Cases involving child custody are always middle class morality plays. I am reminded of the time I had trouble getting a routine, uncontested step-parent adoption done in the county where I now reside, because one of my clients was a non-observant Jew and the other was an atheist and the judge demanded that the legally required social study be conducted by a Christian minister.
This middle class morality play is part of the reason that about a third of Indian children who fell into court-supervised custody situations used to wind up with non-Indian foster or adoptive parents. The more traditional the blood parents, the more likely this outcome, as we are by and large not monotheists or aggressive in pushing our beliefs on others.
Another part of the reason for non-Indian placements goes back to the longstanding governmental policy summarized in the remark attributed to Richard Henry Pratt, founder and superintendent of the Carlisle Indian Industrial School: “Kill the Indian in him to save the man.”
One of many screaming absurdities in the history of American Indian control law is that this policy of forced assimilation was moving along at a time when Indians were denied US citizenship and long before they ever gained the right to vote for the people who made decisions affecting their lives.
The Indian Child Welfare Act is a belated effort to redress the theft of generations of Indian children, just as the Voting Rights Act is an attempt to redress suppression of non-white votes. Both of these laws have been successful in bringing change, so the crippling of both laws on June 25, 2013 makes that the day the Supreme Court took a vigorous public stand for white power.
It’s an ongoing trope in federal Indian control law that when the SCOTUS does us harm, it offers a rationale in terms of our own good. In Adoptive Couple v. Baby Girl, the Court purported to agree with the argument of the professional adoption industry that ICWA makes Indian children less adoptable.
It’s absolutely true that ICWA makes adoption more difficult outside the tribe. The tribe must be notified. The Indian parents cannot have their rights terminated without some attempt to repair the problems short of breaking up the family. The tribe can remove the case to tribal court.
In the case Indians came to know as Baby Veronica’s Case, two very big facts got short shrift in the SCOTUS opinion.
That fact that much of the trial delay could be attributed to the Cherokee father’s deployment in Iraq rated no mention, although the delay itself was noticed.
The fact that the notification to the Cherokee Nation failed to turn up the father’s citizenship on account of misspelling his name and misstating his birth date is blown past. When the Cherokee Nation did get proper notice and intervened in the case, it was faulted for not offering tribal citizens to adopt Baby Veronica—a step the tribe had no reason to take because it had adopted the cause of the Cherokee father, and if he retained his relationship to Veronica, the tribe’s interest was satisfied.
We should not dwell on the harm to Baby Veronica. The courts did not. The question is what this case does to ICWA, and the impact runs directly against the goals of ICWA in the name of making Indian children more available for adoption.
The Court held that a father who never had physical or legal custody of a child or provided support for the child had no “Indian family” to be broken up, and therefore the procedural protections of ICWA never kicked in. If you are posted in Iraq, the only way you can be part of an “Indian family” is to send money.
Notice that the Cherokee Nation’s interests are being disregarded because of something the Cherokee father did not do.
Remember the formerly leading case on ICWA, Mississippi Choctaw Indians v. Holyfield, where the Indian parents were purposely trying to avoid application of ICWA by arranging for birth off the reservation and giving the children up for non-Indian adoption. The SCOTUS pointed out, correctly, that the purpose of ICWA was not to benefit individual Indians but rather to benefit the tribes. Justice William Brennan wrote: “These congressional objectives make clear that a rule of domicile that would permit individual Indian parents to defeat the ICWA's jurisdictional scheme is inconsistent with what Congress intended.”
What a difference a few conservative SCOTUS appointments makes! We go from Holyfield in 1989, holding that Indian parents can’t defeat ICWA on purpose, to Adoptive Couple in 2013, holding that an Indian parent can defeat ICWA by accident. For our own good, of course.
What do Indians have left when the protections of ICWA are stripped away? They are reduced to the middle class morality play, where statutes of both Oklahoma and South Carolina (homes of the Cherokee father and adoptive couple, respectively) award custody of an “illegitimate” child to the birth mother.
Over 40 percent of all American children are born to unmarried mothers. For American Indians, the figure is over 65 percent. Lots of luck, dad.
The other reason why Baby Veronica’s case pulled the teeth of ICWA in the best interest of Indians is that, had they not done so, “serious equal protection concerns” would arise.
Translation: any law that benefits Indians because they are Indian disadvantages white people and would therefore be unconstitutional. The SCOTUS did us the favor of avoiding that, leaving ICWA only wounded rather than dead.
Justice Clarence Thomas was particularly solicitous of our interests, and his concurring opinion is worthy of a separate column so I can express the proper gratitude.
Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.