Monday, January 07, 2013

Court hears Cherokee baby case

Normally, an adoption requires the consent of the mom and the dad. If you adopt a kid with just the mom's consent, you run the risk that the dad will object.

In this case, a dad had to use his Cherokee status and an obscure federal Indian to get his kid back. The Legal Times reports:
The Supreme Court on Friday announced it would review the high-profile 'Baby Veronica' Indian adoption case, a test of the importance of tribal interests in custody disputes.

The case of Adoptive Couple v. Baby Girl arises under the federal Indian Child Welfare Act, passed in 1978 to preserve Native American families. It gives top priority to keeping children within Indian families and tribal settings whenever possible in custody disputes.

In the case before the court, Veronica was born in Oklahoma in 2009 to an unwed and separated couple consisting of a non-Indian mother and a Cherokee father. The mother decided to put the child up for adoption, without telling the father. An adoptive couple began raising Veronica in South Carolina, but when the biological father learned of the adoption, he invoked the law to establish custody. The South Carolina Supreme Court, ruling with "heavy heart," said the federal law dictated that the child should be returned to the father. The transfer was made a year ago, with heavy media attention. The case has been discussed on the Dr. Phil and Anderson Cooper talk shows.
I don't get why the US Supreme Court is considering taking the baby away from her dad. The article goes on to explain that a former Solicitor General is representing the baby, but the she is only 3 years old.

Anyway, I guess I am glad to hear the court hear a child custody case, as it usually ignores outrageous denials of fundamental civil rights.


Anonymous said...

I think the Supreme Court took the case because state supreme courts are divided on two issues under the law which both came up in this case and I assume they want to make a ruling one way or the other so it's the same in all states. One issue state courts disagree on is whether ICWA applies when the child is of mixed heritage and was living with the parent who was non-Indian (and presumably would have raised the kid non-Indian). The other issue state courts disagree on is whether the text in the law (which says something about how it doesn't apply to unwed fathers who haven't established paternity) means the father would have to go to court under state law to be declared the legal father or if merely identifying himself at some point before the adoption is finalized but doing nothing else would be sufficient.

I actually have very mixed feelings about this case because I think both parents should have the same rights in an adoption, but I don't think it's right that someone is more likely to get their kid back if they are Native American, and also I disagree with how the law applies to mixed-race children - and this isn't specific to this case but to any case - adoptions where both bio parents agree to place the kid with a home of the non-Indian parents heritage and the tribe disagrees, child welfare cases where the parents were abusive/in jail/unavailable for whatever reason, guardianship cases where the parents are dead. The law appears to have no provisions for placing a mixed race child raised in their non Indian heritage (so, for example, a half Asian, half Native American child primarily raised in Asian-American culture) when that is the home/culture they are used to and an Indian home would actually be a huge culture shock to a child already traumatized by abuse or death of parents. By classifying kids as either Indian or not Indian it ignores the reality of the daily lives of some kids with mixed heritage and essentially allows tribes to do what the US government did (which ironically led to this law) and that is take children from the culture that they are used to and that their parents chose for them.

Anonymous said...

for example one other case in which this law was invoked, though the final result is not known publicly because the bio parents might have taken the kid back to avoid the adoption into a culture they objected to, or maybe they found some way to keep custody with the adoptive parents. But in that case the bio mom was Indian but had left her tribe over some reason and it was serious enough that she had vowed to have zero contact with them again, ever. The bio dad was Eastern European Jewish. The bio mom therefore agreed the bio dad should pick the adoptive family so he picked a Jewish one and somehow the tribe found out and managed to block it in court. so it can interfere with choices of both parents and if either the bio dad or mom got the baby back in that case neither would have raised it Indian so in the end the law just does not make sense to me in any way and while it may help some parents it may also prevent some parents from making choices for their kids.