I’m hoping to have more out soon about Federal Courts doctrine, and also some notes from last week’s Federal Bar Indian Law Conference in Santa Fe. Until I can get all that out, though I just wanted to flag a couple of good pieces on the “Baby Veronica” case, aka Adoptive Couple v. Baby Girl. First, The Atlantic‘s Andrew Cohen has a thoughtful and nuanced piece here:
Inevitably, I suppose, this spin campaign has brought with it religious and racial overtones that surely trigger terrible memories for Native Americans, whether in the end they really care about Baby Veronica or not. For example, there was a popular online petition to amend the federal law — in which Baby Veronica’s return to her biological father is considered a “human rights” violation and Indian tribes are deemed to have “unjust power to remove children from happy, healthy homes.” And there is the work of the Christian Alliance for Indian Child Welfare, with a website dedicated to “saving” Baby Veronica by returning her to the Capobiancos.
And then there is the unseemly role of the guardian in the case, a woman who demonstrably has no business being involved in any case involving the rights of Native American citizens, be they little girls or adults. The guardian, according to Brown’s brief, told him that “she knew the adoptive couple prior to the child being placed in their home,” that the Capobiancos could afford to send the little girl to private school, and that as a result Brown’s family “really need[ed] to get down on [their] knees and pray to God that [they] can make the right decision for this baby.”
At first, the brief alleges, the guardian ignored Baby Veronica’s Indian heritage, but then said “that the advantages of Native American heritage “includ[ed] free lunches and free medical care and that they did have their little get-togethers and their little dances.” This is Paul Clement’s client. And this is part of the record of this case. It shouldn’t be about religion. It shouldn’t be about which family can provide this little girl with tuition. It shouldn’t be about white perceptions of Indian culture. It should be about whether or not the justices are going to support efforts to protect Indian families in the fashion set forth in the ICWA.
And ScotusBlog, as always, has the recap of today’s emotionally-laden oral arguments.
(SB points out that Chief Justice Roberts is father to two adopted children. As someone whose family is chock full of adoptees and step-siblings, I can easily empathize with anyone who’s worried about the disruption of adoptive and blended families. But of course, ICWA was enacted to combat a truly awful history of the state disrupting — indeed, all but obliterating — Indian biological families. Tribal governments are in the best position to safeguard the familial rights of their people and to ensure that that dreadful history is not repeated, and ICWA gives them the legal tools to do so. And if the factual findings of the lower courts are accurate, the adoptive parents and the biological mother actively worked to conceal the child’s connection to the Cherokee Nation — in other words, to defeat the legal safeguards that Congress has put in place to prevent a repeat of the mid-century attack on the Indian family. Adoptive families deserve nothing but respect, and ICWA is not anti-adoption; it merely seeks to forestall a repeat of the disastrous policies of the past by, first, securing the rights of the biological parents; second, providing a (non-absolute) preference for intra-family, intra-tribal, or Indian adoptive parents; and third, giving the tribes oversight over the process.)