On Tuesday, the Supreme Court ruled in favor of the South Carolina couple caring for "Baby Veronica." The ruling could threaten the stability of the Indian Child Welfare Act, and raises questions about tribal membership.
On his way to deployment in Iraq, Cherokee tribal member Dustin Brown was asked to relinquish his parental rights by the unwed mother of his child, and days before beginning his tour, the mother gave baby Veronica up for adoption.
Upon learning this, Brown sought custody, and eighteen months after filing for custody, Veronica was returned to Brown.
But on Tuesday, the Supreme Court ruled the child should have remained with her adoptive parents, and returned the case to South Carolina. At the heart of the case is the 1978 Indian Child Welfare Act, or ICWA, which was passed at a time when many state governments terminated parental rights of Native Americans and removed Native children to non-native families. With ICWA Native Americans are given preference in the adoption of Native children.
Writing for the courts majority Justice Alito quantified baby Veronica's race to 1.2% Cherokee, and Justice Thomas questioned the constitutionality of ICWA writing that congress cannot enact special laws for Brown because of his Indian status.
"This case is not about race, this is about tribal membership in Indian nations," says Matthew Fletcher, a professor of law at Michigan State University. "It doesn't matter how much blood quantum an Indian person has, so long as they're a member of a federally recognized tribe under the Indian Child Welfare Act. so the supreme court is really imposing it's own policy preferences when it comes to Indian Affairs, and that's unfortunate."
Fletcher says a final decision on the case by a South Carolina court will determine whether tribal members and extended family will still have preference over non-Indians on the question of adoption.