What the Court's 'Baby Veronica' Ruling Means for Fathers and Native Americans

Lost amid coverage of the Voting Rights Act ruling was a decision in a complicated and emotional adoption case.
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A television news producer sprints down the steps from the U.S. Supreme Court building with the printed decisions. (Jonathan Ernst /Reuters)

Virtually overlooked Tuesday in the wake of the United States Supreme Court's vital decision to strike down a key provision of the Voting Rights Act case was a gut-wrenching ruling from the justices that ultimately could separate a father from his daughter. In the case styled Adoptive Couple v. Baby Girl, the Court ruled that a Native American man named Dusten Brown could not rely upon the language of a federal statute, the Indian Child Welfare Act, to protect himself against the termination of his parental rights over his daughter, Veronica, after another couple sought to adopt her.

Here is the link to the ruling (and here is the link to The Atlantic's prior coverage of the case). The justice remanded the case back down to the South Carolina Supreme Court to review the facts of the case under the new standard the Court has applied-- a standard that limits Brown's parental rights. Indian advocates Tuesday suggested that this result doesn't necessarily mean that Brown will have to give back his daughter but I'm not so sure. The justices have just given license to that state supreme court to aid a popular hometown couple in a dispute with a Native American who lives far away.

The back story, to say the least, is complicated but you can identify the contours of the ruling, and at the same time understand what happened to this little girl, simply by reading the many descriptions of the case offered by the various justices as they sorted through the debris. For example, to start, there is Justice Samuel Alito, who wrote the majority decision. He barely concealed his contempt for Brown and his cause by framing the story this way:

This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee. Because Baby Girl is classified in this way, the South Carolina Supreme Court held that certain provisions of the federal Indian Child Welfare Act of 1978 required her to be taken, at the age of 27 months, from the only parents she had ever known and handed over to her biological father, who had attempted to relinquish his parental rights and who had no prior contact with the child. The provisions of the federal statute at issue here do not demand this result.

To Justice Thomas, who concurred in the result, the majority was, if anything, too supportive of the federal law regardless of the scope of the rights it conferred upon Brown. Applying the facts of this sad case to the Child Welfare Act would be unconstitutional, Justice Thomas wrote, because:

Nothing in the Indian Commerce Clause permits Congress to enact special laws applicable to Birth Father merely because of his status as an Indian. Because adoption proceedings like this one involve neither "commerce" nor "Indian tribes," there is simply no constitutional basis for Congress' assertion of authority over such proceedings. Also, the notion that Congress can direct state courts to apply different rules of evidence and procedure merely because a person of Indian descent is involved raises absurd possibilities.

Then came Justice Stephen Breyer. He, too, concurred in the result. But he wanted his colleagues and the rest of the world to know that he thinks more of the Child Welfare Act than does Justice Thomas. He also evidently wanted everyone to know how little he thought of the way in which Brown initially handled his legal and moral obligations to his daughter. Justice Breyer wrote:

[W]e should decide here no more than is necessary. Thus, this case does not involve a father with visitation rights or a father who has paid "all of his child support obligations." Neither does it involve special circumstances such as a father who was deceived about the existence of the child or a father who was prevented from supporting his child.

Then came long that old softie, Justice Antonin Scalia. He dissented from the majority opinion and had a special message about parenting that he wanted to share with the world, a passage that reads straight out of a Dr. Phil script. Justice Scalia wrote:

The Court's opinion, it seems to me, needlessly demeans the rights of parenthood. It has been the constant practice of the common law to respect the entitlement of those who bring a child into the world to raise that child. We do not inquire whether leaving a child with his parents is "in the best interest of the child." It sometimes is not; he would be better off raised by someone else. But parents have their rights, no less than children do. This father wants to raise his daughter, and the statute amply protects his right to do so. There is no reason in law or policy to dilute that protection.


And, finally, came Justice Sonia Sotomayor. She wrote about the ways in which the federal statute was designed to try to help troubled Native American families, like Brown's family:

Moreover, the majority's focus on "intact" families begs the question of what Congress set out to ac­complish with ICWA. In an ideal world, perhaps all parents would be perfect. They would live up to their parental responsibilities by providing the fullest possible financial and emotional support to their children.

They would never suffer mental health problems, lose their jobs, struggle with substance dependency, or encounter any of the other multitudinous personal crises that can make it difficult to meet these responsibilities. In an ideal world parents would never become estranged and leave their children caught in the middle.

But we do not live in such a world. Even happy families do not always fit the custodial-parent mold for which the majority would reserve IWCA's substantive protections; unhappy families all too often do not. They are families nonetheless. Congress understood as much.

In the end, we have a decision here that says, contrary to both the text and the spirit of the law, that the Native American father of this little girl cannot rely upon a federal law designed to aid the parents of Native American children because he did not initially have custody of the child. The ruling makes mention of Browns' failure to initially support his child but makes little mention of the ways in which the mother of the little girl sought to hide the adoption from him. This was always a case of Solomon-like ramifications--with a group of judges literally having to choose where a baby should live. For such a weighty decision it's a terribly airy ruling.

Presented by

Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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