Coming Up: Supreme Court ICWA cases

SCOTUS BLOG

There are also four cases challenging the constitutionality of the Indian Child Welfare Act of 1978. Congress passed ICWA to respond to concerns that state child-welfare practices were causing large numbers of Native American children to be inappropriately removed from their families and tribes and placed with non-Native foster families or adoptive parents. ICWA established minimum federal standards for most child-custody proceedings involving Native American children. The en banc U.S. Court of Appeals for the 5th Circuit struck down some provisions of ICWA as unconstitutional. According to the 5th Circuit, some provisions violate the 10th Amendment because they impermissibly “commandeer” the states. Those provisions, it concluded, include a requirement that state agencies bear the cost and burden of providing expert testimony to support placing Native children in foster care, a requirement that state agencies provide remedial services to Native families, and a requirement that state agencies maintain certain child-placement records.

The 5th Circuit also affirmed the district court’s judgment that ICWA’s preference for adoptive placement with “other Indian families” and “Indian foster home[s]” violates the equal-protection component of the Fifth Amendment. The 5th Circuit upheld other provisions of the act. The court has relisted a total of four petitions, two filed by the federal government and a group of Native American tribes seeking to revisit 5th Circuit holdings invalidating provisions, and two filed by the state of Texas and private challengers seeking to overturn parts of the 5th Circuit decision upholding other ICWA provisions. The petitions are Haaland v. Brackeen, 21-376, Cherokee Nation v. Brackeen, 21-377, Texas v. Haaland, 21-378, and Brackeen v. Haaland, 21-380.

REFRAME FILM FESTIVAL

What does blood have to do with identity? Kendra Mylnechuk, an adult Indigenous adoptee, born in 1980 at the cusp of the enactment of the Indian Child Welfare Act, is on a journey to reconnect with her birth family and discover her Lummi heritage.
 

Drama over Baby Veronica goes on (UPDATED)

Lyle Denniston, Reporter, http://www.scotusblog.com/2013/06/drama-over-baby-veronica-goes-on/

 

UPDATE Friday 5:51 pm:  Supreme Court Justice Samuel A. Alito, Jr., on Friday afternoon ordered that the Court’s ruling in the “Baby Veronica” case will go into effect a week from now.  That will return the case to the South Carolina Supreme Court to decide with which family the baby will live.

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The emotional tug-of-war over the future of “Baby Veronica” has stirred a new legal skirmish in the Supreme Court, following the Justices’ ruling Tuesday raising the prospect that the girl may be shifted from her father back to a South Carolina couple who had raised her for a time but then had to yield to the father.  The application, 13A7, came in the case of Adoptive Couple v. Baby Girl (decided in docket 12-399).
The would-be adoptive parents on Wednesday filed a formal request for the Court to put its decision into effect “forthwith” — that is, without waiting the usual twenty-five days — so that the next phase in the custody struggle could begin promptly.  On Thursday, the baby’s birth father, a member of the Cherokee Indian tribe, said he was opposed to moving so swiftly, but promised to try to work out a somewhat earlier timetable than would normally unfold.

The case called for the Supreme Court to sort out the perhaps conflicting strands of state law on child adoption and a 1978 federal law on the rights of Indian parents and families.   In the end, the Court decided by a five-to-four vote that the federal law did not bar the termination of the Indian father’s parental rights, but it left it to the South Carolina Supreme Court to sort out what to do next.
The child, known in the media by the name “Baby Veronica” but identified in the adoption case as only “Baby Girl,” will be four years old in September.  At birth, her mother gave up the child, and the Indian father did not object.  She soon joined the family of a non-Indian couple, Matt and Madeline Capobianco, who live near Charleston.  When they notified the father, Dusten Brown, who lived in Oklahoma, he then sought custody of the child, claiming protection for his relationship under the federal law.
The South Carolina Supreme Court ruled, with reluctance, for the father, and the child returned with him to his Oklahoma home, where she remains.
In asking the Supreme Court to speed up the issuance of its ruling, which seems strongly to favor their claim, the South Carolina couple said that even a month was important in a child’s life, so the Court should act swiftly.  They said they had not spoken with or seen the little girl “in nearly 18 months,” after having to give her up in December 2011.   They interpreted the Supreme Court ruling as coming close to supporting their claim.
The birth father, however, disputed their interpretation of the Court’s decision, and said that the ruling had left open the possibility that the girl’s paternal grandparents or other members of the Cherokee Nation might seek to adopt the child.   He said the tribe joined him in opposing immediate release of the ruling’s formal mandate.   He and his lawyers need time, he said, to decide their next step, but vowed that, after doing so, they would consult with the South Carolina couple to try to work out an earlier date to put the decision into effect.
There is no timetable for the Court to act on this new dispute, but it is expected to do so promptly.

Posted in Adoptive Couple v. Baby Girl, Merits Cases
Lyle Denniston, Drama over Baby Veronica goes on (UPDATED), SCOTUSblog (Jun. 27, 2013, 7:20 PM), http://www.scotusblog.com/2013/06/drama-over-baby-veronica-goes-on/