The Human Family

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Marriage isn’t the only legal and moral on-off switch.

The Supreme Court is currently sitting on the decisions for three huge family rights cases. And unless you’re an Indian you’ve probably only heard of two of them, Hollingsworth v. Perry (the Prop 8 case) and United States v. Windsor (the doma case). Most Americans have no idea that a judicial referendum on the Indian Child Welfare Act (icwa) is also going to take place in the form of the decision in Adoptive Couple v. Baby Girl (the Baby Veronica case). There are probably a number of reasons for that, and I suspect that at least two of them are:

  1. most Americans have a friend or family member who is gay, while most Americans may or may not have even met an Indian
  2. Indian Law is a hot mess, and as such can not be boiled down into a 45–90 sec. segment for the evening news

But I do believe that there is a third that makes it difficult to fit icwa into the typical American family life narrative. Namely, the ideal child-rearing providers in the minds of most non-Indians seem to be a pair of married adults. This is one way in which marriage is thus what Nancy Polikoff has called “an on-off switch for many legal consequences that matter to people.”

icwa came into being at a time when some state adoption and foster care systems were removing between a quarter and a third of all Native children from their communities of origin. The act is revolutionary in the sense that rather than asking whether a different set of lineal relatives should supplant a child’s birth parents via state-enforced adoption or foster care, it instead gives consideration to non-lineal relatives such as aunts, uncles, and cousins. In a very real sense it bucks the ethnocentric legal tendencies shown in Lewis H. Morgan’s naming of classificatory and descriptive kinship systems.

The issues in play with the case are of much more complex than just this—as I said, Indian Law is a hot mess.* But my larger point is this: marriage isn’t the only on-off switch for family law consequences that matter to every American. Overturning Prop 8 and doma will not, contrary to what seems to be the taken for granted progressive view, insure equality for all families. icwa needs to be upheld, too. Plenty of people who have heard of icwa have their fingers crossed.

Matthew Timothy Bradley

*For example, there is a racial element in play due to the combination of the facts that icwa gives preference to members of federally-recognized Indian tribes in the adoptive placement of Indian children and that the Federal Government requires tribes to adopt a minimum blood quantum (i.e., biological descent) standard for tribal membership.


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