News from the Plains: All this RED can make you BLUE
by Barry Friedman
Whatever your thoughts on yesterday's 5-4 SCOTUS Decision to return to a South Carolina court the issue of who gets to keep 3-year-old "Baby Veronica"--her adoptive parents or biological father who gave up his custodial rights--you have to wonder why Associate Justice Samuel Alito has to be, in the words of Esquire's Charles Pierce , such a colossal dick all the time?
We'll get to him in a minute.
The case involves a Native American child adopted at birth by a non Native American couple, after her father, Dusten Brown, a Cherokee, signed away his rights (he said he was tricked) and her mother gave her up. He subsequently sued to get her back under ICWA (The Indian Child Welfare Act), passed by congress in 1978 to protect Native Americans from what the bill called "the alarmingly high number of Indian children being removed from their homes by both public and private agencies."
In two previous decisions, citing ICWA, courts in South Carolina, where the adoptive parents lived, ruled in favor of Brown.
In fact, for the past eighteen months, the child has been living with him (he has since married) in Nowata, Oklahoma.
Yesterday, SCOTUS said the South Carolina courts decided in error, concluding ICWA didn't apply, since Brown signed away his rights before the baby was born. Voting with Alito were Justices Roberts, Scalia, Thomas, and Kennedy. Kagan, Breyer, Ginsburg, and Sotomayor voted to uphold the lower court's decision to let Brown retain custody.
And I bring that up in case you're wondering about which company you'd like to keep.
Anyway, here's Associate Justice Alito on the shiftiness of the Native American male (F Troop's Corporal Agarn had more respect for The Hekawis).
"Under the State Supreme Court's reading, a biological Indian father could abandon his child in utero and refuse any support for the birth mother ... and then could play his ICWA trump card at the eleventh hour to override the mother's decision and the child's best interests. If this were possible, many prospective adoptive parents would surely pause before adopting any child who might possibly qualify as an Indian under the ICWA."" ... could play his ICWA trump card"? "Might possibly qualify"? Does he always roll his eyes when writing decisions? More importantly, is that what Alito thinks is going on here, how he characterizes a change of heart, a change of mind? And what if the child's interests are being manipulated by the mother, which the father says they were.
Brown and the baby's birth mother were not married. According to reports, after learning she was pregnant, she ended the relationship. He later agreed to give up his parental rights, but said he didn't know until four months later--when he was signing away those custody rights-- that the baby had been adopted. He then filed papers to get back his daughter.
The intent of Congress under ICWA was to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families" (25 U.S.C. § 1902). ICWA sets federal requirements that apply to state child custody proceedings involving an Indian child who is a member of or eligible for membership in a federally recognized tribe.It's important to note the Court did not award custody to the adoptive parents yesterday; instead, it returned the case to the South Carolina courts and told them to make a determination irrespective of ICWA.
This is a tough call. And somebody, most certainly the child, is going to lose here, which is why Alito so cavalierly accusing her father (or any 'biological Native American father') of gaming the system is the second most dickish thing he did yesterday.
Joining Roberts, Scalia, Thomas, and Kennedy to gut the Voting Rights Act was the first.