Yesterday, the Supreme Court heard oral argument in the case Adoptive Couple v. Baby Girl. While arguments touched on a number of topics, they centered on an issue crucial to all of us—how a parent is defined under the law. This question is particularly salient as we consider immigration reform and marriage equality, both of which touch on what constitutes a family and how the law does—or does not—support it.
At stake in this case is the fundamental right of individuals to parent their biological children, and of minority and politically disadvantaged communities to protect their cultural identity and integrity.
Many of the facts in the case are disputed. But there are a few that we know to be true: Dusten Brown is Veronica’s biological father. He was estranged from Christina Maldonado, Veronica’s biological mother, at the time of her birth. Dusten was informed of Christina’s intention to put Veronica up for adoption just a few days before he was scheduled to deploy to Iraq. As soon as he found out that his daughter was about to be placed for adoption outside the family, he sought custody and formal legal recognition as her father.
Because Dusten is an enrolled member of the Cherokee Nation, and his daughter, Veronica, is eligible for membership, the federal Indian Child Welfare Act (ICWA) governs this dispute.
And with good reason–there is a long legacy of discrimination against Native American parents, especially when it comes to raising their own children. This discrimination is largely based on unfounded myths and stereotypes about their fitness as parents and biases against traditional Native parenting styles. Beginning with federal policies in the early 1860s and continuing through the 1970s, the U.S. government deliberately took Native American children from their families and communities and placed them in non-Native homes or in boarding schools. After years of advocacy by the Native American community and with thousands of pages of testimony describing how these practices were devastating to tribal families, traumatizing to Native children and depleting of tribal populations, Congress passed ICWA.
The law enhances the ability of Native Americans to parent their children with dignity by providing two major protections: (1) deeper cultural sensitivity in child welfare placements, and (2) increased respect for tribal determinations in child welfare matters. The law has been effective at reducing rates of overrepresentation of Native Americans in both foster care and adoption from their peak during the 1970s, but to this day Native American children continue to be three times more likely than their white counterparts to be removed from their homes and placed in foster care. Biases persist, in spite of the protections set up to alleviate and eradicate them, and the law is still essential to protect Native American children, parents, and communities from abuses in the child welfare system.
The protections of ICWA extend to both Native American parents and tribes, providing them with, among other things, the right to intervene in voluntary adoption proceedings. In order to qualify for this protection, Dusten needed to be considered a legal parent. During yesterday’s oral argument, the justices were concerned with that very question. Family law and its definition of parentage varies from state to state, and also under federal law. In this case, if the justices follow the federal definition of who is a parent under ICWA, then Dusten’s biological relationship to Veronica and his acknowledgement thereof is determinative of his legal status as an Indian parent with rights under ICWA. But if the justices use the state’s definition in South Carolina, where the adoption occurred, Dusten could not object to the adoption as a legal parent because he did not support Veronica’s mother during her pregnancy or immediately after the birth, in spite of his acknowledgement of paternity days after learning of her impending adoption. The Supremacy Clause establishes federal law as the law of the land, and therefore, ICWA, rather than state law, should govern in this case.
This law only applies to children who are members or eligible for membership of Native American tribes and their parents, but it should be a best practice for all child placement determinations. Culture and community matter. While the most important things a child needs are love and stability, ideally children would have the opportunity to be raised by those who share their heritage and can teach them the culture and traditions of that heritage. Moreover, it is important for the law to presume that members of historically marginalized communities are legitimate and fit parents unless proven otherwise in order to correct for the bias that so often still exists to the contrary.