Procedural Guarantees

S.S. v. Colorado River Indian Tribes

Federal law deprives American Indian children of the “best interest of the child” standard in custody determinations

Congress enacted the Indian Child Welfare Act (ICWA) to address the problem of unjustified removal of Indian children from their parents by “nontribal public and private agencies” and their placement in “non-Indian foster and adoptive homes and institutions.” That concern is absent in a private action for termination of parental rights, a private dispute between birth parents in state-court custodial proceedings, involving no government entity. An Arizona court upheld ICWA’s application to this situation, holding that the law need only be rationally related to the government’s desire to protect Indian families and tribes.

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