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Matthew Fletcher: The Supreme Court and Indian Child Welfare Act

Filed Under: Law | Opinion
More on: icwa, matthew fletcher, supreme court
     
   

Cherokee Nation Chief Bill John Baker discusses an Indian Child Welfare Act case that went before the U.S. Supreme Court in 2013. Dusten Brown, in sunglasses, was forced to give up his daughter after the justices ruled against him. Photo from National Congress of American Indians / Flickr

What will happen when the next Indian Child Welfare Act comes before the U.S. Supreme Court? Law professor Matthew L.M. Fletcher of Turtle Talk, takes a look at the efforts to undermine the 1978 law:
Justice Antonin Scalia’s death impacts Indian country in dramatic ways. Last term, the most critical tribal court jurisdiction appeal to hit the Supreme Court of the United States in decades was affirmed by a 4-4 tie in favor of tribal jurisdiction. The court declined certiorari in a pair of tribal labor relations cases where there was a gaping circuit split, possibly because the justices foresaw yet another 4-4 tie. The next justice may be the deciding vote in cases that bring the same questions, but bigger cases involving the Indian Child Welfare Act(ICWA) are in the pipeline.

ICWA is invoked in literally hundreds of child welfare cases throughout the country every year. ICWA applies whenever an Indian child is removed from home by state agencies, and further applies when an Indian parent’s rights to a child might be terminated. ICWA requires state courts with jurisdiction over Indian children to notify relevant tribes and allow them to intervene as a party, and in some matters transfer jurisdiction to tribal court. ICWA more quietly establishes robust due process protections for Indian parents and Indian children, protections that Casey Family Programs and 16 other child welfare advocacy groups call the “gold standard” in child welfare statutes. Given that many state child welfare systems are bureaucratic nightmares where families can be lost, this is an important statement.

On rare occasions, only twice, the Supreme Court has addressed narrow questions of statutory interpretation in the weeds of ICWA’s text. In both instances, Justice Scalia voted in favor of tribal interests under ICWA, but later stated publicly he didn’t like it. Since ICWA’s enactment in 1978, some state court judges and agencies have been saying the same thing. Because certain provisions of ICWA also apply to a “voluntary proceeding[s],” (read: private market adoption), the most strident opponent to ICWA’s enactment then and now is the private adoption industry, a $14 billion market. Groups that represent that market have been trying to serve up a vehicle for Supreme Court review of the constitutionality of some or all of ICWA.

Read More:
Matthew Fletcher: The Next Justice’s Impact On The Indian Child Welfare Act (Turtle Talk / Law360 8/24)


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