ryanGuest Post by Ryan Dreveskracht

The Supreme Court’s decision in Adoptive Couple v. Baby Girl is most certainly a blow to Indian sovereignty by way of an assault on core notions of Indian family and tribal identity.  Yet what is even more disturbing is how the “Baby Veronica” ruling so vividly highlights the Roberts Court’s deep investment in white supremacy, capitalism, patriarchy, heterosexism, and a coercive binary gender system.  Adoptive Couple is about far more than the rights of adoptive parents.  The decision should serve as a warning to all marginalized groups such as Indians, ethnic minorities, the lower class, or the LGBT community: If given the opportunity the High Court will construe legislation to serve its own institutionalized interests, in spite of the law’s intent.

Generally, issues of tribal sovereignty—the ability for tribal governments to make their own rules and be ruled by them—receive very little press.  And when the occasional Indian issue is more widely followed, misunderstandings about Indian law, history, and deep-seated anxieties about Indian rights become apparent.  The recent debate over the new Violence Against Women Act (“VAWA”)—which included provisions that would, for the first time since 1978, allow tribes to exercise limited criminal jurisdiction over certain non-Indians that would otherwise escape domestic violence prosecution—made this clear.  Those supporting the VAWA were criticized for using the domestic violence issue “as a way to assert and reclaim broader sovereign powers” and  “violating the Constitution in the process.”  What these critics failed to observe was that: (1) prior to VAWA, a jurisdictional gap existed that that allowed non-Indians to commit domestic violence with impunity; (2) the consensus, among every expert in the field, was that the only solution was to re-recognize the authority of tribal institutions; “ones that reflect American Indian nations’ sovereignty”; and (3) the Supreme Court has explicitly held that “Congress does possess the constitutional power to lift the restrictions on the tribes’ criminal jurisdiction.”  The VAWA eventually passed, but not without a fight, and not without some give-and-take that, legally speaking, is nonsensical. You can bet that these seemingly contradictory requirements will soon be litigated—and when they are, Indian Country may hastily lose a piece of the inherent sovereignty that it successfully fought to restore for 35 years.

This is what happened to the Indian Child Welfare Act (“ICWA”) in the Supreme Court’s recently issued Adoptive Couple.  The ICWA, enacted in 1978, was Congress’ response to the widespread epidemic of Indian children being separated from their parents and families based upon unsubstantiated presumptions of social irresponsibility made by social workers and judges who were ignorant of Indian culture and tradition.   For an Indian child in Wisconsin, for example, the risk of being separated from his or her family was nearly 1600% greater than it was for a non-Indian child.  Congress confronted issue by establishing in the ICWA “minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes or institutions which will reflect the unique values of Indian culture”; the idea being to “protect Indian culture, limit state jurisdiction, and encourage respect of tribal institutions by recognizing tribal authority over the disposition of Indian children.”  To fulfill these purposes, the ICWA established specific procedures that state courts must follow when an Indian child is involved:

  • Tribal courts were given exclusive jurisdiction over Indian children in Indian country and concurrent jurisdiction over Indian children living outside of Indian Country.
  • Notice to the Indian child’s tribe must is required if a custody proceeding originates in a state court and the tribe has a right to intervene.
  • The state court must transfer the case to tribal court if the tribe or a “parent” requests a transfer.
  •  If a case remains in state court, an order terminating parental rights requires proof “beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.”
  • In the event an Indian parent loses his or her parental rights, the court must give preference in the following order, if they come forward: a) a member of the child’s extended family, b) other members of the child’s tribe, c) other Indian families.  In addition, the party seeking to effect a foster care or termination of parental rights must show that they have “provide[d] remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.”  Only after depleting these resources may an Indian child be placed with a non-Indian family.

The facts of Adoptive Couple should have made a compelling case for ICWA application.  The Indian child’s parents, Dusten Brown and Christine Maldonado, had known each other nearly 14 years and had dated off and on for roughly 11 years.  In December of 2008 the couple became engaged, and one month later Maldonado became pregnant.  Soon after, however, Maldonado sent a text message telling Brown that she “wanted to break up.”  As reported by Indian Country Today:

Brown said he did not understand why she wanted to break up and that she was not clear in her reasons.  But because they had dated off and on for so long, he said, “I just thought we could repair our relationship and get back together. We had done that a lot, so I thought we could do it again.”   Instead, she texted Brown asking him to sign his “rights” over to her.  Initially, Brown said he was under the impression that she simply wanted full custody.  At no time, he said, did she ever mention that she was thinking of giving their child up for adoption. He is adamant that had he known what her plans were, he would’ve acted on the spot.  “I thought she wanted full custody, but that I would still be a part of my child’s life,” he said. “I was going to war. I didn’t know what was going to happen in Iraq, or even if I was going to come back home alive. So I texted her back and said okay.”  Four months after Veronica’s birth, and six days before Brown was scheduled to deploy for Iraq, he received a message from Maldonado’s lawyer that he needed to come to Bartlesville, Okla., to sign “some paperwork.” . . . It was [then] that Brown finally learned the whole truth: That his daughter had been born four months earlier; that Maldonado had not only signed her own rights away, but had also put the girl up for adoption, something to which he did not, nor would ever agree; and that the child had also been living in South Carolina for four months with people he considered strangers.

The Supreme Court—as well as the misinformed critics who “view ICWA . . . as [unconstitutionally] promoting racial discrimination”—saw no reason to take these facts into account.  To the Court, it was enough that “for the duration of the pregnancy and the first four months after [the child]’s birth, [Brown] made no meaningful attempts to assume his responsibility of parenthood.”  According to the text of the statute, the Court reasoned, an order terminating parental rights only requires proof “beyond a reasonable doubt” that the “custody of the child by the [Indian] parent . . . is likely to result in serious emotional or physical damage to the child” if the Indian parent already had custody of the child in the first place—there must be “continued custody.”  The ICWA, the Court held, simply “does not apply in cases where the Indian parent never had custody of the Indian child.”  According to the Court, an Indian father invoking the statute in order to oppose the adoption initiated by a non-Indian mother is simply outside of the law’s scope.  The case, in other words, was not about “the breakup of the Indian family” because the only Indian parent did not have an active role in the family—there was no “Indian family” to break up.

Fortunately, Adoptive Couple did not strike down the congressional authority to protect Indian children expressed in the ICWA—the blood that many anti-Indian critics were hoping to draw.  On the other hand, the Court did not do justice to the intent of the law.  As noted above, the purpose of the ICWA was not to prevent “the breakup of the Indian family.”  Rather, it was to preserve the relationship between an Indian child and his or her tribe.  It is the Indian tribe’s interest, as well as the child’s—which is separate and distinct from the parent’s—to ensure that the child maintains a connection to its tribe and extended family.  As noted by Addie Rolnick and Kim Pearson, “[b]y focusing so much on the father’s actions in the case, the Court has allowed tribal rights to be subsumed by an individual parent’s lack of responsibility. This . . . significantly undermines the spirit of the law.”  Ben Shelly, president of the Navajo Nation, has also put the Adoptive Couple decision in context:

Tribal membership is a sovereign and sacred right.  A child determined to be a member of a sovereign nation is just that. . . . Our language, culture and traditions are as sacred as the air we breathe.  Despite attempts to remove us in one form or another, we remain intact and culturally strong as ever.  The chance to teach our children the ways of our ancestors is a sacred honor and duty.

In all, the Adoptive Couple decision takes a large bite out of Indian tribes’ opportunity to teach Indian children the ways of their ancestors.  That the term “continued custody” was included in the ICWA is unfortunate.  What is more unfortunate is that—as noted by Justice Sotomayor’s dissent, joined by Justices Ginsberg and Kagan—the majority was not hamstrung in its interpretation of the lonely phrase, “continued custody.”  According to Justice Sotomayor—and the statute itself—the phrase “continued custody”

does not strictly denote a state-recognized custodial relationship.  If one refers back to the [ICWA]’s definitional section, this conclusion is not surprising.  [The ICWA] includes “any action resulting in the termination of the parent-child relationship” within the meaning of “child custody proceeding,” thereby belying any congressional intent to give the term “custody” a narrow and exclusive definition throughout the statute.”  In keeping with . . . the structure and language of [the ICWA] overall, the phrase “continued custody” is most sensibly read to refer generally to the continuation of the parent-child relationship that an ICWA “parent” has with his or her child.

There is a lesson to be learned from Adoptive Couple, and it is not one unique to Indian law or tribal sovereignty.  Despite reputed wins in the legislature, it is with frequency that “litigation cases undertaken to advance justice for marginalized groups lose in court.”  The U.S. legal system—especially its courts, which, as common law systems, are necessarily based on stale ideas of civility—is deeply invested in racism, sexism, and homophobia.  When it comes to Indian issues, as recently noted by Kristen Carpenter and Eli Wald, “law has often been used to legitimize egregious moments of European conquest and American colonization—such as the dispossession of Indian lands, relocation of Indian people, and destruction of Indian religions and culture.”  And as discussed by Kathryn Fort,

Today the Court clings to the idea that tribes will eventually disappear and its citizens will fully assimilate.  Unfortunately, rather than the Court challenging itself on its anachronistic approach, this understanding of tribes resonates within the Court’s current post-racial, ahistorical jurisprudence.  The stereotype was part of the operating framework of the Founders, and tracing it through the three branches of government provides a context for the framework that is absent from the Court’s decisions today.

In the LGBT context, Gabriel Arkles, Pooja Gehi, and Elana Redfield have concluded that the institutionalized sexism and homophobia is similarly deeply engrained in our court system.

the legal system itself must be considered part of the problem.  The current U.S. legal system maintains the same racialized property statuses upon which this country was founded.  The system was constructed to maintain capitalist exploitation, which as many critical scholars explain, is constructed around an “individual’s rights” model that exists specifically to legitimize power over ongoing relationships of exploitation.  Our courts and systems of government are deeply invested in white supremacy, capitalism, patriarchy, heterosexism, and a coercive binary gender system; therefore, those systems cannot, and will not, eliminate those social problems. . . . [S]eeming advances in racial justice can be made through the courts without ever disturbing the material societal privileging of white people over people of color.  This principle extends easily to all social justice causes, including causes of the main stream LGb“T” movement.  For example, capitulations and improvements in the lives of gays and lesbians will only be made within the legal system if they reinforce hetero normativity and preserve the status quo.

Indeed, the dockets are full of examples of homophobic rhetoric used by courts. In a death penalty case in which the defendant was convicted of killing his lover, for example, the prosecutor argued for the death penalty on the grounds that “sending a homosexual to the penitentiary certainly isn’t a very bad punishment” and the defendant’s own attorney referred to him as a “queer” and “fairy.”  In a case in which a transgender man was prosecuted for sexual assault on the theory that consensual sex acts were rendered involuntary because the complainants did not know the defendant was trans, the judge said at sentencing, “[w]hat this case is about is deceit”—the judge viewed the defendant’s gender identity as a lie rather than as a genuine expression of the defendant’s self.  In 2004, a Mississippi judge, so upset with California’s domestic partnership laws wrote, “[i]n my opinion, gays and lesbians should be put in some type of mental institute instead of having a law like this passed for them . . . .”

If given an inch, the Court’s institutionalized racism, sexism, and homophobia will take a mile.  It is thus of absolute importance that in pushing for equality and/or reparative legislation advocates pay extreme attention to detail.  Thirty-five years down the road, the overlooked term “custody” proved devastating to the intent and purpose of the ICWA.  Inclusion of the term took the focus off of tribal governments’ right to raise and maintain membership—the stated goal of the legislation—and instead triggered an awkward discussion about what level of parenting makes a parent a “parent.”  When these awkward discussions take place, the views of the majority control and marginalized interests lose.


Ryan Dreveskracht is an Associate at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm.  His practice focuses on representing businesses and tribal governments in public affairs, energy, gaming, taxation, and general economic development.  He holds an LL.M. in Sustainable International Development from the University of Washington and a J.D. from the University of Arizona.  He can be reached at 206.909.3842 or ryan@galandabroadman.com.