Establishing Paternity Under the Indian Child Welfare Act

Abstract

The Utah Supreme Court in In re Adoption of B.B. identified a new standard by which to establish paternity under the Indian Child Welfare Act (ICWA) -- a federal reasonableness standard. This approach contrasts with the state law approach and imperfectly-fulfilled state law approach used by other courts. Under current law, In re Adoption of B.B. was incorrectly decided; courts must adopt a state law standard for acknowledging and establishing paternity under ICWA. However, a state law standard does not sufficiently advance the purpose of the statute, and it improperly balances the rights of Indian children, parents, tribes, and the state. Congress should amend ICWA to permit unwed fathers to establish paternity by either (1) fulfilling the enumerated requirements of the federal statute or (2) fulfilling the requirements of their tribal law or custom.