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US: Supreme Court gains and losses in ICWA case

July 8, 2013

By Christina Rose
Native Sun News Correspondent

WASHINTON — The decision on the case of Adoptive Couple v. Baby Girl was a wrenching one that was passed from state courts to the US Supreme Court and back again.

The fate of the little girl now rests in the South Carolina Courts. Up until SCOTUS ruled, all previous courts had found in favor of the biological father, Dusten Brown. Days before the decision, a hopeful Chrissi Ross Nimmo, Assistant Attorney General for the Cherokee Nation, said, “The facts are good.”

While the undecided custody of Baby Veronica could end tragically, another concern across Indian country was how the Indian Child Welfare Act would fare in the Supreme Courts hands. Terry Cross, director and founder of the National Indian Child Welfare Act organization, predicted the case would likely be multilayered and complex, however, much of the final decision seemed to rest in one small phrase, “continued custody.”

An opinion written by Justice Sonia Sotomayor, with whom Justices Ruth Bader Ginsberg and Elena Kagan join, noted that the majority had used a common dictionary to define the word “continued.” Sotomayor said the law was detailed and explicit, and that the decision “cannot bear the interpretive weight the majority placed on “the lonely phrase, continued custody.”

Amidst many other legal citations, Sotomayor said the decision was bad for the Indian family and most especially fathers, who had continued rights under ICWA.

Sotomayor’s most heartrending comments came amidst citations of other legal cases. She wrote, “These rules recognize that biological fathers have a valid interest in a relationship with their child. And children have a reciprocal interest in knowing their biological parents.” Sotomayor reminds us that a child’s inability to know their biological parents is an immeasurable loss.

Sotomayor also blamed the majority for “plucking out of context a single phrase from the last clause of the last subsection, and built its entire argument upon it,” which she added, “Is not ordinarily how we read statutes.” Further, Sotomayor said the decision was “anything but clear, and its result anything but right.”

One of her concerns was that the majority of justices feared interpreting ICWA to mean what it says: that it will make adoption more difficult, but she noted that was exactly the intention of the ICWA.

Sotomayor noted that it was undisputed that the child is indeed an Indian child and that the father is undisputedly the child’s father as well as an ICWA parent. Had the case been transferred to tribal court, the state court would have been obligated to transfer it. Sotomayor adds that any voluntary consent the father, Dusten Brown, may have given would have been invalid unless written and executed before a judge, until the time a final decree of adoption was entered.

Sotomayor also opined that the statute supports the biological father whether he did or did not previously have custody. Instead, the relationship between father and child could have been remediated as the law calls for. “The majority’s reading disregards the Act’s sweeping definition of “termination of parental rights.”

At least to some degree there was relief that the decision did not diminish or change the law, according to Terry Cross, executive director of NICWA, and that the child was noted in the decision to be Indian because of her 1.2 percent Cherokee. “They skirted the issue of blood degree but did nothing to diminish this was an Indian child,” Cross said.

The amicus briefs supporting ICWA included 17 non-Indian organizations, 19 states attorney generals, United States Department of Justice, 17 congressional staff. NICWA’s Cross added that the court heard a loud and clear message from experts across the country that ICWA is a good law and good practice.

The case brought out some degree of discrimination according to experts. Mainstream reporters questioned the validity of Dusten Brown’s blood quantum, and whether such a small amount qualified Baby Veronica as an Indian child. NICWA’s Cross said, “The other side played on racial fears and those are talking points that hit home.” However, the court did uphold that the decision was based on the fact that baby Veronica is an Indian child.

Cross also said that in some ways the SCOTUS decision laid out the best practices for a father in Brown’s position to pursue and had Brown or his family sought to adopt Baby Veronica, he would have had preferential placement within ICWA as an Indian parent. Because the adoption by the adoptive parents was never completed, that is an action that could still be taken.

“We think that the court has laid out a pathway by which way parents can pursue ICWA,” Cross said. “We are relieved the court did not play down ICWA and still needs to be followed, but we are disappointed the case was remanded to the South Carolina courts. The decision was very narrow on a couple of specific points of law.” Cross wanted to highlight the important fact that while Brown still faces a custody dispute, ICWA was upheld. “We really need to debunk the myth that ICWA was diminished. In this particular decision, the impact we see is on unwed fathers.”

The outcome was impossible to predict, however, Nicole Adams, director of communications for NICWA, said she had never seen such a cohesive action by so many tribes take action so quickly. “There was such rapid organization of 389 tribes coming together. In three weeks, all those tribes mobilized. Even the Native American Rights Fund said they never saw anything like this,” Adams said.

(Contact Christina Rose at

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