United States Supreme Court

Can Indian Country withstand the new Supreme Court?

On Nov. 9, the eyes of Indian Country will once again turn toward the nation’s capital, where the Supreme Court will hear a challenge to the Indian Child Welfare Act (ICWA), a law passed in 1978 that enshrines tribal governments’ right to oversee foster care placements in cases involving Native children.

Read the full article at the High Country News website.

Advocates worry federal law protecting Native adoptees could be overturned by Supreme Court

For the last 44 years, a federal law called the Indian Child Welfare Act (ICWA) has sought to prevent these situations by prioritizing that Native children adoptees be placed, when possible, with Native relatives or other members within the child’s tribe.

But after months of consequential rulings by the U.S. Supreme Court’s right-wing majority, four cases teed up for hearings by the court this fall are prompting worries that ICWA, too, could be toppled or drastically altered.

Read the full article in Michigan Advance.

ICWA case denied at U.S. Supreme Court: R.K.B. et al., v. E.T.

On March 26, 2018, the U.S. Supreme Court declined to hear this case:

R.K.B. et al., v. E.T.
Briefs and Pleadings
Docket No. 17-942

Question Presented: The Indian Child Welfare Act of 1978, 25 U.S.C. 1901–1963, applies to state custody proceedings involving an Indian child. State courts of last resort are divided on the following critical question, a question that likely affects thousands of adoption proceedings each year, and on which this court granted certiorari but did not reach in Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2560 (2013): Does the Indian Child Welfare Act define “parent” in 25 U.S.C. 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent?

History: Petition was filed on 12/29/17. Petition was denied on 3/26/17.

Ruling below: In the Matter of the Adoption of B.B. 2017 WL 3821741 Supreme Court of Utah. The Supreme Court, Himonas, J., held that: 1) birth father was a parent under the Indian Child Welfare Act (ICWA) and had right to notice and to intervene in the adoption proceedings; 2) birth father had custody of child under the ICWA; 3) adoption proceedings were involuntary, not voluntary, as to birth father; and in an opinion by Lee, Associate C.J., 4) trial court’s order accepting birth mother’s consent to child’s adoption under the ICWA and terminating her parental rights was not properly presented to the Supreme Court for review; and 5) any defect in the timing of birth mother’s consent to adoption of child did not deprive trial court of subject-matter jurisdiction. Reversed and remanded.

New Indian Child Welfare Act Challenges On The Horizon

Two types of challenges to the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq., now feature prominently: equal protection challenges and challenges based on the “intrafamily dispute” exception to ICWA. A petition for a writ of certiorari to decide both issues is currently pending in one such case: S.S. v. Stephanie H. S.S. notwithstanding, tribal attorneys and ICWA practitioners must now be prepared to address both types of challenges in the near future.

Read the full article at the JD Supra website.

R.K.B. et al., v. E.T. (Case Petitioned to the U.S. Supreme Court on 12/29/17.)

Briefs and Pleadings
Docket No. 17-942

Question Presented: The Indian Child Welfare Act of 1978, 25 U.S.C. 1901–1963, applies to state custody proceedings involving an Indian child. State courts of last resort are divided on the following critical question, a question that likely affects thousands of adoption proceedings each year, and on which this court granted certiorari but did not reach in Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2560 (2013): Does the Indian Child Welfare Act define “parent” in 25 U.S.C. 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent?

History: Petition was filed on 12/29/17.

Ruling below: In the Matter of the Adoption of B.B. 2017 WL 3821741 Supreme Court of Utah. The Supreme Court, Himonas, J., held that: 1) birth father was a parent under the Indian Child Welfare Act (ICWA) and had right to notice and to intervene in the adoption proceedings; 2) birth father had custody of child under the ICWA; 3) adoption proceedings were involuntary, not voluntary, as to birth father; and in an opinion by Lee, Associate C.J., 4) trial court’s order accepting birth mother’s consent to child’s adoption under the ICWA and terminating her parental rights was not properly presented to the Supreme Court for review; and 5) any defect in the timing of birth mother’s consent to adoption of child did not deprive trial court of subject-matter jurisdiction. Reversed and remanded.