In a 5-4 decision, the U.S. Supreme Court ruled June 25 that the parental rights of Cherokee Nation citizen Dusten Brown can be terminated despite his tribal citizenship.
TAHLEQUAH, Okla. – After reading the U.S. Supreme Court decision in Adoptive Parents vs. Baby Girl, Fawn White is a little torn.
In October 2011, the White Eagle native finalized the adoption of her son, Trevor. Although she sympathizes with the anguish Matt and Melanie Capobianco, the prospective adoptive parents of Baby Veronica, are wrestling with, the cultural ties and potential big picture implications from last week’s ruling leave her concerned.
“It’s hard for me to imagine what it would be like to have my child, who I have loved and cared for since birth, taken way because of an oversight,” White said. “On the other hand, I am a full-blood Native woman from the Ponca and Cherokee Nations. I understand and know the reasons behind ICWA [Indian Child Welfare Act]. I am fully aware of the history and trauma that has occurred. I come from a traditional home and am in full support of keeping our Native children in Native homes.”
In a 5-4 decision, the U.S. Supreme Court ruled June 25 that the parental rights of Cherokee Nation citizen Dusten Brown can be terminated despite his tribal citizenship. Brown had been contesting the attempted adoption of his now three-year-old daughter Veronica by a non-Native couple from South Carolina.
Citing Brown’s lack of involvement and financial support during the birth mother’s pregnancy, the Supreme Court’s decision reverses and remands a 2011 ruling by the South Carolina state supreme court that upheld a lower court’s decision to award custody to Brown under the terms of ICWA.
The decision does not automatically transfer custody of the little girl to the pre-adoptive parents. She has been living near Nowata with her father and stepmother for more than 18 months.
“I am disappointed in the decision of the Supreme Court,” White said. “I need to know the government values my culture and that assimilation is not the plan for us. I need to know my government stands up for me and affirms my rich traditions and that they will live on. I need to know my government is strong and can put their foot down and say, ‘No, this is not OK.’”
White is not the only one at least somewhat disappointed with last Tuesday’s Supreme Court ruling.
“It (the ruling) is narrow compared to what it might have been, but it is still troubling,” University of Oklahoma law professor Taiawagi Helton said. “It narrows the scope of ICWA by basically applying the Existing Family Doctrine.
“Although that exception has been rejected by most courts, the Supreme Court has essentially either recreated it or a parallel or an analogy to it in a way that is troubling.”
First introduced in 1982 by the Kansas Supreme Court, the “Existing Family Doctrine” is used in a handful of states to not apply the Indian Child Welfare Act in individual cases involving a Native child removed from a non-Native home. Nineteen states, including Kansas, have since rejected the doctrine either by law or by case precedent for its failure to recognize tribes’ interests in cultural preservation.
Despite the partial victory of ICWA being upheld as constitutional, there is still concern over the decision’s potential long-term implications for tribal sovereignty, Indian law and federal Indian policy moving forward.
“Separate from the adoption context, the opinion either hides or has consequences for Indian law more generally,” Helton said. “You can see from Alito’s opinion that he’s troubled by existence of Indian law.”
Calling the Indian Child Welfare Act an 11th hour trump card for Brown, Justice Samuel Alito made multiple references to the child’s blood quantum and claimed that the act could potentially put vulnerable children at risk because of a “remote Indian ancestor.” Unlike the other two federally-recognized Cherokee tribes, the Eastern Band of the Cherokee Indians and the United Keetoowah Band of Cherokee Indians, the Cherokee Nation bases citizenship eligibility on documented lineal descent and does not require a minimum blood quantum.
“This opinion…illustrates that we have a bad Supreme Court when it comes to Indian law issues,” University of Tulsa adjunct law professor and Native American Rights Fund staff attorney Walter Echo Hawk said. “Court observances show us that since 1985, Indian tribes have lost more than 80 percent of cases before the U.S. Supreme Court. Those are frightening statistics that show us that even prison inmates fare better than Indian nations before the Supreme Court.
“An adverse decision of this nature impacting something as vital as our children…placing those interests in the hands of a hostile court is very frightening.”
In response to the decision, the National Indian Child Welfare Association coordinated a national day of prayer for the Brown family and Native children across the country. NICWA was one of more than 20 organizations that submitted an amicus brief, or friend of the court brief, in support of Brown and the Cherokee Nation earlier this year. Several tribes and Native communities nationwide hosted prayer circles, including the Muscogee (Creek) Nation.
“Our job isn’t exactly sexy, but it is important,” Muscogee (Creek) Nation Family and Children’s Services manager Carmin Tecumseh-Williams said to the more than 30 people who participated in the tribe’s prayer circle Wednesday morning in Okmulgee. “We don’t bring in money like the casino. We take money. But we’re still important, though.
“This could happen to any of us. It could be any of our children or grandchildren. We have to be mindful that that’s our tribes’ futures at stake.”
In a 5-4 decision, the U.S. Supreme Court ruled June 25 that the parental rights of Cherokee Nation citizen Dusten Brown can be terminated despite his tribal citizenship.