In April, the Supreme Court heard the Baby Veronica case, officially titled Adoptive Couple v. Baby Girl, and will soon rule whether custody of a half-Native American child will be given to her father's tribe or her adoptive non-Native parents.
Native American studies chair Bruce Duthu and writing professor Julie Kalish discussed Baby Veronica's future in a panel on Friday.
Baby Veronica's father, a Cherokee tribe member, was engaged to a non-Native woman, who gave birth after the couple broke off the engagement. The mother decided to put the child up for adoption, and the father, unaware of her intentions, granted the mother full custody.
When the father learned the child would no longer be reared by her mother, he attempted to stop the adoption process. The South Carolina Supreme Court awarded the biological father custody and ruled that the Cherokee tribe's federal rights superseded South Carolina law.
The adoptive parents appealed the ruling to the Supreme Court, which is currently deliberating the case. The court is striving to reach a proper interpretation of the Indian Child Welfare Act, the federal statute aimed to prevent the disintegration of Native American families.
Duthu said the Supreme Court is considering blood quantum laws, also known as Indian Blood laws. Some justices may view the Native father as "a marginally Indian person" and dismiss his claim to indigenous ancestry because his Indian roots ended at "the time of George Washington," Duthu said. These justices say the father should not be granted rights allotted to indigenous sovereigns.
The 1978 Indian Child Welfare Act was written in response to an "outplacement of Native children," Duthu said.
Social workers often removed Native children from their homes and placed them in non-Native homes, alarmimg tribal leaders who viewed the practice as a form of cultural genocide. To stop this outflow, Congress adopted a policy that would restore authority to tribal courts. U.S. courts already consider tribal nations sovereign bodies.
Kalish said the Supreme Court will determine whether federal and state rights should trump the rights of the adoptive parents, who the court may consider "innocent bystanders."
The statute explicitly dictates that since "children are the most valuable resources" of a tribe, tribal sovereignty will be imperiled if Native children are placed in non-Native homes, Duthu said.
Yet since the Constitution declares the individual the "moral bedrock unit of society," the child's and adoptive parents' best interests are also important.
The controversy of state and national rights affects other civil rights cases. Windsor v. United States challenges the Defense of Marriage Act, which restricts federal benefits for same-sex couples, though the institution of marriage has historically been left to state courts.
While some states accord equal benefits to same-sex couples as they do to heterosexual couples, DOMA federally prohibits such unions from being called a marriage.
Similarly, Duthu said custody, adoption and foster care rights have typically been left to state courts.
"The issue really is, how do we balance distribution of sovereign authority between the federal and the state?"
The Baby Veronica case adds an additional dimension of tribal sovereignty that complicates the decision.
"In federal Indian law, the Supreme Court has, for 200 years, accorded almost a carte blanche to the federal government to legislate Indian affairs," he said. "It would be a momentous step for the Supreme Court to strike down even a portion of the ICWA."
The South Carolina ruling and the Supreme Court's potentially different decision could create tension between state and national courts, Duthu said.
The panelists discussed the systematic displacement of indigenous peoples in other countries, including Aboriginal Australians, who were removed from their homes and institutionalized if they passed a skin test. Unlike the United States, Australia does not give sovereign rights to its indigenous population.
"Though this seems like bad news in this area, some good news is that we have a government framework to work with in the U.S., and the fact that we can even have this kind of conversation, compared to what's happening in other countries, shows that we have made some committed progress," Duthu said.
John Howard '15, who attended the lecture, said he was interested in learning about attempts to remediate the rift between tribal sovereignty and federal policy.
"How does the court weigh between sovereignty issues, race issues?" Howard asked.
Karl Schutz '14 said he was fascinated to see how a case about Native American tribal sovereignty intersected with adoption rights, adding a "human dimension" to an "abstract" problem.
The event, "Law Day: Societal Impacts of Civil Rights Cases before the Roberts Court," was sponsored by the Dartmouth Lawyers Association and Dartmouth Legal Studies Faculty Group.
