Some Thoughts About Adoptive Couple vs. Baby Girl

On the “better late than never” theory I thought I would take the time to offer some reflections about the ICWA case that was argued this week.   For those who took the time to look, there were many reactions to it out there.  News reports, transcripts and blogs are all available and I don’t have the facility to link to them just at the moment.   I suppose, though, I can summarize reactions in two different ways.

First off, the justices didn’t seem to be heading in a uniform direction.   It’s always a bit dangerous to place too much weight on the questions that get asked, but it’s still an interesting thing to look at.  In this case the questions suggested a range of views on the part of the justices–which isn’t surprising, really.    It does, however, make it nigh on impossible to predict any outcome here.   As is often the case these days, Justice Kennedy may hold the pivotal vote.

Second, the reaction in terms of commentary seemed to be quite polarized.   People see the case and the underlying issues in remarkably different ways.   For some, this is a story about a conniving woman assisted by an unscrupulous adoption agency who was determined to thwart the efforts of both the man and the tribe involved.   For others, this a story about a child torn from the only parents she ever knew because of a small trace of genetic material.  (I don’t mean the man’s overall genetic contribution–which of course is 1/2 her genes, but rather the fraction Cherokee blood that makes this an ICWA case.)   Many of these competing accounts turn on the specific facts of the case here, some of which are hotly disputed.

Maybe it is because it is days later, but I do wonder if these polarized views are really helpful in sorting things out.  (Of course, you might argue that polarized views never are helpful.)     As I’ve been thinking about the case I’ve found a calmer way to consider the issues–which is not to say I’ve found a way to make them all easy.   I’m going to walk thought that here.

First I will take it as given that under South Carolina law the man here would not have been entitled to notice or to block the adoption.  He did not do the things that state law requires in the time frame state law specifies.    Now you can think South Carolina law is right or wrong–I understand that.   And I offer no judgment on that.  I just want to identify this as my first assumption.

Second, it seems to me clear that Congress, in trying to protect and preserve the sovereign tribes, could enact a law that says that any time there is a child conceived who would have the blood tie necessary to make the child a tribal member then that potential link to the tribe must be protected.     To be clear, I think that generally speaking, the blood tie necessary to make a child a tribal member is something for the tribe to decide.   That’s about self-definition.    But where there is a child who could be a tribal member, Congress could recognize that and provide protections before the child is effectively removed from the tribe.   Again–I am not saying this is right or wrong just at the moment–I’m only asserting that it seems pretty clear to me that Congress COULD do this if it wanted to.

Finally, if Congress did do something like what I just described then it would pretty clearly override state law to the contrary.   That’s fundamental to our structure of government–the Supremacy Clause–which I believe is Article VI of the US Constitution.   In other words, if Congress acted as described then South Carolina law to the contrary would be ignored in a case that fell within the Congressional action.

With those assumptions in mind, the case before the Court just looks like a case of statutory interpretation.   Did Congress in fact do what I described?   What does the statute say?   What do the words mean?

Now that isn’t an uncontroversial question.   The statute isn’t as clear as it might be, as is often the case.   People offer all different readings.   And in interpreting the statute the Court perhaps should think about what the implications of its interpretation will be, which does raise hard questions.   But the Court isn’t just making policy–resolving the underlying questions about what the right balance between various interests is.   Congress, at least in theory, already did that.  Or can do it in the future.

I think the really hard questions here are the underlying policy questions.  Tribes should be able to define themselves.   Tribes define themselves in terms of genetic lineage.   If tribes define themselves in expansive ways–say that anyone with the proverbial “one drop” of tribal blood is a tribal member–then the reach of ICWA is vast.   (I’m not sure tribes really have any interest in defining themselves so expansively.)   Those difficult policy questions don’t get any easier when they get bound up in the polarized reactions to the present case.

I really do worry that the Court, not fully understanding the complexity of family law, will include language in its opinion that destabilizes existing law.   For better or worse, there are a string of Supreme Court cases that do talk about the rights of unmarried men outside of ICWA.  (For the law geeks here, I’m thinking of the line from Stanley to Lehr and possibly including Michael H.)     These cases weren’t much in evidence in the argument, but I’m hoping that the justices remember they are not writing on a blank slate.


12 responses to “Some Thoughts About Adoptive Couple vs. Baby Girl

  1. Interesting take Julie because reading the transcript – the point was made about creating two classes of parents – one having rights and the other not and how was that right or what was the point of being declared a parent then. I did think about how that might impact non ICWA adoptions – simply because that is what has been done in every state. The mother only has to give birth (not taking anything away from that) but the father must jump through hoops he may not even be aware of to earn the right by law and regardless of the rigors of pregnancy and birth – it happens whether you know what to expect or not.

    Doesn’t ICWA have the requirement of membership of the parent and parents parent before it can be applied?

    Is that the only hearing of arguments before they make their decision? Or do they consider and recall? Totally ignorant here.

  2. I think the law itself should include a definition of tribal member. If it doesn’t include a definition then it can be applied to anyone and anything and change at any time.

    • Ki, that makes me think of a case called Neilson (I think that was the spelling) v Ketchum. A federal appeals court ruled that a Cherokee law granting automatic citizenship to infants who qualified to enroll, regatdless of whether a parent was enrolled could not be used to force application of ICWA to overturn an adoption. The Cherokee Nation appealed to the USSC who paid it more attention than most cases – additional records were requested and the case discussed at two conferences but ultimately they did not take the case.

  3. One of the points discussed in briefs on both sides but that I don’t recall seeing in the oral argument transcript unless I missed it was about what congress intended when they referred to excluding unwed fathers who had not acknowledged or established paternity. Does the father just have to prove he is the father, or say he is, or does it refer to some federal or state definition of legal paternity? I am not even sure how reliable DNA testing was when the law was passed, so that may not be what they meant.

  4. I had a revelation or maybe more of a “duh” moment. With American citizens interbreeding the way we do the number of people with traceable ties to individual tribes is dwindling and if the tribes do not keep track of people with native American blood their tribe faces extinction. As a matter of heritage more than percentage of blood they are trying to keep track of descendants. 7 generations or 175 years and you drop below 1% of an ancestors blood still in you. It’s still true that you are that person’s descendant and their history is part of your history and what makes you who you are. Were it not for them you would not exist so it is still important to keep track of if its possible.

    With adoption the stupid thing is that you cease to be a legally recognized member of your own family, cease to be recognized as the child of your parents and cease to be the legal kin of your own family. That is just so stupid. Adoption should be handled like marriage where you essentially add a contractual family, add contractual kin – people related to you by virtue of a contract. Yes the contract is suposed to be so permanent but there are laws about the fact that there are no contracts you can’t get out of you cannot force a person to abide by a contract otherwise its slavery. They have to have the option to get out which is why we have no fault divorce. You should just stay the child of your parents and become the adopted child of your adopted parents and the adopted relative of your adoptvie relatives. Its so simple. Clearly if you have adoptive parents it means your parents no longer have authority over you while you are a minor. So there is no point in terminating a person’s membership in their own family just because they are adopted. The adopted family has their connection and the family has theirs. It’s a problem for more than just native American’s. I see why they made a play for it but clearly this is the same problem anyone would have because they force you to loose your own family just because you get adopted. There is no reason for that.

    • I’m not denying that a person who has some Indian ancestors has Indian heritage, obviously they do. But is that amount of heritage enough that a child like that always has to be in an Indian home? Should the government really be giving tribes that much power over that child? Should children today have to reparations for past wrongs? It would be sad if the tribes died out but I don’t feel the end justifies the means here.

    • Also ICWA does apply in cases where there will not be an adoption – such as permanent guardianship, testamentary guardianship (who the parents pick to raise the children if they die), etc. So this is not just an “adoption” issue.

  5. Now that I am at home I can type more easily, so I’m going to go back to a point that troubles me about ICWA.

    I feel like pre-ICWA, the tribes did not have enough power, but with ICWA, they were given too much. I agree with the part of ICWA that gives jurisdiction to tribes for families domiciled on the reservation. It makes sense – it’s their land, the federal government only gets involved if there’s a very serious crime on a reservation.

    But I think it’s more complicated when you get beyond the reservation, to non-Indian lands, and especially to families where only one of the parents is an Indian. To give the tribe such a strong say in that situation, to give such a strong preference for an Indian family when the child has other heritage as well, is to me not much better than the pre-ICWA situation where children being raised Indian were given to white families. It almost comes across as treating the child like a reparation – the tribe gets the child to regrow its numbers. But a human being should never be a reparation.

    And this law doesn’t just apply to adoption – it’s ANY situation where neither biological parent can/will care for the children. Parents are incapacitated? ICWA. Parents die? ICWA. Parents are abusive? ICWA. It’s not such a problem when relatives are available to raise a child in a foster care situation, because ICWA does not distinguish between relatives from the Indian and non-Indian side of the family – so the relatives with a stronger relationship, even if they are the non-Indian relatives, would have a good chance at custody. But let’s say there is no suitable relative. The child was raised heavily immersed in the non-Indian parent’s culture. Under ICWA, a non-related Indian family would have a higher priority than close family friends in their community that the parents had hand picked to raise their child(ren) if the parents died. That, to me, is pretty messed up – just as bad as forcing a child raised Indian into a white home (the sort of situation that prompted this law).

  6. Oh, one more point about the polarizing viewpoints thing – I noticed that, and it’s unfortunate, because I think the truth is probably somewhere in the middle – that no one, not the mom, dad, agency, lawyers, or prospective adoptive parents, is all good, or all bad. I think they all probably made some mistakes and contributed to this happening.

  7. Rebecca,

    I see the Cherokee Nation as a family at it’s very core / start. I then try and define what is family – and am drawn back to my favorite family tree – Dad’s. His six times great grandfather came to this country in the mid 1630’s and then I see the unbroken chain passed down – father to son repeated each new generation – and each time that blood/dna is diluted if you will – by the mother married to the father each generation, until you come to dad born in the second decade of the last century. Was he not his six times great grandfathers relative born almost 300 years later? How much blood/dna did they actually share? They are still family – they share the same surname – they are the same family or clan or whatever term you give – one came to this country and lived out his life on the east side – the other raised and lived on the west side – doesn’t matter that they didn’t live or walk the same ground – they still belong to each other.

    I can’t see how it is any different.

    • Well, I’m not denying the child has Cherokee heritage. But if you see shared heritage as a type of family, then the child would have several other families as well. Is it right to elevate one above the others by law? Would it not make more sense (in most cases, where the child was old enough – this would be harder with an infant, I guess you could look at the parents) to look at the child’s life experiences and connections?

    • Theyre family only if they view eachpther as such. by that time its about heritage not dna. heritage is likedna in that it gets passed down, often together with dna, but its not automatic. that’s why me and my babys dad are now fighting like cats and dogs about me wanting to give our expected son my family name. i want to pass alongmy family heritage in the name. dna is insufficient in a patrilinear world.

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