On June 25th, the U.S.
Supreme Court reversed the South Carolina Supreme Court decision and remanded
the case for further hearings in South Carolina court, the outcome of which
will determine who should have custody of Veronica. The Court issued a narrow decision
interpreting three specific sections of ICWA and did not find ICWA to be unconstitutional.
What the Court held:
- The heightened standard of proof for termination
of parental rights (25 U.S.C. 1912(f)) does not apply when a parent has never
had prior legal or physical custody, although Justice Breyer in his concurrence
suggests that there may be exceptions to this rule.
- Active efforts (25 U.S.C. 1912(d)) are not required
to prevent the breakup of an Indian family when a parent abandons a child
before birth and has never had physical or legal custody of the child, although
Justice Breyer’s concurrence indicates that the section may apply to a
non-custodial parent in other factual circumstances.
- Adoption placement preferences (25 U.S.C.
1915(a)) are not triggered until a party within the placement preferences (relative,
tribal member, or other Indian person) seeks to adopt the child.
Limitations on the Court’s
- Contrary to some misinterpretations of the
opinion, the Court did not specifically adopt the Existing Indian Family
Exception. Rather, the Court appeared to
accept the dissent’s view that many provisions of the Act, such as the notice,
transfer, and consent provisions, would still apply to biological fathers
regardless of whether they ever had custody.
- The Court did not decide what the terms “acknowledge
or establish” mean within ICWA’s definition of parent or how they should be
interpreted, but merely assumed for the sake of argument that Dusten was a
parent under the Act.
- The Court’s decision does not overturn State
ICWA provisions that provide greater protections to non-custodial parents; 25
U.S.C. 1921 still permits the application of state laws that provide greater
protections to children and parents.
Entire summary found here: