The United States Supreme Court this week heard the case Adoptive Couple vs Baby Girl which concerns the return of a three year old girl to her Cherokee Nation member father via the Indian Child Welfare Act, but is it a valid law or an out-dated race based law?
University of Oklahoma law professor, Taiawagi Helton, who is of Cherokee descent, points out its not racial, it’s legal. “I understand our discomfort with talking about race in this context because the Indian Child Welfare Act is not only intended to protect Indian children in custody proceedings. Obviously we emphasize the best interest of the child, hopefully we do that in any custody proceeding.”
“But for a very long time the United States and local governments made real efforts to break up Indian families and that was done through Re-location programs in the 1950's, moving Indians out of tribal communities to urban centers and the like, and promoting blind adoptions where native children were adopted out to non-native families and their parents couldn't identify them or figure out where they had gone.”
“In 1978, to address those problems, Congress passed the Indian Child Welfare Act and it was specifically aimed at not only repudiating those past policies but trying to undo some of the damage of those past policies. And also, what we saw in many state court proceedings was that the court would say the best interest of the child includes getting them into middle class suburban lifestyles. “
“And so the Indian Child Welfare Act is intended to address two problems - one, to address the needs of the Indian child, to make sure that that child is having his or her best needs addressed and satisfied. But to also make sure that that child has the opportunity to stay close with family and to stay in a cultural context so that when they grow up they'll have some sense of identity that connects them with their people. So the statute's not only aimed at protecting the individual child, it’s also aimed at protecting tribal communities so that they can strive and stay strong where possible.”
“It’s also important to note that that recognition is not only based on race and in 1974 in a case called Morton v. Mancari, the Supreme Court was clear on this. They said that when we said the word "Indian" it means more than one thing. So when this case comes up I think its valuable when looking at it, note first that ICWA distinguishes it only in part on race and in part on the political status of the individual, they're eligibility for membership in a federally recognized tribe.”