On Thursday, the day after the South Carolina Supreme Court denied an appeal filed by Dusten Brown and the Cherokee Nation to consider a “best interest determination” hearing, Veronica's birth mother filed yet another suit in South Carolina federal court claiming that placement preferences for Indian families violates equal protection provisions because the law uses “race” as a factor in custodial placement.
But legal experts across the country have questioned the validity of the lawsuit because of the sovereign immunity of the United States and tribes from being sued without their permission.
“Frankly, it's frivolous and without merit,” said one legal expert who works exclusively on Supreme Court cases. “This birth mother cannot show that there has been 'controversy' or that there is some 'injury' by the placement preference of Indian children with their own families and tribes. So most likely this case will be dismissed on jurisprudential grounds by the Department of Justice.”
J. Eric Reed, a Dallas-based attorney who has practiced law as a tribal prosecutor and also as a special assistant United States attorney for the Cheyenne River Sioux Nation, points to the extensive legislative history of the Indian Child Welfare Act (ICWA) and the sound reasoning for its existence. Reed has extensive experience in matters related to ICWA, tribal sovereignty and international indigenous human rights.
“The constitutional questions surrounding every aspect of the Indian Child Welfare Act were vigorously debated by Congress, which enacted this legislation to protect the ultimate health and welfare of all indigenous children in the United States. Those hearings uncovered a very tragic reality in the systematic abusive child welfare practices toward Indians in state courts that resulted in the separation of great numbers of Indian children from their families and tribes through a variety of adoption or foster care placements, which are almost always in non-Indian homes,” said Reed, who is a member of the Choctaw Nation of Oklahoma.
There are overwhelming examples, statistical data, and expert testimony documenting the evidence of these practices resulting in the wholesale removal of children from their tribal home and identity. The adoptive and foster care system operates much like the human trafficking version of 'puppy mills' where getting custody of a child results in increased funding for the foster operator. And private adoption agencies with wealthy clients are also in a position to entice the purchase of a child from the pregnant mother who may be in poverty. This often happens without proper notice to the Tribes or the fathers, who don't get a hearing on the matter.”
For example, according to the Lakota People's Law Project, nearly 750 Indian children are seized by the South Dakota Child Protective Services each year. Indian children comprise only 13.4 percent of the total population of children in South Dakota; and yet they account for a whopping 52.3 percent of the foster and adoptive placements in that state.
In March of this year, three Indian parents and two tribes represented by the American Civil Liberties Union and attorney Dana Hanna of Rapid City, filed a class action lawsuit (Oglala Sioux Tribe v. Van Hunnik) in the U.S. District Court for South Dakota. For decades, the suit alleges, Indian parents and families were denied due process in being separated from their children under the 14th amendment, as well as hundreds of ICWA violations.
Even as the parties prepare for the upcoming trial, it should be noted that the impact of Adoptive Couple v. Baby Girl is already being felt in Indian country. Last week, another unwed putative father in South Dakota had his parental rights terminated because of the decision.
Therefore, many legal experts, including Reed, see a troubling pattern emerging in both Adoptive Couple v. Baby Girl and in the systematic seizure of Indian children from reservations across the country. Because of the recent crackdown on American adoptions by Russia and other countries, they say the U.S. adoption industry has turned toward vulnerable women in this country who may be swayed by perks, such as new cars, gifts and financial compensation in return for their unwanted children. By attempting to invalidate all or parts of ICWA, the U.S. adoption industry has a vested stake in providing children and babies to infertile couples, who are equally vulnerable to less-than-savory adoption agencies, who charge up to $8,000 per couple for a listing on their websites.
As the extraordinary drama in Baby Girl continues to unfold, legal scholars agree that while Maldonado's suit in South Carolina against the United States and the Cherokee Nation may not get much traction in court, it reveals yet another strike at tribal sovereignty in America.
“It's not going to fly,” said Reed. “And honestly, this case is a perfect example of exactly why the Indian Child Welfare Act was needed in the first place.”