“Is it one drop of blood that triggers all these extraordinary
rights?” asked Chief Justice John Roberts. His question, though as
of yet little noticed by the press, might hold the key to the case
of Adoptive Couple v. Baby Girl, otherwise known
as the Baby Veronica dispute, which reached oral argument before
the Supreme Court last Tuesday.   

For most of the child-welfare experts and Indian-law
professors who filed amicus briefs in the case, there is
nothing to criticize and much to praise about the Indian Child
Welfare Act of 1978 (ICWA), the law before the Court. The brief
signed on to by the Child Welfare League of America, for example,
claims that ICWA reflects a “gold standard for child welfare
practice.” Whether or not it does that—and many in the adoption
community doubt that it does—it does something else as well, and
that is to draw a sharp line, as in this case, between family
members who enjoy more rights and others who must make do with
fewer. And the line between the two is based primarily on accidents
of race and lineage.

The case argued on Tuesday developed when an unmarried Oklahoma
woman of Hispanic descent found herself pregnant by her
then-boyfriend, who had some Cherokee lineage but did not reside on
a reservation. Initially, the man consented to give up any rights
to the child, but then changed his mind on learning that the mother
intended to put the newborn up for adoption. Under the prevailing
law of Oklahoma and of South Carolina, where the adoptive couple
lived, his change of mind came too late to disrupt the
adoption given that he had not supported either the mother or
child before that point. His affiliation with the Cherokee
tribe, however—so the South Carolina Supreme Court eventually
decided—brought the matter under ICWA, and invalidated his waiver
of rights, whether knowing or not, in the absence of more elaborate
proceedings as prescribed by the act. (In a grim series of errors,
the mother’s side had actually checked with the Cherokees to see
whether the case came under ICWA and was told the father was not
registered as a tribal member, an error arising because he used
multiple spellings of his first name.) Following ICWA’s standard
for breaking up a putative Indian family—though the family had
never in this case actually come together as a unit—the court had
to base its decision only on whether the new household into which
Baby Veronica was being moved would itself be actively harmful to
her, as distinct from whether her overall best interests would be
well served by taking her away from the adoptive parents with
whom by then she had lived for more than two years. Since
there was no indication that there was anything actively harmful
about the father’s household, that meant yanking the
two-year-old away from the only family she had ever known, a
family that, as the South Carolina court somewhat ruefully noted,
had been exemplary in every way. 

Much of the argument on Tuesday hinged on the question of the
extent to which the federal definition of an Indian “parent” under
ICWA should track state definitions of “parent,” which often
recognize that biological and legal parenthood are two different
things. (Yes, this presents some curious parallels to the question
of whether federal law should track state definitions of
“married person,” as argued a few weeks ago when justices heard the
challenge to the federal Defense of Marriage Act.) By itself, this
definitional wrangling is mostly a fact-bound (if emotionally
charged) venture in statutory interpretation, and as such it might
seem to leave the case as a re-run of the Court’s previous (1989)
encounter with ICWA, in a case called Mississippi Band of
Choctaw Indians v. Holyfield, which also called into
question a child’s adoption. Famously, Justice Antonin Scalia has
named Holyfield as the most troubling case he’s decided in
his many years on the Court: the interests of the child seemed to
point in one direction, the principles of correct statutory
interpretation in another, and his role as a judge seemingly
compelled him to pick the latter. 

But lurking just below the surface of both Holyfield
and Adoptive Couple are some deeper constitutional
questions that the Court may not be able to dodge
forever. Because the harder you dig into the premises behind
ICWA, the more you wonder—as Chief Justice Roberts may have been
wondering on Tuesday—why the law is handing out rights in domestic
relations conflicts based on race, lineage, and other grounds that
are ordinarily forbidden under our Constitution.   

Representing the child herself through her guardian ad
litem, veteran Supreme Court advocate Paul Clement made the
most of this. Ordinarily, he pointed out, the law in all states
protects children from being transferred into a new custodial
arrangement without a determination that it is in their best
interest to do so. And yet: “It happened here because of ICWA…
and it happened because of 3/256ths of Cherokee blood…. And as a
result of that, her whole world changes…. It goes from an inquiry
focused on her best interests… to a focus on the birth father and
whether or not beyond a reasonable doubt there is a clear and
present danger.” 

In the Baby Veronica case, ICWA worked to bolster the rights of
the unwed dad; indeed, his own lawyer appeared at one point to
concede that his client would not have been in a legal position to
block the adoption otherwise. It would not therefore be
unreasonable to conclude that the law has established two kinds of
parental rights—a robust, harder-to-break kind, which you get to
invoke if you are Indian, and a less robust kind—a “skim-milk”
kind, to borrow the phrase with which Justice Ruth Bader Ginsburg
described state-only marriage under DOMA—with which everyone else
has to be content. (Justice Stephen Breyer, at oral argument,
referred to one of ICWA’s standards as “tilted toward the Indian
parent.”) Doesn’t this amount to a classification between parents
based on race? Yet reaching that conclusion might suggest that the
law should come under “strict scrutiny” examination, a scrutiny it
might not survive.

There’s another plausible way to look at ICWA, however, namely
as a law enacted for the benefit of Indian tribes, as
distinct from individuals. There’s certainly a great deal of
evidence that Congress had exactly such interests on its mind when
it passed the law. Indeed, nothing could have made that clearer
than the earlier Holyfield decision.
In Holyfield, parents who were both Indians living on
a reservation had agreed to place their child for adoption with a
non-Indian family and had gone off reservation to do so. A 6-3
majority of the Court, with Scalia and O’Connor joining the liberal
wing, ruled that invalid because the law intended to assign
jurisdiction over child surrender by reservation families to the
tribe and its courts, and the actual parents involved could not be
allowed to defeat that intent by physically absenting themselves
from the reservation for the baby’s delivery and surrender. Did
Congress draft the law that way because it saw the children as
belonging to the tribe, more than to the parents?

But treating ICWA as an enactment for the benefit of tribes
opens up a different set of constitutional problems. While strongly
overlapping with race as a category, tribal membership is clearly
not identical to it—tribes are free to register persons with very
dilute (perhaps vanishingly so) Indian lineage, including the
father in this case with his 3/128 Cherokee descent, while
excluding other persons whose claims descent-wise may be stronger
but who may not be able to satisfy conditions for membership set by
the tribe in its discretion. Indian law regards tribes as a species
of political entity, like states or cities, and perhaps we should
think of them to some extent as political aggregates comprising
groups of persons from diverse backgrounds who vote together on
questions of mutual governance, the way the citizens of Nebraska or
Albuquerque do, but who may or may not have retained any particular
homogeneity in racial composition. But if a mother and newborn
child on the East Coast have never in their lives set foot in
Indian Country, how could a law presume to bring them under its
political jurisdiction on the grounds that a man once involved in
their lives once registered there? 

As attorney Lisa Blatt, representing the adoptive couple,
reminded the Court, there’s no particular reason why the Court’s
next ICWA case will necessarily come out of Indian Country or
anywhere nearby. It could as readily arise when an unwed mother in,
say, Manhattan or Boston, otherwise free to make an adoption plan
for her newborn, discovers belatedly that she is not so free
because the guy she once dated turns out to be registered with a
tribe, and her reproductive future will be determined to
substantial degree by those distant strangers who constitute the
tribal authorities. Unless the justices wish to be faced with such
issues in some future case, they might want to use this one to
scrutinize ICWA’s constitutional flaws.