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Native Americans and the Court

[ 151 ] June 28, 2013 |

In our stories about racial oppression in the United States, Native Americans aren’t forgotten, but the legal details of how the government have denied Native American rights usually are ignored. At least two possible reasons for this. First, unless you are from or live in a handful of western states, there just aren’t very many Native Americans. It doesn’t seem as fundamental to either the recent past or present as African-American issues. Second, the most famous decision on Native American rights actually supported them, when after the Marshall court issued Worcester v. Georgia, Andrew Jackson basically told Marshall where he could stick his decision and went ahead with plans for Cherokee removal.

But the same courts that have denied African-American rights have also denied Native American rights. We all know that in 1896, the Supreme Court ruled for legal segregation in Plessy v. Ferguson. But that year the Court also issued its decision in Ward v. Race Horse. This case decided Native American hunting rights on public lands. In 1895, thirty Bannock from the Fort Hall Reservation in Idaho were arrested by a Wyoming posse after hunting in what was then Yellowstone National Park (which had been a major hunting ground for Native Americans for thousands of years). The Court got involved and ruled in Ward (to quote Mark Spence, from Dispossessing the Wilderness) “that all treaties guaranteeing native rights to hunt on public lands were predicated on ‘the disappearance of those [public lands]‘. Consequently, a posse could enforce state laws that banned native hunters from lands expected to be settled sometime in the future.”

In other words, like with African-Americans, the Supreme Court created a ruling that fit its white supremacist ideology.

On Tuesday, the Supreme Court issued a ruling that voided the most relevant portion of the Voting Rights Act. Texas and other southern states are already moving ahead to reduce the power of African-American voters. But the Court also issued another disturbing ruling undermining Native American rights. In a 5-4 decision (with Scalia dissenting and Breyer in the majority) the Court ruled in Adoptive Couple v. Baby Girl that a Native American girl adopted by South Carolina parents could not be returned to her father who later tried to reclaim her, using the 1978 Indian Child Welfare Act, which sought to keep Native American children in Native American families.

This was a narrow ruling, focusing around strictly the specifics of the case. It’s not an outrage on the level of Ward. But it also reaffirms the difficulty Native Americans have in realizing sovereignty and the consistent misunderstanding between the American legal system and tribal law and custom. Colorlines:

So what does ICWA do? The act was created because of incredibly high rates of white parents adopting Native children; in states like Minnesota, that have large Native populations, non-Natives raised 90 percent of Native babies and children put up for adoption. Those adoptions sever ties to Native tribes and communities, endangering the very existence of these tribes and nations. In short, if enough Native babies are adopted out, there will literally not be enough citizens to compose a nation. ICWA sought to stem that practice by creating a policy that keeps Native adoptees with their extended families, or within their tribes and nations. The policy speaks to the core point of tribal sovereignty: Native tribes and nations use it to determine their future, especially the right to keep their tribes and nations together.

But leave it to the Supreme Court to miss the point altogether this morning. The prevailing justices failed to honor tribal sovereignty in today’s ruling. In writing for the court’s majority, Justice Samuel Alito opened his delivery on the ruling with these words:

This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee.

What Alito (along with Justices Roberts, Kennedy, Thomas and Breyer) is perhaps willfully missing is that the Cherokee Nation does not classify its citizens in that way. Baby Veronica is not a certain percentage Cherokee—she is Cherokee, as determined by her nation. The high court’s first sentence, based in the colonial practice of blood quantum instead of the way that citizenship is determined by the Cherokee Nation, illustrates that the justices made this case about race—in their mind—and not about tribal sovereignty in the law. By this flawed logic, the high court ruled that Baby Veronica is somehow not Native enough to be protected by ICWA.

The conception of race is particularly important here. How do we classify race? As always in this country, it’s about blood quantum determined by non-whiteness (i.e. Barack Obama is the 1st black president instead of the 44th white president, even though he 50% Kenyan and 50% Anglo). But that doesn’t always fit the situation and certainly didn’t here. Instead, the Court’s decision in Adoptive Couple reinforces systemic racism, with non-Indians forcing their conceptions of race over Cherokee conceptions of race.

Again, this is a narrow ruling, kicking this back to the South Carolina courts. And of course, I do feel for the adoptive parents and realize that the particulars of this case are not cut and dried. But this is a bad principle to set; the fact that 4 of the 5 conservatives made up the majority is always a bad sign.

Comments (151)

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  1. MAJeff says:

    First, unless you are from or live in a handful of western states, there just aren’t very many Native Americans. It doesn’t seem as fundamental to either the recent past or present as African-American issues. Second, the most famous decision on Native American rights actually supported them, when after the Marshall court issued Worcester v. Georgia, Andrew Jackson basically told Marshall where he could stick his decision and went ahead with plans for Cherokee removal.

    I’d add another. If you’re from an urban area, you’re more likely to see Native Americans with highly successful casino operations, thus providing a very narrow impression of the conditions under which large numbers of Native folks live. If you’re in CT and your only exposure is Mohegan Sun, housing problems on the Rosebud reservation are even more distant and removed.

    • Erik Loomis says:

      Right–I’ve certainly detected that attitude in Rhode Island.

      • MAJeff says:

        I experienced it in MN/ND as well. Folks from the Twin Cities, with the highly profitable Mystic Lake Casino (Mdwonketon band members have been known to receive over $1m/yr from the proceeds), whereas folks from the NW corner of the state may see the local casinos, but they also see a lot of poor folks who aren’t getting casino payouts. Add to that misperceptions of IHS and certain rights/obligations found in treaty agreements, and most of what most people “know” is flat wrong.

        • Dana Houle says:

          But there is a pretty big difference, though, between the Northeast vs MN, northern WI and the Upper Peninsula and the far northern Lower Peninsula of Michigan, because in the Lake Superior watershed/Mackinac areas you’ve got counties with similar percentages of Native Americans as you’ll find in the Dakotas, Montana, Oklahoma and the Southwest.

          • Dilan Esper says:

            ICWA is what it is, and should be followed, but this theory that an Indian tribe “owns” its members’ children is offensive. The most important interest in these cases is that of the child.

            • aimai says:

              Lots of countries have what is called “Personal Laws” that is laws that apply to a subset of the population, usually a religious community that has specific laws relating to marriage, inheritance, legitimacy, and joint family ownership of property. Sometimes recognition of those laws arose within the context of forming a modern nation state out of an old, collapsing, empire or when a more or less independent ethnic/religious/caste community was absorbed into another polity.

              “Ownership” is a kind of loaded term to use but it is the fact that the laws fall most heavily on the kinds of people who don’t really have agency and power within the host community at all: i.e. women and children. One reason these laws can be so burdensome is that after a while they are used to police the boundaries of the community to prevent the death of the community as women, children, or junior men choose to vote with their feet and leave the community rather than accept its jurisdiction and control.

              And, in fact, that’s just what the ICWA is doing, more or less. I don’t mean that what they are doing is wrong, just that they are policing the boundaries of the tribe in order to prevent further decay or genocide or suicide. Inevitably the costs of doing so are going to be born by liminal people like this baby who don’t have any choice in the matter and by her mother, who never joined the tribe at all. The father, who did have agency, could (and I think did) continue to have biological children who were assigned to the tribe in the normal way.

              • Pinko Punko says:

                This is a very astute comment and illustrates the difficulty of this case. I first heard of this case because it is followed very closely by the foster parent community. It is a nightmare scenario on the personal level for adoptive foster parents.

              • Dilan Esper says:

                For me, the problem with a statute like ICWA is that there are different types of “genocide”.

                The genocide of the Indians in the 19th Century was horrible, atrocious, a black mark in history, and justifies (I think) serious compensation even today.

                But that doesn’t mean that any governmental action that has the effect of reducing the future number of members of an Indian tribe is a genocide. That would be like comparing Jewish women who intermarry and raise their kids outside the faith to the Holocaust.

                As you point out, when we are dealing with children, there’s a problem that they are bearing the brunt of a policy that is actually about issues that have nothing to do with them. But more broadly, we have to be very careful about importing cultural preservation arguments over from the realm of genocidal violence to the realm of societal trends. The reality is that over time, cultures do die off. For instance, linguists report that numerous languages are endangered. But the problem is, these are usually languages spoken by small, poor tribes and there’s usually a huge advantage that is conferred by the children learning a dominant language such as English or Spanish. It’s obviously unfortunate for cultural diversity, but the development of cosmopolitan culture is both an inevitable result of globalization and is probably better overall for lots of people. (Cosmopolitan culture tends to treat women and gays and nonbelievers better, for instance.)

                I think a lot of this debate is very emotional and has occurred because of a history of violent genocide, which has resulted in concepts that are perfectly appropriate in the context of violent genocide being imported into policy debates that are about natural cultural attrition, not genocide.

              • DrDick says:

                It is also important to remember that this act was passed in reaction to widespread practices by both state and nonstate adoption agencies of deliberately placing Indian children with white families or the still common tendency for the state to take Indian children away from their families (who were the placed with non-Indian families in the past). The resulting psychological trauma experienced by many of these children as a consequence also played a role.

    • aimai says:

      Oh, yes, when I was (briefly) teaching anthropology, race, and law at Yale a long time ago I discovered that my students had zero idea that Native Americans were anything other than an unoppressed minority of casino owners. Zero.

      • Eleanor says:

        Or, like my sons, being raised in northern MN and *going to school w/ native kids* they had nevertheless managed to pick up the idea that Native Americans are all long dead and gone. We had several talks about that one….

        Of course, most of my university students in northern MN tended to believe the same thing – despite the casinos downtown.

        Now teaching in Indiana – I’ve tried to avoid even asking the kind of questions that would reveal those ideas. I don’t want to start yelling in class.

    • DrDick says:

      In Chicago or LA or Dallas or Denver, you are just as (or more likely) to see them in the slums.

  2. T. Paine says:

    My system for predicting the Court’s rulings on Native American issues is: Native nations h e enough sovereignty to fuck themselves over (bad business/environmental agreements; being held to obviously unjust treaties; etc.), but not enough sovereignty to protect themselves from these things.

    Almost 100% accurate.

    • timb says:

      It’s unfortunate that, as sovereign nations, their dignity is not as important as equal protection for states

  3. CharleyCarp says:

    Yes, Alito’s language is offensive, and beside the point. But the Court didn’t base its ruling on finding that Veronica Brown wasn’t Cherokee enough. The ruling is based on the notion that Dusten Brown wasn’t father enough.

  4. I’ve admittedly had some trouble untangling this, in part because the majority coalition seems kind of weird to me, but wasn’t the Court’s rationale that the father had never had custody of the child, indeed had “abandoned” her and her mother, and thus couldn’t invoke the ICWA?

    Unless those factual findings are exaggerated, that seems pretty damn reasonable to me.

    • Erik Loomis says:

      Yes, but that’s a complex situation (as are so many unplanned pregnancies). The father did give up custody rights to the mother, but he claims he didn’t know she was going to put the child up for adoption. Had he known that, he claims he would have taken her. Which is a believable claim since she’s not that old now and he’s been on this all the way to the SCOTUS. So the question becomes whether the Indian Child Welfare Act or adoption law wins out. And it’s a narrow ruling, but one with larger implications.

      • But, at least from here, it seems like you’ve pretty much answered the question. The father surrendered custody to the non-Native American mother, and the girl was never a part of the tribe. Why should the ICWA trump run of the mill adoption law?

        • AR says:

          Because the point of the law is to trump run of the mil adoption law.

        • Erik Loomis says:

          Because of the larger implications of America’s racial past?

          • I very much doubt you actually believe that when push comes to shove. I mean, it’s fine in the general sense, sure, and I don’t have a problem with the ICWA in that regard, but, let’s say the father in this case had a history of abusive behavior. Would you still think he owned the progeny of his sperm outright?

          • aimai says:

            OK but one of the other issues is this–that the child never was part of a Native American family so constituted. What if this little girl were a test tube baby? Native American Sperm and Non Native American egg or vice versa? What if she were a “snowflake” baby, to borrow the crazy terminiology of the right wing? I’m not asking captiously I’m asking because I think some of the facts of the case rather mirror the impact of new technologies on the notion of family formation and identity.

            I know plenty about the long tradition and complexity of Native American sexual relationions with non NA people, how differently the situations could appear or be treated under then extant law. I’m not at all naive about how this relates to the long history of rape and violence between NA women and non NA men and etc… But I’m just curious–how far are we willing to accept the notion that there is something about a man’s sperm that makes him a part owner of the child when the man himself has relinquished legal duty to that child? If an NA man donates to a sperm bank does the tribe have a claim on the product of that sperm?

            • Erik Loomis says:

              I don’t want to be the one to have to answer those questions. I really don’t know.

              • FWIW, I don’t know either. I just think the details of this case make it a heck of a lot more complicated than a simple Native American sovereignty case.

                • aimai says:

                  FWIW I actually know a couple who adopted (same race) child and had her taken back from them six months later when the birth mother changed her mind. There is quite a bit in US adoption law which (rightly or wrongly) makes this possible. It was brutally hard on the adopting couple, crushingly hard. But there’s no other way to be fair to the biological parent who may be quite stressed and confused at the time of the birth adoption. Basically there’s a “claw back” provision.

                • Which I think I increasingly come down on the belief that the termination of parental rights is the most important detail here. It seems like both the least messy and fairest way to resolve the matter.

                • rea says:

                  I just think the details of this case make it a heck of a lot more complicated than a simple Native American sovereignty case.

                  Well, if you are talkign about the ultimate determination of where the child should end up, sure. But the issue before the Supreme Court is exactly a (perhaps not completely simple) Native Amercian sovereignty issue.

                • JL says:

                  Brien and aimai: What about greater use of open adoption (as described by, say, Dan Savage, in his memoir of adopting his son)? Do you think that would address any of the issues here (by lessening the stress on birth parents and giving them some opportunity to be involved in their kids’ lives)?

                • I don’t know, because again, we’re not just dealing with a case of where someone regretted the decision to put their baby up for adoption after a certain amount of time, but where the father fully terminated his parental rights to get out of supporting them, then tried to get a do-over when it turned out the child wouldn’t be raised by a presumably easy to manipulate single mother.

                  So in general, sure, but as far as a case like this goes, I think it needs to be VERY difficult to undo a TPR.

                • JL says:

                  Since I can’t edit comments: I realize that in this case, open adoption was already being used, by the birthmother. I mean as a way of making the system more fair in general.

                • aimai says:

                  This system doesn’t let me reply under the “open adoption” comment so I’m clicking under Brien Jackson’s original. This is in response to the open adoption question.

                  I know of a lot of “open adoptions” and I don’t really know whether I think they are “more fair” and to whom fairness applies in this situation. Adoption is a really old social form and in its earliest stages historically speaking doesn’t require the kind of “veil of ignorance” that American adoptions used to require–the Romans practiced open and adult adoption all the time.

                  But American models for secretive, private, adoption were based on the idea that both the need of the adopting couple (infertility) and the need of the biological parents (bastardy) were shameful and that to protect the child from its shameful origins secrecy should obtain. Open adoption grows out of a modern attitude towards all three things: infertility (no longer shameful), illegitimacy/unmarried status of the mother (no longer shameful), and adoption itself (no longer shameful). But what does that tell us about the practice itself? I’m not sure of its utility at all for any of the parties.
                  Take, as an example, a case I know personally: a young woman gives her baby up for adoption to an older, more financially stable couple. She chose the couple because they seemed, to her, to offer her child the very childhood she never had. Eventually she used her “open adoption” to try to have an almost sibling relationship with her own child and shoehorn herself into the adoptive family. They had to gently dissuade her. They had wanted to adopt an infant and raise her as their own, not adopt a wayward teen. And what of the biological father? Does the child need another ne-er do well relative who never intended to become a father in the first place? The child has interests; in stability, in love, in connection which supersede the biological parent’s interest in having a drop in/drop out relationship. And the adoptive parents have an interest in having an intact, private, family life that doesn’t include a host of non-relatives imagining they have some kind of relationship.

                • JL says:

                  aimai: But why shouldn’t an interested and able birthparent have some sort of family relationship with the child (or for that matter, the child’s parents), as defined by an agreement made at the start of the adoption and that can be adjusted with everybody’s consent and the assistance of the adoption agency? How does a birthparent having a relationship with the child they birthed contradict the child’s interest in stability and love?

                  I realize it might inconvenience the adoptive parents, but it’s not the only form of family formation that might bring other people into your life besides the one you wanted to add in the first place. Marriage, for instance, may bring in-laws, and in some cases may bring stepkids. Surrogacy brings a birthparent. Fostering a child, or adopting a foster child, might bring a caseworker, or the child’s bio-siblings who might want to maintain a relationship even if they’re now part of different families. It rubs me slightly the wrong way when adoptive parents expect their method of family formation to look exactly the same as the bioparents-having-a-kid one.

        • News Nag says:

          Why should U.S. law trump native sovereignty? I think you do not know the meaning of sovereignty, sir.

          • News Nag says:

            What I mean is that because Alito used racialist if not racist language in white-splaining the decision, it’s logical to assume that racialist if not racist reasoning was the true jumping-off point and basis of the decision, that U.S. law trumps tribal sovereignty. Either sovereignty = sovereignty or it doesn’t, and in this decision one sovereignty was favored over another. A neutral court would have decided for the blood relative. If it were a white parent and white adoptive couple, the court would have decided for the father and has in countless cases, except those involving parental abuse or neglect. I know there are exceptions, but this is an issue of principle and equality between sovereignties.

            • Walt says:

              My understanding is in the state in question, a non-Native father would have had no legal chance of getting the kid (which is fucked up). It’s only the ICWA that gave it a chance.

              • Why exactly is it fucked up that someone who voluntarily terminates their parental rights wouldn’t have any chance of coming in and trying to rip the child away from their adoptive parents?

                • Walt says:

                  Because he terminated his rights under the assumption that the mother would raise the child.

                • Well that’s great, but that’s not how shit works.

                • aimai says:

                  Well, he has no more right to a “backsies” there than if she got married to someone else and he came back to get his rights then because she was no longer a single mother. Or if, years later, she died and the children were taken by her then husband, or by her parents.

                  He never, ever, had to terminate his parental rights. Termination of parental rights meant a decision HE took to refuse financial and parental duties regardless of the situation of the children–whether poverty or abusive parenting or death of the mother or anything else. I don’t see how people can turn “termination of parental rights” into some kind of favor he was doing the ex girlfriend. It was a purely selfish act at the time. He could have said “I’ll stay out of your way as the custodial parent and let you make the decisions but I want to support the child and be in her life.” He didn’t.

                • Walt says:

                  This is a bullshit Scalia-style argument, prioritizing finality over justice. What if he found out she was keeping the child, but brutally beating him or her? No backsies then? What if she decided to abandon the child in the street? No backsies then?

                • Well, if he found out that she was committing actual crimes against the child, then no, I suppose that would, in fact, be different as he could report her to the state and subsequently petition for guardianship like anyone else (theoretically) could.

            • DrDick says:

              Sovereignty comes in many different forms. Cities are sovereign, but subject to state and federal law, which pre-empts municipal codes. The same applies to tribes. Under the Marshall Doctrine, federally recognized tribes (not all tribes are) have internal sovereignty, but are subject to federal law. Subsequent federal statutes and federal court rulings have further limited that sovereignty.

        • timb says:

          how well do you the facts of the case? He was deploying to Iraq within days and she asked him to sign a document. He had no intent, he claims, to terminate his rights

          • rea says:

            This. After reviewing the facts of the case, I think this adoption was always vulnerable to being overturned, possibly even if there was no Native American aspect to this. The mother did not give him timely notice, notice to the Cherokee Nation had his name and address wrong, so they failed to identify him, and when he finally got the papers (after the child was already in the custody of the adoptive parents), he misunderstood them. He was on the eve of deployment to Iraq, and did not have an opportunity to consult a lawyer.

      • daveNYC says:

        The Times made it sound as though the court considered the fact that the father gave up parental rights to mean that the child was never in the tribe and the ICWA never applied.

        I guess that’s one way of looking at it.

        Personally, I hate reading about adoption cases just because the lack of detail in the reporting means heaps of derpish looking behavior.

      • PSP says:

        I read that he did not just give up custody, he voluntarily terminated his parental rights. There is a whole magnitude of difference between giving up custody and giving up any and all rights as a parent. Given that termination is usually the remedy in abuse and neglect cases, letting him cruise back into the picture has ramifications no Court is going to happily permit.

        I didn’t read the opinion, so the news report could have been wrong.

        • aimai says:

          He never had custody so he didn’t “give up custody.” He terminated parental rights prior to the birth of the child presumably in order to avoid being socked with any costs associated with the child after birth up to age 18.

          • Steve-o says:

            Not “presumibly.” It was clear that he voluntarily terminated his parental rights to avoid paying child support. The tone of the coverage of this case and of this article is rediculous.

            • ChrisTS says:

              I agree. I don’t see how this many can claim any right to the child even under the specifics of the law re NA families. He did not care that his daughter would be raised outside the NA community by her non-NA mother. He did not show any interest in the child (quite the reverse). But, now, we are supposed to sympathize with a purported desire to have the child raised as a member of the Nation.

              And, let’s face it: adoption cases are always fraught. How could anyone claim a genuine concern for the child, herself, in taking her away from the only parents she had ever known?

          • timb says:

            Or that he was deploying to Iraq

          • rea says:

            Like timb and I say above, the actual facts show him in a much more sympathetic light.

    • Karate Bearfighter says:

      This is a good example of tough cases making bad law. The policy interest behind the ICWA is incredibly important; but so is the competing policy interest: the need for terminations of parental rights to be permanent. I think most people who work in family law or social work have encountered abusive or controlling fathers who use single motherhood as a way to punish their exes. Maybe that isn’t Mr. Brown in this case, but on an individual level, “I was willing to do a voluntary TPR when I thought my ex was going to be a single mom, but not when I found out the child would be adopted” is not a very compelling argument.

      • Right, this. Perhaps I’m so hostile to Mr. Brown here because my “abusive asshole” whistle is screaming at me.

        • News Nag says:

          But couldn’t that whistle be blown against your own prejudicial nature? Your presumption seems a bit astounding, sir. On what basis do you make it? Personal or racial?

          • And with that, I think it’s safe to say we’ve reached the “go fuck yourself” point. So…go fuck yourself.

          • aimai says:

            This has nothing to do with race. I agree with Karate Bearfighter and Brien Jackson–if you didn’t know about the NA angle you wouldn’t even bring up race. This happens all the fucking time. Men agree (or don’t agree) to termination of parental rights in children they are not interested in parenting and then turn around and try to use the child and visitation with the child as a way of controlling their ex wives and girlfriends. It happens all the time within the white community and every other community. You could look it up.

            • ChrisTS says:


            • DrDick says:

              While I am a strong advocate for Native rights and tribal sovereignty, I have to agree that this is a highly problematic situation. While I am outraged by Alito’s racism and dismissal of tribal rights, I am much more ambivalent about the outcome. I say that as someone whose son (whom I raised mostly on my own) is half Cherokee and an enrolled member of the tribe.

              • nanute says:

                I was struck by the “dickishness” (no pun intended Dr. Dick), of Alito’s opinion. Alito essentially called the father an “Indian Giver.”

        • Karate Bearfighter says:

          There are a lot of details in the NYT article that make me uncomfortable — I’ve yet to see a case where a pregnant woman broke off all contact with a boyfriend or fiance where abuse was not involved.

      • aimai says:

        Yes. I agree. Although I can see the other side too. You know, or believe you know, that your ex would be a great mom and you fear that the anonymous couple won’t be.

      • News Nag says:

        Karate Bearfighter, do you know for a fact that the mother didn’t ask the father to give up his rights, and if so for what reasons? It could be that the father was respecting the wishes of the mother that had nothing to do with parental fitness or even ‘race’.

        • aimai says:

          So what if she asked him to give up his rights–he would have been within his rights to refuse. The point of termination of parental rights is that its actually quite hard to do–nearly impossible for the woman after the birth and quite difficult for the man. If she were intending to give the child up she would have had to ask him to terminate his parental rights and he would have had to assent. So she had to ask him. He could have refused. And, in fact, he could have (and should have) asked her why she wanted him to terminate. Apparently he preferred to get out from under the potentially onerous cost of raising a child (paying for it, arranging visitation, staying within reach of the child and its mother). That’s what terminating parental rights means for the guy and he willingly chose to do that.

        • Well that didn’t take long.

        • Karate Bearfighter says:

          I don’t know anything about Mr. Brown beyond what’s in the news and in the decision. I can say, as a family law law-talking-guy, that his decision to “respect her wishes” should be permanent.

        • daveNYC says:

          You mean he was respecting her rights, right up until she exercised the full extent of her rights?

      • sara says:

        Exactly. I’m also sensitive here to the fact that – at least in reporting on this – his main goal seemed to be to avoid ever paying child support or supporting the mom financially or otherwise through her pregnancy. I’m sorry, but in that case I just don’t see an argument that the child shouldn’t be placed in a home chosen by the mother, who actually did give birth to the kid and presumably put a lot of thought into the decision (it was an open adoption and she did see the child afterward).

  5. rea says:

    Of course, some of the preclearance jurisdictions were on the list because of their history of racial discrimination against native Americans–for example, the ones in South Dakota.

  6. rea says:

    My understanding of the way this works is that the issue is not directly who gets the child–rather, the issue is which court gets to decide who gets the child, the tribal court or the state court.

    • aimai says:

      I’d be pretty fucking horrified, as a woman, if merely by sleeping with some guy I and my fetus fell under tribal law court rule.

      • Erik Loomis says:

        It is worth noting that all 3 pro-choice women on the Supreme Court ruled for the father.

        • aimai says:

          I know, that really makes me feel kind of sick. However I suppose they can imagine that since she had, herself, terminated her parental rights at the adoption she wasn’t affected. She wasn’t even a party to the decision, I think–it was entirely between the adoptive parents and the biological father/tribe.

          I’m grossed out and concerned by the implication, which I think I am seeing correctly here, that if the ICWA chose to foster a law that NA fetuses can’t be terminated then the non NA mother would have to bear the child for the tribe–in other words I don’t think that NA sovereignity over the tribe should necessarily trump the mother’s rights over her body, and I think ruling for the father could lead in that direction. And, in fact, I think this cuts the other way–I believe that NA women are currently strugglign with the enforcement of Oklahoma’s draconian anti abortion laws and incompetent rape laws over their bodies/experiences.

        • Yeah, this is a very weird breakdown of the justices, with the three female justices dissenting as well as Scalia, whose dissent is pure MRA red meat.

      • rea says:

        Tribal courts don’t have much in the way of history of violating the rights of whites–not so the other way around. And, it is by no means plain that a tribal court would not give the child back to the adoptive parents. Tribal law concerning child custody generally applies the “best interesst of the child” standard, just like all the oterh jurisdictions in the US. If you had a child with a guy from Ohio, you might well wind up dealing with Ohio custody law

        • aimai says:

          I’m not worried about tribal courts doing whites down at all and that was not the implication of my remark. And Ohio law about the fetus would not apply to the woman except if she were a resident in Ohio herself. Its true that adoption and post birth law might entangle her with her boyfriend’s state after the birth–but not before. In this case tribal sovreignity/law was superseding her rights as a parent (theoretically) regardless of her state of residence, the state in which the child was born, and the state i which the child was living. Is there any other explanation for this than that the law relating to the fetus was transferred to the fetus through the father’s sperm, superseding the rights of the mother regardless of her own citizenship/residence?

          • Yeah, the Ohio thing seems to argue in favor of how silly the ICWA claim is: if the child was born in Kentucky, adopted in Kentucky, and went to live with an adoptive family in Tennessee, there’s no way the father’s case would be heard in Ohio on the basis of that being his state of residence.

            • chris says:

              IANAL, but I think that the state of the child’s residence has priority for jurisdiction in interstate jurisdiction cases. Or for infants who haven’t lived anywhere long enough to really have a state of residence, the state of the child’s birth. I think even the termination of parental rights would be done under the law of the state of the child’s residence, rather than the residence of the parent whose rights are being terminated.

              This was done deliberately to avoid dueling jurisdictions (either forum shopping, actual conflicting rulings in different jurisdictions, or both).

    • DrDick says:

      This is correct and the law also requires that an effort be made to place the child with a relative within the tribe, but does not specifically require that the child be placed with a native family, though that is the normal outcome.

  7. aimai says:

    I’m curious–I started following the case a while ago but haven’t read the Supreme Court case. Its complicated because the “best interests of the child” don’t track the “best interests of the tribe” at all and quite possibly often don’t. Because tribal issues are also clouded by poverty issues. States routinely take poor kids away from poor parents and “give” them to middle and upper class parents where those parents are willing and race/class/age aren’t seen as rendering the child less desirable.

    There was a heartbreaking case, covered extensively here in MA by the Globe, of an extremely marginal, fragile, young single mother of two children. She sacrificed everything she had for them and took care of them lovingly and as best she could but she’d been raped, traumatized, was poorly educated and impoverished. Intead of spending the money to care for her and get her the health care and mental health care they needed to keep the family together: They took the boys away from her and gave them to a middle class couple who were undoubtedly better able to care for the boys but at what horrible cost to the actual first parent?

    I’m curious as well as to how this would look if a child were taken from a family and community of one religion–say Jewish for the cross cutting ethnic implications–and given to a family not of that community. Would the community have any standing to challenge the adoption?

    • It’s an interesting, very difficult question (and I think I’d side with the community angle), but it seems to be exactly the opposite of the key point in this decision, which is that the girl never lived with the father or the community, but with her non-Native American mother, and therefore the ICWA shouldn’t supercede state adoption law.

      • aimai says:

        Yes, I’m not saying that any religious community would have rights under current law, I’m just curious about how/whether our attitudes would change. There’s been a continuous back and forth about this in the Social Services community, led by SS workers, to prevent AA kids from being adopted/fostered out of the AA community.

      • News Nag says:

        In white-on-white adoptive custody cases, the parent usually gets the child, often if not usually regardless of signing away rights. The reason for the signing-away is crucial, and you don’t know what that reason is (yet seem to assume ‘bad father’ for whatever your reasons are. Not helpful, BJ).

        • aimai says:

          “The parent usually gets the child?” What does that mean? Kids are taken away from white parents all the time and put up for foster care or adoption.

        • PSP says:

          That “usually” has got to be jurisdiction dependent. ‘Cause it sure as hell wasn’t true where I used to practice (Mass). Signing a termination was both res judicata and damn good evidence of unfitness.

    • Royko says:

      I’m curious as well as to how this would look if a child were taken from a family and community of one religion–say Jewish for the cross cutting ethnic implications–and given to a family not of that community. Would the community have any standing to challenge the adoption?

      Isn’t the point of this that Native American tribes aren’t just “communities” but “sovereign entities”?

  8. aimai says:

    Hm, rereading the times account I’m really conflicted. It looks like the father has been fighting pretty much continuously, since 4 months after the birth, to get the child back. While I”m by no means an MRA supporter I think men can be as confused about what they want in terms of child birth as anyone else and it looks like he needed more time for his “milk to come in” than a woman might have. On the other hand it sounds like he originally relinquished and denied any interest in parenting this child at an extremely psychologically important moment in the life of the actual biological mother: i.e. prior to the birth and for the first four months. If I’d been in her position I’d have done the same thing: put the child up for adoption because I couldn’t afford to care for her and the biological father had happilly relinquished any interest in the child. Why he should be able to come back four months later and start the process of demanding the child back, disrupting her life, is beyond me. Absent the Native American issues the nine months prior to the birth and the four months after are dispositive, to me. What is to stop other men from “changing their minds” about parental rights years after a child has been left to fend for itself, or the biological mother and new father have spent years raising that child? To me this is a slippery slope towards men first relingquishing their financial and social duties to children prior to and after birth and then demanding them back. Are fathers entitled to an endless set of mulligans?

    • Karate Bearfighter says:

      What is to stop other men from “changing their minds” about parental rights years after a child has been left to fend for itself, or the biological mother and new father have spent years raising that child?

      This is a constant issue in family law. I’ve seen quite a few men who have essentially no contact with their children as long as mom is single and struggling, and then want 50-50 placement as soon as mom is in a stable long term relationship. They don’t want to be dads, but by god, no one else is going to be a dad to their kid!

      • aimai says:

        Oh, yes. A website I used to be part of was full of women who had had this experience, along with courts demanding that the mother facilitate visitation even with fathers who were in prison for violent felonies. Its quite, quite, common for men to default on the complicated and expensive parts of child rearing but then to demand visitation, as well, on behalf of their own parents (the grandparents) who want a crack at the grandchild but who have not shared in the costs and pains of actually raising the child.

  9. Bruce Vail says:

    This is a heart-rending case that defies a simple solution, and requires a thoughtful and humane response. It’s exactly the sort of case that should be kept away from the Supremes.

    • aimai says:

      I hate to say that I think that the humane response is to return her to the people who first stepped up to completely parent her and who did parent her until 27 months. She should never have been taken away from them. So for once the supremes did a good job of putting the needs of the child over the needs of the parents.

      • I’ll also admit that the MRA zeal for this case makes me pretty skeptical of the father’s case.

        • News Nag says:

          Because I’m glad idiot Rand Paul opposes killing Americans with drones in our own country doesn’t make me a clueless faux libertarian. Nor does the MRA support for the father make the father bad. Don’t be so shallow, BJ.

      • Eleanor says:

        I have to admit – based only on the little I’ve read about the case in the past and the NYT article in the link, my stink eye goes to the adoptive parents in this one. Even before the adopition was complete (according to the NYT) and while the child was stil very tiny, they *knew* the bio dad wanted her back. And they obvioulsy couldn’t make a case that he would be a poor parent, because all the family court people involved claim that bio dad – who has been parenting the child for the last 18 months or so – is providing a good and stable home.

        Absent any information that bio dad would be a bad parent – and there doesn’t seem to be any such information – why on earth would they persist? All of the stories and studies of adoptive children stress over and over how much they longed to be part of their bio families, especially when – as with so many Asian adoptees are now discovering – they actually have bio family, even siblings. Family that wanted them. That searched for them. That tried to fight for them. As this small girl does. Why on earth would prospective adoptive parents want to stand in the way of that? How could they in good conscience feel they were truly acting in the best interests of the child? Seriously – what are they going to tell her someday? We wanted you so much we stole you from your father who loved you and wanted to raise you? How’s that conversation going to go?

        As intersting as bio dad’s possible motives in reliquinshing his parental rights and then changing his mind, so, to me are theirs, in persisting once they discovered the child had bio family who really, really wanted her. I do honestly believe that, based on what is public knowledge at present, they appear to me to be wholly in the wrong. Morally and ethically, if not legally.

        • Because the father relinquished his paternal rights and the girl spent most of her life with the adoptive family?

          I mean, sure, you can look at it as “fighting for,” his daughter, but how much do you want to bet he plans on telling her the part where he terminated his parental rights?

          • Eleanor says:

            How could he not tell her, when she asks? If he hadn’t, the entire case would have played out quite differently and, most likely, would never have made it to the Supreme Court.

            What is so terrible, anyway, about confessing that at first he ran….but realized later – though while she was still an infant – that he made a terrible mistake and then fought all the way to the Supreme Court to undo it?

            Look – I have to be honest – I’m increasingly skeptical of our entire model of legal adoption. And legal parenthood. Both treat children like posessions, ignore extended family and kinship networks, and, with adoption, often create deep emotional wounds for nearly everyone involved. I acknowledge that there are parents who can not and should not parent their own children, and that our current foster care system sucks in nearly every possible way. I don’t know what a better world would look like, but I suspect it begins with the end of the idea that children are things in which other people have vested legal interests and rights.

            • This is…confusing. You want the system to look after the child’s interest, which it presumably will now that the case is going back to state court for resolution, but you also support the father’s attempt to usurp the “best interest of the child” standard with the idea that he has ownership of the child because he’s a Native American?

              It seems like, more than anything, you’re just prejudiced against adoption.

              • Eleanor says:

                I’m not sure I’d say ‘prejudiced’ – I’m not even sure what that might mean in this context – but I am definitely skeptical of adoption as it is currently structured. Cases like this are a part, though only a part, of why.

                As for the *system’s* role in this – I haven’t actually said anywhere in this thread what I think it should be.

                • What is it, exactly, about this case that causes you such consternation about adoption?

                • Eleanor says:

                  Consternation is a little strong – but, sure. I’ll share a little. Most of my current thinking on adoption is shaped by the blogs/associations/networks of adoptees, and those of surrending mothers – many of whom deeply regret that choice and would undo it if they could. Like the bio-father in this case. In this particular case, which I was aware of before this week, my thinking is also shaped by the few Native American/First Nations issues blogs I occasionally read, where some have drawn an explicit comparison to the murky world of trans-national adoptions.

                  Adult adoptees, in their own stories, stress over and over again the anguish they feel at being – in your words ‘ripped’ – from their biological families. Even when they later meet some of their bio famlies and those meetings don’t go well, which they don’t much of the time, they *still* feel deep loss and regret for the missing bio family ties.

                  Personally swimming in the privilege of a huge, extended bio-kin network, I submit I am in no position to second guess their telling of their own stories.

                  In this particular case, there is a potential adoptee who’s bio-family, at least the paternal side, wants her. Wants her hard enough they have fought an extended legal battle to keep her.

                  So, in this instance, I think that the testimony of adult adoptees strongly suggests that the child should have been surrended to her father (barring obvious unfittness, and no, I don’t actually count terminating parental rights as a sign of that, I’m not a judge, or a court, so I don’t have to) once he made it clear he wanted to, and was able and willing to, step up.

                  This all has no relationship to what the law says about adoption or parenthood rights, or Native American sovereignty rights, or the role of the state or the functioning (or not) of the ‘system’. It is merely a fuller explanation of why I, as an individual, think the prospective adoptive parents should have backed off when the child was four months old.

                • Well, I have both a general and a particular response to this. In the general, as someone whose mother was adopted and has no desire to seek out her biological family at all (and indeed flat out refused prodding to do so when her brother found his biological sister), I would suggest you avoid forming such deep opinions on the basis of sweeping generalities of complex personal emotions.

                  In the particular, it seems that the problem is that you’re imagining this guy as a parent who simply regretted the decision to put his child up for adoption. But that’s not what happened at all, according to the available accounts, anyway, and that makes a huge fucking difference (both from a legal standpoint and because a whole lot of “abusive asshole” redflags are going up here).

                • Karate Bearfighter says:

                  Most of my current thinking on adoption is shaped by the blogs/associations/networks of adoptees, and those of surrending mothers – many of whom deeply regret that choice and would undo it if they could.

                  It seems like there is a selection-bias issue there; adoptees who feel the way you describe are going to congregate online with other adoptees who feel the same way. At an even more basic level, adoptees who had a positive experience with their adoptive families may not even identify as adoptees.

                  Absent some broader, empirical data, I would be very cautious about generalizing from that kind of association or community to all adoptees.

                • Eleanor says:

                  I’m not an adoptee, but as you note, even between your mother and your uncle there was a difference of opinion on the matter. And in blog comment boxes there is not much room for nuance.

                  And as for this case – it sounds to me like you don’t actually know very much about it.

                  The father signed over his rights, under the misaphension that it was custody only that he was giving up, six days before shiping out for Iraq. He was not aware and was not told, before that time, that the child was already born and already on the way to being adopted. He claims – and yes, he could be lying about not knowing the child was already born – that once he was informed of what he’d done, right after signing, he immediately went to a military lawyer and began to try to undo what he’d done, which is when he learned of the in process adoption. His parents took up the struggle once he left for Iraq. As far as I can tell, the timing of his actions is undisputed. He signed (when the girl was already four months old, and with the Georgia couple), then realized what he had done, and immediately – like the next day – began trying to undo it.

                  So your sweeping generalizations and strong opinions that he was an abusive asshole who abandoned a pregnant girlfriend seeking to avoid expense and cost and only months and months later changed his mind… are not well supported by the facts of this particular case.

                • Eleanor says:

                  It seems like there is a selection-bias issue there; adoptees who feel the way you describe are going to congregate online with other adoptees who feel the same way. At an even more basic level, adoptees who had a positive experience with their adoptive families may not even identify as adoptees.

                  Only a quick aside – these are not communities made up only of adoptees unahppy with their adoptive families. Many in fact claim quite the opposite. Their larger point is not about the nature of their current familiy relationships, good, bad or inbetween – only their shared sense of loss of bio family. And this does not, I should add, lead to all, or even the majority, seeking out bio family in the present.

                  I was asked why I’m skeptical about our current adoption practices. These stories are one part of why.

                • aimai says:

                  Yeah, I’m skeptical of being skeptical on this basis. I mean–what’s the alternative to adoption in some cases? I’m not talking about the potential of adoption abuse (which is extremely high especially in some foreign countries). If a child is in an abusive situation or is actually orphaned or abandoned by both parents, or both parents agree to give the child up for adoption, what is the alternative to adoption? If the custom is open adoption then, fine. But if the biological parents don’t want an open adoption I fail to see how the regrets or the wistful fantasies of the adoptee really affect that situation in a good way. Open adoption against the wishes of the biological parents simply means more abortion (which I am in favor of, frankly).

                  Better contraception and more freedom for women in choosing whether to get pregnant at all with some male partners ought to mean the end of adoption entirely since there would (largely) be an end to unwanted/uncared for children or women who are unable to raise their children themselves. Friends of mine adopted the sixth child of one woman–I can’t remember whether she had been able to care for the other five but one way or another a sixth child was more than she could handle. Ideally she would never have gotten pregnant at all.

                  As for foreign adoptions one extremely obvious reason that people go for foreign adoptions, aside from the paucity of children who are fully available for adoption in this country (many children being stuck in a limbo not of their own choosing due to the inability of their parents to terminate parental rights and the unwillingness of adoptive parents to adopt older or special needs children) is to get away from the potential can of worms that is your child reconnecting with their biological parents. I can see both sides of this issue, really. The best international solution would be to produce the money for both health care/sexed/contraception in those host countries and also orphanages and in country adoptions. But that isn’t because those children don’t benefit in lots of ways from being adopted into a new country. Its important not to romanticize the biological family anymore than we should romanticize the biological country of origin.

                • rea says:

                  Better contraception and more freedom for women in choosing whether to get pregnant at all with some male partners ought to mean the end of adoption entirely

                  Not entirely, there are always going to be orphans.

                • aimai says:

                  This is in response to Rea:

                  Actually, absent warfare and mass starvation, there are very few true orphans in the sense that there is no one in the extended family to take them. I’m not saying this because I’m a cock eyed optimist but the entire western adoption framework in which children are thought to be “orphans” with no family at all is largely a fiction. There are AIDS orphans in Africa but, for example, the children in most orphanages in Nepal are placed there by families who are unable to care for them–because they are mixed caste or inconvenient or the families are too poor. They are not, in fact, the product of missing parents.

                  If the Catholic Church stopped opposing birth control in the Phillipines there would be fewer immense families in which one missing parent would result in disaster for the children. Of course more birth control would result in smaller families with fewer collateral relatives to take in the children in the event of a true disaster/loss.

                  I’m not saying that adoption would never be necessary, but the incidence of adoption of true orphans rather than children abandoned as a result of economic desperation would be greatly lessened.

            • And fwiw, my out of my ass guess is that the state courts will now decide that it’s in the child’s best interests to remain with the father…which is fairly fucked up in its own right based on the way the case played out.

          • Bill Murray says:

            speaking of making stuff up out of one’s ass

      • Bruce Vail says:

        The Supremes may very well have the right thing for the kid in this case. I hope so.

        My little joke was that you can never rely on them to do the right thing, and when they do good, chances are that is for the wrong reasons.

      • rea says:

        What’s the humane response now, after she’s been in the father’s custody for a year or so, may be different from what the humane response would have been a while back.

  10. News Nag says:

    While commenters today on this post have exhibited a healthy and natural compassionate inclination toward the child and consider themselves evenhanded, I think I also detect an automatic bias against the parent here and can’t help but feel they likely haven’t examined nearly closely enough any lurking and hidden racialist and racist assumptions that predispose their thinking. Erik is excepted, of course, and I suspect he’ll be back in the thread later about all this; I hope so. If this were a white-on-white case, I think the reasoning and opinions would be more evenhanded and more historical information would be sought before jumping to the conclusions reached.

    • Ya know, I think you’d actually be more persuasive if you didn’t bother trying to hide the MRA stuff behind this silly racist angle.

      • JL says:

        Okay, I am conflicted about this case – having just heard about it this week – but what is with this assumption that News Nag is an MRA because he talks about the racial aspect here? Even if you think he’s wrong about the implications of the racial aspect, that doesn’t make him an MRA. Is it because there are MRA dolts who are on the same side that he is in this case? Because I heard about the case from antiracist feminist activists who were unhappy about the Court’s decision. Disagreeing with your take doesn’t make one an MRA.

    • Manny Kant says:

      If this were a white-on-white case, it certainly wouldn’t have gone to the supreme court – it would have been decided by whatever the family law is of the state in question.

      • Right, and in that case the court most likely would have ruled it was in the child’s best interest to remain with the adoptive parents.

        • rea says:

          Not exactly true. The South Carolina courts rendered their decision in part on the basis of the Native American issues, so it went up to the S. Ct., but they also found that he did not volutarily relinquiish his parental rights. The main reason the child spent so much time in the cutody of the adoptive parents was that the case was on hold while he was deployed to Iraq.

    • aimai says:

      You’ve got it 100 percent backwards, as everyone has pointed out. If this were merely case involving two people with the same racial/communal background my opinion wouldn’t be changed at all. I would still oppose (though with some regret) a system which enables grown ass adults to change their mind with respect to the voluntary adoption of their biological offspring. That goes for women as well as men. I think there should be a “cooling off period” during which the infant in a voluntary adoption goes to foster care for a month while both biological parents reconsider their decision but once the child goes to the adoptive parents the matter should be considered final. That’s my personal opinion based on having raised my two biological children and being the aunt of two adopted children. The early period and the bonding that goes on between children and the people who raise them should not be captiously interrupted, even by the biological parents. It never serves the interests of the child.

      We might argue about older children and adoption because the emotional and intellectual ties between an older child and his/her primary care giver, be that person never so incompetent or impoverished, have a different valence than the ties that might theoretically exist between mere blood kin.

    • L2P says:

      If this was a bunch of white people there wouldn’t be a case. The father terminated his parental rights. That’s the end of it.

      The only reason there’s ANY sympathy at all is because the father is a member of a tribe that has been abused and marginalized for 300 years. Otherwise, it doesn’t matter how awesome the dad is – he’s not the dad anymore.

      • rea says:

        The father terminated his parental rights.

        Precisely because voluntary termination of parental rights ought to be irreversible, there must be very tough, strictly enforced rules about what is necessary for an effective, voluntary termination of parental rights. There seem to be a lot of irregularities about this one. I think I would prefer a rule requiring the parent to appear in court and state his agreement before a judge after being advised of rights.

  11. Ya know, upon further reflection, I think this:

    So what does ICWA do? The act was created because of incredibly high rates of white parents adopting Native children; in states like Minnesota, that have large Native populations, non-Natives raised 90 percent of Native babies and children put up for adoption. Those adoptions sever ties to Native tribes and communities, endangering the very existence of these tribes and nations. In short, if enough Native babies are adopted out, there will literally not be enough citizens to compose a nation. ICWA sought to stem that practice by creating a policy that keeps Native adoptees with their extended families, or within their tribes and nations. The policy speaks to the core point of tribal sovereignty: Native tribes and nations use it to determine their future, especially the right to keep their tribes and nations together.

    actually goes to show that Alito’s reasoning was (gulp) pretty much correct, given that the father voluntarily relinquished parental rights to the non-Native mother. There’s nothing particularly inconsistent about these two realities based on the details here, nor does it seem that there’s any larger precedent being set by this ruling (except, hopefully, that fathers can’t just undo a TRP because they want a do-over).

    And it’s also worth saying that the result itself (the case being sent back to state court’s to be decided on the basis of the child’s best interests), seems much preferable to a SCOTUS ruling for the father under the ICWA.

    • L2P says:

      Not only does Alito’s reasoning seem correct, the dissent doesn’t even really address it. It’s hard to follow the dissent. It appears that their reading of the Act would essentially make it impossible for a biological parent to ever terminate parental rights unless it had been adjudicated before a tribal court. That’s nowhere to be found in the Act as I understand it. I’m very sympathetic to tribal sovereignty and the members of the tribes, but the dissent’s holding would be terrible.

      At some point a parent is no longer a parent. Beyond dispute that happens at a voluntary termination of parental rights. I’m not sure why that is controversial.

  12. pete says:

    I think there is some argument at cross-purposes here. Reading through this interesting discussion, I concluded that many participants are concerned about the facts rather than the law, which seems entirely reasonable when talking about the fate of a small child. But isn’t the job of the Supreme Court to decide the law rather than the facts? When they decide (in my view arbitrarily and wrongly) that racial animus in voting legislation is history, we complain. Were they to decide that the free speech rights of fascists must be upheld, I would agree, subject to the fire-in-the-theater exception. The difficult part here is the Indian sovereignty issue, and Alito’s language (as discussed here) is disturbing. There is a large cultural gap between tribal and federal attitudes to community membership. And I don’t know how to balance that.

    • This is imminently fair in the general sense, but in the particulars I just don’t see any reasonable way to argue that the child is a member of the tribe that doesn’t amount to “the man owns the result of his sperm forever and ever no matter what.”

      • pete says:

        Did you mean eminently? Because “imminently” in this context made me chuckle. Sorry I don’t have the time today to engage and respond fast and repeatedly. I agree with aimai immediately below about the community argument, and I may well agree with you both about the substantive merits. I am simply concerned about the Supremes possibly setting up a dangerous precedent while trying to do the right thing. I am specifically concerned that the opinion opened with an assertion about the child being “classified as an Indian because she is 1.2% (3/256) Cherokee” — that appeared to twist the basis of the decision from the rights of the child to the rights of the Nation, which is bass-ackward and could also lay the basis for other race-based decisions later with worse consequences (not that this case is actually over).

        • Lee Rudolph says:

          “Immanently fair in the general case” would perhaps be both more chuckleworthy and deeper.

          Or not, of course.

    • And, frankly, the “community” argument here is really, deeply, creepy in its implications.

      • aimai says:

        Its not creepy with respect to already born children in an unambiguously tribal family, or living on tribal territory, or within a marriage solemnized by the tribe. But its creepy under the facts of the case.

        • aimai says:

          And you know what? I’d argue that if the sexes and races were reversed–not that that’s a good way of determining whether something is a good idea or a bad one. But if a Native American woman got pregnant by a Non NA male and he terminated his rights to the child,avoiding helping her with health care or the costs associated with raising the child, and then she died or decided to place the child with a NA family and he came back and sued her for control of the baby because he wanted it to be “raised white” I’d be horrified. And not because of the implicit racism of the “raised white” but because he is violating the agreement already reached and putting his interests above that of thd child and the biological mother and adoptive parents.

          This is such a perfect example of King Solomon’s choice. The mother who wants what is best for the child is willing to sacrifice her control over the child for its safety/health/future and the parent who wants the child regardless of the child’s need for security is willing to cut the baby in half so long as he gets half.

        • Oh, yeah, that’s what I meant by “here.” Sorry for not being clearer about that.

  13. [...] haven’t commented yet on the fascinating Native American and parental rights case Erik mentions below in part because it’s a genuinely difficult case and I have yet to reach any firm conclusions [...]

  14. Paul Orwin says:

    I’m surprised no one has mentioned it but there was a “Radiolab” episode on this subject that was really quite well done and interesting. I don’t think it will change people’s minds necessarily, but it certainly adds a bit of depth to the story.

  15. burnspbesq says:

    unless you are from or live in a handful of western states, there just aren’t very many Native Americans

    There are approximately 18,000 Haudenosaunee from New Yoek holding on line one.

    • DrDick says:

      There are also several thousand Cherokees and Seminoles in Southern states, but they are all concentrated in a handful of mostly rural counties and few people in the states have any knowledge of or interaction with them. The Seminoles in Florida, with their casinos and one reservation on the edge of Miami, are something of an exception, though even their neighbors know little about them.

  16. chris says:

    Upon reading some of the actual opinions, it looks like they all take for granted that there was *not* a separate termination of parental rights proceeding; that the genetic father may have informally agreed to give up his parental rights but, at the time of the adoption proceeding, he had not yet done so.

    “Biological Father responded via text message that he relinquished his rights.” — IANAL, but even if the authenticity of the text message is not contested, this doesn’t strike me as something entitled to be considered res judicata. If there *had* been a formal voluntary termination of parental rights, you’d think someone would have mentioned it (at the very least, it would make all the provisions about *involuntary* terminations of parental rights inapplicable on their faces).

    This may render most of the above comments off-base. The need for finality of an *actual* TPR isn’t implicated when the genetic father recanted his promise to give up his parental rights *before* he actually gave up his parental rights. That makes it an informal tentative agreement that was abandoned before it ever became final and binding.

    At that point he’s just a noncustodial genetic father opposing an adoption, which inclines me much more toward Sotomayor’s view (not that he will or should necessarily win on the merits, though). Parents (either genetic or gestational) change their minds about consenting to adoptions disturbingly often and it’s always a mess, but until the adoption is actually finalized, I don’t see how you can reasonably deny them the right to contest it.

    Even with the majority ruling the ICWA inapplicable, he still can contest the adoption in state court, if his rights really haven’t been terminated (and won’t be until the adoption becomes final, if it does).

    • aimai says:

      I agree: if he didn’t formally terminate his rights prior to the adoption then, of course, all bets are off and I would side with the liberal justices.

  17. timb says:

    A fine discussion can be found here. Brien Jackson might want to listen to it

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