Revisiting ICWA after Adoptive Couple v. Baby Girl

Abstract

It has now been four years since the Supreme Court issued its decision in the Adoptive Couple v. Baby Girl case. The dust seems to have settled so it seems appropriate to take another look at ICWA in general and specifically what the impact has been of the 2013 Baby Girl decision. After the decision there was a flurry of scholarly articles that attempted to rationalize the results. The papers generally fell into two categories; Indian law scholars who strongly support ICWA and see Baby Girl as an attempt by an unfriendly court to reduce its scope, and Constitutional scholars (perhaps some unfamiliar with the history of ICWA) that see ICWA as a race based law that should be ruled unconstitutional. I will not attempt to address the Constitutional issue here as that ship has long since sailed and any discussion would probably not change anyone’s opinion. I will attempt to address the ICWA supporter’s issues which can probably all be classified into “the sky is falling” category. As background I first look at the last 12 years of ICWA appellate litigation in an attempt to identify trends, inconsistencies, or issues that have been settled and any that remain. I will then look to litigation after the Baby Girl decision was handed down to see if there has been any obvious shift as a result of that decision and finally I will attempt to address issues that have been raised by numerous Indian law scholars.