April 16, 2013

If race is to be taken into account, what kind of percentage of a particular race must an individual possess?

The oral argument in the Supreme Court today was about the federal Indian Child Welfare Act.
Under the state court's interpretation, said [Paul Clement, representing the guardian ad litem appointed by the state court to determine the child's best interest], ICWA moves the inquiry away from the child's best interests to focus instead on biology, the birth father and race — namely, that the child has 1 percent Indian blood.
1%! 

I am reminded of the Court's pending affirmative action case, Fisher v. University of Texas, in which there were some pointed questions at oral argument about the problem of taking race into account when the individual's racial percentage — always a sticky topic — is minimal and self-reported:

Back to today's case:
Pressed by the chief justice,  [Charles Rothfeld, representing the father] said that it doesn't matter how large or small a child's Indian heritage is because under ICWA, an adoption cannot go forward if a biological parent wants custody and is not a threat to the emotional or physical safety of the child.
Troubled by Rothfeld's contention, Justice Stephen Breyer noted that the father here appears to have "three Cherokee ancestors at the time of George Washington's father." And if you accept that view, said Breyer, "a woman who is a rape victim" could be at risk of having her child taken and given to the Indian father....
The court's decision in this case, [the adoptive parents' lawyer, Lisa Blatt] told the justices, is going to apply to other absentee Indian fathers who have impregnated non-Indian women. These women, she said, will be rendered "second-class citizens" with "inferior rights," and "you're basically relegating the child ... to a piece of property with a sign that says 'Indian, keep off, do not disturb.' "

86 comments:

SteveR said...

I'm just going to say Elizabeth Warren since it would eventually be included in a comment and we all have our thoughts well ingrained.

Otherwise this looks like a huge mess

William said...

Has anyone consulted the writings of Goebels on this subject?

Lem said...

What a beautiful child.

Patrick said...

These women, she said, will be rendered "second-class citizens" with "inferior rights," and "you're basically relegating the child ... to a piece of property with a sign that says 'Indian, keep off, do not disturb.

Not to mention what they do to partially indian children, and their prospects for getting adopted.

wyo sis said...

The law should be overturned or modified. This is ridiculous.

YoungHegelian said...

The real question is: with a "blood chit" that low, how did the father ever get into the Cherokee Nation?

Trust me, I've got a lot more Cherokee blood in me than the dad here, and I've looked into joining. The Cherokee nation doesn't let just anyone in. If you don't have a direct ancestor on one of the Cherokee census rolls you're pretty much out of luck.

Quayle said...

This is the utter farce that comes from insisting on looking at race rather than character.

When will we finally learn?

Shana said...

Lem said, " What a beautiful child."

Truly.

Patrick said...

ICWA is an ugly, racist and counterproductive law. It needs to be overturned.

Yet another example of good intentions gone bad.

Lem said...

Otherwise this looks like a huge mess

Cant they just split the baby here?

What?

Is that wrong?

David said...

well woven tangled web

Renee said...

Is the bio dad unfit?

No.

The lower courts addressed the concern of best interests.

The girl would of grown up turn 18 and searched for her biology and realize her father's side wanted her, and would of been deeply upset if her father and family didn't fight for her.

traditionalguy said...

In Georgia the area north and west of Macon was not originally settled by English, German and Scottish families.

Instead it was an area of white men going alone into the frontier as traders with the Creeks (a/k/a the Muskogee) and Cherokees. Their trade was helped by marrying the Chief's daughters and starting half breed lineages.

That helped when many grown half breed children were made Chiefs to better assimilate with the White neighbors and marry into prominent families of White settlers....those Chiefs then sold out the tribes for little or nothing in Treaties of the 1820s and 1830s.

So those NW Georgia areas and over into Alabama and Mississippi have an abundance of beautiful dark haired people today. One example of of those was Elvis Presley.

So when doing an adoption the certification that the child is not of an Indian Tribal descent was made it was never looked into that carefully until the Feds started a crusade over threatening to disbar lawyers who could not prove the unknown.

ironrailsironweights said...

Let's not forget that the One Drop Rule used for determining black ancestry means that many people of completely Caucasian physical appearance self-identify as black. One of the most extreme examples is NAACP leader Benjamin Jealous, who (obviously) identifies as black yet displays not the merest physical trace of black ancestry. Genetically, he's probably at least 15/16ths white.

Peter

pm317 said...

oh, not those Indians!..

Bender said...

Oh the poor white folks. Getting picked on by those mean Native Americans. First they took the white man's land, now they are taking their own kids.

That trail of tears all the way to the white man's courts really is sad.

RigelDog said...

I am honestly shocked by the minimal percentage of native american heritage that they find will confer native american status. I know that my great-great grandmother was native american and I do have a picture where both she and I are present. But it's a JOKE to say that this is significant; it's just an interesting factoid.

Richard Dolan said...

Somewhere in all that back-and-forth, there is a statute needing a definitive construction. With luck, it won't take the wisdom of Solomon to construe its terms.

Bender said...
This comment has been removed by the author.
Bender said...

Unlike blacks, Native Americans are a sovereign people. They have their own nations separate and apart from the United States.

It ain't a racial thing, it is an international rights thing, combined with the U.S. government agreeing to undo some of the damage it has done by displacing and segregating these native peoples.

tim maguire said...

Bender, if I hadn't read your first post first, I'd think you made some sense. But there's no undoing what's done. I read it; you're an idiot.

Meanwhile, what does it say about the 99% white that the 1% something else can take it in a legal fight?

bagoh20 said...

This is unfortunate, because being all German, I'm probably at least 1% Nazi. That isn't gonna help me much. How about 1% Neanderthal? My people were victims of the only totally effective genocide in history.

Renee said...

I find this so bizarre, many of times I've seen fathers be pushed out/ fall off the radar with their children due to the break down with the relationship with the mother of the child.

We need so many fathers to be engaged with their children, so to have the adoptive parent lawyer call refer to him as a 'sperm donor' is insulting.

A mom can file for child support but she can't file for prenatal support. The father's right only begins when the child was born, but at birth it was the adoptive dad in the delivery room present ready to take the baby out of state.There was almost no window for the birth father to assert his parental rights.

Renee said...

If the child was born in Oklahoma, why does South Carolina adoption laws apply?

bagoh20 said...

I think our law has arrived where it is now composed predominately of lies of good intention, but lies nonetheless. This might be repairable, were it not for the fact that lies are quite valuable to those on the winning side of them.

Tax / Penalty What are the damned rules?

I Have Misplaced My Pants said...

The girl would of grown up turn 18 and searched for her biology and realize her father's side wanted her, and would of been deeply upset if her father and family didn't fight for her.

Renee's magical crystal ball!

bpm4532 said...

Bulworth

bpm4532 said...

Diversity is the apartheid that keeps on giving.

Renee said...

All adoptive kids search.... duh.

cryptical said...

Renee said...
Is the bio dad unfit?

No.

The lower courts addressed the concern of best interests.

The bio dad clearly gave up his parental rights, and now wants them back.

He's an indian giver.

Lem said...

Althouse says I don't have to makes sense... so now I guess I have to. Very sneaky.

Its frustrating to project the chances this beautiful little girl stands to make it with such jerks for parents... both sides.

Selfishness to the extreme... to have the wherewithal? to take their differences all the way to the Supremes, but not have enough of that whatever-it-is (wherewithal?) to come to an understanding for the sake of the child.

I believe, I have the feeling? a hunch? a pit in my stomach, a little voice in the back of the head, a hintergedanken telling me that whatever the Supremes decide cannot possibly be as good as an understanding between the two parties here.

I don't have any children so take that with a huge grain of slat.

I Have Misplaced My Pants said...

Renee, you can't claim that "all adopted kids search." Most do; not all. FYI, you have no way of knowing. You also have no way of knowing what THIS particular child will or won't feel in fifteen years.

I don't doubt that your heart is in the right place but you need to know your limitations as to how well you understand adoption.

Lem said...

A grain of slat?

That must be from last night...

I'm sorry Inga, I was a bit of a jerk.

GrandpaMark said...

All adoptive kids search.... duh.

That is a remarkably stupid statement

Renee said...

I understand adoption very well.

I Have Misplaced My Pants said...

Your posts on this topic do not indicate that. You are quite notably tone-deaf. Are you, by chance, an adoptive mother?

I Have Misplaced My Pants said...
This comment has been removed by the author.
Renee said...

Four months later, the couple finally served Brown with notice of their intent to adopt Veronica. Immediately, he went to court to request a stay of the adoption until after his deployment (which, because of his military status, is provided for by federal law). He also began the legal steps to establish paternity and gain custody. He was then deployed to Iraq. Because the Capobiancos waited until just days before Brown was deployed, the adoption hearing was not completed until he returned home.

At this hearing, the South Carolina Family Court denied the Capobiancos’ petition to adopt and ordered Veronica’s transfer to her father. The court found that ICWA applied and was not an unconstitutional law, that Brown had acknowledged and established paternity, and that an exception to ICWA called the “Existing Indian Family Exception” (EIFE) was inapplicable to ICWA and therefore the case. Most decisively, it found that Brown had not voluntarily consented to the termination of his parental rights or the adoption, and that Veronica’s placement with him would not result in serious emotional or physical damage.


http://www.nicwa.org/BabyVeronica/

I Have Misplaced My Pants said...

It would help your credibility if you would acknowledge, instead of steadfastly ignoring, the incredible trauma of removing a child from the parents she's known since birth.

Renee said...

I volunteer in foster care, I help bio parents and mostly relatives stabilize and reunite. Adoption by non-bio relatives isn't the first option.

I'm not anti adoption, Im pro kinship and fathers having an equal opportunity to raise their children.

EMD said...

Justice blind?

Hahahahahahahaha.

Lem said...

Oh great...

I should have looked up "the pit in my stomach" before I try to show it off here.

Just as you can love someone from the bottom of your heart, you can also experience a sensation of dread in the pit (bottom) of your stomach. I don’t know whether people who mangle this common expression into “pit in my stomach” envision an ulcer, an irritating peach pit they’ve swallowed or are thinking of the pyloric sphincter; but they’ve got it wrong.

Renee said...
This comment has been removed by the author.
poppa india said...

Renee, why is it so important to you that this child be taken from the family she knows as her parents and given to another family she doesn't know? You are worried about her feelings15 years in the future, I'm worried about her feelings now. In the earlier thread on this case, I mentioned that I had moved between foster families before adoption-it's not an easy thing for a little kid to do. Her happiness and well being now should be most important, not fears of how she might feel in the future.

Renee said...

Read the facts of the case.

The child was not theirs to take to begin with. That is where the problem lies.

Renee said...

They had no right to take the child. What is hard to understand about that?

poppa india said...

Judging by your 10:27 comment, I think you are biased in favor of the rights of the bio parents, with the happiness of the child being a distant second. As I said in the previous thread, I hope the girl stays with her present family and someday her bio dad can tell her how much he cared because he gave her happiness now.

poppa india said...

She will be very unhappy about being taken away from her family. What's so hard to understand about that?

edutcher said...

Somewhere William Simmons and Edmund Ruffin are laughing as DW Griffith passes out cigars.

Renee said...

Of course... bio parents have rights that just can not be taken away.

Read the facts of THIS CASE, he was fighting for his child the entire time.

Andy Krause said...

At issue is whether an unwed biological father who initially renounced his custodial rights
to his daughter can rely on a federal law – the Indian Child Welfare Act – to block her adoption
by the couple who had cared for her since birth.

The Chief Justice – himself the father of two adopted children – was also obviously troubled by the Father’s
lack of support for the Mother and Baby Girl before he sought to block the adoption:
in response to Rothfeld’s assertion that Father was engaged to Mother and excited about
the pregnancy before the two broke up, he interrupted to note that Father had “paid nothing.”
He added, somewhat sarcastically, that Father may have been “excited,” but he “didn’t want to take responsibility.”

http://www.scotusblog.com/2013/04/argument-recap-no-easy-answers-in-indian-adoption-case/#more-162465

Bender said...

Yes, not only should the father have stood silent after strangers took his child, he should have paid money to them.

Those who are effectively kidnappers should be rewarded.

Andy Krause said...

Bender,
Read the article at the link. "Paid" as in supporting his family.

poppa india said...

Well, Renee and Bender, if they do remove the child, I hope you go along to explain to her why it's ok, show her the fine print. Maybe that will stop her tears.

Renee said...

Doesn't anyone remember the movie 'Raising Arizona'?

Apparently it had an impact on me.

Renee said...

She's been living with bio dad for well over a year. The adoptive couple wants her back.

I Have Misplaced My Pants said...

bio parents have rights that just can not be taken away

One of the reasons I am no longer a foster parent. I could no longer handle seeing how many children are damaged beyond description because some well-meaning people twist themselves in knots over bio parents' "rights." Because that's what matters, of course; the child is totally like a couch or a goldfish or something.

Renee said...

Yes. That's right. That have rights... and obligations. I hold them to both.

It is about parents being good parents and helping them be good parents. Believe me I see sh!tty parents, but this father isn't one of them.

Inga said...

She's been living with her bio dad for over a year already? At her age it would be more traumatic to return her to the adoptive parents.

Michelle Dulak Thomson said...

Renee,

The bio dad said twice -- once in a text message, once in signing off on custody-relinquishment documents -- that he had no interest in custody of his daughter. How long do you think he ought to have before he changes his mind?

Darleen said...

My husband barely remembers his older brother ... actually a foster child his parents had for a couple of years and were getting ready to adopt...

but bio-mom, someone who flitted about, didn't see him for over a year, suddenly got real interested about having HER child back.

Of course the social worker was more interested in reuniting bio mom with her son than in the strangers who had been raising & loving him.

Six months after being returned to bio-mom, the little boy was a vegetable, having been beaten to an unrecognizable lump by that loving bio-mom that thought he was her property.

Yes, blood over love!

Bender said...

This is why we have courts -- so that a waiver of rights can be done IN COURT, not by texting, to ensure that it is a knowing, voluntary, and intelligent waiver, with a full understanding of the facts and consequences of the action.

Moreover, this is why they have Indian courts, which should have had primary jurisdiction over the case, rather than the state courts.

I Have Misplaced My Pants said...

Believe me I see sh!tty parents, but this father isn't one of them.

Geez louise, you know this how?

Terry said...

The Hawaiians are trying to form a sovereign nation-within-a-nation in Hawaii.
To qualify as Hawaiian, you have to have a single ancestor who was resident on these islands prior to the arrival of Captain Cook in 1778.
Many benefits will accrue to you, in addition to your benefits as an American citizen, if you qualify under this single-ancestor rule.
Even if you and none of your other ancestors have ever been to Hawaii.

Tim said...

Renee said...

"All adoptive kids search.... duh."

Not true.

Colin Kaepernick, adopted, rebuffed his birth mother repeatedly.

acm said...

It's not just the text message---he signed official paperwork consenting to the adoption. He says he thought he was signing his rights away just to the mom, but he knew he was signing them away. When he changed his mind, he got a lawyer who dug up this don't-let-Indian-babies-be-adopted nonsense. If the dad didn't have his Cherokee heritage, he rightly wouldn't have had any leg to stand on after signing away his rights.

If the baby were white, she wouldn't have been subject to the traumatic ordeal of being yanked from her parents. Yikes.

Lem said...

If race is to be taken into account, what kind of percentage of a particular race must an individual possess?

Well, I'm glad you asked.

Because, by coincidence, while scanning the right side of the screen and listening to the Polygamy presentation (I wasn't bored or distracted its just my habit to san everything) I saw the Emily Yost thingy calling me to read her column. I didn't but that's besides the point.

What is the point?
I'm getting to it...

Emily Yost has some interesting ideas as to what constitute the race of an individual.

ampersand said...

Shouldn't the 3 Jews or two Italians or at least 3 Catholic judges recuse themselves from any cases involving affirmative action?

Shouldn't this court be considered
illegitamate particularly since the protestant majority is not represented?

MayBee said...

The 1% is interesting. This American Life had a recent podcast about an Indian Tribe de-certifying members so the remaining members can get a bigger piece of casino earnings,

Tribes

rhhardin said...

She could open a casino.

rhhardin said...

I think Jonathan Winters had an great Indian voice bit.

Everything about Indian culture is risible.

AllenS said...

1% will not show up on a DNA test. Most tribes are not accepting new members. Especially ones with casino money coming in.

I Have Misplaced My Pants said...

It seems obvious that the vast majority of Americans who aren't fresh off the proverbial boat have Indian in the woodpile.

On my father's paternal side there's a pile of French-Canadian-American fur trappers stretched over the seventeenth century and across the Great Lakes, and on his maternal side a couple hundred years of Scots-Irish-English settlers/adventurers spilling through the Appalachians/Smokies/Ozarks. The chances of none of them picking up Indian wives along the way is basically nil. Where's my tribal identification and special rights?

Bender said...

If the baby were white, she wouldn't have been subject to the traumatic ordeal of being yanked from her parents

It is because she is not white that folks thought it OK to subject her to the traumatic ordeal of being yanked from her father.

I Have Misplaced My Pants said...

It is because she is not white that folks thought it OK to subject her to the traumatic ordeal of being yanked from her father.

You base this on what, exactly?



Abdul Abulbul Amir said...

.

There is quite strong scientific evidence that humans are all descended from ancestors living in Africa.

.

Rusty said...

Abdul Abulbul Amir said...
.

There is quite strong scientific evidence that humans are all descended from ancestors living in Africa.


So that makes me ,... what? .0000008 Australopithecus?

Patrick said...

One thing that is important: Whichever adoption agency was responsible for this one screwed up bad. There is no way they should EVER have accepted a vague text message as proof that the father had relinquished his rights to the child. Insanely stupid, and has caused a lot of pain.

Fernandinande said...

More fun with racism.

C Stanley said...

The sovereignty of the Cherokee nation never did make sense to me. The interpretation of law with regard to these issues must be a nightmare. And adoption is complicated enough without this.

What I'm not clear on is whether the original adoption was properly handled. If not, then it should be handled in the same way that other similar disputes would be, withput regard to Cherokee heritage. And if the law says otherwise, the the law is an ass and should be changed.

EMD said...

the Indian Child Welfare Act – to block her adoption

Is that a misapplication of the law?

Peter said...

What percentage of a particular race must an individual possess?

Well, if you insist on 100% and use rigorous DNA/mitochondria analysis, then no one will qualify.

But if the "one drop" rule is taken literally, then practically everyone qualifies.

Whereas if you go by "If you say you are then you are" (unless someone in authority says you're not) the result will be endless (and likely inconclusive) litigation.

So, here's hoping the court accepts either the 100% rule or the one-drop rule (or both!) as that will solve the problem and put the matter to bed.

Birches said...

The lawyer is right about second class citizens.

My SIL's sister was impregnated by a Native and didn't really want the baby. She thought about adoption, but baby daddy's mommy said if she gave the baby up, she'd make sure her life was hell because of the Indian regs.

So she kept the baby. Dad or Grandma never sees his kid.

Renee said...

sigh... how do I know, the father isn't a sh!tty dad, because I read the news. That's how.


Baby Veronica and Native American Family Values by Jacqueline Pata April 16, 2013

Court testimony shows that the birth mother kept her plans to adopt the baby a secret from the father – because she knew that the father would never consent to give his child up for adoption. The father did not learn of the mother’s plans to give up the baby until the child was four months old and the father was on the verge of shipping out to Iraq. Once learning this news, the father immediately took all the legal steps he could consistent with the pressures of his deployment into hostile territory and subsequent combat.


---------------





If only we had more fathers like Dusten Brown!!!

I see so many parents due to substance abuse or just unable to care do NOTHING for their children at the Department of Children and Families. I also see a lot of good fathers as well, who like Dusten Brown have been 'pushed out' of the child's life by the mother and fall off the radar and when the mother is unable to care for the child (due to neglect/abuse/abuse (or murder) by current domestic partner/incarceration) we search out the father, and he's at DCF with his family to pick up his child and take proper custody and care of his child. This may happen, even years later.


I'm not anti-adoption, well maybe I am by other people's standards. I'm pro-family and pro-father's equal legal rights to parent his children. Even without marriage in this context and now separated as a legal contract between two adults in our secular culture, individuals still have a right to be raised by their mother and father, absent neglect and abuse.

What we have are sh!tty lawyers....

from this comment over at Politico

"As a lawyer, I see LOTS of sleazy lawyer tricks in this case. They reek of bad faith on the part of the attorney for the Capobianco family.

Sleazy Lawyer Trick No. 1 -- Do not send a letter to the father of a baby informing him of a pending adoption.

Sleazy Lawyer Trick No. 2 -- Initiate a South Carolina adoption for a child born in Oklahoma, where the mother and the father both reside in Oklahoma.

Sleazy Lawyer Trick No. 3. -- Send a letter to an Indian tribe asking whether a "Dustin Brown" is a member of the tribe when his real name is "Dusten Brown."

Sleazy Lawyer Trick No. 4 -- Draft an "Answer" to an adoption petition for a father who is not aware of an adoption, has not hired an attorney, and try to get him to sign it.

Sleazy Lawyer Trick No.5 -- Try to get a deploying soldier to sign away his parental rights on the eve of his deployment to a war zone.


The Capobiancos' attorneys poisoned the well by acting in an underhanded way. What was the downside to, for example, alerting the father beforehand of the adoption, suggesting he retain legal counsel, and, maybe even, identifying a good attorney for him to consider and offer to pay a few hundred toward legal fees? They would have been on a MUCH stronger legal footing in arguing that there was a "knowing, voluntary waiver of parental rights" or approval of the adoption! Instead, they tried to trick him . . . and now look at where they are!"

Shana said...

It does seem to me that the father was not dealt with in good faith.

Sam L. said...

I believe I read somewhere that 1% is way below what tribes use to determine who is/can be recognized as a member of the tribe.