Adoptive Couple v. Baby Girl and the Indian Child Welfare Act

by Walter Olson on April 22, 2013

Is ICWA, the Indian Child Welfare Act of 1978, unconstitutional, bad policy, both, or neither? Does it impermissibly hand out rights in domestic relations disputes based on forbidden grounds of race and lineage? My new Reason piece on SCOTUS’s adoption heartbreaker is now out. ICWA advocates have argued that the law should be read generously as an effort to remedy a long earlier history in which Indian kids had been improperly been taken out of their homes. More on the case: SCOTUSBlog (I recommend in particular the amicus brief on behalf of family law experts Joan Heifetz Hollinger and Elizabeth Bartholet), ABA, oral argument transcript. And for a viewpoint extremely different from mine, Matthew Fletcher and Kate Fort write up the case at the Indian law blog Turtle Talk (first, second).(& SCOTUSBlog, How Appealing)

{ 6 comments }

1 Walter Olson 04.22.13 at 5:04 pm

Comment from LisaMarie moved here from other thread:

So many strange and sad things about this case. One thing I wondered- a great deal is being made of how the adoptive parents are “the only family she’s ever known.” If you use a “best interests of the child” standard, doesn’t that just create a perverse incentive for the adoptive parents to drag out the process as long as possible, so that they can argue enough time has passed that it’s in the child’s best interest to stay with them?

2 Walter Olson 04.22.13 at 5:13 pm

>LisaMarie Yes, the almost inevitable presumption in favor of leaving an established placement undisturbed does create a legal bias in favor of one side that is hard to correct for, especially since trying to avoid that presumption quickly invites other evils (such as “yo-yo” child placements in which judges switch custody back and forth between two combatants as each comes up with new bits of evidence in his or her favor). In this particular case it is probably the father who now benefits from the presumption of stability, inasmuch as the girl has been in his household for upwards of a year.

3 Gina 04.23.13 at 10:14 am

Personally, I think that paternal rights need to be strengthened across the board, not just for this guy, who has the ICWA on his side.
I want to see, among other things, a nationwide paternity registry to replace the state by state registries. As it is, lots of these disputed adoptions include a pregnant woman leaving her home state to give birth and/or choosing adoptive parents from out of state in order to illegally cut the father out of the process.

Also, a pregnant woman/birth mother, or adoption lawyer, who provides false information about the father during adoption proceedings (the wrong name, the wrong address or other contact information, et cetera) needs to be held responsible for perjury.

But as for the ICWA itself? There are arguments on both sides. Not sure what I think about it.

4 Stephen 04.23.13 at 11:18 am

What’s most disturbing about this case is that its outcome hinges on a racial classification that could never be used as a basis for a law like this in any other context.

Had the baby not had 3/256ths Cherokee blood, ICWA would not have applied and the birth father would have had no standing to contest the adoption (based on the fact that he provided no assistance to the birth mother during her pregnancy or after birth, and failed to demonstrate any responsibility as a parent). The Brown’s lawyer admitted as much during oral argument.

But because of this racial classification, the outcome is turned completely around. The result of that is hugely disruptive to all parties involved, not the least of which is the baby girl.

I can easily envision a law that regulates adoption practices for children living on Indian reservations — in that sense it’s no different from state laws governing adoption. But to reach out and redirect the normal flow of state adoption proceedings based on a racial classification is shocking. It would never be upheld if it were based on Hispanic, Jewish or Armenian blood lines, for example. Why is it okay in this one context?

Arguing about whether birth fathers should have more rights than they typically do in adoption proceedings is a non-sequitur. Maybe they should, maybe they shouldn’t; but giving them that right based on a racial classification is demonstrably inconsistent with the Constitution.

5 Greg Prickett 04.26.13 at 11:17 am

What most people are missing on this issue, Walter included, is that this is not based on race, it is based on citizenship. Would we have the same questions if a United States citizen father was fighting to keep his child who had been put up for adoption in a foreign country by the child’s foreign citizen mother?

What if the father had predominantly foreign blood, but was still a U.S. citizen? Should we not expect the U.S. government to protect his interests?

6 Hugo S. Cunningham 04.26.13 at 11:45 am

@Greg Prickett–

To most of your questions, I would answer “yes” if the father were *married* to the mother of the child. In the absence of marriage, the interests of the child (notably in a stable two-parent family) should take precedence.

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