Kathleena Kruck

Publication Date

Winter 2015


In the 1970s, state authorities began removing Indian children from their homes by the thousands and placing them into foster care, institutional housing, and with white families. To counteract this forced assimilation, Congress passed the Indian Child Welfare Act (ICWA) in 1978. The ICWA conferred many powers previously held by the states to tribal courts and created a preference for Indian children to be placed with their extended family, other members of their tribe, or other Indian families. Despite congressional efforts, the practice of removing Indian children from their homes still persists. Many states resist the ICWA through judicially created exceptions to its application. Other states reject these exceptions and apply the ICWA more broadly. Confusion about the scope of the ICWA’s authority came to a head in Adoptive Couple v. Baby Girl, decided by the Supreme Court in June 2013. This Note considers Adoptive Couple against the backdrop of the tug-of-war among tribes, states, and the federal government and attempts to define the boundaries of authority within the context of the ICWA. Part I describes the condition of state and tribal relations leading up to Adoptive Couple. Part II provides an analysis of Adoptive Couple. Part III explores the implications of this decision and concludes with proposed legislation to clarify, and consequently preserve, the power of the ICWA.

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