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Supreme Court Decides ICWA Case

June 25, 2013

Adoptive Couple v. Baby Girl First Impressions

Courtesy of Turtle Talk

In a split 5-4 opinion by Justice Alito, with a strong dissent from Justice Sotomayor, the Court limited ICWA, but did not eliminate it. The Court is unwilling to go so far as Justice Thomas would like, and find the statute unconstitutional. *12 (Thomas, J. concurring). Instead, the decision turns on dictionary definitions of “continued” *8, and “breakup” *12, finding that 1912(f) (involuntary termination) does not apply to the father, as he did not have physical custody of Baby Girl, nor legal custody under state law. *11. In addition, 1912(d) (active efforts) does not apply to Baby Girl’s adoption. *13. The Court reads the statute to apply to “intact” Indian families. *9. While not an endorsement of the judicially created existing Indian family exception, this opinion will not provide assistance in pushing back against it, at least in the context of non-custodial fathers. The decision is a set back, and a devastating blow to the family, but it’s also not the end of ICWA. Figuring out how the ultimate custody decision will turn out is difficult, not the least of which because under the Court’s own definition, there is NOW an “intact” Indian family. For full story, go to

Decision available at:

April 16, 2013

U.S. Supreme Court heard ICWA Case

The United States Supreme Court recently agreed to hear an Indian Child Welfare Act of 1978 (ICWA) adoption case involving a South Carolina couple who were ordered to turn over a 27-month-old girl to her biological father, a member of the Cherokee Nation of Oklahoma. The South Carolina Supreme Court decision which ruled for the father was appealed by the South Carolina couple who said the law did not apply because Veronica’s biological father had relinquished his parental rights in a text message. Lawyers for the father and his tribe said that “extraordinary defects in the adoption process,” including efforts to conceal Veronica’s Indian heritage, were to blame for a case that had been “painful and personally difficult for all of the parties.” The main question the justices have been asked to decide in the case, Adoptive Couple v. Baby Girl, No. 12-399, is whether the law applies when an unmarried mother who is not an Indian gives up her child for adoption. The only previous ICWA case heard by the Supreme Court since ICWA was enacted in 1978 was Mississippi Choctaw v. Holyfield, 490 U.S. 30 (1989).

Oral arguments for this ICWA case Adoptive Couple v. Baby Girl was held on Tuesday April 16, 2013. The Supreme Court has allocated the time for oral argument to be divided as follows: 20 minutes for petitioners, 10 minutes for respondent Guardian ad Litem, 20 minutes for respondent Birth Father, and 10 minutes for the Solicitor General. The Supreme Court decision in this case is expected by the end of June 2013.

Official transcript from April 16, 2013 oral arguments - subject to final review:

Radiolab Podcast Article: Adoptive Couple v. Baby Girl
Thursday, May 30, 2013

This is the story of a three-year-old girl and the highest court in the land. The Supreme Court case Adoptive Couple v. Baby Girl is a legal battle that has entangled a biological father, a heart-broken couple, and the tragic history of Native American children taken from their families.

When producer Tim Howard first read about this case, it struck him as a sad but seemingly straightforward custody dispute. But, as he started talking to lawyers and historians and the families involved in the case, it became clear that it was much more than that. Because Adoptive Couple v. Baby Girl challenges parts of the 1978 Indian Child Welfare Act, this case puts one little girl at the center of a storm of legal intricacies, Native American tribal culture, and heart-wrenching personal stakes.


The National Indian Child Welfare Association maintains extensive online resources concerning this case on its US Supreme Court case Adoptive Couple v. Baby Girl resources and info webpage including the following specific resource pages:  

The following are links to the various court documents in this case from the Tribal Supreme Court Project of the Native American Rights Fund:

The following is the text of a March 29, 2013 News Release from the National Congress of American Indians which provides an overview and links to the Amicus (“Friend of the Court”) Briefs files in this case. Opinions and analysis provided is that of NCAI.

Washington, DC-The United States federal government and 19 states are among a broad coalition who filed amicus briefs yesterday with the United States Supreme Court supporting the rights of Native American father Dusten Brown and his daughter, Veronica, to remain together as a family, calling for the nation's highest court to uphold a previous South Carolina Supreme Court decision. The well-being of Veronica, the Brown family, and the importance of the Indian Child Welfare Act (ICWA) is a focus of all the briefs.

The case Adoptive Couple v. Baby Girl, to be heard by the Supreme Court on April 16, 2013, involves a South Carolina couple seeking review of a South Carolina Supreme Court ruling and attempting to force Dusten Brown, a member of the Cherokee Nation, to give his daughter Veronica up for adoption. Mr. Brown, who is now raising Veronica at their home in Oklahoma, has prevailed in every court that has considered this matter, including the South Carolina Family Court and the South Carolina Supreme Court.

Joining the U.S. Solicitor General Donald Verrilli and 19 states, including 18 state attorneys general, are a large array of groups who submitted 24 separate briefs in all. The overwhelming support includes 17 former and current members of Congress; Casey Family Programs, the Children's Defense Fund, and 16 other child welfare organizations; the American Civil Liberties Union; broad coalitions of psychology associations, child advocates, and legal experts; adult Native American adoptees; and tribal amicus briefs which include 333 American Indian tribes.

"The broad base of support in this case is historic. In the history of the work of the Tribal Supreme Court Project, no Indian law case has generated more of a unified message to the Supreme Court about Indian law," said Richard Guest, staff attorney for the Native American Rights Fund (NARF), noting the outpouring of interest and support for Veronica, the Brown family, and ICWA.

Many of the briefs highlight the findings of the South Carolina Family Court, which found that "the birth father is a fit and proper person to have custody of his child" who "has convinced [the Court] of his unwavering love for this child," and were upheld by the South Carolina Supreme Court.

The amicus brief of the United States federal government emphasized the importance of ICWA, stating that "the United States has a substantial interest in the case because Congress enacted ICWA in furtherance of 'the special relationship between the United States and the Indian tribes and their members and the Federal responsibility to Indian people.'" The brief further defends the constitutionality of ICWA, arguing that "ICWA, which is predicated on Congress's considered judgment that application of its protections serves the best interests of Indian children and protects vital interests of their parents and Tribes, does not violate any substantive due process protections." It concludes that "[t]he South Carolina courts properly awarded custody of Baby Girl to Father."

In the brief of leading national child welfare organizations, the best interest of the child is highlighted, in addition to the value of ICWA. 

No one understands the human toll custody disputes can take more than amici, 18 child welfare organizations who have dedicated literally scores of years to the on-the-ground development and implementation of best practices and policies for child placement decision making. Amici have seen up close what works, and what does not. In amici's collective judgment, ICWA works very well and, in fact, is a model for child welfare and placement decision making that should be extended to all children. Much forward progress in the child welfare area would be damaged by rolling the law back.

A brief from Arizona Attorney General Tom Horne was joined by attorneys general from 17 other states-Alaska, California, Colorado, Connecticut, Georgia, Idaho, Illinois, Maine, Michigan, Mississippi, Montana, New Mexico, New York, North Dakota, Oregon, Washington, and Wisconsin- and argued against interference in the relationship between states and tribes in matters regarding ICWA, asserting, "States and tribes have collaborated to ensure that the mandates and spirit of ICWA are fulfilled.... Early and complete compliance with ICWA ensures the security and stability of adoptive families as well as tribes and Indian families." The State of Minnesota Department of Human Services also filed a brief.

Not one state submitted briefs in support of Adoptive Couple.

"This brief includes nine Republican and nine Democrat attorneys general," said John Dossett, National Congress of American Indians (NCAI) general counsel. "Party affiliation does not matter. The federal trust responsibility is a nonpartisan commitment, which includes support for the rights of American Indian families and tribal governments to protect their Indian children-and in this case, for a loving father to be with his daughter and for her to be with her family."

Seventeen current and former members of Congress also reflected this bipartisan support, noting in their brief the circumstances that led to the enactment of ICWA in 1978, as well as asserting Congress's exclusive power to legislate with respect to Indian tribes. It stated: 

In 1978, Congress enacted ICWA in direct response to state adoption policies that were draining Indian tribes of their future citizens. Such practices threatened the very existence of Indian tribes. Without children to grow up as their citizens, tribes would be left with no one to speak their language, carry on their traditions and culture, or participate in their tribal governments.... Ultimately, any decision limiting Congress's authority to pass legislation like ICWA...would effectively preclude Congress from exercising its plenary authority in Indian affairs, and render Congress unable to fulfill its historic duties as trustee to the Indian tribes.

Terry Cross, executive director of the National Indian Child Welfare Association (NICWA), commended former Senator James Abourezk for taking the lead on the brief, stating, "Senator Abourezk sponsored the bill that became ICWA because he recognized that the widespread removal of Indian children from their homes was a continuation of forced assimilation practices that had no place in our society. His leadership today sends an unmistakable message that there is unified support in defending his law from those who would return to the pre-ICWA era."

Two national tribal amicus briefs were submitted. The first, focused on the legislative history and importance of ICWA, was submitted by the Association on American Indian Affairs, NCAI, and NICWA, who were joined by 30 Indian tribes and five Indian organizations. A second national tribal amicus brief addresses the constitutional issues raised by the petitioners and also includes 24 tribal nations and organizations. The members of the Tribal Supreme Court Project-NARF and NCAI-in partnership with NICWA, joined together to organize the briefs in support of the father. In all, 333 tribes submitted briefs in support of the father.

Oral arguments for Adoptive Couple v. Baby Girl will be held on April 16, with a decision expected shortly thereafter.

Resources: List and Links

Amici in Support of Respondents

Non-Indian Organizations

Law Professors and Academics

Tribes and Indian Organizations


All of the briefs filed by supporters of Dusten Brown's right to raise his daughter can be found at: 

All filings for the case can be found at: 

More information about the case can be found at:

An analysis of the Amicus Briefs is also available from Turtle Talk at:

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