednesday, February 13, 2013
Time: 11 a.m. Pacific / 2 p.m. Eastern
Presenter: Adrian Smith, JD, MSW, NICWA government affairs associate

The U.S. Supreme Court will soon hear the case Adoptive Couple v. Baby Girl, a South Carolina adoption case involving the Indian Child Welfare Act. This high profile and emotionally charged case has garnered significant attention in the past year. Oral arguments are expected to occur in late April, and a decision announced shortly thereafter.

The National Indian Child Welfare Association will host a webinar for those interested in learning:

  • What are the background and facts of the case?
  • What are the questions before the U.S. Supreme Court?
  • What possible implications will this case have on Indian Country?
  • What is being done nationally in preparation for this hearing?

This free webinar is open to all. Register here.


Adoptive Parents vs. Tribal Rights (New York Times)

In response to the Supreme Court’s recent decision to hear Adoptive Couple v. Baby Girl, the New York Times recently featured this discussion of ICWA in its Room for Debate opinion pages.

At :

Should the adoption of American Indian children receive special consideration, or is it too focused on race? Kevin Noble Maillard, a professor of law at Syracuse University and a member of the Seminole Nation of Oklahoma, organized this discussion.

Split the Baby With an Open Adoption
Kevin Noble Maillard, law professor and author

Deciding Who Is an American Indian
Solangel Maldonado, Seton Hall Law School

Invoking Tribal Ties Isn’t Justified in This Case
Joan Hollinger, author, “Adoption Law and Practice”

What’s Best for the Child
Megan Lindsey, National Council For Adoption

The Law Provides Needed Protection
Terry Cross, National Indian Child Welfare Association

This Case Is Not About Race
Matthew L.M. Fletcher, Indigenous Law and Policy Center

Veronica’s Case Is an Anomaly
Marcia Zug, University of South Carolina School of Law