The Indian Child Welfare Act – What It Means for You

On June 25, 2013, the United States Supreme Court came down with a landmark decision under the Indian Child Welfare Act (ICWA) and how it affects custody of Native American Children. Adoptive Couple vs Baby Girl, who we have all come to know as Veronica, is only the second case under ICWA decided by the Supreme Court. The Court held that the involuntary termination procedures required by ICWA did not apply in this case because Veronica had never lived with her biological father and therefore measures to remedy the situation and keep Veronica within the tribe were not required.

The decision in this case surprised many and questioned the core of the Indian Child Welfare Act. Enacted in 1978, ICWA attempted to address the remarkable numbers of Native American children that were being removed from their Tribal nations. Twenty-five to thirty-five percent of Native American children were being placed in non-Native foster and adoptive homes. In an effort to lessen the threat to survival of the tribes, ICWA put several stringent requirements in place before an “Indian child,” defined as an unmarried child under the age of eighteen, who is either a member of a tribe or is the biological child of a member of a tribe, could be removed from the tribe. ICWA does not allow parents to waive their parental rights unless they do so 1) in writing, 2) before a judge, 3) the judge must certify that the parent understood his or her actions, 4) the parent must understand spoken English or have a translator present and 5) relinquishment may not be executed prior to ten days after the child’s birth. Additionally, as an added protection, ICWA requires that before allowing a non-Native couple to adopt a Native American child, preference must be given to the tribe, whether that is extended family of the child, grandparents or other members of the child’s tribe.

You may ask then, how is it that baby Veronica could be adopted by a non-Native South Carolina couple when her biological father was a member of the Cherokee Nation of Oklahoma and allegedly did not voluntarily give up his parental rights? In this case, Veronica’s mother and father were never married. During mother’s pregnancy with Veronica, she text messaged father and asked if he would rather pay child support or give up his parental rights. Father replied and stated that he would rather give up his parental rights. Father never paid support to mother throughout her pregnancy nor did he provide any form of support after Veronica’s birth. Father never had legal or physical custody of Veronica, nor did he ever attempt to obtain custody orders from the Court. Father later simply stated that he did not realize he was giving up his parental rights to anyone other than mother and requested that the adoption be stopped. The Supreme Court determined that the goal of ICWA was to prevent the “breakup of Indian families.” In this case, because father never had legal or physical custody, nor did he provide any form of financial support to mother, a “family” in the traditional sense had never been created. Therefore a breakup of the family had not occurred. In essence, the Court indicated that father should have immediately requested custody orders and attempted to adopt Veronica himself rather than argue that he unknowingly gave up his parental rights. Additionally, no other member of the tribe attempted to adopt Veronica. Ultimately, the non-Native South Carolina couple was able to finalize their adoption of Veronica.

This case brings to light several important issues in family law, not only under ICWA but under California law as well. In California, it is imperative to determine parentage and obtain custody orders in situations where a child is born and the parents are not married. Until this is accomplished, father may find it difficult to assert any rights over the child. At Mello & Pickering, LLP we can help you with all custody, parentage and ICWA issues you may be facing.