Is the Indian Child Welfare Act Losing Steam?: Non-Custodial Parental Rights After Adoptive Couple v. Baby Girl

Abstract

In 2013, the United States Supreme Court handed down a decision in Adoptive Couple v. Baby Girl, a decision that will have long-term effects on the use of the Indian Child Welfare Act by non-custodial Native parents.  Congress passed the Indian Child Welfare Act in 1978 in response to the high volume of Native children that had been removed from their families and their tribes through the child welfare system.  In the decades since the law was enacted, several state courts have sought to limit the application of the law through a state court created doctrine known as the Existing Indian Family Exception.  Since the 2000s, that doctrine has been losing support among state legislatures and courts.  Although Adoptive Couple does not explicitly endorse the exception, the opinion closely tracks the reasoning states courts have used to apply the exception.

This Note analyzes how the majority opinion of the Supreme Court overlooks the rights and interests of non-custodial Native parents, who should also be able to invoke the Indian Child Welfare Act in a case involving their child.  This Note also analyzes the recent guidelines and rules issues by the Bureau of Indian Affairs, which have started to fill in the holes of the application of the Indian Child Welfare Act left by the Supreme Court.  However, as this Note will show, additional action, either by Congress or at the state level, is needed to ensure that future Native parents can use the Indian Child Welfare Act to ensure that their child remains connected to his or her heritage.