At the end of its term last month, the U.S. Supreme Court issued a number of very important decisions including those invalidating the federal Defense of Marriage Act and interpreting the Voting Rights Act. During the same week, the court issued another opinion that did not receive as much attention, but is critically important to family law practitioners. In Adoptive Couple v. Baby Girl, the Supreme Court, for only the second time since its passage more than 30 years ago, interpreted the provisions of the Indian Child Welfare Act of 1978. In this column we will provide a short history of the legislation and the Supreme Court's interpretation of its provisions.
As a result of a concern that Indian tribes were being harmed by abusive child welfare practices that resulted in many Indian children being placed in non-Indian homes, Congress began hearings in the 1970s to determine the scope of the problem. It discovered that a significant number of Indian families were being affected by the removal of their children. As a result, Congress enacted the Indian Child Welfare Act. The act provides standards that govern the removal of Indian children (defined as those eligible for tribal membership under an individual tribe's eligibility criteria) from their families, whether through foster care placement, the termination of parental rights of Indian parents or adoptive placements of Indian children. These standards supersede those set by individual states and therefore apply in state court child custody proceedings involving Indian children. The act also gives jurisdiction to tribal courts, as opposed to state courts, over Indian children who reside or are domiciled on a reservation.
