Supreme Court Upholds ICWA

June 25, 2013 –

U.S. Supreme Court Upholds Indian Child Welfare Act in Adoptive Couple v. Baby Girl

Reno, NV – In today’s 5-4 decision in Adoptive Couple v. Baby Girl the United States Supreme Court upheld the Indian Child Welfare Act (ICWA), but reversed and remanded this case back to the South Carolina courts on a technicality. The narrow decision focused on the standard to determine whether this particular father’s parental rights could be terminated.

Jefferson Keel, President of the National Congress of American Indians delivered the following statement from the organization’s Mid Year Conference in Reno, Nevada:

“Today’s decision sends a clear message that there is no question of ICWA’s role as the most important law to protect Native children and families. The decision also affirms Congressional authority to protect Indian Children.

While we are pleased the court has upheld ICWA, we’re very disappointed for Dusten, Veronica, and the Brown family that the court has ruled to send the case back to the South Carolina courts on a technicality.  However, the courts in South Carolina have previously affirmed that Dusten Brown is Veronica’s father and that he is a fit parent.  We are confident that his parental rights will be upheld, and that Veronica will stay with her family.

We remain committed to Native families and we will continue to support Dusten Brown’s fight for his rights as a father and for Veronica to remain with her loving father, grandparents, and community. Dusten loves his daughter and has never given up in this process, and neither will we. “


In mid-April of 2013, the Supreme Court Justices considered an appeal by the South Carolina couple and their lawyers to the South Carolina court decisions which held the following;

  1. that it was in Veronica’s best interests to be placed with her father;
  2. that ICWA applied and was not unconstitutional;
  3. the “Existing Indian Family” doctrine was inapplicable as an exception to the application of the ICWA in this case;
  4. that the father did not voluntarily consent to the termination of his parental rights or the adoption;
  5. the Appellants failed to prove by clear and convincing evidence that Father’s parental rights should be terminated or that granting custody of Baby Girl to Father would likely result in serious emotional or physical damage to Baby Girl.

In advance of the oral arguments before the U.S. Supreme Court, support for the position to uphold the lower court rulings and the protections of ICWA was characterized as historic. U.S. Solicitor General Donald Verrilli and 19 states and state attorneys general were joined by a large array of groups who submitted 24 separate briefs in all. Not one state submitted briefs in support of Adoptive Couple.

The overwhelming support included 17 former and current members of Congress; Casey Family Programs, the Children’s Defense Fund, and 16 other child welfare organizations; the American Civil Liberties Union; broad coalitions of psychology associations, child advocates, and legal experts; adult Native American adoptees; and tribal amicus briefs which include 333 American Indian tribes.

Two national tribal amicus briefs were submitted. The first, focused on the legislative history and importance of ICWA, was submitted by the Association on American Indian Affairs, NCAI, and the National Indian Child Welfare Association (NICWA), who were joined by 30 Indian tribes and five Indian organizations. A second national tribal amicus brief addresses the constitutional issues raised by the petitioners and also includes 24 tribal nations and organizations. The members of the Tribal Supreme Court Project—Native American Rights Fund (NARF) and NCAI—in partnership with NICWA, joined together to organize the briefs in support of the father.