The U.S. Supreme Court, in a 5-4 ruling drafted by Justice Samuel Alito, has used provisions of the Indian Child Welfare Act (ICWA) to say that a child, widely known as Baby Veronica, does not have to live with her biological Cherokee father.
"[T]he parent abandoned the Indian child before birth and never had custody of the child," Alito wrote for the majority that was joined by Chief Justice John G. Roberts Jr., and Justices Anthony M. Kennedy, Clarence Thomas and Stephen G. Breyer.
Alito wrote that Section 1912 of ICWA does not apply because Brown never had custody of his biological daughter, and wrote that Section 1915 of ICWA does not apply because no other Cherokee relatives, or other Indian families, stepped forward to assert custody.
The child was taken from her adoptive white parents’ home after living there for the first two years of her life. Dusten Brown, a Cherokee Nation citizen, prevented the adoption, saying ICWA applied in his case. The South Carolina courts agreed, and the child, now 3 1/2, has lived with Brown since his challenge.
The high court’s decision paves the way for Matt and Melanie Capobianco, the adoptive parents, to ask the South Carolina Courts to have the child returned to them.
Writing for the minority, Justice Sonya Sotomayor said the majority’s opinion was based on “hollow literalism” that “distorts the statute and ignores Congress’ purpose in order to rectify a perceived wrong that, while heartbreaking at the time, was a correct application of federal law and that in any case cannot be undone.”
“Baby Girl has now resided with her father for 18 months,” Sotomayor wrote. “However difficult it must have been for her to leave Adoptive Couple’s home when she was just over 2 years old, it will be equally devastating now if, at the age of 3½, she is again removed from her home and sent to live halfway across the country. Such a fate is not foreordained, of course. But it can be said with certainty that the anguish this case has caused will only be compounded by today’s decision.”
Immediate reactions from Indian country to the ruling were, not surprisingly, concerned.
“The problem with the court building a case for the existing family doctrine based solely on custody is that it has huge ramifications for Indian country,” said Chris Stearns, a Navajo lawyer with Hobbs Straus Dean & Walker. “There’s no other way around it—it is commonplace in Indian country to find cases where one parent has never had custody.”
Stearns said the court’s reading of ICWA is “extremely flawed and it will literally affect thousands of Native children because they do not happen to have two custodial parents.”
“The Court misses the core concept behind ICWA—which is to protect the cultural resource and treasure that are Indian children,” Stearns added. “It’s not about protecting so-called traditional or nuclear families. It’s about recognizing the prevalence of extended families and culture.”
For now, because the court did not find the law unconstitutional (as Justice Thomas wanted to happen, according to his own brief filed with the majority opinion), ICWA appears safe. That outcome was a concern of several tribal officials monitoring the case. Writes Kate Fort at Turtle Talk, “The decision is a setback, and a devastating blow to the family, but it’s also not the end of ICWA.”
“This was not a constitutional case, but rather one of statutory interpretation,” Stearns said. “Congress is free to go back and ‘fix’ the law [so something like this case doesn’t happen again]. The question is whether there are the votes in Congress to do so. Fixing a Supreme Court decision is not easy.”
The concluding portion of the majority opinion says that there might be constitutional concerns about a reading of ICWA that would allow a father to use ICWA as an eleventh hour trump card, but the majority does not go further than raising that possibility.
Sotomayor’s dissent states that classifications based on tribal citizenship are permissible under the Constitution.