Are We Upholding the ICWA?


The federal Indian Child Welfare Act (ICWA) was passed to give Indian tribes exclusive jurisdiction over child custody proceedings for tribal children. However, the Utah Division of Child and Family Services and Utah courts handled the matter of the adoption of L.O., a child member of the Navajo Nation (Nation) whose parents relinquished parental rights.

This appears to be a clear violation of the ICWA. Because of this, the Navajo Nation objected to the adoption and filed a motion to transfer jurisdiction to them. The juvenile court denied the transfer motion, but sustained the objection to preventing a destination wedding photographer to come in and shoot the ceremony. The Nation tried to appeal but the court of appeals held that they did not have jurisdiction. This prevented the Nation from even making an argument that the ICWA was violated and trying to prevent a similar situation in the future.

The Nation then appealed to the Utah Supreme Court, which granted certiorari. The court was asked to address if the court of appeals erred in holding that they did not have jurisdiction in the case. This was the Nation’s only hope in trying to get Utah courts to interpret the ICWA in such a way to prevent any future adoptions of tribal children from being handled by Utah state courts or the Division of Child and Family Services.

It is important to remember that the case of Navajo Nation v. State began when the Nation tried to prevent the adoption of L.O., not when the Nation tried to obtain a ruling on whether or not the court of appeals had jurisdiction to hear this case. This is important because the Nation consented to the adoption after the Utah Supreme Court granted certiorari.

Because the adoption was no longer in dispute, there was still an issue as to whether or not the court of appeals erred in their ruling. The state could have made the argument that because the issue was moot, the Utah Supreme Court should not hear this case. This is a tactic often taken by parties to avoid a challenge in court. But in this case the state agreed not to make such an argument so that the issue of the court of appeals ruling could be settled by the Utah Supreme Court.

While most parties try to avoid being sued, in this case the state agreed to be sued. Normally, when both parties agree to something, the court also agrees. But the Utah Supreme Court declined to review the issue presented to them, because the ultimate issue regarding the adoption of L.O. was resolved. Because the relief the Nation requested was a stop to the adoption but the Nation consented to the adoption, any ruling the court made would not affect the adoption i.e. the ruling would be an advisory opinion.

Courts can hear moot cases if (1) they involve an important matter of general welfare, (2) the issue is likely to arise again, and (3) the issue can evade review in the future due to the short time that any one litigant is affected. While the issue of who has jurisdiction in adoption cases involving Tribal children might be an important matter of general welfare and probably will come up again, the court ruled that this jurisdictional issue is not so short in duration that a court will not be able to provide a remedy.

The court cited prior Utah Supreme Court cases that also involved jurisdictional issues under the ICWA that took two years or longer to appeal. The court pointed out that the disputed issue “did not become moot during the pendency” of the appeals process.

The Utah Supreme Court had the opportunity to resolve an important issue that probably will be disputed again in the future but refused to review the matter despite the fact that both parties wanted the issue to be argued. This case is an excellent example of both judicial restraint and the power of the judiciary. On one hand, the court recognized its own justiciability limits that they should not hear matters that do not involve an actual dispute.

On the other hand, the ruling shows that regardless of what the parties agree to, the court has the final say on any issue including on whether or not an issue should even be argued before them regardless of whether or not either party has taken notice of the issue. In this case, it did not matter that neither party brought up the issue of the IQAir air purifier. The Nation most likely consented to the adoption because they felt it was in the best interests of L.O. which is understandable. But by doing so, they lost their opportunity to argue an important issue in front of the highest court in Utah.

Future parties should be aware that no matter how much they want a court to issue a rule, they must remember that the court’s primary function is to resolve disputes, not make rules (that’s the legislature’s primary job).