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Indian Child Welfare Act Kevin Washburn

Indian Affairs Head Talks Indian Child Welfare Act with MLaw Students

By John Masson
April 16, 2013

With the Supreme Court hearing arguments Tuesday in a controversial American Indian adoption case, Michigan Law students had a recent opportunity to learn about the emotionally charged situation from one of the nation's foremost experts: Assistant Secretary for Indian Affairs Kevin Washburn.

Washburn appeared on two panels as part of the Law School's observance of Indian Law Day. He was joined by two other panelists—Washtenaw County Trial Court Judge and Michigan Law adjunct Tim Connors, and Kathryn E. Fort,  a staff attorney and adjunct professor in the Indigenous Law Program at Michigan State University College of Law. The gathering was sponsored by the Native American Law Student Association.

The first panel explored the Indian Child Welfare Act (ICWA) and the crucial role it's likely to play in the Supreme Court case, whose formal name is Adoptive Couple v. Baby Girl. The case concerns a South Carolina couple who were ordered to return the two-year-old girl they had adopted to the girl's biological father, a Native American from Oklahoma.

Washburn, a citizen of the Chickasaw Nation of Oklahoma and a former federal prosecutor, said if you want to know how much an Indian tribe trusts a particular attorney, check to see if that attorney handles child welfare cases.

"If they trust a lawyer with child welfare they'll trust them on just about any other issue, too," he said.

In the South Carolina case, the birth mother, who is not Indian, indicated she didn't want to raise the child. The father, a member of the Cherokee Nation who was serving in the military, tried to persuade the birth mother to marry him so the family could use the housing and health care benefits available to service members and their dependents, and when that failed, allegedly renounced his parental rights in a text message.

The birth mother put the child up for adoption, and the South Carolina couple took the girl into their home.

South Carolina's supreme court made the ruling returning the girl to the birth father reluctantly, the justices wrote, because under South Carolina law the child would have been left with the adoptive family.

But the Indian Child Welfare Act trumped state law, the state high court decided. The 1978 Act recognizes the long history of abuse faced by Indian families, whose children were frequently taken from them by force well into the 20th century. Many Native Americans argue that laws like ICWA, combined with the tribal sovereignty of Indian nations, helps prevent their communities from continuing to suffer that kind of historic abuse – which in turn keeps the tribal community healthy.

A second panel during the program examined the Indian Gaming Regulatory Act.

In his Indian Affairs role, Washburn said, he has to "check his bar card at the door" and leave some of the challenges to the expert attorneys paid to represent his department. Nevertheless, the fact that the Supreme Court granted certiorari in the South Carolina case is cause for concern, he said.

"The Supreme Court in South Carolina ruled in favor of the father and the tribe, essentially," Washburn said. "It's a beautiful thing when a state aligns with a tribe and agrees. This is a good thing. But the Supreme Court took cert, and that's a troubling thing."

Read more on the SCOTUSBlog page about the case here

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