January 01, 2017

Key Supreme Court ICWA Cases

Scott Trowbridge

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989).

Parents who were members of the Choctaw tribe surrendered their rights and placed their twin children for adoption. The children in the case were born off the reservation, but their parents lived there. The Supreme Court found that the children being born off reservation did not change the parents’ domicile, relying on the common law definition. The Court concluded the tribal court had exclusive jurisdiction over the case and the state court’s adoption order was invalid. The case is cited often for broadly affirming the intent of Congress to protect tribes’ parens patriae role, even in the face of parents consenting to placement of their children. 

Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013). 

In a private adoption case involving an Indian child where the father never had physical custody, the Supreme Court held that ICWA was not a bar to a state adoption, in particular that qualified expert and active efforts provisions did not apply. The Court also found ICWA’s placement preferences did not apply because there were not competing adoptive parties. This case hinged on the fact that under South Carolina law, the father had not vested his custodial rights via affirmative action including by not paying child support. The Court reasoned that he lacked custody in the first place for disruption of any ‘continued custody’ according to ICWA. This case has limited application to child welfare cases that require engaging all relatives regardless of ICWA applicability, for example, regarding case planning and notice. The majority opinion and concurrence also suggest a narrow interpretation, distinguishing it from public child welfare cases.