Indian Child Welfare Act

Intersections of the ICWA and Reproductive Freedom Movement

Matthew L.M. Fletcher

Here.

An article on an intersectional analysis about the Baby Veronica case from Coya White Hat-Artichoker, a Queer Native Woman who is a Social Justice & Reproductive Justice Advocate – who was also adopted.

Emily Bazelon: “Send Baby Veronica Back”

Matthew L.M. Fletcher

Here.

Pro Se ICWA Cert Petition Filed with Supreme Court

Matthew L.M. Fletcher2 Comments

The case is captioned James L. v. Devin H.

Petition here.

Docket here.

We will post the entire petition once we get it.

Questions presented:

The Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-63 applies, with two express exceptions, “In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved”. Despite that fact, many state courts of last resort, and countless state appellate courts in this country have been called upon, year after year, throughout the 35 year history of the Act, to decide a single question of Federal law. That question has involved hundreds of custody disputes to date and a significant number of Indian children each and every year. It is one of the most important questions which this Honorable Court will ever decide regarding the ICWA, and one which all Indian children, families, and tribes have needed a conclusive answer from this Court on for the past 35 years:

(1) Does the Indian Child Welfare Act apply to an involuntary child custody proceeding involving an Indian child, between biological parents and a third party non-parent?

As a separate issue, Petitioner also presents the following question:

(2) Does awarding conservatorship of a child to a third-party non-parent, over the objections of a biological parent and without a finding of parental unfitness, unconstitutionally infringe upon “the interest of parents in the care, custody and control of their children”?

Ben Shelly Op/Ed in WaPo about Baby Veronica Case

Matthew L.M. Fletcher1 Comment

Here.

Michigan COA Holds that ICWA is Inapplicable to Mackinaw Band Ottawa and Chippewa Members

Matthew L.M. Fletcher

Here is the opinion:

In re Thibeault

Oglala Sioux Tribe Supplemental Brief in Light of Adoptive Couple v. Baby Girl

Matthew L.M. Fletcher1 Comment

Here is the new pleading in Oglala Sioux Tribe v. Van Hunnik (D. S.D.):

OST13(NoticeOfSupplementalAuthority)

 

Justice Alito Partially Grants Adoptive Couple Application to Expedite Mandate

Matthew L.M. Fletcher1 Comment

The order is here. Here is SCOTUSblog’s coverage. The mandate remanding back to the South Carolina courts goes into effect July 5 (I think).

Addie Rolnick & Kim Pearson on the Baby Veronica Decision

Matthew L.M. Fletcher2 Comments

Addie Rolnick and Kim Pearson been posting extensively on the Baby Veronica case at Prawfsblawg. They’re doing a four-parter:

Here is post 1.

Here is Part 2.

Here is Part 3.

Here is Part 4.

And, inexplicably, here is Part 5 (authored solely by Kim).

Adoptive Couple Seeks Immediate SCT Mandate in Baby Vernonica Case

Matthew L.M. Fletcher

SCOTUS blog has coverage here.

Adoptive Couple’s application is here.

Dusten Brown’s opposition is here.

Baby Girl Additional Thoughts — Implications for State Indian Child Welfare Laws

Kate Fort

An important question we’ve been asked repeatedly — how does Adoptive Couple affect state laws codifying and supplementing the Indian Child Welfare Act?

State ICWA laws remain intact. This was not a decision on the constitutionality of ICWA, but rather an interpretation of ICWA’s wording. This Supreme Court defers to state law when possible. While state courts may interpret the language the same way, if it’s the same language (which it is in Michigan, for example), it’s not bound to. For example, the legislative history of a state law passed in 2012 is very different than that of the federal law passed in 1978. There may be different policy goals, or other parts of the statute are different enough to indicate a broader, and higher, standard. In addition, state statutes of general applicability, such as those addressing the rights of biological fathers to their children still apply. In some ways this ends up like the marriage equality decisions–where a person lives may determine their rights.

There is going to be more pressure on tribes to have an adoptive placement available for a child earlier. This decision may give state DHS officials the incorrect belief that they do not have to find a proper placement for the child under the law, but that rather a family must make some sort of “formal” application. What is a formal application will also likely be determined by state law, given the Court gave no indication what it meant by that in the opinion. The Court seemed to be making a distinction between a tribal official testifying that there are adoptive families available and an adoptive family being vetting through (in this case) a state court.

We are also curious to find out how will this apply in conjunction with the state removing children at birth from mothers for various reasons–previous terminations, testing positive. How long must a parent have a child for it to be considered “continued” custody? When does legal custody attach? Again, this is likely determined through state law.