Earlier this year, a 6 year girl was ripped from her family because she was 1.5% Choctaw Indian. Upon reading such a headline, I was thoroughly confused. How could a court separate a cohesive family, especially at the risk of inflicting psychological damage on an impressionable, developing child, on the basis of pseudo-heritage? And to this, the law answers with the Indian Child Welfare Act.
In short, the law was originally intended to prevent biased social workers from taking children away from Native American communities. The environment in the 1950s and 1960s was toxic to Native Americans, with members of Congress actively trying to restrict the sovereignty of Cherokee nation. Among the many regressive policies put in place, one called the Indian Adoption Project aimed to take Native American children from poor families and assimilate them into the larger culture by handing them to middle class white families.
Social workers started taking away kids from families all over the country on the grounds of “overcrowding” and “poverty." Soon, 25-35% of all Native American families were without a child, which "not only jeopardized the continued viability of the tribes themselves, but also led to the alienation of Indian Children from their unique cultural values." This means that 25-35% of all Native American children weren't able to continue their Indian legacy, pass on their parents' traditions to their own children, or truly appreciate their distinct heritage as a member of a community.
Anger from Indian tribe councils, justified, at that, followed by years of lobbying, led to the passage of the Indian Child Welfare Act, arguably one of the most effective laws ever put in place by Native Americans. It allowed all American Indian children to be placed with their biological family as first preference, their extended American Indian family as second preference and with any other American Indian family as third preference, effectively keeping Native American children within the boundaries of the culture and allowing their legacy to be preserved. The future ramifications of the Act were obviously unseen, as its original purpose was to keep families together, not tear them apart.
This example from 2016 is fairly reminiscent of Adoptive Couple vs. Baby Girl, a 2010 case that was resolved a few years ago. In this instance, 2% American Indian Dusten Brown, biological father of Veronica, adopted child of Matt and Melanie Capobianco, was able to claim custody of his child after initially rejecting his fatherhood. What this means is that before the birth of Veronica, Dusten Brown waived his rights to child support, and later signed papers approving his daughter’s adoption by the Capobianco family. Six months into the adoption, he is able to gain full custody of Veronica on the grounds of ICWA. Naturally, the Capobianco couple appealed.
This case may have initially seemed simple, but its hidden complexities ratcheted this case up to the Supreme Court. Can this be viewed as a case of preferential treatment based on race? Can the biological father even be considered as her legal father after signing over his rights to the adoptive couple? What is the extent to which ICWA can actually protect American Indian families, and what even constitutes a family?
Regarding the point of contention based on the minimal amount of ‘real Cherokee blood’ in the Veronica’s veins, the debate revolves around what it means to be American Indian. Although she was predominantly a race other than Cherokee, she was still a member of the Cherokee nation, a sovereign state recognized by the US Constitution, as her biological father was registered in the nation. Being a member of Cherokee nation is like being a citizen of the United States. It’s not a race. The majority of American Indian laws regarding sovereignty is based on the fact that race isn’t used to protect one group of individuals over another.
But could Dusten Brown even be considered a parent? Since he signed over his custodial rights, he is not legally a parent of baby Veronica. As the original biological mother put it, "No other set of men can choose to kind of sit back, renounce all responsibility but hold a back-pocket veto to an adoption choice." But as the tribes put it, this instance is more than a straight-forward custody case. It's about a precedent for all other Indian law to be based off of. ICWA is a national law, so it supersedes any state custody law that could be invoked when an Indian family is at stake.
Ultimately, the court ruled against Dusten Brown without voiding the Indian Child Welfare Act, setting up a major precedent. They recognized Brown as a biological parent, but since baby Veronica had never been in his legal custody, ICWA's intention of preventing the breakup of Indian families did not apply because baby Veronica's only legal family was her adoptive parents. Had the court ruled in a way that voided ICWA, the very foundation of American Indian law could have been at stake. And by ruling against Dusten Brown, they prevented the exploitation of ICWA while still keeping its integrity.
But with the case from a few months ago, the situation was different. A child was removed from the custody of her Native American parents, who had substance abuse problems and a criminal history, and placed into a safer environment. However ICWA was used in this situation to remove the child from her home of 5 years, and place her in a different family related to her father. While the previous Adoptive Couple vs. Baby Girl ruling protected the integrity of the Indian Child Welfare Act, it obviously couldn't protect it from being exploited in the future. Though it’s understandable that allowing one family to be split up is nothing compared to the thousands of families that were split up in the 1960s due to the absence of this law, how does this one instance not trigger a slippery slope in the opposite intended direction?
A revision of this law is clearly necessary, or perhaps further litigation in this case can set a more definite precedent for the future.
