Moderator: What will be the impact on adoption policy, as related to Indian communities, of an outcome either way in this case?
Barbara Atwood: If the Supreme Court affirms the South Carolina Supreme Court, adoption practice involving Indian children will proceed much as it has for many years in most states -- with state courts making sure that the requirements of ICWA are satisfied, including the heightened consent requirements and the heightened standards for severing parental rights. ICWA's placement preferences, by the way, don't generally pose a hurdle where both parents are in agreement about the placement -- since most courts view that as good cause to depart from the preferences. (This is different from Holyfield, which concerned the exclusive jurisdiction provision.) Also, an affirmance in this case wouldn't upset the existing practice of requiring unwed fathers to object promptly to an adoption. (In this case, the father objected immediately after learning of the adoption plan -- 4 months into the proceeding.)
If the Supreme Court reverses, the impact on adoption practice involving Indian children will be hard to predict. There are 3 main grounds on which the Court could reverse: (1) that the lower courts should have followed South Carolina law on the rights of unwed fathers, (2) that ICWA doesn't apply to children born to non-Indian women who want to place their children for adoption, or (3) that ICWA is unconstitutional as race discrimination. If the Court were to go with #1, we'd have very uneven enforcement of ICWA across the US, since state laws vary tremendously in this area. If #2 were chosen, juvenile courts would have a green light to ignore a child's tribal membership but they would have to figure out how to define the scope of the exception. Would the exception apply only if the parents were never married? Would it apply if the birth mother wanted to retain her own parental rights and have the child adopted by her new spouse? Would it apply to adoptions initiated when the child was older? And if # 3 were the basis of decision, a great many laws bestowing benefits on tribes and tribal members would be subject to strict scrutiny.
Barbara Woodhouse: I defer to Barbara Atwood whose expertise in ICWA is far greater than mine. However, I might suggest a 4th, if unlikely, option - that the Court might find ICWA unconstitutional as applied to require removal of a child who has been in her adoptive placement from birth to two, without giving adequate consideration of her developed family ties. This would have minimal negative effect on Native American adoption law other than to encourage speedier resolutions and interim orders for visitation so children's ties to all prospective parent figures are maintained. But I may be wrong and defer to others with more in depth expertise in Indian law.
Joan Heifetz Hollinger: I am most concerned about the disruptive consequences for women and children involved in private adoptive placements if the Court were to uphold the South Carolina ruling and I've already put in a pitch for expeditious child-centered resolutions of contested cases and more open adoptions that would not eviscerate children's ties to their original families.
Moderator: The Baby Veronica case seems to posit parenthood as a zero sum game, i.e. either the biological father or adoptive parents can have all of the rights to Veronica's custody. Is there any way to have a more nuanced custody and framework parenthood?
Solangel Maldonado: The U.S. Supreme Court has recognized that the Fourteenth Amendment guarantees the right of parents to direct their children's upbringing and to determine who has access to their children. However, the state has a duty to interfere when the parent's actions will cause the child harm. Given Veronica's close relationship with both her biological father and the family that is seeking to adopt her, this might be one of those harm cases where the state should order the "winning" family to allow Veronica to have contact with the other family in order to prevent significant emotional harm. But one shouldn't have to ask whether a child will be harmed before a court can protect her best interests. The harm standard is too high and privileges parents' rights over children's best interests. In cases where a child has spent a significant part of her life living with two separate families, a child-focused approach would seek to preserve and nurture the child's relationships with both families. I hope that whomever "wins" this case has the wisdom to put Veronica's interests above those of the adults and will propose a visitation schedule or other mechanism for maintaining Veronica's ties with both families. If they don't, I would agree with Justice Kennedy's dissent in Troxel that the best interests of the child rather than deference to the legal parents' decision should be the appropriate standard in a visitation dispute involving a caregiver with whom the child shares a significant emotional bond.
Barbara Woodhouse: I agree with Solangel's approach of protecting the child's ties to caregivers rather than declaring one or the other combatant the "winner." I would add that such a child-centered approach is more in tune with cultures, such as those of many Native American tribes, that view children as members of a community, rather than as the private property of an individual, whether it be a biological parent or an adoptive parent. Sometimes, refocusing on the child's rights rather than those of the adults leads to a win-win rather than a zero sum game. I recall an ICWA case in which the exhausted adults, rather than enduring yet another round of evidentiary hearings after a case had been remanded, entered into a settlement agreement that outlined a plan that, in a modern custody case, would be called a "parenting plan." As I understand it, the plan included not only roles for the adoptive and the biological parents, but also, as the children grew older, a role for the tribe. The agreement included time for the children to visit with extended family members on tribal lands. It is always easier for adults to declare winners and losers, but the losers are too often the children.
Elizabeth Bartholet: I want to question the assumption I see in several of the emails on this and Round 1 that openness with communication with two sets of parents will always or almost always be a good thing for the child. Not necessarily so I think, even though I am a strong proponent of giving children the right upon adulthood to access birth origin information, and also I think there are many situations in which as a child grows up some form of openness might be a good thing. There are risks in openness for children, given that one parent or set of parents may well not be into this kind of arrangement for reasons that have to do with helping the child, and given that one parent or set of parents may well have problems that make them likely to misuse the arrangement. People in today's adoption world tend to over-romanticize openness.
Barbara Atwood: I agree with Barbara W. that the open adoption model offers a way of maintaining a child's relations with multiple parent-figures and can be a way out of a zero-sum approach to parenting contests (even though, as Elizabeth B notes, it is sometimes an unworkable ideal). Tribal adoption laws often lean in the direction of open adoption, with tribes preferring more fluid approaches to parenting than the standard Anglo-American approach. In some tribes, customary adoptions take place without a severance of parental rights. As Solangel M. so beautifully described in her work on the Holyfield aftermath, the adoption of the Choctaw twins by Holyfield was confirmed by the Choctaw tribal court but with a mandate that the children's tribal and extended famliy ties be maintained. I disagree with Barbara W., however, if she sees Baby Veronica's relationship with her would-be adoptive parents as entitled to constitutional protection under the circumstances of the case. Even though de facto parenthood may give rise to constitutional interests in some contexts, in Baby Veronica's case the father objected when the child was 4 months old. The South Carolina courts were understandably reluctant to rely on the bonding that occurred from that point on during the litigation as the decisive factor in the case.
Moderator: What are the pros and cons of interpreting ICWA as incorporating the existing Indian family exception or not, or, put more broadly, what role should a child's racial and cultural heritage play in adoption proceedings? Although ICWA cases are special, could the decision here affect father’s rights more generally?
Barbara Atwood: The EIF exception reflects a deep discomfort on the part of state courts in applying ICWA when Indian children lack any preexisting links with their tribes. As I've argued before, the EIF doctrine is inconsistent with the language and legislative history of ICWA and should be rejected by courts. The exception edges very close to having state courts measure the "Indianness" of children. At the same time, I also believe that ICWA should be read to include flexibility at the placement stage so that the individual interests of children can be thoughtfully assessed. The placement preferences under 25 USC 1915 establish priorities -- but Congress wisely included a good cause exception. In other words, ICWA puts a thumb on the scale favoring placements within a child's family and tribe (or other tribes), but those preferences are not absolute. (In Baby Veronica, the placement provision was never triggered, since the father’s rights had not been terminated.)
Laws that use tribal membership for particular benefits are not racial classifications but classifications based on political association. That’s a foundational principle of federal Indian law, one that is being challenged in the Baby Veronica case. For that reason, the case has implications far beyond ICWA.
As to the role of race and culture in adoption more generally, we know that children can thrive in interracial adoptions when they are raised by caring, sensitive parents. Still, the federal bar against denying or delaying foster and adoptive placements on account of race has generated its own troubling interpretive problems. We ought to work together to try to reduce the number of children in state care, first by putting our efforts into reunification. If that fails, then we need to find loving homes (whether headed by a married couple, unmarried couple, or single person – without regard to race).
The outcome of the Baby Veronica case is unlikely to affect unwed fathers’ rights more generally. The father in Baby Veronica is relying on ICWA rather than the Due Process Clause to override South Carolina’s paternity laws. Even if terminating his parental rights would have been constitutional, the question is whether refusing to recognize the father as the child’s parent would be consistent with ICWA. In my view, ICWA required the South Carolina courts to recognize the father’s parental status since he came forward and acknowledged (and established) his paternity at the very early stages of the adoption proceeding.
On the federalism question, ICWA defines “parent” in some detail, including a reference to the status of unwed fathers. Congress wanted to create a federal definition of this key term, since the history leading up to ICWA included evidence that states had been too willing to sever the rights of Indian parents. Congress has plenary power over tribes and tribal members – so there’s no question of federal authority. In DOMA, on the other hand, Congress provided a federal definition of “marriage” – to accomplish a purely moral goal. Congress relied on its implementing authority under the Full Faith and Credit Clause – a plausible justification for the interstate recognition provision in DOMA but a sketchy justification for the federal government’s definition of marriage. I agree with the decision in Windsor that the federal government’s refusal to recognize same-sex marriage is an Equal Protection violation. That said, the oral arguments suggest that Justice Kennedy is more drawn to 10th Amendment-style reasoning – that Congress invaded the prerogative of the states in defining marriage.
Elizabeth Bartholet: I think that ICWA is an enormously troubling law. The claim in the law’s language is that it serves the best interests of Indian children, but I think there is no reason to think that in fact this law does that. Nor do I think ICWA really was designed to serve the best interests of Indian tribes, although again the law’s language makes that claim.
When Indian leaders came to Congress in 1978, it was clear that tribes, and Indians living on reservations, were in serious trouble throughout the U.S. Employment opportunities were low and substance abuse high on reservations. Indians were low on the socio-economic ladder by many different measures including levels of education and employment. The Indian leaders’ demands and the Congress’s response were all too typical. The leaders demanded the right to hold onto their children. Congress gave them this. The demand and response could have addressed the serious social and economic needs of the Indian community in the U.S. But children are an easy demand for the disempowered to make, precisely because they are an easy give-away for those in power. It looks on a superficial view like a win-win for everyone. The problem is that enabling impoverished communities to hold onto their children doesn’t really do much to empower those communities. Nor does it help the children.
More specifically what concerns me about ICWA in terms of risks for children? ICWA prevents removal from birth families for child maltreatment except upon proof by clear and convincing evidence. ICWA prevents termination of parental rights except upon proof beyond a reasonable doubt. Given my concern that the system generally applicable for non-Indian children in the U.S. fails adequately to protect those children against parental maltreatment, I worry that these ICWA proof standards simply exacerbate that problem for Indian children. ICWA also provides strong preferences for keeping Indian children within the kinship, the tribal, and the Indian communities. I see no evidence in the social science that exists related to keeping children in their groups of origin as vs placing them across lines of racial and ethnic difference, that these ICWA preferences serve the best interests of Indian children. Instead they put the children at risk for not being placed as soon as possible in nurturing foster and adoptive families, given the way preferences of this kind reduce the pool of prospective parents.
Accordingly, I see the ICWA case currently in the Supreme Court as of limited relevance. It may, however, alert the Court and the larger society to some of the ways in which ICWA threatens child best interests. Since at the moment there is apparently little prospect for serious ICWA revision, limiting ICWA’s application, and educating people as to some of ICWA’s troubling aspects, may be the best immediate hope.
Jim Dwyer: ICWA is a classic example of addressing a problem with a sledgehammer, when what is called for is a scalpel. ICWA was ostensibly in part a response to two legitimate concerns: 1) state agencies sometimes too quickly separated children from native American parents because of cultural bias, and 2) when state agencies properly assumed custody of children, in placing the children with foster or adoptive parents they sometimes ignored the fact that older children who had thus far grown up in a native American community might suffer some loss from being taken out of that community and placed in a very different one. Those problems could have been addressed with much more modest federal legislation, perhaps simply requiring appropriate training of CPS workers and judges. Instead Congress passed legislation applicable in far too many cases, including cases like this where neither of the above concerns was present, and imposes in all cases substantive rules designed primarily to gratify adult tribe leaders' desire to increase the population of their struggling communities. Because ICWA harms most children it impacts and now is unnecessary for protection of any children, the more exceptions the courts carve out, the better. However, I don't think the Supreme Court can decide the "existing Indian family" exception issue in this case, given that the adoptive parents waived that argument in state court and, accordingly, the South Carolina Supreme Court did not analyze it.
Joan Heifetz Hollinger: ICWA was enacted to prevent the “alarmingly high percentage” of involuntary removals of children from Indian families by non-tribal public authorities insensitive to tribal culture and childrearing practices. To “promote the stability and security of Indian tribes and families,” the Act promises to assist tribes in the operation of their child and family service programs—a pledge that Congress has largely reneged on, despite the Supreme Court’s recognition in Holyfield (US 1989) of the importance of exclusive tribal court jurisdiction over the dependency, foster care and adoptive placements of reservation domiciliaries. In the context of state-initiated actions alleging parental neglect or abuse, the Act has numerous safeguards against the removal of tribal children, regardless of their domicile, from their parents' “continued custody.” Unfortunately, because Congress has authorized few, if any, resources to train state caseworkers or judges, ICWA’s safeguards may serve more often in involuntary removal actions to delay or disrupt, rather than secure a child’s permanent placement either with their original or other families.
When ICWA is invoked in the context of a private voluntary adoption proceeding, its goals are not served by allowing an Indian biological father who has never had custody to demand the “return” of a child he has never seen and whose non-Indian mother he refused to support—financially or emotionally—during her pregnancy or after the child’s birth. Even if a DNA test is sufficient to establish a man as a “parent” under ICWA, no provision in the Act requires a state court to override its own determination that, under relevant state laws, a noncustodial biological father who has abandoned his child has forfeited any right to block the custodial mother’s voluntary –and constitutionally protected--adoptive placement of her newborn child with a non-Indian family. ICWA’s legitimate goals are undermined in the Baby Veronica and similar cases if a child’s actual and ongoing family relationships can be dismantled solely on the basis of her highly attenuated blood-based tie to an Indian tribe.
Solangel Maldonado: The existing Indian family exception is both appealing and problematic. When an Indian father agrees to terminate his parental rights, the child’s likelihood of being raised with any knowledge or exposure to her tribe’s culture may be equally low regardless of whether she is raised by her non-Indian mother or is adopted by a non-Indian family. Yet, the placement preferences under 25 USC 1915 rank an Indian family higher than a non-Indian family even if the Indian family belongs to a different tribe from the child’s, is located hundreds of miles from the child’s own tribe, and has a different language and customs. Treating an Indian family (regardless of the tribe) as preferable to a non-Indian family absent good cause to the contrary ignores the unique customs, language, and religions of each tribe.
On the other hand, the existing Indian family exception is highly problematic. Discrimination against Indian families is still prevalent and absent the placement preferences, virtually all Indian children would be placed in non-Indian homes. Further, the EIF exception is nowhere to be found in ICWA and there is no evidence that Congress intended to create an exception when it sought to ensure that Indian children remain in Indian communities.
Kevin Noble Maillard: Allowing state courts to decide whether ICWA applies contradicts the purposes of the federal act. ICWA concerns all Indian children and families regardless of how they are constructed or their connections to Native culture. It should not matter if the biological parents are married or unmarried, whether the father developed a relationship with the child, or whether they attend “sweat lodges and stomp dances.” ICWA ‘s focus should not be the “existing Indian family”—it should be the extended Indian family, with Dusten Brown as one of many concerned Indian parties.
ICWA gives Indian communities the power to decide child welfare, and equally as important, the status of the child. Veronica did not know her biological father and she had never been to the Cherokee Nation. Does this make her any less of an Indian child? Tribal courts, rather than the state, are better positioned—and statutorily authorized—to make this decision.
Barbara Bennett Woodhouse: This issue transcends ICWA and figures in every transracial and intercountry adoption and in every custody case where parents are of different race, ethnicity and cultural heritage. Rarely if ever is this issue framed as a right of the child. Instead, it is framed as a legitimate state “interest” in the child’s welfare or a “right” of the birth parent to transmit his own traditions.
This case may be the first step in breaking that silence. In an unprecedented move, the Court has granted the Guardian ad Litem’s petition to participate in oral argument. It has asked her to address whether Baby Girl has independent constitutional rights that would be violated by interpreting ICWA as mandating her removal from her adoptive family unless they can prove beyond a reasonable doubt that this transfer will cause her irreparable harm.
In the rest of the world, courts would immediately turn to the 1989 United Nations Convention on the Rights of the Child (CRC) for guidance. The U.S. and Somalia are the only nations that have failed to ratify the CRC. The CRC identifies the rights to protection and preservation of cultural roots and family and envisions group heritage as a valuable asset belonging to the child. States who are parties must take appropriate steps to protect these rights. But the CRC also recognizes the child’s rights to be raised by her family and not to be separated from them unless it is necessary to further her best interests. Attachment to a caregiving figure is a matter of life or death for a small child. Studies of children’s brain development document the vital role played by attachment figures and the life-long harms that can ensue when these relationships are severed during the child’s formative years.
In our amicus brief in this case, the Emory Child Rights Project argued that children, like adults, have fundamental family rights that are protected by the 14th amendment to the U.S. Constitution. When the state intervenes to remove a child from her family or tribe of origin, or from a long term placement during which she has formed deep attachments to her caregivers, it cannot enact a rigid presumption favoring a particular outcome but must weigh all of the child’s interests. If the Court buys this argument, it will apply the doctrine that legislation should not be interpreted in a manner that violates constitutionally protected rights. Most likely, it will remand the case for consideration of all of Baby Girl’s interests. A new custody evaluator will be meeting a five year old girl who has lived for the past few years with her biological father. She is not the infant who was placed with Adoptive Couple or the two year old who was so abruptly torn from her family.
As this case tragically illustrates, children are not inanimate objects but living organisms. As infants become children who must grow and change according to Nature’s design, litigation over their custody drags on in adult time. Courts cannot place an infant in escrow, nor can a judge freeze a two year old as if she were a disputed bank account. At each stage in the proceedings, we must acknowledge the child’s own reality and seek to preserve the child’s rights to family relationships and to biological, legal, emotional and cultural ties as they exist in real time. When deciding the fates of vulnerable children, we must begin with the question – “What does this child need?” This question unlocks a treasure chest of creative child-focused solutions that will preserve and protect all of the child’s rights, including her rights to maintain existing family relationships and to develop her cultural and ethnic heritage
Jim Dwyer: Kevin, I did not grow up in Ireland, and I never had a relationship with my Irish ancestors. This absolutely makes me less Irish. In fact, I am, quite simply, not Irish, even though many people readily identify me as having Irish ancestry. This would not change if I had a biological father who lived in Ireland. And it is not something the Irish government has a right to decide.
Barbara [Atwood], I’m wondering what the problem is with “having state courts measure the ‘Indianness’ of children”? Among the most commonly applied factors in state child custody decision making outside the ICWA context are the extent to which a child identifies with a particular parent and the extent to which a child is integrated into a particular community.
Barbara [Bennett Woodhouse], it is very surprising to me, and alternatively exciting and frightening, that the Court (or at least some members of it) want the GAL to present on the constitutional rights of the child. It’s wonderful you urged such a right in your amicus brief, but I’m not sure I want to hear what certain Justices have to say about that. If the Court hadn’t made this request for oral argument, I would have guessed a majority would completely avoid the issue by insisting any right of the child, if such exists, was fully satisfied by the state courts’ consideration of the child’s interests. In any event, I can’t imagine an ultimate outcome of return to adoptive parents, unless things suddenly go terribly wrong in dad’s custody; no court wants to be seen as treating the girl like a ping pong ball. (I’m not suggesting I (or Barbara) think that would be best for her; we don’t have the information to determine that.)
Barbara Bennett Woodhouse: For me, the solution to this case lies in honoring the rights of the child. Some see ICWA as violating children’s rights by ignoring the child’s “best interest.” In evaluating children’s rights, however, I would suggest we turn to the 1989 United Nations Convention on the Rights of the Child (CRC). The CRC has been ratified by every nation but the United States and Somalia. It places children’s rights in social and cultural context. It recognizes that children have needs as well as rights and that among the duties of a nation to its children is a duty to support struggling families. The CRC does not define “family” or “parent” as the nuclear family of western tradition. It recognizes diversity as the rule, not the exception, and honors children's rights to their own ethnic and cultural identities.
Guided by the CRC, I would agree with Barbara Atwood and Kevin Maillard that ICWA performs a crucial role in protecting children’s rights. Historically, removal of Indian children has been our first response to real and perceived deficits in their families and communities. Jim Dwyer describes ICWA as a sledge hammer when what is needed is a scalpel. But a powerful tool like ICWA may be needed to keep child welfare authorities from responding with the sledge hammer of removal when what is needed is not a scalpel to separate children from their families but an injection of support for their communities. My quarrel with the courts' interpretation of ICWA is the failure of the courts to honor Baby Girl's own lived experience of family.
Elizabeth Bartholet: Barbara [Woodhouse], the CRC also was negotiated by adults, and I would say reflects an adult agenda in many respects as opposed to a true child's agenda. It does in fact as [you] indicate demonstrate respect for the idea that children should be kept in the place and group of their origin, but there is no reason to think that this genuinely grew out of a desire to promote child best interests. The CRC gives nation states the right to hold onto their children, denying them the right to be placed in adoption internationally, entirely without regard to whether the nation state is capable of providing its children with nurturing permanent homes. The CRC also tells nation states to prefer in-country foster care over out-of-country adoption, despite the fact that social science shows adoption, including transracial and international adoption, to be superior for children to foster care, and despite the fact that countries like the U.S., which have significant experience with foster care, recognize that it does not work well for children. The CRC provisions discussed here reflect in my view, not any concern with child best interests, but instead profound concern with sovereign state property-like rights over their children.
Jim Dwyer: "Historically" in the ICWA context means two generations ago. The laws governing CPS and societal attitudes have changed dramatically since the mid-70s. CAPTA's reasonable-efforts requirement before and after removal, coupled with multiple opportunities for judicial review of agency decisions and a strong background assumption of parental entitlement under state laws and constitutional doctrine, plus heightened cultural sensitivity, obviate the need for ICWA today. Try to put your finger on a real problem today that ICWA addresses. Removing children because they are in the care of extended family members? Not happening. Terminating parental rights solely because parents are poor? Not happening. State laws, agencies, and courts are adequate to address any special needs of children with native American ancestry, and are less likely to treat children as a "resource."
Barbara Atwood: Thanks, everyone, for these interesting exchanges. I agree with Joan’s preliminary statement – but not much else! I agree that the Baby Veronica case is not a good case for the Supreme Court to use in addressing some of the difficult issues that can arise under ICWA. In my view, Baby Veronica is a hard emotional case but an “easy” legal case under the Act: the father’s consent was never appropriately obtained, he’s a fit and willing parent who wants to raise the child, he has a loving extended family to help care for the child, he has a deep affiliation with the Cherokee tribe, and the family court found that the child’s best interests would be served by being placed with the father. The much harder cases under the Act arise when parents’ rights have been severed, the child has been in foster care for a long period, the foster parent wants to be a permanent placement, and an ICWA-compliant placement emerges at the last minute. Those are hard – they’re hard for children, judges, and tribes. The Baby Veronica case seems much easier to me (as to the law).
As to whether there’s any continued need for ICWA, our child welfare systems aren’t yet free of bias. We still have enormous disproportionality for Native children in foster care in particular states (Alaska, N. Dakota, for example)– and the causes of that are complex. I’m not prepared to say that bias among caseworkers and judges plays no role in the disproportionality. Another point: ICWA has definitely helped strengthen tribal child welfare systems and tribal courts. Even though Congress hasn’t put sufficient resources into tribal justice systems, ICWA itself has been a moving force in tribal child welfare improvements.
Jim Dwyer: In response to Betsy, I concur with Elizabeth Bartholet's criticism of the CRC. As an advocate for children, I hope the U.S. never signs it. As I argue in a forthcoming article, the CRC is an example of how giving "special rights" to a certain group, especially a vulnerable group that does not participate in creating the special-rights document, can actually make them worse off. Coverture operated similarly for women. ICWA is another example with respect to children, insofar as it is viewed as creating special "rights" for children with some native American ancestry. It imposes on them a kind of "Subsidiarity Principle" similar to that which causes such suffering for children in undeveloped countries, only it applies it even extra-territorially! Can you imagine international law giving Guatemala a right to possession and jurisdiction over a child born in the U.S. to an American woman who wanted to place the child for adoption here, just because the biological father was Guatemalan, and even if the biological father lacked standing or desire to assume a parental role himself?! Would anyone really view that as respecting the child's rights?
I'm inclined to agree with Barbara Atwood about the legal analysis of this case, although the excellent brief Professors Hollinger and Bartholet submitted gave me pause regarding the statutory interpretation issues, and I share her puzzlement as to why the Court agreed to review this case.
One interesting question that hasn't, as far as I know, received careful analysis is whether a child's attachment to adoptive parents should affect the ultimate outcome, if delay in resolution of the legal contest was a but-for cause of that attachment's forming, as is often true with challenges to adoption like this one. I would argue, contrary to the position of some in this case, that the child is constitutionally entitled to protection of that attachment relationship, as against interference by the state, regardless of how it came about, and even if the biological father was without fault. I would analogize to the right any adult has against state interference with an intimate relationship he or she has with another consenting adult, which does not depend at all on the relationship's having come about in the right way. Take this hypothetical: Adult X and Y meet, have a strong attraction, and begin dating. It looks like they are headed toward forming a family relationship with each other (e.g., by marrying), when the state wrongly charges X with a serious crime, locks X up, and then wrongly convicts X. Three years later, X is exonerated and released. X goes looking for Y and is ready to resume the relationship. but Y has moved on to another relationship and plans to marry Z. Y has as much right to protection against state interference in her relationship with Z as she would have if X did not exist, or if X died rather than getting imprisoned. No one would say X should have a right to go to court to get an injunction against Y's marrying Z, on the grounds that but for the state's mistakes he would be married to Y. No one would say Y has a moral obligation to dump Z and reunite with X, or even to balance X's interests against her own in deciding whether to marry Z. Sometimes life is unfair, but that doesn't change the fact that every person has a right at every point in time against the state forcibly breaking up their positive intimate relationships, however those relationships arose. Imperfections in the legal system need to be addressed prospectively, not by trying to undo relationships that have formed in part as a result of the imperfections, when those relationships have become important to persons' basic wellbeing. With Baby Veronica the damage has been done, and it might be that now it's best for her to stay with her father, as Barbara suggests. My point is that before she was ordered transferred to her father, her attachment relationship should have received protection, as a matter of constitutional right, and without any balancing of others' interests against hers.
Joan Heifetz Hollinger: I, too, would agree with Barbara Atwood that the father's consent was not properly obtained, IF his consent was required. However, based on my reading of the record below, I am [mostly] convinced that although he was definitely entitled to notice of and a right to participate in the adoption proceeding, he was not entitled to withhold his consent and block the adoption under the laws of South Carolina or most other states. As we all know, The Supreme Court has never considered a biological tie by itself to be sufficient to confer a right on an unwed father to block a mother's adoptive placement. Most states deny such a right to a biological father who has not manifested a commitment to being a responsible and on-the-scene parent from the time he knew or should have known of the pregnancy or birth. I am fairly confident that in California, for example, Veronica's biological father would not have been able to block her adoption because he was neither a presumed father--someone who had "received the child into his home" and treated the child as his own--nor a "thwarted" father who was wrongfully precluded from becoming a presumed father but nonetheless did all that he could to assume full parental responsibility before the mother placed the child for adoption.
But this take us into murky fact-finding terrain. Instead, I want to note my agreement with Barbara A. that the "much harder cases under the Act arise when parents’ rights have been severed, the child has been in foster care for a long period, the foster parent wants to be a permanent placement, and an ICWA-compliant placement emerges at the last minute." But, perhaps unlike Barbara, I would resolve these cases by presuming that a child's strong attachment to the fost-adopt parents [as Jim Dwyer has discussed] justifies a "good cause" exception to ICWA's placement preferences.
Kevin Noble Maillard: I wholeheartedly agree with Barbara's response. Dusten's consent was not properly obtained, and the best interests of the child, in my opinion, sit in custody with the father. I don't agree with the good cause argument or the idea of a heart balm-type action against the state for interfering with their relationship. So it seems that about half of us support the goals of ICWA while the other half questions its purpose, which makes for a dynamic debate. While there may be disagreement over the implications of the use of ancestry/political status/race in determining placements, I think we can all agree that the simple issue of parent-child attachment will not go away, long after this case has been argued and decided. Did Veronica suffer upon the transfer from South Carolina to Oklahoma and did those parents grieve her departure? Absolutely. Did her father and his family feel vindicated once they received her? Absolutely again. But does this resolution have to be so black and white? We academics can debate in endless circles about standing, federalism, sovereignty, and the like, but there is still a child here whose needs for attachment and care must be met. Likewise, there are interested and eager family units on both sides that wish to maintain contact with her. This is one of the best arguments and opportunities for an open adoption.
Barbara Woodhouse: I agree with Jim that the child is constitutionally entitled to have her attachment relationships protected regardless of how they formed. This is what the Child Rights Project joined by a number of other child advocacy centers argued in their amicus brief. I consider the Father's actions constituted a pre birth abandonment and since ICWA is silent I would have applied state law to bar him from vetoing the adoption. By the way this does not seem inconsistent with my position re DOMA that federal family law should defer to state law definitions of parent, spouse, etc But like Kevin i would avoid a winner take all remedy and instead try to work out an arrangement that preserves her developed relationships with caregivers and her ties with the Cherokee Nation.
Elizabeth Bartholet: On the “disproportionality” and related alleged bias point, the claims of racial disproportionality and alleged bias with respect to black children were based almost entirely on bad social science as now seems clear based on the good social science presented at the conference our HLS Child Advocacy Program co-sponsored with Chapin Hall at the University of Chicago, as well as NIS-4 which clearly shows that black removal rates track their evidence regarding actual black maltreatment rates. See also Brett Drake and Emily Putnam-Hornstein papers and powerpoint presentations, as well as my co-authored paper with Fred Wulczyn, Rick Barth, & Judge Cindy Lederman, all posted on our Conference Website which itself appears on our CAP website, second listed website below. Prior claims of racial bias were largely based on the now-significantly-discredited NIS-3 claims that actual black and white maltreatment rates were the same. (NIS-3 Appendix actually showed black rates were higher than white but there was not a large enough sample to be statistically significant.) There’s no credible evidence I’m aware of demonstrating that it’s bias rather than actual high maltreatment rates responsible for disproportionate-to-population removal rates of Indian children.
Solangel Maldonado: I am responding to Jim's comment suggesting that a lack of a relationship with one's ancestors (whether Indian or Irish) means one isn't a part of that racial or ethnic community. I wonder if that is the case for racial and ethnic minorities. For example, studies have found that many children adopted from Korea decades ago "feel" Korean even though they were raised in Caucasian homes in the U.S. with little, if any, exposure to Korean culture. Some African-American children adopted by whites have also expressed feelings of not belonging in the communities in which they were raised and feeling more comfortable in Black communities. One small study of Indian children adopted by whites found the same. It may be different for members of white ethnic groups but is that a result of not encountering the racial biases that members of minority groups (including Indians) continue to face?
I agree with Barbara Atwood that courts should not attempt to measure the authenticity of a child's background. If a court can determine the Indianness of child then it must also be able to determine whether one is truly Black or Latino. Is a third generation Mexican-American who doesn't speak Spanish, resides in a predominantly White neighborhood, and has a non-Latino spouse any less Latina? That's a determination only that person should make but I think it's risky to allow courts to make these determinations for a child.
Elizabeth Bartholet: Children may or may not “feel” some level of identification with the racial or ethnic group of origin. But there is no good evidence that they do better in any terms including measures of self=esteem if they are placed in adoption with members of that group. There is lots of evidence that the main thing that matters is that they are placed permanently, early in life, with a nurturing parent of whatever race/ethnicity.
Barbara Atwood: Again, thanks to everyone for this exchange. I agree with Kevin that an open adoption model offers a way of maintaining Baby Veronica's relationships with the various adults in her life, and that happens to be an approach to parenting that many tribes endorse. If the Supreme Court reverses the South Carolina supreme court, I predict that we will see some kind of compromise arrangement that respects Baby Veronica's multiple ties. As an adoptive parent, I do understand the emotional backdrop of the case.
I agree with Solangel that the "other Indian tribes" preference in ICWA seems to view all tribes as fungible and totally ignores the real differences among them. Fortunately, it's not a provision I've seen invoked. Caseworkers may grasp tribal identity more clearly than Congress did.
On the question of disproportionality, the primary reason for removal of Indian children is neglect, not abuse, and is very connected to poverty among many Native communities. ICWA functions as a needed reminder to caseworkers and state courts to make every effort ("active efforts" in the vernacular of ICWA) to avoid placing children in state care except when necessary to prevent real harm.
Joan Heifetz Hollinger: How about changing the facts in the South Carolina case and asking if that would affect our reactions to the ICWA issues: Let's suppose bio-Mom is a tribal member and her infant daughter is eligible for membership as her biological child. Let's further suppose that bio-Mom is adamant about placing the infant with a non-tribal couple and is not at all interested in maintaining or passing along any ties to her Indian heritage. Bio-Dad who has never had any tribal ties, pays no attention to Mom during her pregnancy but gets notice of the adoption proceeding and intervenes, demanding ICWA protection for himself and his daughter. What now?
Re: open adoption. I was told that some kind of continued-contact plan with the APs was discussed with the father, but that he rejected it. I'm pleased to hear from Barbara A. that many tribes are interested in more open placements, a good idea in many different kinds of adoptions. When Barbara W. and I met via telephone in 1992-93 and wrote a brief on behalf of the child's interests in the terrible Baby Jessica\Anna (DeBoers v Schmidt) case in Iowa and Michigan, we proposed that all relevant parties be locked in a room with a mediator or other counselor and told they would not be released until they worked out a custody arrangement that was in the best interests of the then 2 year old Jessica. No one paid attention to us...but ever hopeful, we continue to favor open placements.
Barbara Bennett Woodhouse: I realize the CRC has many critics. Jim and Betsy perceive a failure to put the child's interests first. Many critics in the developing world see it as imposing an individual rights frame on societies in which community is more highly valued and essential to survival of vulnerable people. In my view, the CRC does a better job than our "first world" individualistic approach at recognizing children's needs for connections to their communities and their cultures. Every society has it's own definition of the good life, as is so powerfully illustrated by the novel Pigs in Heaven, in which the adoptive Anglo mother and the Indian tribe have such divergent views on what is right and good for a particular child. The subsidiarity principle is a good example of a value that may strike some Americans as retrograde but strikes others, myself included, as embodying an important recognition of human beings' connection to their own land, language, people, and the values of intimacy land belonging. I am now studying adoption in Italy where the subsidiarity principle applies to intercountry adoption and people generally endorse the idea that children should not be removed from their country of origin unless there is no other option. So ICWA does not seem odd to me.
Re what makes a one a member of a racial or ethnic group, Solangel said it perfectly. It is true but not sufficient to observe that children adopted transracially or internationally do fine. Many adoptees who are happy and well adjusted also have feelings of loss or questioning and want very much to affirm their roots in the cultures or groups from which they came. It is one thing to impose this on a child and another to leave her the opportunities and space to make these connections. Denying that these issues can be important to children does them a disservice.
Barbara Bennett Woodhouse: We haven't yet addressed the second question of whether this decision could affect rights of fathers in non ICWA cases. If the Court holds that ICWA would borrow South Carolina law to define who has standing as a father, wouldn't that confirm that it is not unconstitutional for a state to treat acts such as the infamous text message in this case as a pre birth abandonment? There has been some debate about what constitutes a binding per birth surrender. I for one would welcome some clarity on this point because birth mothers are placed in the terribly stressful position of bearing a child and making the decision whether to keep or place the baby all alone and without any assurance they can plan for their child's future. Science tells us more every day about the harmful effects of stress on the fetus and infant child. I have great sympathy for the truly thwarted father who is prevented from caring for his child, but not for the father who disclaims any pre birth responsibility and then steps forward to veto the mother's choice and disrupt the adoption after the baby has been placed. Fathers should be on notice that fathering is a course of conduct not an act of sexual intercourse.
Elizabeth Bartholet: Adoptees can of course find ways to connect to their origins if they choose and I totally respect that is often very meaningful. But nothing I see in Barbara’s or Solangel’s letters in my mind justifies the harm that gets done to children in the name of “cultural heritage” and “subsidiarity.” The CRC is used to justify keeping kids in institutions abroad where they do not enjoy any rich sense of heritage but are in fact denied what it takes to grow up healthy and capable of enjoying their human rights. ICWA puts children at risk of delay in adoption, of being held in foster care and institutions, of being kept in homes where they suffer abuse and neglect. And “neglect” is not equal to mere poverty – it is usually the category used for the kids suffering the kind of profound neglect associated with parental alcohol and drug abuse. Neglect results in kids dying at the same or higher rates as kids in the abuse category.
Jim Dwyer: I believe this case actually proves the irrationality of the faith so many appear to place in the Congress of 1978 and in tribal courts to know the best interests of every child who has any native American ancestry or what a child's identity "is." This child is 3/256 Cherokee! How on earth can anyone say she just is Cherokee, or is generically "Indian," because she had one great-great-great-great-great-great-great grandparent and one great-great-great-great-great-great grandparent who were Cherokee? In all likelihood, the great majority of us are 3/256 of some nationality we are not even aware of. If some exceptional genealogical work revealed that I am 3/256 Cherokee, which is entirely possible, would I be Indian? Baby Veronica is predominantly Hispanic. I don't know what she looks like, but it seems exceedingly unlikely that with 3/256 Cherokee in her she would have been, if raised by the adoptive parents, ever pegged by anyone as Indian and somehow made to feel Indian. It is utterly ridiculous to assert that Congress and the South Carolina courts applying ICWA saved this girl from a loss of cultural heritage because she is 3/256 Cherokee. What if she is 4/256 Polish? And 7/256 Nigerian? Will she now suffer some identity crisis and loss of culture because she's not being raised in a Polish or Nigerian community? Or more plausibly, because she is not being raised in an Hispanic community! Is it not quite likely that people in the father's community and in America generally will view her as Hispanic?? Is that not a problem for those of you who are so concerned about identity?
Did any court ever actually determine that the bio father was not a legal father or had no power to oppose the adoption, as a matter of state law? I believe the S.C. Supreme Court assumed his consent would not be necessary under state law, but that is really dictum isn't it, because the court went on to say that anyway "parent" has a different meaning within ICWA? If I'm remembering correctly, then I don't think the Supreme Court can say anything about constitutional limits on state rules regarding forfeiture of parenthood or of right to veto an adoption. And whatever it says about whether ICWA or state law determines who is a parent for ICWA purposes should not affect non-ICWA cases.
Kevin Noble Maillard: I wrote something on this very issue last year on Elizabeth Warren for the Times: https://campaignstops.blogs.nytimes.com/2012/05/04/elizabeth-warrens-birther-moment/
Moderator: Having now heard the oral arguments, how do you think the court will rule and what does this mean for ICWA going forward?
(Transcript available at https://www.supremecourt.gov/oral_arguments/argument_transcripts/12-399.pdf)
Joan Heifetz Hollinger: Everyone read the transcript. So much confusion!!! No one was able to get across what I have assumed is a critical distinction between this
private adoption and an action seeking to remove a child from one or both parents and terminate parental rights that is initiated by the STATE alleging parental maltreatment of the child....the kinds of state-initiated cases that I think ICWA was intended to address and that prior to 1978 resulted in extraordinarily bad and insensitive decisions that had terrible consequences for lots of Indian children. By contrast, in the context of a private adoption initiated by the voluntary placement of non-tribal mom with couple chosen by her, etc, the application of the remedial and rehabilitative provisions simply makes
no sense to me. I agree that the statutory language is UNCLEAR and the lack of clarity produced some of the most ridiculous statements today from some members of the Court. In addition to what I think was the failure to distinguish between a state-dependency proceeding and a private adoption proceeding, there was a failure to clarify the difference between the adoption proceeding--which the lower court decided could not be finalized because the father had "rights" to block it....and the custody proceeding, which was to determine where the child should live once an adoption could not be approved. In the context of an adoption proceeding, courts have to determine if there are "parents" whose consent is required. I think this father's consent was not required because of his pre-birth behavior but I of course concede that others think his consent was required because he objected to the adoption once he learned that bio-Mom was not going to go it alone. If his consent was not required, then the court would have gone forward on the basis of the mother's consent and decided whether the proposed adoption was in the child's best interest....and the adoption would have been granted.
On the other hand [or is it on third hand?], if the lower court had found that the father's consent was needed and his rights could not be terminated under higher ICWA standards, then the issue would become whether he could claim [or reclaim?] custody...and here the standard should be best interests. At oral argument, it seemed to me that neither the lawyers nor the Justices could sort out the differences between standards--federal or state--for terminating parental rights of an objecting parent and the standards for determining custody after deciding that parental rights could not be terminated. Roberts DID seem quite troubled by father's treatment of bio-Mom during her pregnancy and his unwillingness to assume any responsibility for the infant's care or support.
What will of this produce from the Court? Who knows? Roberts, Alito, and Breyer were clearly troubled by the prospect that ICWA could reach children with such attenuated blood-quantum relationships to a tribe; others were not buying this [e.g. Ginsburg kept quoting ICWA provisions and BNA Guidelines to everyone else…and seemed unwilling to concede that Guidelines from 1979 are not binding regulations]. Kagan seemed torn between the statutory language and some puzzlement about the tribe's and the DOJ's position. Actually, no one liked DOJ position. Scalia seemed willing to go with ICWA and Biology as trumping everything. Sotomayor and Ginsburg were not sympathetic to the adoptive couple's arguments. Kennedy was as usual interested in the child and best interests but could not figure out how his concern played out under the facts of this case...although he was troubled by ICWA's application and muttered something about constitutional-avoidance. Because the South Carolina Court did not make an explicit finding on whether the bio-dad would have been able to block the adoption under SC law or would have been found to have abandoned the child, I would predict that 5-6 Justices will uphold the SC ruling but nonetheless attempt to do so on very narrow grounds. Roberts, however, may get in some dicta about the importance of limiting ICWA in some way in order to avoid a constitutional challenge.
As for the quality of the attorneys' arguments, I would give Clement an "A. [Reluctantly, I also had to give him an "A" in the Windsor-DOMA argument because he did his best to avoid over-exposing the deficiencies of the pro-DOMA position.] Clement is the only lawyer to speak in whole paragraphs. I thought Lisa Blatt was too ad hominem and failed to make the critical distinctions I set out above. The DOJ lawyer was so-so and the Father's lawyer was OK.
Barbara A. Atwood: Regarding yesterday's argument in Baby Veronica, the Justices seemed quite divided and somewhat confused about the operation of ICWA. Justice Breyer asked a series of questions about Section 1915 (the placement preferences) that suggested he thought it would apply if the father were seeking to assert parental rights. The preferences, however, come into play only for foster or adoptive placements, not when a parent is contesting custody. The Government's position that Section 1912(d) should apply but that Section 1912(f) should not -- a compromise position outlined in their amicus brief -- makes no sense and caused a lot of befuddlement among the Justices. The Father's attorney got bombarded with a lot of questions about the Cherokee approach to tribal membership, but I didn't see a lot of enthusiasm for viewing ICWA as a racial classification. The big surprise to me was Justice Scalia's support for a straightforward application of ICWA.
My sense is that the Justices want to read the Act to allow for a consideration of Indian children's interests, and they disagreed as to whether or not the family court did consider Baby Veronica's interests. They are keenly aware of the passage of time and Baby Veronica's current situation. There was a lot of attention paid when Paul Clement argued that reversing would simply send the case back for a reassessment. Also, the Justices surely want to avoid reaching the equal protection question.
The Father has a chance of prevailing -- with support from Ginsburg, Kagan, Sotomayor, Breyer, and Scalia. The other 4 seem squarely in Petitioners' corner. But the outcome is definitely hard to predict. If the Court reverses, I think it will be on the definition of "parent." In other words, the Court might read ICWA to permit state courts to apply state law in determining who is a parent and whose consent is required for adoption. That would avoid constitutional questions and would not do too much damage to ICWA. Also, a reversal would send the case back to S. Carolina where (I think) the South Carolina family court would engage in a best interests analysis that would take into account the whole situation, including the last 15 months of Baby Veronica's
Barbara B Woodhouse: I agree with all the comments made so far characterizing the oral argument as supremely confused and confusing. As Joan notes in her comments, the justices seemed to be struggling with the details of ICWA and having trouble grasping how it intersects with general principles of family law. I suspect they will be clearer on the outcome they desire than on how to get there. The period after oral argument and during drafting and circulation of opinions is when much of the heavy lifting gets done. Based on their questions at oral argument, it is going to be a steep learning curve for these very smart justices and their very smart law clerks and I can only hope some of them took Family Law in addition to Federal Courts.
Thanks to Barbara Atwood for her analysis of potential outcomes. If the Court decides to remand for an inquiry into Baby Veronica's interests, I hope it will do as Barbara A. predicts, and make clear that any time we look at a child's interests (best or otherwise) we need to look at the child's current situation, not a situation that existed at some past time in the course of the litigation. Appearing for the GAL, Paul Clement tried to make this point and I agree with Joan that he did an excellent job. The notion that best interest determinations are never final may seem strange to those justices who have not been trained in family law, but this is a basic principle of modern child custody doctrine. Absent a TPR (Termination of Parental Rights) or other judicial decision that a person seeking custody or visitation has no standing, custody determinations are never truly final and material changes in the child's life are always relevant.
Jim Dwyer: It seems, then, that the only difference between your position, Barbara [Woodhouse], and the argument I advanced in the Baby Vanessa amicus brief in California state court a few years ago, which you and Barbara A. and Joan declined to support, was that I argued the child's best interests are all that should matter -- that is, that balancing her interests against those of the biological father, and thereby allowing for some sacrifice of her interests for his sake, would be inappropriate and inconsistent with Vanessa's constitutional rights. In the Emory brief you ultimately suggest a balancing, but otherwise your argument seems to echo what I wrote for Baby Vanessa. Am I correct about that? If so, there might be a productive conversation to be had about that one difference. It might be a non-issue in this case, if Veronica's interest in remaining with the adoptive couple (before the transfer order) outweighed whatever interest the father had, but in another case it could be determinative whether a balancing is to be done or instead the decision whether to break up an existing adoptive family should be based solely on the child's welfare.
Joan Heifetz Hollinger: Barbara A. surmises that Breyer will join Ginsburg and Scalia [the real surprise!], Sotomayer and Kagan in upholding ICWA's broad application to this case. I think Breyer has not made up his mind and was troubled by the power ICWA appears to give an Indian biological father could excercise over a woman during her pregnancy and at birth when she is greatly in need of all kinds of tangible and emotional support. I think there will be some atypical alignments by the time the Court releases its opinions.
Kevin Noble Maillard: I'm unsure about Breyer as well. What I am surprisingly sure about is Scalia's support of the statute. Here is where interest convergence theory works to the advantage of both Indian Country and strict textualists. He refused to read something into ICWA that was not written in the language of the act: South Carolina's definition of parent, and the Existing Indian Family exception. Plain language works expansively here:
JUSTICE SCALIA: I mean, it seems to me he's
the father, the other woman's the mother, that's the -
that's the Indian family, the father, the mother, and
MS. BLATT: He has a biological link that
under State law was equivalent to a sperm donor.
JUSTICE SCALIA: He's the father. He's the
MS. BLATT: And so is a sperm donor under
your definition. He's a biological father and nothing
else in the eyes of State law. And under that view -
JUSTICE SCALIA: This isn't State law. This
is a Federal statute which uses an expansive phrase,
"the breakup of the Indian family."
MS. BLATT: Right. And there is no Indian
Jim Dwyer: Perhaps it is false to assume that a victory for the father and the Cherokee tribe in this case “works to the advantage of… Indian Country.” It might actually produce a backlash against perceived baby stealing by “Indians.” Did the Dred Scott decision work to the advantage of slave states?
Barbara A. Atwood: Jim, sorry but I can’t let your last comment go without responding. Comparing a possible affirmance in Baby Veronica to the racist decision in Dred Scott is completely inappropriate. I think I understand what you mean, but the analogy is an unfortunate one. As to your point about backlash, I don’t think that granting a birth father the custody of his child will be perceived as “baby stealing.” While ICWA has at times been applied too rigidly, this instance is not one of them.
Joan Hollinger: Thanks Barbara A. for responding to Jim and sparing me the need to do so. Jim...As you know, I don't agree with Barbara [Atwood] that ICWA should apply to the South Carolina case, but nor do I think your Dred Scott comparisons are appropriate.
Jim Dwyer: To dismiss my point about Dred Scott as "completely inappropriate" with no argument to support that claim is intellectually lazy. It also smacks of protesting too much, given that the comparison I suggested was simply with a past Supreme Court decision whose main effect in society was to mobilize forces opposed to the cause that the Court vindicated. A backlash is entirely possible, especially if there is still racist suspicion of Native Americans in this country. (What do you think, Kevin...?) Much depends on which parts of the story get the most play when the decision comes out; if emphasis in the press is on the father's failure to support during pregnancy and repeatedly rejecting responsibility, and on how ridiculous is the empirical supposition that a girl with 3/256 Cherokee lineage "is Indian" rather than some other ethnicity (a point to which Barbara A. has not, as far as I can recall, responded), many people might well see this case as an immoral extension of ICWA beyond its intended scope, as some amicus briefs quite plausibly argue. It is entirely rational and appropriate (whatever that means) to say that "perhaps" such a backlash will occur. Further, although I did not say this, it would also be entirely within the realm of what I consider appropriate scholarly discourse to suggest that ICWA, particularly in applications like that in this case, treats children like property because of their supposed race, subordinating their interests to the desires of others, as we did with slaves. I believe everyone involved agrees that the decision to destroy the girl's relationship with her adoptive parents was not based on a finding of what was most in her interests, and some briefs in the case argue that failing to do so violated the girl's human rights, so I don't think I'm alone in viewing the case this way.
Barbara B Woodhouse: Jim and others, I am following this from Italy so catching up with past messages. It seems there is a great chasm between the views Jim has expressed and those of Joan and Barbara A. I don't think anyone wants to silence Jim but, like others, I find myself almost speechless, not knowing where to start in explaining why I, too, find the notion of Indians being viewed as baby stealers difficult to imagine, and why I, too, find it inappropriate to compare upholding application of ICWA in this case to the Court's decision in Dred Scott.
Earlier, Jim asked me to comment on the similarities and differences in our own viewpoints. Perhaps the chasm of perception is explained by those differences. Like Jim, I believe children have a right (human and constitutional) to decisions that focus on their interests. Jim, however, seems to see the interests of children as separate and isolated from those of adults, almost as if consideration of the interests or rights of adults contaminates the analysis. He opposes what the Court refers to as balancing of interests as overriding the interests of the child.
I see the rights and interests of children as intertwined with those of people in their lives and communities to which they belong. This belonging is not a form of ownership of property but rather a form of belonging in the sense of relationship and attachment. In Baby Veronica's case, to evaluate her best interest and vindicate her rights, courts have to look at her attachment relationships, her current and future interests in belonging to a community. At the moment when she was placed, I would have advocated that her interests in having a loving family and in empowering her mother to plan for her outweighed an absent and unsupportive father's interest in vetoing her placement. I agree that removing her without considering, and acting to protect, her attachments to her adoptive parents was wrong. But if the Court remands for a best interest determination, the relationships she has developed with her father is as much a matter of her rights as it is of any of the adults' rights. In a nutshell, she is a person, not a possession. She belongs to and with people who love her, as all the adults in this case seem to do, and not to people who would use and abuse her as a piece of property, as was the case in the context of children in slavery. That is why Dred Scott is such a shocking comparison and why talk of baby stealing seems so out of place.
Jim Dwyer: Thanks, Barbara, for your response. Here are some follow up questions:
I did not say that I view the situation as one of baby stealing, but rather that some members of the public might. Do you think that entirely implausible, despite what I think is a reality of a history of what I called “racist suspicion”?
Do you not see an analytical difference between: 1) saying that interests of children and parents can be intertwined, and 2) saying that interests of children and parents should be balanced against each other? I have frequently pointed out in my writings that children’s interests are intertwined with those of their caregivers – for example, that if caregivers feel beleaguered or disrespected this might undermine their ability to care for their children. On that basis, I have recommended a threshold for state intervention in family life higher than simply “state intervention might make the child marginally better off.” So your supposition about how I view children’s welfare is false. It is a quite different matter to say, after taking into account that potential effect on children’s welfare, that state decision makers should additionally balance children’s welfare all-things-considered against the interests of parents, rather than just doing what is best for a child all-things considered. And your brief seems to say this additional thing. What argument do you have for the position that the state may sacrifice children’s welfare to some extent in order to serve the interests of her biological father? That is what it means to balance interests.
Can you explain how, at the moment of deciding whether Veronica should be taken away from the adoptive parents (her caregivers from birth to age 27 months), and in the context of making that decision, her interests were intertwined with her biological father’s? That is the decision making point that I was addressing. I have stated in a prior post that Veronica’s interests might NOW on the whole lie in favor of staying with the father, so we are in agreement about that. But I believe your brief, if I read it correctly, recommended taking into account both at the earlier decision point and now the father’s interests for his own sake, and that is the position I was asking you to explain. My book The Relationship Rights of Children provides a 300-page analysis of why I think that position is wrong. Here’s a one-sentence version: Adults have a fundamental right to refuse to form a family relationship with another adult based on nothing other than their own best interests, with no obligation to balance their interests against the other person’s, and children should be ascribed an equivalent right to a proxy decision in their behalf based solely on what is best for them all-things considered. Do you disagree?
Lastly, as someone who wrote an article charging the Supreme Court with treating children as property in its parents’ rights cases, do you really think it shocking that Congress might similarly treat children in a way akin to making them property? After all, the statute does refer to children as a tribal resource, and it orders transfer of children to tribal or tribe member possession without a finding that doing so is in the children’s best interests. I believe some feminist criticisms of coverture have drawn comparisons to slavery. Do they also leave you speechless?
I do appreciate your explaining your views rather than being dismissive.
Solangel Maldonado: I agree with everything that Barbara Woodhouse wrote above. I don’t know whether it was in Baby Veronica’s best interests to disrupt her relationship with the adoptive parents but if it wasn’t, then it probably isn’t in her best interests to disrupt her relationship with her birth family given how long she has now lived with them. But let’s not forget that courts do not look at children’s best interests (regardless of their race or ethnicity) as the only or primary consideration. Remember Baby Jessica and Baby Richard who were removed from their adoptive families at the age of 2 ½ and 4, respectively, and returned to their biological fathers? Although the biological fathers in those cases had been deceived by the mothers and never relinquished their paternal rights, as far as the child is concerned, the effects of taking a child out of the only home she has ever known and placing her with “strangers” even if they are her birth parent(s) are probably the same. However, I don’t think anyone would label Baby Jessica’s and Baby Richard’s fathers as baby stealers.
As to whether it’s ridiculous to treat a child with 3/256 Cherokee blood as an Indian child, it’s worth noting that parents of non-Indian children decide how to identify them all the time. For example, parents of mixed-race children often select one race when identifying their children on the Census to the exclusion of the other(s). The child can change her identity when she reaches adulthood but in the meantime, I’m not sure that a court or government official is better able than a parent or the tribe to make that determination.
Joan Heifetz Hollinger: Thank you Barbara W.
Jim Dwyer: Good points, Solangel. A couple of counter-considerations:
The fathers in Baby Jessica and Baby Richard case were actually vilified by the public. Many people spoke of the fathers’ snatching the children out of their homes as if they were demanding return of property. The backlash in Illinois led to legislative amendment of the governing statutes.
To say that a mixed-race child’s custodians may or simply commonly do choose an identity for them is a far cry from saying it is appropriate for a government entity (Congress or a tribe) to force an identity on children, one that changes the entire course of their lives. I don’t think parents’ census designation is at all similar to what ICWA does. Wouldn’t your view counsel in favor of deference to the birth mother and/or to the adoptive parents?
Barbara A. Atwood: Everyone, I appreciate the thoughtful posts from Barbara W. and Solangel and others, and I'm glad this discussion has returned to a respectful tone. On the suggestion that there might be backlash if the Supreme Court affirms the South Carolina Supreme Court, I agree. ICWA has been controversial since its enactment, and the Baby Veronica case has certainly sparked renewed opposition. I find this somewhat ironic, since the case does not involve what I would consider an extreme application of ICWA. Still, the anguish of the adoptive parents has been widely publicized. If the Court affirms, we may see renewed efforts to codify the EIF exception in cases of voluntary relinquishment by birth mother for adoption.
One point that I have tried to make in my own scholarship is that children have multiple potential identities, and that the hard cases under ICWA often engage courts in trying to choose among those competing identities. As was discussed in an earlier stream, adults ideally should aim for arrangements that preserve options for children (by maintaining relationships, for example) -- so that they can choose for themselves as they approach maturity. Jon Eekelaar has called this "dynamic self-determinism." It recognizes that children are in a state of becoming -- and perhaps the best we can do is to keep paths open for them as they move towards adulthood.