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But one American Indian advocate, John Dossett of the National Congress of American Indians, said it is important to remember the history behind the law, which he said acts as “remediation for the many hundreds of years of mistreatment of Indian tribes.” The petition by the children, members of the Colorado River Indian Tribes who were identified only by their initials, sought to overturn an Arizona Court of Appeals decision that prevented their Indian father from severing the parental rights of their non-Indian mother after years custody battles between the two. The children argued that the ICWA does not apply to a private petition to sever parental rights but is only aimed at “abusive child-welfare practices carried out by nontribal public and private agencies.” The custody case stemmed from a 2005 divorce between Stephanie H. and Garrett S. In February 2009, the mother moved the children without the court’s permission and without notice. The father filed a petition in December 2012 to sever the mother’s parental rights. At trial in January 2016, the court ruled that Garrett S. had shown abandonment by the mother, but not neglect. But more importantly, the Court of Appeals said that he had not met the ICWA standard which requires proof of “active efforts” to prevent the breakup of a tribal family. Adi Dynar, an attorney with the Goldwater Institute, which appealed the case to the Supreme Court, said applying the ICWA means courts have to balance the child’s rights against the rights of the parent whose rights could be severed — something no other child has to contend with.
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