April 13th, 2013
The federal government rarely enters the family law arena. In fact, that is one of the challenges that was made to the federal Defense of Marriage Act that the Supreme Court heard argument on in the last few weeks.
On Tuesday, the Court will hear arguments regarding the Indian Child Welfare Act (ICWA), 25 U.S.C. sec. 1901 et seq., enacted in 1978. The case is best known as the Baby Veronica case.
Congress entered family law in this instance because of the federal/tribal relationship that has existed since 1789. Under federal Indian law, the United States government owes a "trust" responsibility to tribes and Indian peoples. See 25 U.S.C. sec. 1901(2) & (3). Thus, the ICWA was enacted to try to stem the abusive practices state agencies were perpetrating against Indians and tribes through wholesale adoptions and foster care placements of Indian children. 25 U.S.C. sec. 1901(4) & (5).
The article, linked below, asks this poignant question about the case: "The question at the center of it has been asked (and answered) over and over again on this blessed continent for the past 400 years: Is the law of the land going to preclude or permit yet another attempt to take something precious away from an Indian?"
The Indian father has custody of the child at issue in this case as ordered by two South Carolina state cases.
Even more worrisome, according to the article, is that the attorney "representing the child's guardian in the case, has made an extraordinary argument designed to undercut federal oversight over Indian affairs: These statutes, he argues, are unconstitutional because they are based upon racial classifications that violate the equal protection rights of non-Indians."
This argument goes against a primary tenet of federal Indian law that the relationship between the United States and tribal nations is a political basis, a government-to-government relationship. Morton v. Mancari, 417 U.S. 535 (1974). This political relationship calls on the federal courts to defer to congressional acts regarding Indian nations instead of applying the "strict scrutiny" review that federal courts use in reviewing federal laws that are based on racial classifications.