Sunday, February 23, 2014

Justice Sotomayor agrees with Justice Scalia on parental rights

This post concerns the case of Adoptive Couple v. Baby Girl decided by the U.S. Supreme Court (SCOTUS) in June 2013. The case reinforces the view of many that the Supreme Court is a bastion of white men where minorities and women count for little. Justice Sotomayor has quickly become an important spokesman for women, children, and minorities, as demonstrated in this case.

The baby girl in the case is the natural child of a member of an American Indian tribe, the Cherokee nation. SCOTUS got involved in this case because the father attempted to use provisions of a federal law, the Indian Child Welfare Act (1978) (the "Act") to gain custody of his daughter.

The opinion of the Court begins with a claim that the baby girl is classified as an "Indian" because she is 3/256 Cherokee. This statement is simply false. Baby girl is a citizen of the Cherokee nation because her father, Dusten Brown, is a citizen. The Cherokee nation does not ration citizenship on the basis of "blood quantum", but on derivation traced from an ancestor in the Dawes Rolls (1899-1906).

The male members of SCOTUS decided to determine citizenship in an entirely different, though not novel way, by the percentage of a person's blood that is Cherokee. The Cherokee themselves do not consider this important. The white settlers of America always considered this indication important, however. They referred to a person with only one Native American parent as a "half-breed", a term that soon became one of contempt, as if a person had chosen his own parents.

The classification of people by "divisions" of ancestry owes its origin to classification of African American slaves in pre-emancipation America. This classification made no sense then and the classification of Cherokees, officially recognized by this decision, makes no sense today.

SCOTUS apparently chose to declare that Baby Girl was not "really" Cherokee, since the Act was intended by congress to prevent precisely the sort of abuse from which this case arose, namely, the forced removal of a Native American child from its natural parents. Implicit in this decision is the belief that Native Americans are better off when deprived of any connection to their natural relatives and placed in good "white" families.

The three women members of SCOTUS disagreed with their male counterparts, led by Justice Sotomayor. The women (and Justice Scalia) determined that the government could not remove a child from its parent under the Act simply because the parent had never had custody of the child.

This decision is one more incident in the shameful history of white mistreatment of Native Americans. In response to this decision, the Cherokee Nation passed a law that natural children of Native Americans should be placed with their parents first, then with their Cherokee relatives in preference to any non-Cherokee adopters.

This action by the Cherokee Nation only reinforces the intent of the Act, however. Since SCOTUS managed, in this case, to ignore both the Act and the official position of the Cherokee Nation, it is highly unlikely that the present court would give more respect to Native American rights in any future rulings.

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