This week was full of blockbuster rulings for the U.S. Supreme Court. The country was on the edge of their seat bracing themselves for the momentous rulings on affirmative action, voting rights, and same-sex marriage. However, there was one ruling that was handed down with little attention but will potentially have a huge impact on Native American’s parental rights in this country.
The Supreme Court handed down their decision on Tuesday in the case called Adoptive Couple v. Baby Girl. At first glance the case does not seem like one that the nation’s highest court would take the time to hear; it is one of many contested adoption cases around the country and the facts are pretty average. A pregnant woman broke off her engagement with her fiancé, who eventually sent her a text saying that he would give up his parental rights. The expectant mother then decided to put the baby up for adoption and found a loving adoptive parents, Matt and Melanie Capobianco of South Carolina. Four months after the child’s birth the family notified the father of their intent to adopt. The father decided that he did not want to give up his rights after all and challenged the adoption.
What made this case different is the father, Dusten Brown, is part Cherokee. This means that the case fell under 1978’s Indian Child Welfare Act (ICWA). So when the father contested the adoption, Cherokee Nation became involved. In September 2011 the case was brought before Charleston County Family court where it was decided that although South Carolina law states that a biological father must provide pre-birth support and be involved with the child shortly after birth, the federal ICWA law preempts state law. The Capobiancos were ordered to relinquish custody of the child to her biological father, and they did in December 2011.
The adoptive family appealed to the State Supreme Court and were handed a decision in July 2012 that affirmed the Family Court decision. Still not ready to give up their fight, the couple filed a writ of certiorari with the United States Supreme Court and in January 2013 the court agreed to hear the case.
The ICWA law at the center of this case was one that was enacted to prevent the breakup of Indian families. It was meant to remedy the history of states forcibly taking Native American children from their families and adopting them out to white families. Just one more of the many disgusting acts committed against the real native citizens of this country. The child, baby Veronica, is 3/256ths Cherokee, or 1.2% and therefore falls under the protection of the Act. ICWA states that Indian children cannot be adopted unless,”continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” The Supreme Court, however, did not agree with the lower courts’ decisions and ruled in favor of the adoptive parents assertion that the ICWA should not be the sole reason for the father being granted custody. The case will now be sent back down to family court in South Carolina.
Justice Samuel Alito delivered the 5-4 majority opinion (Sotomayor dissented) of the court and stated that the biological father didn’t have ‘continued’ custody because he didn’t have custody in the first place. Therefore, there was no Indian family to break-up because there was no family in the first place. The majority also said:
The dissent’s interpretation “would put certain vulnerable children at a great disadvantage solely because an ancestor—even a remote one—was an Indian.” [SOURCE]
In other words, Alito is concerned that by ruling in the father’s favor it would raise ‘equal protection concerns.’ This is not an issue though, the ICWA is meant to give Native American parents special treatment. The majority also continued to address the percentage of Indian blood the child had in her. Fox News also raised this over and over again during their coverage over the case.
At one point while I was slumming it on their network I heard Megyn Kelly speak of the biological father with disdain and mock the percentage of Cherokee he is. In response to her guest’s assertion that the father has ‘one drop’ of Cherokee blood she says:
“He is 3/256ths Cherokee, As Justice Breyer said,’that means he had three Cherokee ancestors at the time of George Wasghington’s father.'” [SOURCE]
The bigotry at Fox News is hardly a secret, remember all of the hoopla over whether or not Elizabeth Warren should consider herself Cherokee? Yes, Kelly also made a point to say something about Warren’s great, great, great-grandmother was Cherokee. It’s ironic though, I love to hear about Americans of European descent brag that they can trace their roots all the way back to the Mayflower; but if you can trace your Native American heritage back just as far, you are less than? That is surely what the George Washington comment implied and that’s why she repeated it. So the question becomes: how much blood does the right need proof of to validate Native American ancestry?
In her dissent Justice Sotomayor brought up the majority’s reference to the equal protection and what it might mean for future cases:
“The majority’s repeated, analytically unnecessary references to the fact that Baby Girl is 3/256 Cherokee by ancestry do nothing to elucidate its intimation that the statute may violate the Equal Protection Clause as applied here.” [SOURCE]
So, for the second time this week the majority made it clear that they do not believe racial preferences should be made. In this case their opinion paved the road for a future custody battles that may fall under the ICWA to end the same way. That means that the law that was meant to protect these people was basically invalidated.
There is no doubt that this is a heart wrenching case and there is going to be at least one very big loser when all is said and done. Hopefully, whoever comes out in the end will allow the other side to see the child but who knows. In the meantime, we have a Supreme Court that left Affirmative Action’s future uncertain in a ruling this week, gutted the Voting Rights Act and ruled against Native Americans. Yes, the world has changed a lot since these laws were enacted but that doesn’t mean that minorities don’t still need extra protection, they do. You see it everywhere, from the prison population to the unfair voting laws. The country is not as minority friendly as the Justices on the Supreme Court perceive it to be and that is going to hurt people in the long run.