A lot of news this week on Supreme Court opinions.
What was lost, in my view, was a possible shift in the favor of parents. The Court heard argument in Adoptive Couple v. Baby Girl for the Adoptive Couple claiming that the heightened standards created to protect Native American families are a violation of the equal protection clause. The Court ignored this, and simply read the statute in a kind of stupid way so as not to allow a parent that wasn't around at birth to show up later and get the protections of the statute.
That doesn't make any sense at all. The statute has jurisdiction based on the baby's status, not the parent's. I have clients who are under ICWA jurisdiction who are non Native American because their child is. This decision is really quite stupid.
The point of ICWA was to ensure that where Native American children are taken from their parents- they go to people within the tribe. Not some white people. Because otherwise the tribes faced (and some may continue to face) being quickly wiped out by having their kids taken and raised by whites. Culture dead. Poof.
Anyway, Scalia's dissent was perfect.
While I am at it, I will add one thought. The Court’s opinion, it seems to me, needlessly demeans the rights of parenthood. It has been the constant practice of the common law to respect the entitlement of those who bring a child into the world to raise that child. We do not inquire whether leaving a child with his parents is “in the best interest of the child.” It sometimes is not; he would be better off raised by someone else. But parents have their rights, no less than children do. This father wants to raise his daughter, and the statute amply protects his right to do so. There is no reason in law or policy to dilute that protection.
You see, what should have happened is that the Parent's point that the special protections given Native Americans IS a violation of equal protection. In fact, ALL PARENTS SHOULD GET THAT PROTECTION. I know, madness.
You have to understand, you, if you're a parent, have essentially no ability to hold on to your kid if the government wants it. The laws, at least in Idaho but I'm pretty sure it's the same everywhere, are vague and basically allow the government to take your kid. Then 48 hours later, you go to Court with a lawyer (in Idaho, elsewhere alone) and you try, with almost no notice of what the case is against you, to get a judge to think there's no reasonable possibility that what the state is saying is true. Yes. Prove the negative. You will find this is next to impossible. And you will lose your kid for at least a month. In Idaho, at that next hearing, you get a preponderance standard and the rules of evidence come back like old friends. And sometimes you win. But usually the State continues to hold all the cards.
ICWA makes this quite different. The state has to prove by clear and convincing evidence that there is an imminent threat to the child to remove it from the home. It's a beautiful, beautiful thing. And it should be there for all families.
So Baby Girl was a big loss for us all. But the argument is untouched, and may be made again.