Monday, August 15, 2011
Sanders: "Where Sovereigns and Cultures Collide: Balancing Federalism, Tribal Self-Determination, and Invididual Rights in the Adoption of Indian Children by Gays and Lesbians"
Steve Sanders (VAP at Univ. of Mich.) has posted "Where Sovereigns and Cultures Collide: Balancing Federalism, Tribal Self-Determination, and Individual Rights in the Adoption of Indian Children by Gays and Lesbians" (25 Wisc. J. L., Gender & Soc. 327 (2010)) on SSRN. Here is the abstract:
This article analyzes the complex interplay between adoption (traditionally a matter reserved to state family law) and the federal Indian Child Welfare Act in the context of adoptions by gays and lesbians.
As a federal statute that partially preempts state law for the benefit of Native Americans, ICWA implicates three sovereigns: the United States, the state where the adoption petition is brought, and the tribe whose child is the focus of the proceeding. This interplay of sovereigns in itself makes Indian child welfare law complicated and interesting. Beyond these sovereign interests, also to be considered are the interests and rights of individuals: the child, the birth parents, and the prospective adoptive parent(s). In cases where the petitioner’s sexual orientation is an issue, an Indian child adoption proceeding also holds the potential to become a clash of cultures. A tribe with a tradition of tolerance toward sexual or gender diversity might find its members in the courts of a state with a public policy that disapproves of gays and lesbians as adoptive parents. Or the opposite may occur: a tribe might object based on its cultural beliefs to a child’s placement in a gay or lesbian household, even though the state supports adoption equality. Prospective parents who are required to bring a petition in tribal court may find themselves in a legal world that subordinates their interests to those of the child or the tribe, operates by informal rules, and looks to cultural traditions in rendering legal judgments. These scenarios all arise at the tangled intersection of traditional state family law, Indian culture, federal Indian policy, and evolving principles of gay/lesbian equality. They implicate both practical and doctrinal puzzles, but so far scholars have had little or nothing to say about them.
When an adoption petitioner’s sexual orientation becomes an issue in an adoption proceeding under ICWA, the question will arise: do the federal policies embedded in ICWA ever determine, or at least influence, whether or not such an adoption must be granted or subsequently recognized as valid, taking into account the petitioner’s sexual orientation? Even though ICWA makes no mention of sexual orientation and, ostensibly, has nothing to do with gay/lesbian adoption, I explain the answer is yes: where a prospective parent’s sexual orientation is an issue in the adoption of an Indian child, sometimes ICWA will make a difference in whether the adoption is granted or recognized. Under certain circumstances, ICWA’s requirements might lead to a gay or lesbian individual or couple being denied an adoption in tribal court that they could have obtained in state court. In other circumstances, ICWA will require a state to recognize a gay/lesbian adoption finalized in tribal court even though that state would not have granted the placement itself.
I also discuss whether ICWA gives decisive leverage in a state-court adoption proceeding to a tribe’s views on homosexuality; I conclude it does not. Finally, and perhaps most controversially, I argue that ICWA should override a state’s anti-gay adoption policy if such a law would present a roadblock to the placement of an Indian child in an Indian home.