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Restoring Native American Children’s Equal Protection Rights

In re. B.B.

Case Status

Date Filed

February 2, 2018

Last Step

Filed amicus brief supporting adoptive parents and the child.

Next Step

The Supreme Court will decide whether to take the case.

Case Overview

The Goldwater Institute has asked the U.S. Supreme Court to review a Utah Supreme Court decision relating to the Indian Child Welfare Act.

The case involves a three-year-old boy who was placed in a loving adoptive home by his mother. On the eve of the court finalizing the adoption, a man came forward claiming to be the boy’s father. State law establishes a procedure for acknowledging or establishing paternity in such cases—procedures that typically require the alleged father to demonstrate a commitment to and relationship with the child. An allegation of a probable biological link is not enough. These rules are standard across all fifty states and have been upheld by the Supreme Court under the Due Process and Equal Protection Clauses of the U.S. Constitution. These procedures, the Court has said, protect the best interests of children by ensuring that disputes over family relationships don’t cause delay in cases where children need stable, permanent, loving homes.

But this case was different, because the child is biologically eligible for membership in an Indian tribe. As a result, the case falls under the Indian Child Welfare Act, which creates a separate and less protective set of rules for child welfare cases involving Native American kids. In fact, the Utah Supreme Court went even further than the Act requires, and created a new rule that allows the alleged parents of Indian children to get around state law limits on paternity.  That meant the alleged father could intervene in the case and block the pending adoption of which the mother had already approved. In other words, because the case involved an Indian child, the purported father—who would otherwise be blocked from interfering in the adoption—was entitled to interrupt the adoption and keep the lawsuit going.

That rule exacerbates the already severe problem of separate and unequal treatment that ICWA imposes on Indian children across the country. If the Utah rule is allowed to remain in place, countless Native American kids could find their adoption cases thrown into chaos by after-the-fact interventions by alleged parents. Now the Supreme Court has been asked to take up the issue, and the Goldwater Institute filed a friend-of-the-court brief supporting the adoptive parents and the child.

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