The Indian Child Welfare Act of 1978 (ICWA) was enacted to address the high rates of Indian children being separated from their Indian families and Indian communities. The stated intent of Congress under ICWA was to “protect the best interests of Indian children and to promote stability and security of Indian tribes and families” (25 USC § 1902). Recent years have seen an increased number of challenges to various provisions of ICWA and parallel state statutes in both Federal and state court lawsuits.

On October 30, 2017, the U.S. Supreme Court followed the Arizona Supreme Court and refused to hear a petition to review a decision of the Arizona Court of Appeals in S.S. v. Colorado River Indian Tribes. There an Indian father sought severance or termination of the parental rights of the non-Indian mother based on abandonment. Applying ICWA, the Arizona Court of Appeals affirmed dismissal of the father’s termination request, finding insufficient evidence of ICWA’s required “active efforts” to reunite the children with their mother. Petitioners (father and the children) then challenged ICWA by claiming that it is unlawfully based on race and is therefore unconstitutional. Specifically, the petitioners argued that application of ICWA violated their constitutional rights to equal protection based on their race and tribal affiliation. The Arizona Court of Appeals rejected that argument, ruling that “the additional requirements ICWA imposes on severance of a parent’s rights to an Indian child are based not on race, but on Indians’ political status and tribal sovereignty, and that those requirements are rationally related to the federal government’s desire to protect the integrity of Indian families and tribes.” The Arizona Court of Appeals also ruled that ICWA’s scope is not limited to termination proceedings instituted by state-licensed or public agencies and that ICWA’s “active efforts” requirement applies where the termination proceeding is based on abandonment. The U.S. Supreme Court rejected the petition for review without comment.