Petition for Writ of Certiorari — R. K. B., et al., Petitioners v. E. T.

No. 17- _______

In the Supreme Court of the United States

__________

R.K.B. AND K.A.B., PETITIONERS,

v.

E.T.

__________

On Petition for a Writ of Certiorari to the

Utah Supreme Court

__________

PETITION FOR A WRIT OF CERTIORARI

__________

LARRY S. JENKINS

KIRTON MCCONKIE

50 East South Temple

Suite 400

Salt Lake City UT 84111

GENE C. SCHAERR

Counsel of Record

MICHAEL T. WORLEY

SCHAERR | DUNCAN LLP

1717 K Street NW, Suite 900

Washington, DC 20006

(202) 787-1060

gschaerr@schaerr-duncan.com

QUESTION PRESENTED

The Indian Child Welfare Act of 1978, 25 U.S.C.

1901–1963, applies to state custody proceedings involving an Indian child. State courts of last resort are

divided on the following critical question, a question

that likely affects thousands of adoption proceedings

each year, and on which this court granted certiorari

but did not reach in Adoptive Couple v. Baby Girl, 133

S. Ct. 2552, 2560 (2013):

Does the Indian Child Welfare Act define “parent”

in 25 U.S.C. 1903(9) to include an unwed biological

father who has not complied with state law rules to

attain legal status as a parent?

ii

PARTIES TO THE PROCEEDING

The identities of Petitioners, R.K.B. and K.A.B.,

and Respondent E.T. are in a sealed letter on file with

the clerk.

iii

TABLE OF CONTENTS

QUESTION PRESENTED ......................................... i

TABLE OF CONTENTS ........................................... iii

TABLE OF AUTHORITIES ...................................... v

INTRODUCTION ...................................................... 1

OPINIONS BELOW................................................... 3

JURISDICTION ......................................................... 3

RELEVANT STATUTORY PROVISION.................. 4

STATEMENT ............................................................. 5

A. The Indian Child Welfare Act ............................ 5

B. This Court’s Decision in Baby Girl ..................... 7

C. The Facts of This Case ........................................ 9

D. The Utah Supreme Court Decision .................. 11

REASONS FOR GRANTING THE PETITION ...... 14

A. The decision below expands the conflict on the

federal question on which this Court granted

review, but did not reach, in Baby Girl. ........... 14

B. The practical importance of that question for

children, adoptive parents and birth parents,

has likewise grown. ........................................... 17

C. For reasons well explained by Justice Lee and

the trial court, the majority reached the wrong

conclusion on the question presented. ............. 22

D. This case is a good vehicle for resolving the

question presented. ........................................... 28

CONCLUSION ......................................................... 29

iv

APPENDIX ............................................................... 1a

Utah Supreme Court Opinion,

E.T. v. R.K.B. (In re B.B.), 2017 UT 59 ............. 1a

Order staying proceedings pending Petition for

Certiorari,

E.T. v. R.K.B. (In re B.B.) ............................... 146a

Utah District Court Memorandum Decision,

In re Adoption of B.B. ..................................... 147a

v

TABLE OF AUTHORITIES

Cases

Adoptive Couple v. Baby Girl,

133 S. Ct. 2552 (2013) .................................... passim

Adoptive Couple v. Baby Girl,

568 U.S. 1081 (2012) .............................................. 14

Adoptive Couple v. Baby Girl,

731 S.E.2d 550 (S.C. 2012) ................................. 8, 16

Bolden v. Doe,

358 P.3d 1009 (Utah 2014) ...................................... 6

Bruce L. v. W.E.,

247 P.3d 966 (Alaska 2011) ................................... 16

Cox Broadcasting Corp. v. Cohn,

420 U.S. 469 (1975) ........................................ 3, 4, 20

Employment Division. v. Smith,

494 U.S. 872 (1990) ................................................ 15

Fort Wayne Books v. Indiana,

489 U.S. 46 (1989) .................................................... 4

Hollingsworth v. Perry,

133 S. Ct. 2652 (2015) ............................................ 15

In re Adoption of Baby Boy D,

742 P.2d 1059 (Okla. 1985) .................................... 15

In re Adoption of Child of Indian Heritage,

543 A.2d 925 (N.J. 1988) .............................. 5, 15, 25

In re Baby Boy L.,

103 P.3d 1099 (Okla. 2004 ..................................... 15

In re Burrus,

136 U.S. 586 (1890) .................................................. 7

vi

In re Daniel M.,

1 Cal. Rptr. 3d 897 (Cal. App. 4th 2003) ............... 15

Jared P. v. Glade T.,

209 P.3d 157 (Ariz. Ct. App. 2009). ....................... 16

Johnson v. California,

545 U.S. 162 (2005) ................................................ 15

Miss. Band of Choctaw Indians v. Holyfield,

490 U.S. 30 (1989) .............................................. 6, 26

Obergefell v. Hodges,

135 S. Ct. 2584 (2015) ............................................ 15

Stanley v. Illinois,

405 U.S. 645 (1972) .................................................. 5

United States v. Windsor,

133 S. Ct. 2675 (2013) .................................... passim

Wells v. Children's Aid Soc'y,

681 P.2d 199 (Utah 1984) ........................................ 6

Yavapai-Apache Tribe v. Mejia,

906 S.W.2d 152 (Tex. App. 1995) ....................... 5, 15

Statues

1975 Utah Laws 378 [Ch. 94] ...................................... 6

25 U.S.C. 1901 ........................................................ 6, 24

25 U.S.C. 1902 .............................................................. 6

25 U.S.C. 1903 .................................................... passim

28 U.S.C. 1257 ............................................................ 20

Utah Code 78A-6-507 ................................................... 3

Utah Code 78B-6-133 ................................................. 10

Utah Code 78B-6-121 ................................................... 3

vii

Other Authorities

Brief for the National Council for Adoption,

Adoptive Couple v. Baby Girl, 133 S. Ct. 2552

(2013) ...................................................................... 19

Children’s Bureau, U.S. Dep’t of Health & Human

Servs., The AFCARS Report (Preliminary FY 2011

Estimates as of July 2012), No. 19 ........................ 18

FindLaw, Marriage License Requirements .............. 27

Joyce A. Martin, et al., Births: Final Data for 2015,

Nat’l Vital Statistics Rep., Jan. 5, 2017 .......... 18, 19

Jeffrey S. Passel, The Growing American Indian

Population, 1960–1990: Beyond Demography, in

Changing Numbers, Changing Needs: American

Indian Demography and Public Health (Gary D.

Sandefur et al., eds. 1996) ..................................... 17

Nat’l Council for Adoption,

Adoption Factbook V 109 (2011). ..................... 18, 19

Petition for Writ of Certiorari,

Adoptive Couple v. Baby Girl, No. 12-399 ... 8, 14, 18

Sup. Ct. R. 10 ....................................................... 14, 17

Tina Norris et al., U.S. Census Bureau,

The American Indian and Alaska Native

Population: 2010, (2012) .................................. 17, 18

Uniform Parentage Act (Unif. Law Comm’n 1973) .... 5

INTRODUCTION

As this Court recently noted, “the Federal Government, through our history, has deferred to state-law

policy decisions with respect to domestic relations.”

United States v. Windsor, 133 S. Ct. 2675, 2691 (2013).

Yet a growing group of state courts of last resort claim

that this principle is subject to an implicit exception

under the Indian Child Welfare Act (ICWA or Act).

These courts conclude—in conflict with at least two

other state courts of last resort—that an unwed Native

American birth father can acknowledge or establish

paternity without satisfying state-law requirements

for such a showing, and thereby thwart an adoption by

a stable, loving family.

In the decision below, a bare majority of the Utah

Supreme Court acknowledged that the Act “does not

explicitly define the procedures and timing required”

for acknowledging or establishing paternity. 59a. But

that court nonetheless joined two other courts of last

resort—and a state intermediate court—in holding

that the Act allows unwed fathers to establish paternity even when they have failed to do so under state

law. In so holding, the Utah court claimed that a vague

federal “reasonability standard applies to the time and

manner in which an unwed father may acknowledge

or establish his paternity.” 59a.

Like the other courts it has now joined, the Utah

Supreme Court’s holding turns the presumption of deference to state legislatures in family policy matters on

its head. Rather than treating congressional silence as

reflecting deference to state legislatures, see Windsor,

133 S. Ct. at 2691, the decision treats silence as permission for courts to “presume a [federal] reasonability

2

standard,” 59a, or otherwise to depart from the requirements of state law.

It would be one thing if the decision below merely

replaced a predictable state-law standard with another predictable standard. But it does no such thing.

Rather, as Associate Chief Justice Thomas Lee noted

in dissent, the decision leaves the bounds of the new

federal “reasonableness” standard largely up to future

courts. See 80a (Lee, A.C.J., dissenting). This is an invitation for an unwed father to challenge an adoption

years after the child has been placed with a new family. As this case demonstrates, a court applying this

vague federal standard would then engage in lengthy

litigation about whether the father “reasonably”

acknowledged paternity. All the time, children—and

their family status—would be held in limbo.

Such a result would deprive the child of the “stability and security” of living in the same household for

her entire childhood. Cf. Adoptive Couple v. Baby Girl,

133 S. Ct. 2552, 2561 (2013). It would also deter adoption by inserting enormous uncertainty into the determination of when an unwed father may challenge an

adoption, making prospective adoptive parents less

willing to risk adopting an Indian child.

State laws clearly lay out whether a child should

live in the household of her unwed father or that of a

willing adoptive couple. By ignoring state law, the

Utah Supreme Court fundamentally undercut the

Act’s text and the centuries-old presumption reaffirmed in Windsor. This Court should grant review to

correct that fundamental error and, in so doing, resolve the existing conflict on the question presented—

a question that is likely implicated in thousands of

adoptions each year.

3

OPINIONS BELOW

The opinion of the Utah Supreme Court is reported

at 2017 UT 59, with publication in the Pacific Reporter

forthcoming. It is reprinted at 1a. The order staying

that decision pending resolution of this petition is reprinted at 146a. The unreported trial court opinion is

reprinted at 147a.

JURISDICTION

The Utah Supreme Court issued its opinion on August 31, 2017. Justice Sotomayor granted an extension

of time to file this petition until December 29, 2017.

Although the Utah Supreme Court’s decision contemplates further proceedings on remand, that court’s

judgment is final for purposes of 28 U.S.C. 1257 because it falls comfortably within two categories of final

judgments identified in Cox Broadcasting Corp. v.

Cohn, 420 U.S. 469, 480 (1975).

First, the Utah Supreme Court has squarely decided an issue of federal law that “will . . . require decision regardless of the outcome of future state-court

proceedings.” See 420 U.S. at 480. Based on the ruling

below, Respondent—the putative birth father of the

child (B.B.) that is the subject of the underlying adoption proceeding—now has an absolute right to intervene for the purpose of thwarting the adoption of a

child who has lived with his would-be adoptive parents

for his entire life of more than three years. See 68a74a; 77a–78a; see also Utah Code 78A-6-507. Moreover, under that ruling, Respondent may retain parental rights even if Petitioners ultimately retain custody

of B.B. See Utah Code 78B-6-133(2)(b). Either way, to

vindicate their rights as adoptive parents, and in the

best interests of their son, Petitioners will be forced to

4

continue challenging Respondent’s parental status in

any future state-court proceedings and, ultimately,

back in this Court. Similarly, it is inconceivable that

Respondent, having achieved parental status as a result of the decision below, will fail to invoke that status

in challenging any future decision that may be adverse

to him.

Second, a “refusal [] to review” the decision below

now would “seriously erode federal policy.” Cox, 420

U.S. at 483. By delaying adoptions through increased

litigation, the Utah Supreme Court’s holding would

undercut stability for Indian children needing adoption. See Baby Girl, 133 S. Ct. at 2583 (noting the Act

is designed to promote stability) (internal citations

omitted). Accordingly, this is one of those cases in

which “[r]esolution of this important issue . . . should

not remain in doubt.” Fort Wayne Books v. Indiana,

489 U.S. 46, 56 (1989).

RELEVANT STATUTORY PROVISION

25 U.S.C. 1903(9) defines “parent” as follows:

“parent” means any biological parent or parents

of an Indian child or any Indian person who has

lawfully adopted an Indian child, including

adoptions under tribal law or custom. It does

not include the unwed father where paternity

has not been acknowledged or established[.]

5

STATEMENT

An understanding of this case’s importance requires some familiarity with the legal framework of

the Indian Child Welfare Act, this Court’s decision in

Baby Girl, the facts of this case, and the Utah Supreme

Court’s majority and dissenting opinions.

A. The Indian Child Welfare Act

Many laws protecting the rights of unwed fathers

were enacted shortly after this Court’s decision in

Stanley v. Illinois, 405 U.S. 645 (1972). Stanley concerned custody of children following the death of their

mother. Because the parents were not married and Illinois law presumed an unwed father was unfit to be a

parent, Illinois took the children into state custody after the mother’s death. Id. at 646–47. This Court held

that the Illinois law violated basic due process principles. The Court explained that because the Illinois law

“insist[ed] on presuming rather than proving Stanley's

unfitness solely because it is more convenient to presume than to prove[,]” it was unconstitutional. Id. at

658.

1. After Stanley, “many states adopted statutes

defining the circumstances under which a man would

be presumed to be a child's father. . . .” YavapaiApache Tribe v. Mejia, 906 S.W.2d 152, 172 (Tex. App.

1995). Approximately fifteen states adopted a uniform

code. In re Adoption of Child of Indian Heritage, 543

A.2d 925, 934 (N.J. 1988). This code explained what an

unwed father must do to acknowledge or establish paternity. Uniform Parentage Act §§ 3, 4 (Unif. Law

Comm’n 1973).

Even those states—like Utah—that did not follow

the uniform code adopted similar protections. See In re

Adoption of Child of Indian Heritage, 543 A.2d at 934.

6

Utah adopted a statute protecting unwed fathers just

three years after Stanley. See 1975 Utah Laws 378,

379–380 [Ch. 94]. Much like Utah’s statute today, the

1975 statute said that an unwed father may “claim

rights pertaining to his paternity” “by registering

with” state agencies. Id. This registration must include “a notice of his claim of paternity of an illegitimate child and of his willingness and intent to support

the child to the best of his ability.” Id.; see also Wells

v. Children's Aid Soc'y, 681 P.2d 199, 206 (Utah 1984)

(upholding statute as constitutional).1 This statute,

much like the uniform code, thus explained what an

unwed father must do to “acknowledge” or “establish”

paternity. Id. at 204–05 (citing 1975 Utah Laws 378,

379).

2. The federal Indian Child Welfare Act was

passed in 1978, just six years after Stanley and three

years after Utah enacted its statute explaining how an

unwed father could acknowledge or establish paternity. Congress’s principal purpose in the Act was to

protect “Indian parents and their children who were

involuntarily separated by decisions of local welfare

authorities.” Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 34 (1989). Recognizing that a “high

percentage of Indian families are broken up by the removal, often unwarranted, of their children from them

by nontribal public and private agencies,” 25 U.S.C.

1901(4), Congress established “minimum Federal

standards for the removal of Indian children,” id. §

1902. The Act thus represents a rare but limited entry

by the federal government into substantive family law,

1 Wells’ logic was abrogated by a plurality of the Utah Supreme

Court in Bolden v. Doe, 358 P.3d 1009, 1024–1025 (Utah 2014).

But Bolden did not alter the constitutionality of Utah’s statute for

acknowledging and establishing paternity.

7

which has long been the exclusive domain of state law.

See United States v. Windsor, 133 S. Ct. 2675, 2691

(2013). (“The whole subject of the domestic relations of

husband and wife, parent and child, belongs to the

laws of the States and not to the laws of the United

States.”) (quoting In re Burrus, 136 U.S. 586, 593–594

(1890)).

Congress did not, however, extend federal rights

under the Act to all biological parents of Indian children. Rather, Congress excluded from the definition of

“parent” “the unwed father where paternity has not

been acknowledged or established[.]” 25 U.S.C.

1903(9). The Act did not attempt to define expressly

how an unwed father could “acknowledge” or “establish” paternity—matters traditionally governed by

state law—much less establish federal standards governing those inquiries. Id.; 42a & n.20.

B. This Court’s Decision in Baby Girl

In a recent decision interpreting the Act, Adoptive

Couple v. Baby Girl, this Court addressed a related

question: whether a child who was never in the custody of her biological father could be adopted without

imposing on the adoptive couple a heightened standard for terminating the biological father’s parental

rights. 133 S. Ct. at 2557.

In that case, the mother placed the child for adoption, but the Cherokee Nation was unable to locate the

biological father, and the adoption went forward. Id. at

2558. When he learned of the adoption, the father protested. He claimed the Act protected his relationship

with the child because (1) he had “acknowledged” or

“established” paternity under the Act despite not doing

so under South Carolina law, and (2) the Act mandated

that “courts consider heightened federal requirements

8

to terminate parental rights” as to Indian parents.

Adoptive Couple v. Baby Girl, 731 S.E.2d 550, 559–563

(S.C. 2012). Under the Act, the father needed to win on

both issues to gain custody. The South Carolina court

ruled for him on both issues. Ibid. Following that decision, “at the age of 27 months, Baby Girl was handed

over to Biological Father, whom she had never met.”

Baby Girl, 133 S. Ct. at 2559.

After the father prevailed in the South Carolina

Supreme Court, this Court granted the adoptive couple’s petition for certiorari. The couple claimed that

the Act only required a heightened federal standard

for removal if the father had ever had custody, which

he had not at the time of the South Carolina Supreme

Court’s decision. See Petition for Writ of Certiorari at

i, Adoptive Couple v. Baby Girl, No. 12-399. The couple

also raised the question presented here: whether state

law controls the determination whether an unwed father has acknowledged or established paternity. Ibid.

This Court granted certiorari on both questions.

On the merits, the Court assumed the father was a

“parent” for purposes of the Act, and then held that a

showing of serious harm was not required for an adoption when the father had never had custody of the

child. 133 S. Ct. at 2565. Because it ruled for the couple

on these grounds, the Court did not decide the more

basic question of whether state law controls the determination whether an unwed father has acknowledged

or established paternity. Id. at 2560, 2560 n.4. Rather,

finding that the adoptive couple prevailed on its first

argument, the Court reversed and remanded for further proceedings. Id. at 2557.

9

C. The Facts of This Case

This case turns on the question left open in Baby

Girl—whether an unwed Indian father, who has not

acknowledged or established paternity under state

law, is a “parent” under the Act.

1. Both courts below accepted Respondent’s explanation of his paternity. Respondent alleged that he

had a sexual relationship with the birth mother and

she became pregnant with B.B. 5a.2 Both Respondent

and the birth mother are Indians. 5a. When she was

six months pregnant, the birth mother relocated to

Utah, and reconnected with the father of her other

children. 5a. Initially, Respondent communicated with

the birth mother while in Utah. 6a. But she then cut

off communications with Respondent and determined

to give B.B. up for adoption. 6a. Thinking that the

birth mother “just needed some space,” Respondent

testified he assumed that she “would return to South

Dakota before she delivered [their] baby, or that she

and the baby would return together after the delivery.”

6a. Respondent thus “knew [birth mother] was in Utah

for at least two months prior to the Child’s birth, and

knew that she had cut off communication with him.”

186a. “During all of this time, he could have complied

with the Utah adoption statutes, but did not do so.”

186a.

In the adoption proceedings, the birth mother told

a different story. Rather than telling the court that Respondent was the birth father, the mother claimed her

brother-in-law was the father. 6a. According to Respondent—and, again, accepted by the court below—

2 The full names of the birth and adoptive parents, as well as the

name of birth mother’s brother-in-law, are in a sealed letter on

file with the clerk.

10

the brother-in-law also lied about B.B.’s paternity and

consented to the adoption. 6a. Based on the brother-inlaw’s statements, the trial court found the adoption

unopposed. That is, the court concluded that no man

had contested the adoption according to the requirements of Utah law. 156a (citing Utah Code 78B-6121(3)(a)).

2. Petitioners took custody of B.B. in late Summer

2014, very shortly after his birth, and have raised him

ever since. 157a. B.B. is now more than three years old.

Meanwhile, the birth mother returned to South Dakota immediately after B.B. was placed for adoption.

7a. She told Respondent that B.B. had been born and

placed for adoption. 7a. Respondent immediately

sought legal advice, but did not file a motion to intervene in the adoption proceeding for three additional

months. 7a–8a. When he finally intervened, he asserted his rights under the Act, including arguing that

he was a “parent” under Section 1903(9). 149a.

3. The trial court denied Respondent’s motion to intervene. The court first noted that the Act’s core purpose—to prevent removal of children from established

Indian homes—was not present here. 162a (“This case

. . . does not involve the action of any [] child welfare

agency going into an Indian home and attempting to

remove a child, and thus does not directly implicate

the specific policy concerns that apparently motivated

the passage of ICWA.”). The trial court nonetheless

concluded that the Act applied, as B.B. is an Indian

child. See 162a–163a.

The trial court then addressed whether Respondent was a “parent” under the Act. The court rejected

Respondent’s argument that “an unwed biological father can satisfy it by simply—and in basically any

11

manner—‘acknowledging’ paternity of the Child.”

164a. Instead, the trial court relied on the language of

the Act to conclude that whether Respondent had

“acknowledged” or “established” paternity was governed by state law, that Respondent had not established that he was a parent under Utah law, and thus

was not a parent under the Act. 201a. The trial court

further found that the discussion of Stanley in the legislative history strongly suggested “a legislative intent

to have the acknowledgment or establishment of paternity determined by state law.” 167a (citation omitted).

D. The Utah Supreme Court Decision

Respondent appealed on various state and federal

questions, including the federal question presented

here. See generally 11a. On appeal and certification

from the Utah Court of Appeals, a divided Utah Supreme Court reversed the trial court’s holding that Respondent not be allowed to intervene in the adoption

proceeding. The court concluded that the trial court

was correct that intervention was not permitted as a

matter of Utah law.3 However, a majority also concluded that Respondent’s intervention was required by

the Act. 41a–66a.

In so holding, the majority opined that the terms

“acknowledged” and “established” in the Act were to be

read according to their ordinary meaning, not as legal

3 The three-Justice majority on this point was joined by Justices

Lee, Durrant and Pearce. While Justice Pearce did not join any

opinion opining on this point, the opinion is clear that Justices

Himonas and Durham were dissenting when they concluded that

the birth father acknowledged or established paternity under

Utah law. App. 1a–2a (syllabus); 66a–67a (Opinion of Himonas,

J., dissenting).

12

terms of art. 43a–45a. Rejecting the idea that state law

provides the meaning of these words, the majority instead concluded that the terms are to be construed

“reasonably.” 59a (“[A] reasonability standard applies

to the time and manner in which an unwed father may

acknowledge or establish his paternity.”). And the majority concluded that Respondent had “reasonably”

acknowledged his paternity by filing “a motion to intervene, a motion for paternity testing, and a paternity

affidavit expressly acknowledging that he was the

Child's biological father.” 65a.

Justice Lee, joined by Chief Justice Durrant, dissented. 119a–145a. According to the dissent, the majority’s opinion “expands the reach of ICWA in a

manner that its plain language cannot bear.” The dissenters also noted four statutory indications that each

foreclosed the majority’s view, and established that

the terms “acknowledge” and “establish” should be understood as legal terms of art referencing state-law

processes for determining paternity:

•

the Congress that passed the Act understood

that courts would likely read family law terms

as “determined by state, rather than federal

law” as “paternity . . . has always been a matter

within the exclusive sovereignty of the states;”

•

“acknowledgement and establishment of paternity are long-established terms of art in state

family law;”

•

the use of “acknowledged” and “established” refer to past actions, meaning actions predating

any litigation under the Act; and

•

it needs to be clear when a birth father acknowledges or establishes paternity, so third parties

13

(including courts and would-be adoptive parents) can notify him of any proceedings in which

he might have an interest.

121a, 125a–130a (citations omitted). Noting that there

was no reason to expect that Congress intended state

courts of last resort to define federal law in this area,

the dissenters concluded that the terms “acknowledged” and “established” are intended to be terms of

art referencing the relevant state law. 145a.

6. Petitioners received a stay pending resolution of

this petition for certiorari. 146a. That stay prevented

the trial court from immediately (a) allowing Respondent to intervene in the ongoing adoption proceeding,

and (b) moving ahead with adjudicating—and possibly

changing—custody until this petition is fully resolved.

14

REASONS FOR GRANTING THE PETITION

As noted above, this Court previously granted certiorari on the question presented. There is no doubt

the Court was right to do so: There is a clear conflict

among state courts of last resort on that question,

which in turn creates uncertainty about procedures for

adopting Indian children throughout the United

States. Moreover, the Utah Supreme Court majority

misinterpreted the Act’s language, for reasons well explained in Justice Lee’s dissent. And this case is a

clean vehicle for resolving the question presented,

with the majority and dissenting opinions below welltailored to aid its resolution.

A. The decision below expands the conflict

on the federal question on which this

Court granted review, but which it did

not reach, in Baby Girl.

This court has already determined that there are

“compelling reasons” for resolving the question presented. See Sup. Ct. R. 10.

1. As explained above, in Baby Girl, this Court

granted certiorari on this very question. See Petition

for Writ of Certiorari at i, Adoptive Couple v. Baby

Girl, No. 12-399; Adoptive Couple v. Baby Girl, 568

U.S. 1081 (2013) (granting certiorari). But the Court

ultimately decided that case on other grounds. See

Baby Girl, 133 S. Ct. at 2560 n.4 (2013) (“[W]e need

not decide whether Biological Father is a ‘parent.’”).

This case thus falls within a prominent category of

cases in which this Court has granted certiorari on a

question, failed to decide the question in that case, and

then resolved the same question on a subsequent petition. See, e.g., Obergefell v. Hodges, 135 S. Ct. 2584

15

(2015) (resolving issue previously granted in a narrower form but not reached in Hollingsworth v. Perry,

133 S. Ct. 2652 (2015)); Johnson v. California, 545

U.S. 162, 167–168 (2005) (granting certiorari on the

same question a second time, and then deciding it);

Employment Division. v. Smith, 494 U.S. 872 (1990)

(similar).

The Court should follow that pattern here, and

once again grant certiorari to resolve the question on

which review was granted in Baby Girl, but which has

yet to be resolved.

2. The Utah Supreme Court took a novel approach

to the question presented, deepening an already substantial split among state courts of last resort.

Before the Utah decision, two state courts of last

resort and two intermediate state appellate courts had

all held that state law controls the question whether a

birth father has “acknowledged” or “established” paternity. Specifically, the supreme courts of New Jersey

and Oklahoma have held that the Act does not create

parental rights for biological fathers when state law

does not otherwise recognize that right.4 Intermediate

appellate courts in California5 and Texas6 have ruled

similarly.

4 In re Adoption of a Child of Indian Heritage, 543 A.2d 925, 932

(N.J. 1988); In re Adoption of Baby Boy D, 742 P.2d 1059, 1064

(Okla. 1985) (eroded on other grounds in In re Baby Boy L., 103

P.3d 1099 (Okla. 2004)).

5 In re Daniel M., 1 Cal. Rptr. 3d 897, 900 (Cal. App. 4th 2003).

6 Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152, 172 (Tex. App.

1995).

16

However, the Alaska Supreme Court has held that

the Act requires that biological fathers be given certain rights regardless of state law.7 The South Carolina Supreme Court has likewise signaled it will follow

the same rule.8 The Arizona Court of Appeals has held

the same.9 Agreeing with these courts—but going further still—the Utah Supreme Court held that in determining paternity in cases involving Indian children,

courts must apply a previously unknown federal “reasonableness” standard. 58a–64a.

This division creates confusion among courts, biological parents, and adoptive parents, substantially

extending the amount of time before a child’s home is

finally determined. Moreover, to the extent state

courts of last resort have read the Act to displace state

law governing the determination of who constitutes a

legal “parent,” that misinterpretation of the Act undermines the historical and proper allocation of responsibility for adoption and custody matters to the States.

7 Bruce L. v. W.E., 247 P.3d 966, 979 (Alaska 2011).

8 Adoptive Couple v. Baby Girl, 731 S.E.2d 550, 559–560 (S.C.

2012), reversed on other grounds, 133 S. Ct. 2552 (2013).

9 Jared P. v. Glade T., 209 P.3d 157, 160, 162 (Ariz. Ct. App.

2009).

17

B. The practical importance of that question

for children, adoptive parents and birth

parents, has likewise grown.

In addition to being the subject of a deepening split

among state courts of last resort, the question presented urgently needs the resolution that only this

Court can provide. See Sup. Ct. R. 10(c). The alternative—leaving the issue to percolate in future cases—

would not only continue to undermine the States’ authority over family-law matters within their borders.

That alternative would also harm children, chill adoptions, and encourage even more litigation between

adoptive parents and alleged birth parents.

1. One reason the question has such enormous

practical importance is that, since the Act was passed,

the number of people identifying as Native Americans

has exploded. According to the most recent United

States Census, approximately 5.2 million Americans

now self-identify as having some Indian heritage,10 as

compared to 1.4 million when the Act was adopted, 11

thus dramatically expanding the number of families

and children affected by the Act.

Furthermore, the states divided over the Act’s definition of “parent” include the four states with the largest Indian populations: California, Oklahoma,

10 Tina Norris et al., U.S. Census Bureau, The American Indian

and Alaska Native Population: 2010, at 1 (2012),

https://www.census.gov/prod/cen2010/briefs/c2010br-10.pdf.

11 See Jeffrey S. Passel, The Growing American Indian Population, 1960–1990: Beyond Demography, in Changing Numbers,

Changing Needs: American Indian Demography and Public

Health 79, 82 (Gary D. Sandefur et al., eds. 1996) (noting 1980

population).

18

Arizona, and Texas, which collectively account for 36%

of the nation’s Indian population.12 Given that more

than a third of the Indian population is already affected by the split among state courts on the question

presented, the need for resolution by this Court is

clear.

2. The ongoing conflict has its greatest impact on

the children who are the subjects of custody and adoption battles, which are very common with respect to

Indian children. One reason, as noted in the petition

in Baby Girl (at 18), is that the birthrate of Indian children outside of marriage is substantially higher than

the rate in the general U.S. population. In 2015, for

example, 29,148 Indian children, or 65.8 percent, were

born to unmarried parents—compared with 40.3 of

children born to unmarried parents in the U.S. population as a whole.13 Moreover, as of September 2011,

there were 8,020 Alaskan Native or American Indian

children in publicly supported foster care.14

The adoption rates for Indian children are equally

striking. In 2008—the last year for which complete

data are apparently available—27,457 children

adopted in the United States were Indian.15 Based on

nationwide statistics, at least half of those were likely

12 Tina Norris et al., supra note 10, at 6–7.

13

Joyce A. Martin, et al., Births: Final Data for 2015, Nat’l Vital

Statistics Rep., Jan. 5, 2017 at 44.

14 Children’s Bureau, U.S. Dep’t of Health & Human Servs., The

AFCARS Report (Preliminary FY 2011 Estimates as of July

2012),

No.

19,

at

2,

http://www.acf.hhs.gov/sites/default/files/cb/afcarsreport19.pdf (last visited Dec. 27, 2017).

15

Nat’l Council for Adoption, Adoption Factbook V 109 (2011).

19

born to unwed Indian fathers.16 That in turn suggests

that the question presented here is potentially implicated in over 10,000 adoption proceedings annually.

These statistics alone show the pressing need for

this Court to resolve the question presented. That

question is critical to the proper implementation of an

important federal law, one that is implicated in thousands of adoption cases involving Indian children of

unwed parents.

3. The present uncertainty on the question presented also has concrete effects in the lives of those

children. For example, any uncertainty about whether

an unwed father has “acknowledged” paternity within

the meaning of the Act increases the likelihood that

his child will be shuffled back and forth between the

adoptive couple and an unwed father during yearslong litigation.

This shuffling can be devastating to children. As

the National Council for Adoption has emphasized,

“Consistent caretakers are developmentally necessary

and removal from a loving family can be detrimental

to a child’s whole development.” Brief for the National

Council for Adoption at 11, Adoptive Couple v. Baby

Girl, 133 S. Ct. 2552 (2013). If this Court fails to enforce state laws in this context, children will be in prolonged custody battles while courts try to apply a

vaguely defined federal standard for acknowledging or

establishing paternity.

Both Baby Girl and this case illustrate this concern. In Baby Girl, after nearly two years of litigation,

"at the age of 27 months, Baby Girl was handed over

to Biological Father, whom she had never met." 133 S.

16

Joyce A. Martin et al., supra note 14, at 44.

20

Ct. at 2559. Because the adoptive couple ultimately

prevailed, the child eventually went back to the adoptive couple months later, following the grant of certiorari, oral argument, and reversal.

So far, B.B. has narrowly avoided the same fate as

Baby Girl. If the Utah Supreme Court had not stayed

further state court proceedings, B.B. may well have

been returned to his putative biological father—even

while this petition was pending. The same would be

true if the federal question were not reviewable now

because additional state court proceedings had to be

completed first. Thankfully for B.B. and all who want

a quick resolution, the decision in this case is final. See

pages 3–4, supra (noting this decision is final under 28

U.S.C. 1257 as explained in Cox Broadcasting, 420

U.S. at 480). But there is no assurance that other children will be so lucky.

4. The current lack of clarity on the question presented also has a chilling effect on potential adoptive

parents who might otherwise be willing to adopt children with Indian heritage. This chilling effect, in turn,

negatively affects Indian birth mothers seeking an

adoptive home for their children. As this Court explained in Baby Girl, absent clear standards under the

Act, “a biological Indian father could abandon his child

in utero and refuse any support for the birth mother

— perhaps contributing to the mother's decision to put

the child up for adoption — and then could play his

ICWA trump card at the eleventh hour to override the

mother's decision and the child's best interests.” Baby

Girl, 133 S. Ct. at 2565. The Court went on to explain

that, in the face of such a risk, “many prospective adoptive parents would surely pause before adopting any

child who might possibly qualify as an Indian under”

the Act. Id. at 2565.

21

This risk burdens not only the child, but the birth

mother, who may be forced to raise the child in more

difficult circumstances than adoption could provide.

Even worse, this fear could lead to more abortions of

Indian children.

While the decision in Baby Girl ultimately turned

on a different legal question, the policy imperative is

the same: Vague standards for intervention, custody

and adoption—like the one the Utah Supreme Court

applied here—undoubtedly chill adoption, placing Indian children at risk.

5. The vague legal “standard” adopted by the decision below will also hurt children, birth fathers, and

adoptive parents by prolonging custody and adoption

issues. It is entirely understandable that many birth

parents or adoptive parents would seek temporary custody while the ultimate outcome is being determined.

But if state courts are left to determine parenthood under an ill-defined federal “reasonableness” standard,

birth parents and adoptive parents will inevitably engage in a tug-of-war over custody in trial court. Indeed,

if the decision below stands, this tug-of-war will likely

occur in virtually all cases while the result of the federal “reasonableness” determination is appealed—

which it surely will be, given the vagueness of that

standard. This back-and-forth will needlessly increase

litigation costs and stress levels at the very time when

at least some of the parties are trying to provide an

acceptable home for the child.

Only by deferring to the clear state-law standards

in place since before the Act can this Court prevent

such an interminable tug-of-war, one that will hurt

B.B. and thousands of other Indian children. For this

22

reason too, certiorari should be granted to ensure expeditious resolution of the question presented.

C. For reasons well explained by Justice Lee

and the trial court, the majority reached

the wrong conclusion on the question presented.

Not only is the question presented of great importance, but the majority opinion below got the answer wrong. Justice Lee’s approach, buttressed by the

trial court’s analysis and this Court’s decision in Windsor, makes clear that there should be no federal standard for paternity, that state law should control the

determination whether a birth father has adequately

acknowledged or established paternity, and that reversal is the proper course here.

1. Justice Lee explained that, in adopting the Act,

Congress used “acknowledged and established” as a

“legal term[] of art with settled meaning in family

law.” 125a. He provided five pieces of evidence supporting the conclusion that Congress intended to invoke the terms as used in state law. 125a–132a.

First, the state-law definitions of “acknowledged

and established,” while they vary from state to state,

all share common cores: “acknowledgement . . . generally refers to a writing by a father,” while “establishment . . . is initiated by a court filing and culminates

in the issuance of a judicial order.” 125a–127a. The existence of these core commonalities strongly indicates

that, by using settled terms of art, Congress meant to

incorporate their common meaning into federal law.

Second, Justice Lee noted that the statutory phrase

“has not acknowledged or established paternity” is “in

the past tense.” 127a. “This backward-looking phrasing,” he explained, “further underscores the state

23

term-of-art premise of the ICWA definition.” 127a.

That is, the phrase presumes that the issues of

“acknowledgement” and “establishment” will already

have been settled before the federal Act is invoked—

again, necessarily under state law. Moreover, because

there is no federal family law, the statute would necessarily have been looking back at the only authority

that already defines the pertinent terms—state law.

See 127a.

Third, three distinct canons of construction show

that Congress was unlikely to believe it could implicitly set any parenthood standard where states already

had such a standard. These canons are that:

“(a) [t]he whole subject of the domestic relations of husband and wife, parent and child

has long been understood to belong[] to the

laws of the states, and not to the laws of the

United States,

(b) state courts have virtually exclusive primacy in the area of family law, while federal

courts, as a general rule, do not adjudicate issues of family law even when there might otherwise be a basis for federal jurisdiction, and

(c) for these and other reasons, family law

terms in federal statutes are ordinarily

deemed to be determined by state, rather than

federal law[.]”

129a–130a (citations and internal quotation marks

omitted, line breaks added). Applied to the Act, each of

these canons casts further doubt on the majority’s rejection of state law standards for acknowledging and

establishing paternity.

24

Fourth, in adopting the Act, Congress expressly

recognized that it was intruding into an area of established state law. As Justice Lee noted, this recognition

leads to the conclusion that a “countervailing purpose

at stake under ICWA is the protection of the traditional jurisdiction of state courts over adoption proceedings.” 119a–120a (citing 25 U.S.C. 1901(5)). The

very fact that the Act was designed to respect the traditional state domain even as it was expressly intruding into it, however slightly, shows that in other areas

Congress did not intend to upset the traditional allotment of family law matters to the states by implication. See 120a (Lee, J., dissenting); see also Windsor,

133 S. Ct. at 2691.

Last, Justice Lee noted that, when a father

“acknowledges” or “establishes” paternity, that act

also creates requirements for others. 128a–129a. For

example, “A family who wishes to adopt a child of Indian heritage has a statutory duty to provide notice to

any parent. But if parent includes anyone who has

vaguely acknowledged paternity in some informal

way, the adopting family will [not] know how to fulfill

its obligations under” the Act. 129a. If the Act really

created a vague federal reasonableness standard, as

the majority held, that would make it more difficult for

third parties to comply with the Act’s own notice requirements. See 129a.

2. While the majority responded to these points in

its opinion, its responses are ultimately flawed. Indeed, the trial court opinion exposes these flaws.

To give just one example, the majority criticized

Justice Lee for claiming that “acknowledged” and “established” were terms of art. In the majority’s telling,

Justice Lee’s claim that Congress was invoking a term

25

of art failed because “[a] term of art has one established meaning, not fifty.” 45a.

However, the trial court’s discussion of the history

surrounding the Act’s enactment clearly explains why

the term was well understood, and in a largely uniform

way, when the Act was passed. 164a–168a. At that

time, approximately fifteen states had a uniform adoption law and many others had substantially similar

definitions. See In re Adoption of Child of Indian Heritage, 543 A.2d at 934; 166a–168a (trial court opinion).

Although the precise scope of the terms “acknowledge”

and “established” varied slightly from state to state,

the variation was minimal. See In re Adoption of Child

of Indian Heritage, 543 A.2d at 934.

3. Not only did Justice Lee explain persuasively

why the Act reflects a desire to defer to state legislatures, he also explained why the majority’s proposed

replacement—a federal “reasonableness” standard—is

unworkable.

As Justice Lee explained, the majority’s “reasonableness” standard “is a make-it-up-as-we-go standard[.]” 140a–141a. The majority did not lay out a test

for determining whether paternity was acknowledged

under the Act. Rather, the majority’s test (as Justice

Lee summarized) merely concludes that (a) the federal

standard for acknowledging or establishing paternity

is less than the Utah standard and (b) Respondent did

enough to acknowledge paternity. Pet 141a. For the

majority, the Utah standard was too “exacting” to meet

the Act’s definition of “acknowledged or established.”

58a–61a; see also 141a (Lee, J., dissenting). But the

majority offered no clear alternative.

26

Without any standard to guide future cases, Justice

Lee predicted that any standard greater than the absolute minimal acknowledgment would never be

adopted. 141a–142a. After all, since any standard

could be seen as more exacting than the Act’s policy of

protecting biological parents, courts adopting the majority’s view of the Act will likely always rule for the

birth father. See 142a–144a (Lee, J., dissenting).

Justice Lee also explained (at 143a) that the majority’s test fails to solve the majority’s central problem

with deferring to state law: “a complete lack of uniformity.” Rather, as Justice Lee explained, it is the majority’s opinion that will “guarantee chaos and

unpredictability—not uniformity.” 143a. If the majority’s opinion takes hold, “each court faced with the paternity question” will be required “to offer its own

subjective assessment of what is a ‘reasonable’ acknowledgment of paternity.” 143a. This is unworkable.

To be sure, the majority opinion relied (at 48a–50a)

on this court’s opinion in Mississippi Band of Choctaw

Indians v. Holyfield, 490 U.S. 30 (1989), in which this

court did set a federal standard for defining the term

“domicile.” But Justice Lee explained why Holyfield

does not apply: In Holyfield, the meaning of the word

domicile was “generally uncontroverted.” 490 U.S. at

48; accord 135a (Lee, A.C.J., dissenting). The Court

thus used that term because it was the common usage,

not to create an end run around state law. See 135a

(Lee, A.C.J., dissenting).

4. In addition to being wrong for the reasons explained in Justice Lee’s opinion, the majority’s expansion of Holyfield contradicts a more recent decision by

this Court, United States v. Windsor 133 S. Ct. 2675

27

(2013). Under the majority’s reading of Holyfield, marriage itself would not be a term of art. After all, as

Windsor noted, states have fifty different rules about

such marriage requirements as consanguinity and age

limitations. See 133 S. Ct. at 2691–2692. States also

have different procedural requirements to enter marriage, and a variety of other individual nuances17 that

are an inherent part of our federal system.

Since “the steps one must take to” marry “and the

legal effects [marriage] has” vary among the fifty

states, see 46a n.21 (majority), the majority’s theory

would allow courts to assume Congress did not intend

to defer to state laws about marriage when it refers to

married couples without defining marriage. Under the

majority’s logic, courts could infer the meaning of the

term “marriage” from a more general congressional

purpose. But this is incorrect. As Windsor explained,

when Congress intends to use a different meaning of

marriage for federal law than state courts do, it says

so. See 133 S. Ct. at 2689–2693 (noting that, with rare,

explicit exceptions, federal law always defers to state

law on the definition of marriage).

In short, Justice Lee’s and the trial court’s opinions—as well as this Court’s precedent—demonstrate

that Congress meant for state courts to apply the Act’s

terms “acknowledged or established” as used in state

law. Such an instruction was readily understood when

the Act was passed. And this case gives the Court an

excellent opportunity to ensure that instruction is uniformly followed throughout the Nation.

17 See, e.g., FindLaw, Marriage License Requirements, http://fam-

ily.findlaw.com/marriage/marriage-laws/marriage-bloodtest.html.

28

D. This case is a good vehicle for resolving

the question presented.

Nor is there any reason to wait for another case in

which to resolve the question presented, or to correct

the error of the majority in this case. This case offers

an excellent vehicle for resolving the question presented.

1. Despite the seeming complexity of the lower

court opinions, those opinions ultimately reduce to two

sets of holdings: (1) decisions on matter of state law,

and (2) the federal question presented here. As the

state law decisions are, of course, not reviewable, this

Court can cleanly resolve the federal question presented without the need to decide any preliminary issues.

Specifically, the Utah Supreme Court cleared the

path for review in this Court by squarely holding (1)

that Respondent is not a parent under Utah law,18 and

(2) that it had jurisdiction to reach the federal question

presented despite the birth mother’s apparent lie regarding the identity of the father.19 These state law

holdings simplify the potential federal questions to

merely the question presented, making this petition a

clean vehicle.

As the discussion above suggests, the division

among the Utah Supreme Court Justices also provides

the strongest arguments on both sides of the question

presented. Indeed, the majority opinion spends some

twenty-seven paragraphs discussing the question presented, spanning some twenty-six pages of the petition

18 See n. 3 and accompanying text, supra. (citing App. 1a–2a; 66a–

67a).

19 App. 83a–119a (Lee, J., for the majority).

29

appendix. 41a–66a. Justice Lee’s dissent responds

with forty-five paragraphs, also spanning twenty-six

pages of the petition appendix. 119a—144a. Moreover,

each of the opinions devotes substantial space to responding to the other’s arguments. 45a–47a, 53a–54a,

58a–64a (majority opinion); 132a–144a (Lee, J., dissenting).

The exceptional thoroughness of the opinions on

both sides of the issue contributes to making this an

ideal vehicle for resolving the question presented.

CONCLUSION

Besides deepening a split among state courts of last

resort on a question this court has previously agreed

to review, the Utah Supreme Court’s decision upsets

basic principles of federalism. The clean procedural

posture of this case, and the dueling opinions of the

majority and dissent below, make this an ideal candidate to resolve the question this Court left unresolved

in Baby Girl—a question that likely continues to affect

thousands of adoptions of Indian children annually.

For all these reasons, the petition should be

granted.

Respectfully submitted,

LARRY S. JENKINS

KIRTON MCCONKIE

50 East South Temple

Suite 400

Salt Lake City UT 84111

December 29, 2017

GENE C. SCHAERR

Counsel of Record

MICHAEL T. WORLEY

SCHAERR | DUNCAN LLP

1717 K Street NW, Suite 900

Washington, DC 20006

(202) 787-1060

gschaerr@schaerr-duncan.com