Recent SCOTUS Ruling on the Indian Child Welfare Act

In the midst of several important and historic rulings by the Supreme Court this term (Voting Rights Act, DOMA), a ruling pertaining to the Indian Child Welfare Act (ICWA) has been less remarked upon.  I think this ruling is similarly important and historic, so here is my take on it. 

First, a brief synopsis (you can see a timeline here).  The case involves a baby girl, Veronica, born to a Latina mother and Cherokee father in September of 2009 in Oklahoma.  The parents’ relationship ended a few months before she was born and her mother, through an adoption attorney, was connected with a white family, the Copabiancos, who wanted to adopt Veronica.  The adoption attorney contacted the Cherokee nation about the father’s membership in the tribe, but due to errors in the information about the father, they were unable to verify his membership.  A few days after Veronica was born, the Copabiancos filed to adopt Veronica and have her moved to their home in South Carolina.  The courts granted this request on the basis of paperwork that listed Veronica as “Hispanic.”  Several months later in January, 12 days before the father was deployed to Iraq, the Copabiancos attorney served him with papers relinquishing his rights to Veronica.  He claimed he thought the papers were relinquishing ties with the mother and requested to have them back after he signed.  The process server refused.  The father then contacted a JAG lawyer for advice and, a few days later, filed documentation to establish paternity, custody, and support of Veronica (this is about 4 months after Veronica’s birth).  At this point, the Cherokee Nation verified his membership while Veronica remained with the Copabiancos (but was never officially adopted, only granted temporary custody).  In May the father filed a response in family court stating he did not consent to the adoption.  The father returned from Iraq, in December of 2010, and a family court trial finally occurred in September of 2011.  In November, the family court denied the Copabiancos’ petition for adoption and awarded custody to the father, stating that ICWA applies to the case.  The court further noted there was no reason to terminate the father’s parental rights or to think Veronica would not be safe and cared for with him.  After a series of appeals, the case was heard by the Supreme Court who ruled that ICWA did not apply in this case because the father did not have custody of the child when she was first adopted and because no relatives or other Native Americans came forward to adopt Veronica (thus they could not be given preference). 

The Supreme Court sent the case back to the South Carolina Supreme court which allowed the Copabiancos to adopt Veronica on July 17^th, 2013.  Once the requirements of ICWA were found to not apply, the South Carolina Supreme Court returned to a ruling based on South Carolina law that the father did not have to consent to Veronica’s adoption because he was not living with the mother for a continuous period of six months before the adoption and did not pay child support or expenses relating to the pregnancy and birth. Thus, they allowed the Copabiancos to adopt. In addition, although the South Carolina Supreme Court could have required a “best interests” hearing to decide about the final adoption, they choose not to do so in order to bring the case to a resolution more quickly (family courts are horribly slow).  [If this had been done, the family court’s finding that he was a fit parent and his 18 months of care for her could have been taken into account.] 

 

This case raises some important issues about tribal sovereignty and weakens the original intent of ICWA.  I’ll get to that in a minute.  When I first read about this case, the thing that struck me was that this father’s situation seemed pretty typical and representative of the way fathers are treated by the child welfare systems.  The majority opinion held that the father “abandoned” his child and therefore did not deserve the protections afforded by ICWA.  Only if one narrowly focuses on the paperwork he signed relinquishing his rights, something he seems to have been ill informed about and to have immediately regretted, does it seem he abandoned her.  That the court could do so is also related to the common standards for retaining parental rights that are applied to men: marriage or cohabitation with the mother and payment of child support (this is the law in South Carolina). The courts should have, I think, taken into account the larger circumstances and his later behavior, but they did not do so.  This highlights the problems with this narrow way of determining parental rights, especially in cases involving fathers who might be unable to meet these criteria but still wish to parent. 

In my research on child welfare in New York City, I was often struck by how easy it was to erase a father’s presence or potential presence in a child’s life and that a termination of parental rights, for a father, was generally a quick and very smooth process.  Granted, in many cases fathers are not present and thus it makes sense to focus on the mother, the only caretaker.  At the same time, I found that many fathers were systematically disadvantaged by child welfare casework practice and the assumptions that underlie it.  Ideologies about proper and fit caretaking are profoundly shaped by race, gender, and class.  Women were automatically mothers by virtue of giving birth whereas fathers had to provide for a child to be taken seriously as a father.  It was also assumed that poor men of color would not be fit caretakers. Although the courts must present evidence of unfitness to deny custody, denying custody without any evidence the father was an unsuitable caretaker happened routinely.   For example, I ran across cases in which a child was removed from a mother due to her drug use or another problem and placed in foster care with no attempt whatsoever to determine who the father was and if he could care for the child.  If a father was eventually notified of the situation and able to contact caseworkers or the courts to request custody, it would be automatically denied until a full investigation was conducted of him and his home, even in the absence of any allegations against him.  Although this is partly a matter of the courts caution and unwillingness to release a child from foster care unless they feel sure of the child’s safety, I think it goes beyond this.  Caseworkers assumed they would find something that would disqualify the father.  But even before that point, they often assumed there was, for all practical purposes, not a father at all.  The assumption that a father who does not have direct custody has fewer rights (if any at all) is thus common, and, in many cases, unfair.

In short, I found that fathers were ignored (as were their relatives in the case of finding kinship foster homes) and had much more work to do to convince officials they could care for children.  These patterns, that exist in child welfare more generally, played a role in this case.  Apart from the ways the case will affect Native Americans and the application of ICWA in the future, I think it will also provide justification for a common practice of assuming a parent without custody automatically has fewer rights.  In many communities, Native American and other poor communities of color most notably, it is common for parents, especially fathers, to not have direct custody at one time or another due to a complex combination of circumstances, many of which they have little control over.  Thus, I think this ruling is a blow to many parents struggling to raise children with few resources or in communities in which children are regularly placed in foster care.

Apart from the ways in which this case demonstrates general problems with child welfare practice with regard to fathers and their parental rights, this case is important in how it will affect tribal sovereignty. The original intent behind ICWA was to provide added protections for Native American tribes and families and to deal with the pervasive problem of Native American children being raised away from their families and tribes leading to the profound loss of language and culture (more background can be found here).  The law recognized the devastating effects of Indian boarding schools (which explicitly were about socializing native children to be more “white”) and the pervasive practice of placing children with white foster and adoptive families.  Thus, it set minimum standards for handling these cases (including higher standards for terminating parental rights; a clear preference for placing Native American children with family, other tribal members, and other Native Americans; the preference for tribal authorities to handle child protection cases). The law is explicitly not only about protecting Native American individuals and families from discriminatory practices, it is also about the rights of Native American tribes to govern their own affairs and protect the continued existence of their cultures.  In enacting ICWA, Congress found that “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children. ...” Congress also determined that states “...often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.” (http://www.tribal-institute.org/lists/chapter21_icwa.htm). ICWA was supposed to ensure these concerns were taken into account.

Rather than respecting the right of the Cherokee Nation to play a key role in handling the case of a Cherokee father and his daughter, the court focused narrowly on the father’s actions and the lack of a Native adoptive couple when the child was born. [It is unclear to me why the fact that the adoption attorney provided incorrect information to the Cherokee Nation (in addition to the fact the father was fighting for custody) was not considered an adequate explanation for why no other family members or other Native Americans sought custody.]  Carving out an exception to tribal control when a Native American parent does not have custody is a problem since these situations are not uncommon). Although the courts’ opinion was not far reaching and did not find ICWA unconstitutional, I think it does set a precedent that limits the reach of the act and undermines one of its most important purposes—protecting the rights of Native American groups. 

Finally, I think this case raises an interesting issue regarding race in the U.S. Significantly, the ruling begins with the statement: “This case is about a little girl who is classified as an Indian because she is 1.2% (3/256) Cherokee.” The implication, I think, is that the child is not “native enough” to be protected by the law.  This statement is important in the ideology of race that underlies it.  It assumes that race is determined by blood and percentage of blood, a common American racial construct.  This is not how the Cherokee people define being Cherokee, however. For them, the criterion is being a direct descendant of a Cherokee ancestor.  According to the Cherokee Nation Veronica simply IS Cherokee.  Although this might seem like a small matter, the court's statement betrays a subtle disregard for the Cherokee Nation’s ability to define who is and is not Cherokee. 

It is interesting to me that defining race by percentage of “Indian blood” here becomes a way to subtly limit tribal sovereignty, while ideas about ancestry and blood quantum have often been used in an opposite way with regards to African Americans historically. The rule of “hypodescent” or the “one-drop rule” has been used to define anyone with any black ancestors as black in an effort to keep a clear color-line between white and black. This creates a kind of caste system in which “escape” through intermarriage or “passing” is limited. In other words, the idea that race is biological and about “blood” can be used in different ways as convenient for those with more power and privilege in a racialized social system. [As an aside this is interesting to think about in the George Zimmerman case where he was sometimes defined as “white” and thus respectable and law abiding while at others his “Latino” heritage was emphasized to argue he was not racist.]