The custody battle over Veronica Brown is a disheartening case. To understand the full impact, one must understand the historical context of US assimilation efforts directed towards Native American children. It is because of this history that Congress enacted ICWA (which, at its heart is designed to prevent taking Native children from their parents/family/tribe). The Supreme Court, in two recent rulings (this ICWA case and the Voting Rights case), has weakened specific legislation enacted to address human/civil rights issues subsequent to historical curtailment of such rights in the US.
For the United Nations to offer a statement related to this case is no small concern. It’s an acknowledgement that courts (and the laws they uphold) have a capacity to work against human and civil rights. Such adverse legal actions have historically always effected groups with less power – particularly less socio-economic power. Generally, laws are enacted to protect the interests of society. Often the most salient (loudest, most accommodated) interests are the interests of power holders. This is human behavior – those with the power to legislate do so with the intent to protect their self-interests. Unfortunately, this sometimes comes at the cost of adverse impact for citizens who do not benefit from the systemic legislation. A notorious example is the aggregate Jim Crow laws, which codified racial segregation and strict voter qualifications – leading to impacts in employment, education, and political representation.
Interestingly, due to the US principle of States’ Rights, one would see legislation with varying impacts from state to state. States experiencing the greatest threat to status quo were most likely to pass legislation with the greatest adverse impact (e.g. Southern states after slave emancipation). These impacts were facilitated by laws, upheld within courts, designed to protect power holders and suppress the contextually oppressed.
In these cases, it takes an authority higher than the states (e.g. the President, Congress, or the Supreme Court) to reference a collective standard (i.e. the US Constitution) and enact change towards neutralizing the state legislated suppression of citizen groups. The US has a recent history of such authoritative action, from Brown vs. the Board of Education (1954) to the Voting Rights (1965) and Civil Rights (1968) Acts.
Somehow, this trend has been eroded to where we are increasingly seeing higher US authority (executive, legislative, judicial) redefining protections and in some cases neutralizing them. This allows states to revert to legislation designed to protect the interests of powered demographics. Witness the almost immediate codification of voter qualification laws after the Supreme Court’s ruling on provisions of the Voting Rights Act. For the Supreme Court (which, by many accounts, is increasingly political in nature) to also rule in the manner it did regarding ICWA and the custody case in point suggests that it either lacks a fundamental understanding of historical context and the likelihood of power to oppress, or it understands these facets and is purposefully ruling to influence such dynamics.
In a context where human rights cease to be primary consideration (whether through ignorance, misplaced idealism, or partisanship) for even the highest US authorities, it takes a world organization, like the UN to remind the authorities that, despite legislation (and the interpretation thereof), human rights matter.