Kirton McConkie Attorney on Team Representing Two Organizations in Indian Child Welfare Act Case in Brief Filed with Supreme Court

Kirton McConkie shareholder Larry S. Jenkins, along with three additional attorneys from Arizona and Missouri, recently filed an amicus curiae—or friend-of-the-court—brief with the U.S. Supreme Court on behalf of the Academy of Adoption and Assisted Reproduction Attorneys (AAAA) and the National Council for Adoption (NCFA). The brief argues that the Indian Child Welfare Act (ICWA), enacted in 1978 to address unwarranted removal of children from American Indian homes to protect the children’s best interest, is often applied contrary to the best interests of the children involved and should be declared unconstitutional.

The brief states that “Congress lacks authority to enact ICWA because Article I of the U.S. Constitution does not imbue Congress with authority to preempt states’ child custody and adoption laws; Congress may not commandeer state agencies to administer ICWA’s federal regulatory scheme, foisting its costs and political agenda on the states; and Congress may not regulate Indian child custody and adoption proceedings based on the race of children, their parents, or their prospective foster/adoptive parents.”

Mr. Jenkins serves as co-chair of the AAAA’s ICWA committee and has been involved for several years in lobbying Congress and meeting with the Bureau of Indian Affairs to deal with issues resulting from the ICWA.

The Supreme Court is expected to issue its decision by June 2023. Read the full brief below.