The Supremes and the Indian Child Welfare Act

by olgasoutstanding

In the latest session of the U.S. Supreme Court, a lot has been made – and rightly so – of the decisions in Shelby County vs. Holder (the Voting Rights Act case), Hollingsworth vs. Perry (California’s Proposition 8), and United States vs. Windsor (Defense of Marriage Act).  A case that has gotten rather less attention is Adoptive Parents vs. Baby Girl, which was seen as a test of the Indian Child Welfare Act of 1978.

The ICWA is one of the most prominent laws to address genocide that I can think of.  Its aims are to keep Indian children in their communities, promoting stability within the community and enabling the survival of indigenous cultures in the United States.  Before the ICWA became law, Indian children were frequently removed and placed for adoption in white families – often because of cultural differences between the social services system and the people they were supposed to be helping.  It provides that measures should be taken to keep Indian families intact and give preference to Indian communities in the adoption or foster care placement of their children.  So far so *very* good, though one might say it was a case of too little, too late.

Now to today’s topic: Did the Supreme Court’s decision in the case of Adoptive Couple vs. Baby Girl gut the ICWA?  My first impulse was to say yes.  Then I read the decision carefully.

The decision does not affect ICWA.  It simply states that in this one, specific, extraordinary case, ICWA doesn’t apply in the way that the South Carolina courts held it to apply.  It may apply with another justification, but not this one.

Here’s why this case was different:

1) The father explicitly ceded parental rights before the child’s birth.  In writing (text message).  He also stated that he would not give any financial support to mother or child.

2) The mother was not an Indian.  She had the sole right under both South Carolina and Oklahoma law to place the child for adoption, and she did so.

3) The father only objected to the adoption months after the child was placed; in short, he was unwilling to support the mother and child, but didn’t want the child to be given up for adoption.  After he had ceded his parental rights. 

4) The adoptive parents had contacted the Cherokee Nation in an attempt to find out whether ICWA applied to this child, and were told (due to a clerical error) that her biological father was not enrolled (again, he was, but they got his name and birthdate wrong – that said, the adoptive parents made a good faith effort). 

5) The South Carolina court ruled that the adoptive parents were required to stimulate the biological father’s interest in being a parent to preserve the Indian family.  The Supreme Court ruled that there was no family to preserve, as the biological father had never had custody of the child and renounced all intention of ever being involved in her life until well after her placement in the adoptive family.

In short, this was a really narrow decision.  The Court didn’t decide that ICWA could not apply; instead, it decided that preserving the unity of the Indian family was not applicable in this case.  It did not award custody to Adoptive Parents; instead, Baby Girl will have to go through a process that includes the Cherokee Nation.  She remains in limbo, for the time being.

Some may question the overall usefulness of the ICWA.  When seen in the context of boarding schools, forced removal of Indian children, and years of massacres, it’s clear that the ICWA has an important role in preserving Indian families and culture.  It is understandable that many were worried that the law would be weakened by this case, but the circumstances here were truly extraordinary.  It is unlikely to have much effect on the applicability of the law in less extreme cases.