Walter Olson on the Constitutional Flaws of the Indian Child Welfare Act


Credit: Library of Congress

Last Tuesday the Supreme Court head oral argument in the case of Adoptive Couple v. Baby, otherwise known as the Baby Veronica dispute. The case 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. 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. As Walter Olson observes, the harder you dig into the premises behind ICWA, the more you wonder 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.