Little has changed since the Indian Child Welfare Act (“ICWA”) was enacted more than thirty years ago to address what Congressional testimony in 1974 revealed to be “the most tragic aspect of Indian life” — that is, the “wholesale removal of Indian children from their homes . . .” and their placement with non-Indian adoptive parents and foster homes. Mississippi Band of Choctaw Indians v. Holyfield, 490 U. S. 30, 32 (1989).
Last month the U.S. Supreme Court issued a decision diminishing the applicability of the ICWA, twisting the meaning of “continued custody” to find the statute inapplicable to prevent the removal of an Indian child from her biological father’s custody and home. This was the tragic culmination of a long-running child-custody battle, widely reported in the press as the “Baby Veronica case.”
Baby Veronica’s father is a citizen of the Cherokee Nation and U.S. veteran who mistakenly signed away his parental rights on the eve of his deployment to war. But when he discovered that an adoption of his child was at stake, he quickly moved to assert his inherent rights as a father so that he could raise his own daughter. The Supreme Court’s holding quickly resulted in the summary eradication of an Indian father’s parental rights.
Beyond that tragedy, the Supreme Court’s decision threatens the efficacy of the statute enacted to address what the Court recalcitrantly acknowledged were “abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.”
In a move showing that little if any real progress for Indian children and Indian Country as a whole has been made since the ICWA’s enactment, the South Carolina Supreme Court went a large and destructive step beyond the High Court’s mandate in the Baby Veronica case. Because the Court’s order was limited to a finding that the ICWA was inapplicable in this case, the lower courts should still be able to consider other laws potentially protecting the biological father’s rights, or at least ensuring that any further order is in Baby Veronica’s best interests. In an order handed down on July 17, however, the South Carolina Supreme Court demanded “prompt entry of an order approving and finalizing Adoptive Couple’s adoption of Baby Girl.”
As two of the five South Carolina Supreme Court Justices declared in their dissent, the South Carolina Supreme Court goes far beyond the U.S. Supreme Court’s opinion in immediately terminating the Indian father’s parental rights without regard to any other applicable laws — or what is in Baby Veronica’s best interests:
[n]othing in the [U.S. Supreme Court’s] majority opinion suggests, much less mandates, that this Court is authorized to reject the jurisdiction of other courts based upon a 1989 case deciding jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA), nor obligated to order that the adoption of this child by Adoptive Parents be immediately approved and finalized. Further, the majority orders the immediate transfer of the child, no longer an infant or toddler, upon the filing of the family court’s adoption order, without regard to whether such an abrupt transfer would be in the child’s best interest.
This heart-wrenching case highlights not only the fact that little has changed for the better since the ICWA’s enactment; it also serves as a call to action for Indian Country. Those who care about the welfare of Indian children in America must raise their voices and demand Congress and the President act to strengthen the ICWA. Because as we see with Baby Veronica and her father’s case, this statute has clearly failed to stop the assaults on Indian families as it was intended to do in 1978.
Only time will tell if Adoptive Couple v. Baby Girl will make matters worse for Indian families and children. I suspect it will.
Joe Sexton is Of Counsel with Galanda Broadman, PLLC. Joe’s practice focuses on tribal sovereignty issues, including complex land and environmental issues, and economic development matters. He can be reached at (509) 910-8842 and joe@galandbroadman.com.
