ABA Journal


U.S. Supreme Court

SCOTUS sides with adoptive couple, says Indian Child Welfare Act doesn’t apply

Jun 25, 2013, 06:45 pm CDT


Aside from the emotional side of the case -- dad not supporting, giving up his rights to mom -- the court made the right call on the law.
And I'm seeing some similarity in the logic used by the court in addressing the statute in the Adoptive Baby Girl case -- what it was meant to prohibit? -- and the the logic used in the Voting Rights case, focusing on a formula that was very obsolete.

By JimB on 2013 06 25, 8:22 pm CDT

This is why the court needs to abolish all race based classifications. There is no reason why in 2013 this child should have been treated differently than a non-Indian child. I agree with Jusitce Thomas that there's an equal protection problem here and the relevant portions of the ICWA should be declared unconstitutional.

By Chris on 2013 06 25, 9:54 pm CDT

If you don't know Indian law, and the commenters above don't appear to, then do like the wise old owl and say nothing. Indian law is vastly different than anything else and can seem odd at times. This decision is counter to the spirit of the ICWA but the courts often do that.

By Fred on 2013 06 26, 2:53 am CDT

Though the father may have five up his rights, the ICWA grants that other memebers of the tribe that the child is enrolled have leagal standing to demand custody. I don't think that this case is done by any stretch of the imagination.

By Robert on 2013 06 26, 5:10 am CDT

Chris, it is kind of unlikely that Indian classification will go away because of what the Constitution says about the relationship of the government towards Indian Tribes.. Fred is right. You don't know what you are talking about.

By Robert on 2013 06 26, 5:14 am CDT

Indeed, this is a decision that flies in the face of Tribal sovereignty. The rights that were ignored were not only the rights of the father (that would be individual civil rights in other cases) but the sovereign rights of the Cherokee Nation. Big difference - not race-based at all. There are three tiers of government in the USA and most Americans are ignorant about this - Feds, States AND Tribes and usually, I put Tribes first because they were here first. Tribal law is based on a complex history and treaty rights between the USA and Tribes. Those cannot be ignored.

By CM on 2013 06 26, 3:58 pm CDT

Fine. The tribes have their own way of doing things. And in many cases tribal law takes precedence over federal or state law. But usually when couples adopt ANY minority child, this is a long, involved process--often involving months or years of fostering the child. If heritage is so important to the tribe, why didn't the tribe step up to the plate on behalf of the father when the mother relinquished her rights? Regardless of the law, it does not benefit the child's welfare to tear her from a home that provides stability, and where she is well-cared-for, in order to vindicate some undefined cultural ideal that the kid doesn't understand. Educating the child about her heritage could be accomplished by other means--such as encouraging the adoptive family to participate in various sacred activities, attending language classes, or visiting the extended birth family regularly.

By BMF on 2013 06 30, 4:59 am CDT

By what standard do you consider a child's welfare? The purpose of the ICWA is to protect the tribes from state adoption agencies that all have a history of promoting assimilation and in effect,m cultural genocide. No state agency is a friend of any Tribe.

By Robert on 2013 06 30, 3:29 pm CDT

Robert @ 8: My bad. God forbid Native American kids should be adopted and assimilate into a culture where they might find ways to help their people or preserve their culture by working with the system. You seem to be unaware that there are plenty of women who willingly give up their babies because kids don't fit in with their recent cultural heritage of abject poverty and substance abuse. That's part of the problem with the ICWA. Why should anyone's "tribe" be permitted to essentially use the legal process to veto their personal decision about their child's welfare? Some parents would like their child to have a shot at Harvard, instead of living on the res. And if the child has FAS, appropriate medical care is often unavailable, or out of the mother's financial reach.

By BMF on 2013 07 01, 9:30 pm CDT

I worked professionally wit the Nez Perce Tribe and the Coeur d'Alene Tribe for five years. The answer to your question is the Constitution of the United States. If you are born a citizen, then citizenship is not optional. Every tribal member has a legal relationship with their Tribe, whether they want it or not.

By Robert on 2013 07 01, 10:17 pm CDT

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