Seated from left to right are: Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony M. Kennedy, Associate Justice Ruth Bader Ginsburg. Standing from left to right are: Associate Justice Sonia Sotomayor, Associate Justice Stephen Breyer, Associate Justice Samuel Alito Jr., and Associate Justice Elena Kagan. Photo Courtesy Associated Press.
US Supremes challenge ICWA
By Christina Rose
Native Sun News Associate Editor WASHINGTON, D.C.—Some have said that King Solomon would have had an easier job figuring out the “preferred placement” of Baby Veronica than do the judges in the United States Supreme Court. However, by all legal accounts already upheld by the Indian Child Welfare Act and the lower courts, Veronica belongs with her biological father. In the transcripts of the Supreme Court’s hearing, there were no conflicting opinions about whether or not Dusten Brown is the biological father of the baby girl. The majority of the court’s arguments hinged on ICWA sections 1912 (d) which says that the State must make efforts to provide remedial services to prevent the break-up of the family, and (f) which must prove beyond a shadow of a doubt that continued custody is likely to result in emotional or physical damage to the child. In Attorney Lisa Blatt’s opinion, ICWA does not create custodial rights, it only defends the rights of families who have had custody and makes it harder to terminate rights. In her opinion, the court needs to decide if Section 1912 (d) or (f) creates custodial rights. Justice Sonia Sotomayer asked Blatt if she was suggesting that if a parent doesn’t have custody, he doesn’t have any protection under (d) or (f). Sotomayer said, “You do think only a parent with custody is the only definition of family, but why wouldn’t a non-custodial parent with visitation rights be considered a family with that child?” On the same theme, Justice Antonin Scalia said, “Your argument assumes that the phrase in the stature “to prevent the breakup of an Indian family” only applies where the father has custody.” “This guy is the father of the child,” he said, noting that the adoptive parents would take his child even though he wants it. He asked, “That is not the breakup of the Indian family?” Scalia accused Blatt of attempting to read “Indian family” to mean something more than a biological relationship. He asked, “You’re going to hang a lot of other ornaments on that phrase?” While Scalia said it was clear that the child has a father and mother and that was the Indian family, Attorney Blatt maintained that Brown was the equivalent of a sperm donor. Sotomayer asked Blatt, “If the choice is between a mother, a biological father, or a stranger, and the father’s fit, why do you think that the Federal statute requires that it be given to a stranger rather than the biological father?” Blatt’s response was that the only stranger was the birth father who gave up all paternal rights and who had no custodial rights. Justice Kagan asked, “What’s the point of labeling him a parent if he gets none of the protections that the Act provides to a parent?” Justice Stephen Breyer suggested that the father would win the case “unless something overcomes the preference or there is good cause to the contrary.” Agreeing, Justice Ruth Bader Ginsburg asked if statute 1915 would preclude the adoption, because the adoptive parents are not in the preferred category. Preferred category would be the parents, relatives, tribal members or other Indian family. Blatt’s indignant response was, “It’s also extraordinary that any other Indian would get a preference whether or not that Indian was a tribal member” of the baby’s tribe. She noted that no one in the tribe had stepped up to adopt the baby. According to Blatt the ICWA merely serves to enlarge the tribe. Blatt determined that there was nothing in the Act that gives custody to Brown. She complained that he walked off with the child without the courts determination of best interest in the child. Yet contrary to her argument, the courts weighed over and over that being with Brown was indeed in the best interest of the child. Attorney Paul Clement, on the side of the adoptive family, also said except for ICWA the baby “would have been entitled to a custodial determination that focused on her best interest.” The comment was addressed by Sotomayer who said the best interest of Indian children is to be raised with their parents, especially “in light of federal policy.” She added that the father was a good and willing parent, who was able to provide for the child. Attorney Clement complained that the Court ignored “expert testimony of how it would cause trauma, despair, anxiety, depression on this baby girl to be taken from her (adoptive) parents because 1912 (f) is only concerned with harm from the new custodial relationship, not the harm of the breakup of the previous custodial relationship. However, Kennedy said, “Serious emotional and physical damage is a much different threshold than the best interests of the child.” Clement disagreed with Kennedy saying, whenever there is a placement “you look at best interest of the child.” Justice Sotomayer pointed out that Brown had asserted his parental rights in January but it was two years before the trial was heard. “We’re going to encourage people to hold onto kids and create serious harm. What was in the best interest of the child at the time the issue was raised? And that was four or five months after the birth of the child.” Attorney Clement said that the last 15 months when the child has been with her father should be viewed as a legal misunderstanding and in the best interest of the child she should be returned to the adoptive parents. Justice Sotomayer replied, “So should we freeze the issue at the time she was taken from her parents or now after the girl has been with her dad for two years?” She added, “I don’t want to be that judge.” Ginsburg asked if the question was really one of best interest, “Now that the child has been with her father for 15 months, would you uproot that relationship?” Justice Anthony Kennedy wondered if they should rewrite the statute to include best interests of the child, but Attorney Rothfeld said that the court had looked closely at best interests and found the father to be a fit, devoted, and loving father, which served best interests. However, Chief Justice Roberts challenged, “Do you think that’s correct?” Attorney Charles Rothfeld, on behalf of the Brown family, responded that the courts said “a natural parent with intact rights applied the usual rule that a fit, natural parent who wants to exercise custody should get custody.” Chief Justice John Roberts said, “This is not about terminating parental rights, it’s about custody, right?” Rothfeld answered, “No, both (d) and (f) are about terminating parental rights. An adoption cannot go forward unless parental rights are terminated.” The South Carolina Supreme Court was cited as saying, “we are going to look to ICWA to see if we can terminate his parental rights. Justice Scalia said, “There is a natural parent who wants custody, can his claim be denied and parental rights terminated?” A few times throughout the hearing, Chief Justice Roberts wondered under what circumstances a tribe can claim blood. He acknowledged that his questions addressed the “very far out” but were critical to answer. Describing Dusten Brown’s Cherokee lineage, Justice Breyer said that Brown had three Cherokee ancestors at the time of George Washington, leaving Brown’s blood quantum at 3/256. Chief Justice Roberts asked, “Isn’t that close to zero?” “Is it one drop of blood that determines all of these extraordinary rights?” Addressing Rothfeld, Roberts said, “Under your argument, a tribe that did not require any blood requirement could be considered an Indian tribe.” Judge Scalia informed Roberts that there are federal definitions of what constitutes Indian tribes. The conversation turned to the possibility of a rapist gaining custody of a child who was a product of his crime. Breyer said, “By your definition, a woman who was a rape victim could be at risk under this rule.” Rothfeld pointed out that under those circumstances, the father would lose his parental rights. Justice Scalia reminded the court that Brown had wanted to marry the mother. In the final attorneys arguments, Blatt suggested there had been no Indian family from which the child had been removed, while Rothfeld noted there was a mother, father, little girl, and grandparents. Rothfeld also added that the Cherokee tribe stated that the father has significant ties to the tribe. Ginsburg said, “Termination of parental rights requires a showing that it’s an unfit parent” to which Rothfeld said that no such showing has been made. Similar arguments swirled throughout the remaining testimony, most rehashing similar aspects of clear determinations. Justice Scalia quoted the ICWA, “No termination may be ordered in absence of a determination, including testimony of a qualified expert, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional...” Only Justices Breyer and Roberts continued to question specific themes of rapist custody and the determination of what constitutes a tribe. Judge Roberts wondered if anyone wanted to establish a tribe, if it might be possible, and then wondered if that self-described tribe might be able to apply ICWA. In Blatt’s final argument included a statement that by upholding ICWA, “adoptive parents are being told to go to the back of the bus and wait on line if they can adopt.” Her ignorance of ICWA and the cultural differences between Indigenous peoples and mainstream America were made glaringly apparent. She stated that upholding ICWA will interfere with all multiracial adoptions, to which Judge Scalia said, “It applies to children of tribal affiliation.” Stating that adoptive parents, most of whom are privileged and wealthy enough to hire private attorneys, might be relegated to “the back of the bus” leads one to ask, like who? Who had to sit in the back of the bus? (Contact Christina Rose at Christinarose.sd@gmail.com) Related Stories:
Native Sun News: Supreme Court takes up Baby Veronica case (4/23)
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