You're Breaking Up: the Faulty Connection Between Congressional Intent and Supreme Court Interpretation in Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013)

• Publication year: 2021
• Citation: Vol. 93

93 Nebraska L. Rev. 517. You're Breaking Up: The Faulty Connection Between Congressional Intent and Supreme Court Interpretation in Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013)

You're Breaking Up: The Faulty Connection Between Congressional Intent and Supreme Court Interpretation in Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013)

Note(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 518

II. Background ........................................... 519
A. Legislative History of ICWA ....................... 519
1. Indian Child Removal Pre-ICWA ............... 519
2. Factors Driving Removal Rates ................ 520
a. Physical Abuse ............................. 520
b. Ethnocentrism ............................. 520
c. Institutional Structure ..................... 523
B. Overview of ICWA ................................. 524
C. Existing Indian Family Exception ................. 525
D. Mississippi Band of Choctaw Indians v. Holyfield . . 528

III. Adoptive Couple v. Baby Girl .......................... 529
A. Facts ............................................. 529
B. Opinions Below ................................... 531
C. Supreme Court Opinion ........................... 532

IV. Analysis .............................................. 532
A. Birth Father Is a Parent Under ICWA and Should Have Been Afforded Its Protections ................ 533
B. ICWA Does Not Support the Interpretation the Court Gave It ..................................... 537

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1. Congress Did Not Intend to Require a Parent to Have Had Prior Custody in Order to Invoke ICWA's Protections ............................ 537
2. The Court's Construction of "Continued" Amounted to an Amendment of the Statute, Expanding the Types of Parents Excluded from ICWA ......................................... 538
3. ICWA's Idea of "Breakup" Connotes Far More than the Court Allowed It To .................. 539
4. What Place for the Existing Indian Family Exception? ..................................... 542
C. Applying ICWA to Noncustodial Parents Does Not Raise Public Policy Concerns ...................... 543

V. Conclusion ............................................ 546

I. INTRODUCTION

I did not know then how much was ended. When I look back now from this high hill of my old age, I can still see the butchered women and children lying heaped and scattered all along the crooked gulch as plain as when I saw them with eyes still young and I can see that something else died there in the blood mud, and was buried in the blizzard. A people's dream died there. It was a beautiful dream.(fn1)

So spoke Black Elk, a holy man of the Oglala Lakota, as he remembered the Wounded Knee Massacre. Wounded Knee largely marked the end of the U.S. military campaign against the plains tribes.(fn2) For Black Elk and the Oglala, it marked the end of much more. Black Elk believed if the dream of his people were ever to be revived, it would be in the seventh generation.(fn3) The calculations of many people living on the Oglala Pine Ridge Reservation say the youth of today are that generation.(fn4) But Black Elk spoke of consequence, not just capability. Should the seventh generation fail, Black Elk believed the Lakota race would die out.(fn5)

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Charging fifteen to twenty-five-year-olds with the survivorship of an entire people is a lot to ask young shoulders to bear. But that responsibility is not limited to only Lakota youth. In passing the Indian Child Welfare Act of 1978 (ICWA),(fn6) Congress found "no resource . . . is more vital to the continued existence and integrity of Indian tribes than their children."(fn7) By creating standards to govern the removal of Indian children from their families, Congress hoped it could promote tribal security and stability.(fn8)

The chances of fully achieving these goals have been impeded by the Supreme Court decision in Adoptive Couple v. Baby Girl.(fn9) By holding that an Indian parent who never obtains custody of his child is not privy to the protections offered by ICWA, the Supreme Court has severely limited the Act's application. Tribal security and stability are hampered when Indian children are raised outside of the Native community because the opportunity to pass on tribal customs, traditions, leadership and culture disappears.(fn10) This Note begins by exploring the historical facts leading to the passage of ICWA, its key provisions, and its application. Part III discusses Adoptive Couple v. Baby Girl and the changes the Supreme Court has made to ICWA. Part IV concludes by arguing how in an effort to do right, the majority of Supreme Court Justices twisted ICWA to arrive at a conclusion the statute, if read plainly, does not support.

II. BACKGROUND

A. Legislative History of ICWA

1. Indian Child Removal Pre-ICWA

ICWA was the product of four years of congressional research, hearings, deliberations and drafting.(fn11) The impetus for the law came from tribes and their allies, motivated by witnessing state child-welfare policies remove Indian children from their families at catastrophic rates.(fn12) In Minnesota, one out of every four Indian children

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under the age of one lived in an adoptive home.(fn13) In Washington, Indian parents lost their children at rates nineteen times those of non-Indian parents.(fn14) In South Dakota, Indian children comprised seven percent of the state's population, but accounted for a little under half of all state adoptees.(fn15)

2. Factors Driving Removal Rates

a. Physical Abuse

Governments, whether state or tribal, have an obligation to protect children when their home is not safe.(fn16) But physical violence does not explain the extraordinary high removal rates tribal families experienced. One North Dakota tribe indicated only one percent of their children were removed because of allegations of physical abuse.(fn17) A northwestern tribe reported similar percentages.(fn18) An Oregon tribe indicated that all of the 800 tribal children removed from their biological homes were categorized as neglect cases, without physical abuse present.(fn19) Indeed, physical child abuse was "virtually unknown" in Indian communities.(fn20) This was particularly remarkable at the time because medical doctors were beginning to recognize, diagnosis, and report physical child abuse.(fn21)

b. Ethnocentrism(fn22)

Instead, cultural ignorance, ethnocentrism, or outright prejudice were cited as factors driving the high removal rates.(fn23) Standards of

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child abuse and neglect were based upon white, middle-class, suburban values.(fn24) The Senate subcommittee heard testimony that a few caseworkers believed simply living on a reservation was evidence enough to remove a child because "an Indian reservation is an unsuitable environment for a child."(fn25)

Caseworkers classified leaving children with individuals outside the immediate nuclear family as neglect,(fn26) despite the fact that extended family is a fundamental part of Native culture.(fn27) Ella Deloria(fn28) noted tribes spent hundreds of years living in close communal groups where making everyone family preserved peace and harmony.(fn29) She explained:

[T]he ultimate aim of . . . life . . . was quite simple: one must be a good relative . . . . In the last analysis, every other consideration was secondary-property, personal ambition, glory, good times, life itself. Without that aim and the constant struggle to attain it, the people would no longer be Dakotas in truth. They would no longer even be human.(fn30)

If the whole point of life is to be a good relative, labeling someone an unfit one had catastrophic consequences for parents and, by extension, tribes. As the chairwoman of the Puyallup Tribe put it: "[I]f you

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lose your children, you are dead; you are never going to be rehabilitated . . . the whole family unit is not ever going to get well."(fn31)

Some argued the high rates of child removal lead Indian parents to expect their children to be taken from them.(fn32) Coupled with the crippling emotional effects of losing a child, this expectation created a self-fulfilling prophecy where fear of emotional attachment led to poor parental behavior and ultimately, removal.(fn33)

Inevitably, stereotypical views about Indian communities and perceived alcohol abuse were trotted out as a justification for the high removal rates.(fn34) Tribes have frequently been typecast as locked in a constant battle against alcohol.(fn35) Yet, studies show alcohol plays a role in the majority of child abuse incidents, regardless of race.(fn36) Testimony at the hearings suggested this fact was frequently ignored.(fn37) While alcohol abuse would likely result in the removal of a child from an Indian family, white families battling alcohol addictions were more

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likely to be provided with support services and allowed to keep their children with them than were Indian parents.(fn38)

c. Institutional Structure

Institutional factors further contributed to the high rates of removal of Indian children. As the availability of birth control and abortions increased, the number of healthy white children available for adoption decreased, and private agencies found more couples seeking newborns of any race.(fn39) Bertram Hirsch, an attorney with the Association of American Indian Affairs, argued a "gray market" for Indian children existed.(fn40) The testimony of many Indian...