indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+ indianz.com on soundcloud
phone: 202 630 8439
Fredericks Peebles & Morgan LLP
Advertise on Indianz.Com
Home > News > Headlines
Print   Subscribe
Native Sun News: Justices challenge Indian Child Welfare Act

Filed Under: Law | National
More on: cherokee, icwa, native sun news, supreme court
     

The following story was written and reported by Christina Rose, Native Sun News Associate Editor. All content © Native Sun News.


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)


Copyright © Indianz.Com
More headlines...
Stay Connected:
On Facebook

On Twitter

On Google+

On SoundCloud
Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
Lakota Country Times: Missing Oglala Sioux woman found dead (2/11)
Doug George-Kanentiio: Town repays Oneida Nation with racism (2/11)
Brandon Ecoffey: Treaties guaranteed health care for our people (2/11)
Vincent Armenta: Chumash Tribe battles opponents at every turn (2/11)
Michael Marchand: Arrow Lakes people still fighting for our rights (2/11)
Steven Newcomb: Federal Indian law based on invented realities (2/11)
Native basketball tournament bars player who lacks Indian blood (2/11)
Armed occupation of wildlife refuge in Oregon ends with arrests (2/11)
Native activists ask Obama to help with liquor sales in Whiteclay (2/11)
South Dakota lawmakers kill bill to support return of land to tribes (2/11)
Miami Nation agrees to forfeit $48M from online lending business (2/11)
Fort McDowell Yavapai Nation creates $1.2M endowment at ASU (2/11)
Colville Tribes issue citation for death of rare owl on reservation (2/11)
Fort Independence Indian Community cheated by former partner (2/11)
Paskenta Band donates $125K to buy new vehicle for firefighters (2/11)
Man pleads guilty for dealing meth on Mescalero Apache Nation (2/11)
Public high school gives up racist mascot in response to new law (2/11)
Morongo Band and San Manuel Band question fantasy sports bill (2/11)
Former Sac and Fox Nation casino employee charged with theft (2/11)
Jena Band of Choctaw Indians celebrates 3rd birthday of casino (2/11)
Schaghticoke Tribal Nation again told it can't accept casino bids (2/11)
Editorial: Measure stops Lytton Band from pursuing new casinos (2/11)
Obama seeks another increase for Indian Health Service budget (2/10)
Six of 12 Indian Health Service area directors in 'acting' capacity (2/10)
Lakota Country Times: Indian lawmakers oppose drug testing bill (2/10)
Vince Two Eagles: The rez of the story about treaty-making in US (2/10)
Kristi Noem: Indian Health Service remains in state of emergency (2/10)
Chase Iron Eyes: Real sovereigns don't disenroll their own people (2/10)
Gyasi Ross: African and Native Americans fought for their survival (2/10)
Albert Bender: Tribes should reclaim land from unratified treaties (2/10)
John Lavelle: Supreme Court weighs key tribal sovereignty issue (2/10)
Women take top three leadership positions at Menominee Nation (2/10)
Northern Arapaho Tribe seeking to repatriate remains of students (2/10)
White Mountain Apache Tribe considers change to blood quantum (2/10)
Blackfeet Nation citizens still talking about constitutional reforms (2/10)
Sweat lodge at Army post helps with PTSD treatment for veterans (2/10)
Confederated Salish and Kootenai Tribes welcome return of land (2/10)
Donald Trump and Bernie Sanders win big in New Hampshire vote (2/10)
Prairie Island Indian Community unveils $19M gaming expansion (2/10)
Keweenaw Bay Indian Community approves upgrades at casinos (2/10)
Seminole Tribe's gaming compact takes a step forward in Florida (2/10)
Schaghticoke Tribal Nation insists on pursuing Connecticut casino (2/10)
National campaign launched to stop tribal disenrollment epidemic (2/9)
President Obama seeks $2.9B budget for Bureau of Indian Affairs (2/9)
Office of Special Trustee budget request remains steady at $140M (2/9)
Bureau of Reclamation emphasizes tribal water rights settlements (2/9)
more headlines...

Home | Arts & Entertainment | Business | Canada | Cobell Lawsuit | Education | Environment | Federal Recognition | Federal Register | Forum | Health | Humor | Indian Gaming | Indian Trust | Jack Abramoff Scandal | Jobs & Notices | Law | National | News | Opinion | Politics | Sports | Technology | World

Indianz.Com Terms of Service | Indianz.Com Privacy Policy
About Indianz.Com | Advertise on Indianz.Com

Indianz.Com is a product of Noble Savage Media, LLC and Ho-Chunk, Inc.