 |
Baby V (Cherokee)
|
Fletcher and Fort posted “Intimate Choice and Autonomy: Adoptive Couple v. Baby Girl,”
forthcoming in CRITICAL RACE JUDGMENTS (Cambridge Univ. Press, eds.
Bennett Capers, Devon Carbado, Robin A. Lenhart, and Angela
Onwuachi-Willig) (forthcoming 2021).
As if there was any doubt, we have reached the opposite outcome as the Supreme Court did back in 2013. A few excerpts:
This
case is about a little girl (Baby Girl) who is a citizen of the
Cherokee Nation, like her father, grandparents, and a multitude of
generations before her. American Indian tribal citizenship with a federally recognized tribe is a unique concept in American law. E.g., Santa Clara Pueblo v. Martinez,
436 U.S. 49, 55 (1978) (“[Indian tribes] have power to make their own
substantive law in internal matters. . . .”). Tribal citizens are
beneficiaries of the federal government’s trust relationship with Indian
tribes, and the federal government has promised to tribal citizens for
centuries to assist in the maintenance of tribal governments, cultures,
and sovereignty. Worcester v. Georgia, 31 U.S. 515, 556 (1831)
(“[The Cherokee treaty], thus explicitly recognizing the national
character of the Cherokees, and their right of self government; thus
guarantying their lands; assuming the duty of protection, and of course
pledging the faith of the United States for that protection; has been
frequently renewed, and is now in full force.”).
And:
The ethically dubious acts of the Petitioners in this case extends to this Court’s amici. Several amici invoked the racist dog whistle of referring to the Petitioners as the “only family” Baby Girl has ever known.
E.g., Brief for Guardian Ad Litem, as Representative of Respondent Baby
Girl, Supporting Reversal at 56 (“Indeed, it is hard to imagine what
liberty interest is more important to a 27-month old child than
maintaining the only family bonds she has ever known, absent a
strong showing of necessity.”) (emphasis added); Brief of Amica Curiae
Birth Mother in Support of Petitioners at 3 (“The decision below
effectively negated Birth Mother’s decision to place Baby Girl with
Adoptive Couple, and ripped Baby Girl from the only family she has ever known,
in derogation of both Birth Mother’s and Baby Girl’s rights and
expectations under state law.”) (emphasis added); Brief of Amici Curiae
Bonnie and Shannon Hofer; Roger, Loreal, and Sierra Lauderbaugh; and
Craig and Esther Adams in Support of Petitioners at 38 (“[T]he lower
court took non-Indian Petitioners’ adopted Indian daughter from them –
destroying the only family she has ever known.”) (emphasis
added); Brief of Amici Curiae National Council for Adoption in Support
of Petitioners at 13-14 (“ICWA is implemented in some cases to
traumatize children by forcing them into completely unknown
environments, traumatizing them by removal from the only family they’d ever felt a connection with and imposing the developmental delays that come with the traumatic removal from a secure attachment.”) (emphasis added).[1] It appears that for some of our amici, the “only family” that matters is the non-Indian Petitioners’ family. For these amici,
the Indian family and other biological relatives are strangers and
foreigners. The only pain and shame of removal and separation that
matters is that of the non-Indian family. It is apparent the “only
family” dog whistle is designed to distract our attention from the
ever-present bias against Indian parents and relatives in the child
welfare and adoption system. This we will not accept. As
noted above, this Court long has been complicit in dehumanizing Indian
people. In Professor Harris’ words, “[C]ourts established whiteness as a
prerequisite to the exercise of enforceable property rights.” Harris, supra,
at 1724. No longer. We additionally suspect that this form of advocacy
implicates American Bar Association Rules of Professional Conduct 3.4
(Fairness to Opposing Party and Counsel), 3.5 (Impartiality &
Decorum of the Tribunal), 4.4 (Respect for Rights of Third Persons), and
8.4 (Misconduct).
[1]
One commentator even referred to the Cherokee family here, who descend
from an Indigenous nation that has been present in this hemisphere since
time immemorial, as “foreign.” Thomas Sowell, Indian Child Welfare Act does not protect kids,
Denton Record-Chronicle, Feb. 1, 2018, at 6A (“This little girl is just
the latest in a long line of Indian children who have been ripped out
of the only family they have ever known and given to someone who is a
stranger to them, often living on an Indian reservation that is foreign to them.”) (emphasis added).
**
Use the search word Baby Veronica to find our coverage and opinion on this blog...
Posts
