S.S. v. Colorado River Indian Tribes

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

Cases > Equality Under the Law > S.S. v. Colorado River Indian Tribes
Case Status: Active: Litigation is ongoing

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.

Mother and Father are engaged in a custody battle over their teenagers. Father wants to terminate Mother’s parent rights because she absconded with the kids without Father’s knowledge and has a history of drug abuse. Under normal circumstances, courts would assess the “best interests of the child” in deciding custody matters, including a termination of parental rights. However, because these particular teens have enough “Indian blood” to qualify for membership in the Colorado River Indian Tribes (CRIT), the Arizona courts refuse to apply the “best interests” standard. Instead, the courts are bound by a federal law – the Indian Child Welfare Act – that sets different rules for child welfare cases involving Indian children.

Prior to terminating parental rights, ICWA requires a court to find “beyond a reasonable doubt,” based on testimony from expert witnesses, that the children are at risk of severe harm. ICWA also bars a court from terminating rights until the parent seeking termination proves that he or she made “active efforts” to keep the children with their birth parent – even if that parent is abusive or neglectful. These rules apply only to children with a certain amount of Indian blood, regardless of whether the child is a member of a tribe and regardless of whether the child resides on an Indian reservation. In this case, the Colorado River Indian Tribes intervened to prevent Father and his new wife from gaining full custody of the teens. Applying ICWA, the Arizona courts denied Father’s petition because he did not make “active efforts” to restore the teens to their drug-abusive mother. The family is seeking Supreme Court review, to invalidate these unconstitutionally discriminatory and unfair aspects of ICWA once and for all.

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What’s at stake?

  • Under a proper interpretation of the Commerce Clause power, Congress cannot regulate private, state-court custodial proceedings, just because the children involved happen to be of American Indian descent.
  • A law that uses “blood quantum” to determine whether or not a child is granted the protections of state law is discriminatory, and it must be reviewed under strict scrutiny.

Case Timeline

S.S. v. Colorado River Indian Tribes Documents 8-1-17

August 01, 2017 Download

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