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Tuesday, September 24, 2013

Uncertain Future for the Indian Child Welfare Act?

Veronica, the girl at issue in last term’s U.S. Supreme Court case Adoptive Couple v. Baby Girl, was just handed over to her adoptive parents last night by her biological father after the end of continued litigation.  In Adoptive Couple v. Baby Girl , the Supreme Court considered the application of The Indian Child Welfare Act of 1978 (ICWA), which was enacted to preserve the cultural identity and heritage of Indian tribes.  The Court determined that the ICWA did not bar the termination of the biological father’s paternal right despite his membership in the Cherokee Nation.

However, the ICWA may face a new challenge.  A Virginia appellate court has just issued this opinion, joining the growing number of courts refusing to recognize the Existing Indian Family Exception, which limits the application of ICWA to the removal of Indian children from an existing Indian family.  There is some concern that if the judicially-created exception to the ICWA is not recognized, the ICWA would be subject to constitutional doubt under the Tenth Amendment. 

Posted by Margaret Ryznar on September 24, 2013 at 05:37 PM | Permalink


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