In the Name of the Child: Race, Gender, and Economics in Adoptive Couple v. Baby Girl 67 Florida Law Review 2015

67 Fla. L. Rev. 295 (2015)
In the Name of the Child: Race, Gender, and Economics in Adoptive Couple v. Baby Girl

handle is hein.journals/uflr67 and id is 301 raw text is:

IN THE NAME OF THE CHILD: RACE, GENDER, AND
ECONOMICS IN ADOPTIVE COUPLE V. BABY GIRL

Bethany R. Berger*

Abstract
On June 25,2013, the Supreme Court decided Adoptive Couple v. Baby
Girl, holding that the Indian Child Welfare Act did not permit the
Cherokee father in that case to object to termination of his parental rights.
The case was ostensibly about a dispute between prospective adoptive
parents and a biological father. But this Article demonstrates that it was
about a lot more than that. It was a microcosm of anxieties about Indian-
ness, race, and the changing nature of parenthood. While made in the name
of the child, moreover, the decision supports practices and policies that do
not forward and may even undermine children's interests.
Drawing on published and unpublished court records and testimony,
this Article reveals that the Court's portrayal of the facts of the case was
wrong. Instead of a deadbeat dad acting as a spoiler in the adoption of the
daughter he had abandoned, the birth father sought to parent his daughter
from the moment he learned his fiancee was pregnant. He was initially
prevented from learning of the adoption plan by the actions of the other
parties and their attorneys. The decision distorted the law as well, doing
violence to long-accepted interpretations of the statute at issue. Why did
the Court mischaracterize the facts and the law? This Article examines the
narratives of the interests of the child, racial color-blindness, and even
women's rights that surrounded the case to reveal that the decision in fact
rested on racialization and colonialism of Indian people, condemnation of
poor single mothers, economic interests of private adoption facilitators,
and the class divides in modern paths to parenthood.

INTRODUCTION ..................................................................................... 296

I. FIXING THE FACTS, EXPLAINING THE LAW ............................. 300
A . F acts .............................................................................. 30 1
B . The Legal Battle ............................................................ 310

II. THE BEST INTERESTS OF THE CHILD? ..................................... 319

* Thomas F. Gallivan Jr. Professor, University of Connecticut School of Law. Thanks to
Jon Bauer, Kristen Carpenter, Paul Chill, Anne Dailey, Kathryn Fort, Alexandra Lahav, Solangel
Maldonadb, Hugh McGill, Chrissi Nimmo, James Stark, Gerald Torres, and Colette Routel; to
participants at presentations at the American Association of Law Schools Annual Conference, the
Stanford Law School Native American Law Students Association Conference, and the University of
Connecticut School of Law; and to the Tribal Relations Committee of the Conference of Chief
Justices of State Supreme Courts.

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