On October 1, 2012, the adoptive couple petitioned the United States Supreme Court to review the case. On January 4, 2013, the court granted certiorari and will hear the case on April 16, 2013.
NATIVE AMERICAN RIGHTS FUND | NATIONAL CONGRESS OF AMERICAN INDIANS
IN PARTNERSHIP WITH THE NATIONAL INDIAN CHILD WELFARE ASSOCIATION
For Immediate Release
March 29, 2013
Thom Wallace - National Congress of American Indians
O (202) 466-7767 ext. 207
C (202) 754-0466
O (503) 222-4044 ext. 133
Father, Dusten—to Remain Together and
Indian Child Welfare Act to Remain Intact
Fate Decided by the Supreme Court in a Case to be Heard on April 16th
The case Adoptive Couple v. Baby Girl, to be heard by the Supreme Court on April 16, 2013, involves a South Carolina couple seeking review of a South Carolina Supreme Court ruling and attempting to force Dusten Brown, a member of the Cherokee Nation, to give his daughter Veronica up for adoption. Mr. Brown, who is now raising Veronica at their home in Oklahoma, has prevailed in every court that has considered this matter, including the South Carolina Family Court and the South Carolina Supreme Court.
Many of the briefs highlight the findings of the South Carolina Family Court, which found that “the birth father is a fit and proper person to have custody of his child” who “has convinced [the Court] of his unwavering love for this child,” and were upheld by the South Carolina Supreme Court.
The amicus brief of the United States federal government emphasized the importance of ICWA, stating that "the United States has a substantial interest in the case because Congress enacted ICWA in furtherance of 'the special relationship between the United States and the Indian tribes and their members and the Federal responsibility to Indian people.'" The brief further defends the constitutionality of ICWA, arguing that "ICWA, which is predicated on Congress's considered judgment that application of its protections serves the best interests of Indian children and protects vital interests of their parents and Tribes, does not violate any substantive due process protections." It concludes that "[t]he South Carolina courts properly awarded custody of Baby Girl to Father."
No one understands the human toll custody disputes can take more than amici, 18 child welfare organizations who have dedicated literally scores of years to the on-the-ground development and implementation of best practices and policies for child placement decision making. Amici have seen up close what works, and what does not. In amici’s collective judgment, ICWA works very well and, in fact, is a model for child welfare and placement decision making that should be extended to all children. Much forward progress in the child welfare area would be damaged by rolling the law back.
Not one state submitted briefs in support of Adoptive Couple.
In 1978, Congress enacted ICWA in direct response to state adoption policies that were draining Indian tribes of their future citizens. Such practices threatened the very existence of Indian tribes. Without children to grow up as their citizens, tribes would be left with no one to speak their language, carry on their traditions and culture, or participate in their tribal governments…. Ultimately, any decision limiting Congress’s authority to pass legislation like ICWA…would effectively preclude Congress from exercising its plenary authority in Indian affairs, and render Congress unable to fulfill its historic duties as trustee to the Indian tribes.
Terry Cross, executive director of the National Indian Child Welfare Association (NICWA), commended former Senator James Abourezk for taking the lead on the brief, stating, “Senator Abourezk sponsored the bill that became ICWA because he recognized that the widespread removal of Indian children from their homes was a continuation of forced assimilation practices that had no place in our society. His leadership today sends an unmistakable message that there is unified support in defending his law from those who would return to the pre-ICWA era.”