On Tuesday April 16, 2013, the Supreme Court heard the case of Adoptive Couple vs Baby Girl, which challenged the core principles of the Indian Child Welfare Act (ICWA) and of Indian law generally.
FCNL and other faith groups have strongly supported ICWA since the late 1970s, when we worked for its passage in Congress.
FCNL was joined by other faith groups in submitting an amicus brief for the Supreme Court case, supporting the placement of the baby girl with her father, a member of the Cherokee nation. Read FCNL’s amicus brief and find other information on the case.
Updates
June 25, 2013
The U.S. Supreme Court released its ruling in Adoptive Couple v. Baby Girl, upholding the Indian Child Welfare Act, but reversing the conclusions of the lower courts and sending the case back for retrial on some specific points. The 5-4 decision focused closely on the circumstances of the particular father in this case, and on the factual application of some terms in the Indian Child Welfare Act. Could a family be “broken up” if the father had not been present since the child’s birth? (The father was deployed to Iraq just after the child was born.)
The Supreme Court ruled in favor of the adoptive parents, finding that the law upholds a “continued” relationship between a child and her Indian parents and community, which didn’t seem to apply when the father had never lived with the child. The Supreme Court sent the case back to the state courts for a determination of this issue — whether there was a continuing relationship with the father, who had been deployed to Iraq, and the baby, Veronica.
Some language in the majority opinion appears to resurrect an old standard under ICWA – requiring a showing of a “continuing Indian family” present in the child’s life. In previous report language in 1996, the Senate Committee on Indian Affairs emphasized that “ICWA recognizes that the Federal trust responsibility and the role of Indian tribes as parens patriae extend to all Indian children involved in all child custody proceedings.” The Committee reiterated that Indian tribes have the authority to define their membership – including the membership of children, and that the purpose of ICWA does not rest on an established or continuing family relationship with an Indian child.
August 11, 2013
The state court then summarily ruled that the child should be placed with the adoptive parents. Fortunately, language in the Supreme Court decision affirmed the importance of the Indian Child Welfare Act, but focused instead on its own interpretation of the facts of this individual case. The child will be returned to the adoptive parents, but the case does not end there. Bigger questions about the validity and constitutionality of the law itself will still be debated.
A new law suit, brought by a dozen mothers, including the biological mother of the baby involved in the recent case, seeks a declaratory judgment that parts of the Indian Child Welfare Act are unconstitutional. The suit challenges the preference for an Indian child to be adopted by her Indian family or community as giving “racial preference” in violation of the equal protection clause of the Fifth Amendment.
In the same week, the National Congress of American Indians, the Native American Rights Fund, and the Indian Child Welfare Association announced plans to file a civil rights suit on behalf of Veronica. The action will protest the state court’s summary finding as to the “best interests of the child” without a hearing to carefully consider the child’s interests in staying with her father and his extended family.
Ben Shelly, president of the Navajo nation, articulates the fundamental importance of the Indian Child Welfare Act for Indian children and their families and communities in this Washington Post editorial.
October 1, 2013
In the last three months, while Veronica is in the temporary custody of Dusten Brown’s wife and parents on Cherokee lands, he has continued to try to halt the adoption and retain custody. Both he and the potential adopting parents have pursued cases in both South Carolina and Oklahoma courts, which have yielded contradictory results. At one point, the South Carolina courts issued a warrant for Brown’s arrest for interference in a custody order.The governor of South Carolina ordered Brown’s extradition from Oklahoma. A hearing on the extradition order is scheduled for October 3 in an Oklahoma court.
The case is no longer about the Indian Child Welfare Act; hearings coming up are supposed to address the best interest of the child. The child’s best interest is normally interpreted to be with his or her biological family, unless there are compelling reasons, such as abuse, to remove the child.
Get more information on the various twists and turns in the case.
Meanwhile, the United Nations Office of the High Commissioner on Human Rights issued a statement demanding that the United States “take all necessary measures to ensure the wellbeing and human rights” of Veronica Brown.” James Anaya, the UN Special Rapporteur on the rights of indigenous peoples, urged that “Veronica’s human rights as a child and as member of the Cherokee Nation, an indigenous people, should be fully and adequately considered in the ongoing judicial and administrative proceedings that will determine her future upbringing. The individual and collective rights of all indigenous children, their families and indigenous peoples must be protected throughout the United States.”
