Saturday, 2 November 2013

The effects of the United States Supreme Court decision in Adoptive Couple v Baby Girl: Keeping the Spirit of the Existing Indian Family Doctrine Alive

It has been just a little over four months since the United States Supreme Court handed down its decision on the case of AdoptiveCouple v Baby Girl. This is only the second case that the US Supreme Court has heard on the Indian Child Welfare Act ( ICWA).

The first was a decision that upheld tribal jurisdiction over a child whose parents were domiciled on native nation lands MississippiBand of Choctaw Indians v Holyfield.

There were concerns prior to the US Supreme Court decision that it make take the opportunity to announce support for the “existing Indian family doctrine” that renders the Act inapplicable if a judge determines the child and its family lack sufficient ties to indigenous culture and community—in contravention of the plain language of the Act. The decision did not endorse the existing Indian family doctrine—but it did limit the application of the Act in a way which is likely to create far more problems in interpretation and application than it solved.

The SCOTUS decision found that 2, and possibly 3, sections of ICWA did not apply to the father of the child. The decision finds that 2 subsections of the Act which provide heightened legal protections were not applicable- Section 1912(d) and (f). The SCOTUS decision also found that preferences for adoptive placement found in 1915(a) were potentially not applicable to this situation.

This in itself is a strained and piecemeal reading of ICWA. But what is perhaps more disturbing is the opening lines of the majority decision, which makes reference to the “blood quantum” of the child at issue—as if to suggest, in keeping with the judicially created existing Indian family doctrine—that the child was not “Indian enough” in the eyes of SCOTUS to make ICWA relevant.

While the SCOTUS decision did not rule directly on the applicability or legitimacy of the existing Indian family doctrine, it does keep the spirit of that doctrine alive and well. The tenor of the SCOTUS decision suggests that it is still within the purview of the courts to comment on the degree of “Indian-ness” a parent or child possesses— and in so doing ignoring both the clear letter and spirit of ICWA which grants courts no such authority at all. 
Written by Sarah Sargent.