Antonin Scalia

The Constitutional Flaws of the Indian Child Welfare Act

The Supreme Court weighs a contentious dispute over adoption, Indian lineage, and child welfare.

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"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. 

NEXT: Children of West, Texas Return to School

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  1. This baby in heap big trouble. The question regarding resolving this case is, “How?”

    I nominate the great Chieftess Elizabeth “White Injun” Warren to step in and adjudicate this matter in Solomonic Pocahontan fashion.

    And I hope Okie Baby Mama has decided to make no more unwanted children forever.

    The End.

    1. Kind of a stretch to call this child unwanted.

      1. I guess it depends on who you’re referring to.

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      2. Fun isn’t a four letter word. Neither is Zeb… Hmm…

      3. So mom’s giving up baby for adoption cause….she “wants”….it?

        Mmkay.

        1. Well the couple that’s been raising it for two years probably wants it, and it’s not like their losing it will hurt the real mom in any way to make her not want to have future unplanned pregnancies.

    2. You realize that you totally discredit your argument by being such a fucking idiot? It is idiots like you that keep Libertarianism from being anything but a fringe movement…

  2. Did Congress draft the law that way because it saw the children as belonging to the tribe, more than to the parents?

    Also, “all your children are belong to us”. Melissa Harris Perry Mason at PMSNBC appoves.

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  3. 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….

    This is a pretty dry subject, but I think that’s the thrust of the ICWA. I think that the proponents or defenders of the ICWA predicate their belief that keeping native american kids with native american families as ipso facto, in the best interest of the child.

    1. That’s sad.

      Plus why do we even have reservations anymore? Won’t the Indians be better off, generally, integrating to the larger society?

      Just like immigrants to the US have for centuries. They’re immigrants, too. The first ones.

      1. Actually they’re more like homesteaders. White settlers are the immigrant hordes who established cultural enclaves, brought down property values, and started judging and attacking the native-born citizens by their narrow, fanatical religious doctrine.

        M-maybe Michelle Malkin was right all along?

        1. Who’s the Jewish settler in this scenario? I’m confused.

          1. Why’s it always come back to the Jews for you, Paul? Hasn’t poor Underzog suffered enough?

            1. I’m told they’re responsible for everything. Or maybe I’ve been trolled.

        2. I didn’t realize that property values were so high in the near total absence of civilization.

      2. Plus why do we even have reservations anymore? Won’t the Indians be better off, generally, integrating to the larger society?

        My opinion, yes. The opinion of people who benefit from the reservation system? No.

        1. ^^ this

        2. The opinion of people who benefit from the reservation system? No.

          Who include, you must note, people who like having casinos and cheap smokes.

          An unsurprising result of the current system is the tenacity with which federally recognized tribes will fight to prevent other tribes from being recognized.

          1. An unsurprising result of the current system is the tenacity with which federally recognized tribes will fight to prevent other tribes from being recognized.

            The pie isn’t unlimited.

      3. Won’t the Indians be better off, generally, integrating to the larger society?

        Depends on where you’re standing. If you’re getting a check from the government to stay on land that you aren’t taxed on, I think your view might be just a bit skewed.

      4. Aren’t a lot of the reservations the end product of treaties that were signed between recognized sovereigns in the 1800s? I wouldn’t imagine that those treaties could be unilaterally abandoned.

        1. No, but like any treaty, it can be renegotiated.

    2. The law isn’t about what is good for the child, it’s all about what is good for the tribe and screw the child.

    3. Probably it was passed in rxn to a real or imagined campaign to “exterminate” tribes by dilution by adopting their children out.

  4. and it happened because of 3/256ths of Cherokee blood….

    Ahahahahahahahahahahah

    We’re so fucked.

    1. That’s how much Irish I have in my blood. And I refuse to acknowledge that I’m any part bog trotter.

      1. The mere fact that someone went through the effort to calculate how far removed this child was from its “Indian Heritage” proves we’re 100% fucked.

    2. Holy fuck. How do they even know that? In layman’s terms it means 3 of the child’s great, great, great, great, great, great grandparents were Cherokee.

    3. Yeah….I have more indian in me by far. That means two things; Jack and Shit.

  5. “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.””

    Gold standard? So ICWA should be abolished and anyone who wants to revive it should be marginalized as a kook?

    1. Exaclty, it leads to situations like this where the people are harmed for the sake of a ‘nation’ which seased being meaningful more than a century ago.

  6. Mr. Olson wonders why the law is handing out rights based on “race and lineage and other grounds ordinarily forbidden by our Constitution.” I wonder the same thing whenever I read about racial/racist (or gender) preferences in “affirmative action” or other government laws/practices including hiring, contracts and even Obamacare. The bigger question is why does the judiciary fail to uphold the Constitution? Probably because voters, due to either extreme stupidity or selfishness, knowingly elect racist and sexist politicians. These politicians then appoint a judiciary that will uphold their unconstitutional racist and sexist laws. They somehow believe that the appropriate response to prior racism and sexism if more of the same. Perhaps it’s like violence begetting more violence.

    That’s why we have an openly racist and sexist President and openly racist and sexist majority party in the Senate. It’s also why they felt comfortable appointing an openly racist and sexist Supreme Court Justice based on her race, gender and racist/sexist views.

    1. I wouldn’t say they’re open about it. The vast majority of their constituents and supporters don’t believe that their racist and sexist views are in fact racist or sexist. How can they be when coming from a black and/or democrat?

      1. Yes, they’re fucking insane. They claim to hate racism and sexism and yet they support racist and sexist laws. If you argue against “affirmative” racism and for colorblindness, they call you a racist.

  7. In all fairness/devil’s advocate:

    1. There’s a history in this country of Indian children being taken from their parents and given to white families to “civilize” them. This continued well into the 20th century.

    2. De facto, if not completely de jure, mothers typically have all the rights associated with legal parenthood with none of the responsibilities, while fathers have all the responsibilities and none of the rights. This case, either by design or not, has simply adjudicated a parental dispute in a gender-neutral fashion.

    1. If the mother had renounced all parental rights, would the father not have been able to give the child up for adoption after the mother changed her mind?

      IANAL, so I really don’t know, but I would think not.

      1. IANAL either, but my impression is, de jure, yes. De facto, the mother could very easily find a sympathetic judge who would agree she was “pressured” into giving up her rights.

        FYI I’m not one of those “men’s rights” morons, nor do I expect to ever go through a custody battle with a woman, being a heathen sodomite and all…

  8. Reservations were never intended to benefit any tribe. So now that there are some unintended consequences (benefits), the U.S.GOV. AND the people are all bitchy about it…

    … ha fucking ha ha

    Tlingit Veteran (USN)

    1. Ha ha ha! A two-year-old girl was taken from the only family she has ever known and given into the custody of strangers. Ha ha ha!

      1. This “strangers” is the father !

        1. That doesn’t mean fuck all to a two-year-old that doesn’t know him.

  9. Why was ICWA passed in the first place? According to http://en.wikipedia.org/wiki/I…..elfare_Act “The common Indian practice of leaving a child with an extended relative was viewed as abandonment by these well-intentioned social workers, but was viewed as perfectly normal by tribal members” — so social workers removed the kids from their native homes and put them up for adoption. But is wikipedia being politically correct? I also read that alcoholism, abuse of children, etc is more common on reservations — and maybe that’s the real reason why the kids are being removed. There’s a whole blog about this stuff at http://icwaishurtingfamilies.blogspot.com/.

  10. domestic relations conflictscitizenship based on race, lineage, and other grounds that are ordinarily forbidden under our Constitution

    The whole quasi-sovereign quasi-government tribal relationship is fucked up. Tribes want to be a government ? Then fuck the racial criteria. You get the restrictions that any other body from thr Feds to the dog control district. Want a race based organization? Fine, but as a private membership club.

  11. At issue before the Supreme Court is whether the Indian Child Welfare Act of 1978 (ICWA) allows the father to block the adoption in order to prevent the break-up of a putative Indian family.

    It would be a slam dunk “this is blatantly unconstitutional” decision if this read, instead:

    At issue before the Supreme Court is whether the White Child Welfare Act of 1978 (ICWA) allows the father to block the adoption in order to prevent the break-up of a putative white family.

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