Page:Haaland v. Brackeen.pdf/53

Rh The touchstone of the statute is notice. In any involuntary removal proceeding involving an Indian child, the initiating party must inform (1) the parent or custodian; and (2) the child’s Tribe. §1912(a). Either or both can intervene. §1911(c). ICWA also makes it harder for the moving party to win an involuntary removal proceeding. The party must show that “active efforts” have been made to avoid removing the Indian child. §1912(d). It must show the status quo is “likely to result in serious emotional or physical damage to the child.” §1912(e), (f). And it must prove that fact by “clear and convincing evidence,” §1912(e) (for placement in foster services), or “beyond a reasonable doubt,” §1912(f) (for termination of parental rights).

Even when it comes to voluntary removal proceedings, ICWA sets certain “minimum Federal standards” for “the placement of [Indian] children in foster or adoptive homes.” §1902. In any adoptive placement, a court by default must give preference to “(1) a member of the child’s extended family; (2) other members of the Indian child’s [T]ribe; or (3) other Indian families.” §1915(a). This priority governs unless the initiating party can show “good cause.” Ibid. A similar regime applies by default to foster-care or pre-adoptive placements. §1915(b). But note that “by default.” ICWA gives Tribes a voice. It allows them to establish a “different order of preference by resolution,” provided it is “the least restrictive setting appropriate to the particular needs of the child.” §1915(c).

Recognizing that coercion remains possible even with these protections, ICWA also allows for postplacement relief. It lets the Indian child, the parent, or the Tribe “petition any court of competent jurisdiction” to “invalidate” an order that violated key provisions of ICWA. §1914. Of special relevance, an Indian parent consenting to adoption has two years to withdraw consent on “the grounds that consent was obtained through fraud or duress.” §1913(d).

ICWA is not a panacea. While “[a]dopting ICWA marked