Opinion

Aura Bogado: Tribal sovereignty goes on trial in ICWA dispute





Aura Bogado discusses Adoptive Couple v. Baby Girl, an ICWA case that was heard by the U.S. Supreme Court last week:
News outlets ranging from CNN to local newspapers have so often repeated inaccuracies about the case, that the National Indian Child Welfare Association compiled a fact-check document to dispel troubling myths generated by the media. National Public Radio’s esteemed legal affairs correspondent Nina Totenburg opened her report on the case with two sentences that demonstrate a common ignorance of what it means to be a Cherokee Nation citizen. “Christy Maldonado’s ethnic background is Hispanic,” Totenburg began in her first sentence. “Dusten Brown considers himself Cherokee,” she said in her second, leaving room for doubt as to whether or not Brown is, in fact, Cherokee.

The irony, of course, is that there is no Hispanic nation to which Maldonado officially belongs, yet Brown is an enrolled citizen in the Cherokee Nation. It’s not about self-recognition in an ethnic group. It’s about citizenship that was bestowed by a tribal government—in this case, by the Cherokee Nation. If Brown were not a citizen of a tribal nation, ICWA wouldn’t apply to his case. Totenburg’s ambivalence about Brown’s citizenship doesn’t help her audience understand that Brown’s case pivots on his position as a Cherokee.

Some of the Supreme Court’s justices seemed to also be confused about Cherokee Nation citizenship. Justice Stephen Breyer, the high court’s pragmatist appointed by President Bill Clinton in 1994, questioned the basis under which the father is considered a citizen of the Cherokee Nation. “Because, look, I mean, as it appears [Brown] had three Cherokee ancestors at the time of George Washington’s father,” Breyer remarked.

Get the Story:
Aura Bogado: The Cherokee Nation’s Baby Girl Goes on Trial (Color Lines 4/24)

Oral Argument Transcript:
Adoptive Couple v. Cherokee Nation (April 16, 2013)

South Carolina Supreme Court Decision:
Adoptive Couple v. Cherokee Nation (July 26, 2012)

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