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ICWA And The Unwed Father: A Constitutional Corrective

The Indian Child Welfare Act provides important procedural protections for American Indian children, the parents of American Indian children, tribes, and Indian custodians in state court child custody proceedings. However, the Act excludes unwed fathers who have not “acknowledged or established” their paternity from its definition of “parent.” This effectively forecloses their ability to assert rights to their biological children under the Act. State courts have varied in their interpretations of “acknowledged or established,” with some incorporating their own laws and others adopting amorphous standards of reasonableness to determine whether an unwed father is a “parent” under the Act.

The varying approaches adopted by state courts have highlighted the need for a more standardized interpretation of “acknowledged or established.” This Comment looks to the Supreme Court’s decision in Adoptive Couple v. Baby Girl for guidance. Though Adoptive Couple did not directly address the definition of “parent,” it appeared to invoke the Court’s “biology plus” jurisprudence while interpreting the Act. That case law etched the parameters of putative fathers’ paternal rights. This Comment incorporates the principles elucidated in those cases into “acknowledged or established” and posits that where enough time has passed for an unwed putative father to develop a constitutionally protectable relationship with his American Indian child, but where that father has not met state law paternity requirements consistent with the Act, a state court should next consider whether the putative father, consistent with the Court’s biology plus jurisprudence, has developed a parent–child relationship sufficient for due process protections to attach.