On Tuesday, the Oklahoma Supreme Court announced it had issued a stay in the adoption of a young Cherokee girl known as Baby Veronica, calling into question an order from a South Carolina court ordering the girl be turned over immediately to her adoptive, white parents. The ruling is the latest legal twist in an ongoing custody dispute made more complicated by a Roberts Court ruling this summer.
The facts of the Baby Veronica case are not easy to summarize, but Laura Briggs does a great job of providing both a concise and comprehensive version of events here, and I highly recommend giving it a read. In short, Christina Maldonado and Dusten Brown had been engaged, but before they were able to get married Maldonado got pregnant. The two broke up, and Brown allegedly disclaimed his parental rights and told Maldando he would not support her or the baby financially. Maldando, with the help of a Christian adoption agency, found a South Carolina couple to adopt the baby. Once Brown learned of the potential adoption, he objected and sued, arguing he had not voluntarily relinquished his parental rights. Brown is Cherokee, which means the termination of his parental rights and the baby’s adoption should fall under the scope of the Indian Child Welfare Act (ICWA), a federal law that sets federal standards for state-court child custody proceedings involving some Native children. The lower courts agreed, and “reluctantly” barred the adoption.
The dispute worked its way through the courts, eventually landing before the Supreme Court this summer. The Court had before it two competing interpretations of the Indian Child Welfare Act. First was the version advocated by Brown. He argued that ICWA applies whenever a court is considering whether to terminate parental rights of an Indian parent. On the other hand, Paul Clement, representing the adoptive parents, argued that ICWA’s coverage is limited to the kinds of cases that Congress “most likely” had in mind when it passed the law—cases in which the U.S. government is seeking to remove Indian children from an existing Indian family. This was the only real interpretation of the statute, Clement argued, given the historical abuses by government social services to Native peoples and families.
Clement, who has famously argued against the constitutionality of Obamacare and the Voting Rights Act, framed the argument in static historical terms, through which tribal sovereignty and identity is violated in only narrowly constructed ways. The Roberts Court bit. In a 5-to-4 opinion, Justice Samuel Alito, writing for the majority and joined by the chief justice and Justices Anthony Kennedy, Clarence Thomas, and Stephen Breyer, interpreted the relevant portion of the ICWA, which addresses the involuntary termination of parental rights with respect to an Indian child, as excluding cases in which an Indian parent never had legal or physical custody of the child, like Brown’s. The law, Alito reasoned, applies “only in cases where an Indian family’s ‘breakup’ would be precipitated by the termination of the parent’s rights.” That section, the Court explained, is “sensible” when it is applied “to state social workers who might otherwise be too quick to remove Indian children from their Indian families. It would, however, be unusual to apply [Section] 1912(d) in the context of an Indian parent who abandoned a child prior to birth and who never had custody of the child.”
Finding the ICWA did not apply in cases when a biological parent has had no initial contact or support, the Court sent the matter back to the South Carolina Supreme Court, which, after a few more legal filings, approved the adoption and ordered that Baby Veronica be turned over to the adoptive parents immediately.
When lawyers argue about jurisdiction, they are essentially arguing about the power of the court to hear a dispute. And in the Baby Veronica case, the power of the courts has a very specific meaning in the wake of the Supreme Court decision that so severely limited the scope of the ICWA. That’s because that Supreme Court decision effectively took power away from tribal communities to protect and promote their own identities by drastically limiting the presumption of tribal jurisdiction in child custody disputes within the ICWA.
There is no uniformity to state adoption laws. Some states have very detailed procedures for terminating parental rights and allowing adoptions, while others do not. The benefit—and in a very real sense the power—of the ICWA was that it created uniformity in this process. For members of recognized tribes, the ICWA set jurisdiction over these matters in tribal courts and granted certain rights to biological parents not always guaranteed by states in these kinds of proceedings. It didn’t guarantee that Native members retain parental rights, or that children were not adopted outside of tribes, but it recognized the sovereignty of Native peoples as distinct and found a procedural mechanism to make sure that sovereignty was respected. That was, until the Roberts Court gutted it.
As Briggs rightly notes, in adoption cases, jurisdiction matters—a fact likely motivating the decision in South Carolina. And Briggs suggests an even more troubling, and plausible, motivation for the right’s vigorous defense of the Baby Veronica case. She sees it as a possible Trojan Horse to significantly compromise tribal sovereignty and open the gates to non-Native gambling entities challenging tribal gambling enterprises. Given the zeal with which the Roberts Court has gone out of its way to not just protect, but outright promote corporate interests at the expense of everyone else, it’s a theory that shouldn’t be quickly dismissed.
In the meantime, an Oklahoma Supreme Court referee is expected to recommend which court take the case next: Oklahoma’s, South Carolina’s, or the Cherokee Nation’s. And while the Baby Veronica case could be an example of bad facts making bad law, with the damage limited to this one case, it could also be just the opening both the religious right and the corporate right have been looking for to take another run at tribal sovereignty.