Yesterday, in Adoptive Couple v. Baby Girl, the Supreme Court dodged the constitutional flaws of the Indian Child Welfare Act, instead choosing to rely on statutory interpretation to reverse a lower court’s troubling decision. The very first sentence of Justice Alito’s majority opinion hints at one of the underlying constitutional difficulties with ICWA, its assignment of family-law entitlements by race: “This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee.” Justice Thomas’s important concurrence points to another reason to doubt the statute’s constitutionality—its ouster of state courts from their traditional supremacy in family law, based on sources of federal authority (such as the Indian Commerce Clause) that have never been recognized as supporting such ouster.
Justice Sotomayor’s dissent has some force in arguing that the majority is departing from the most natural reading of ICWA’s text, as well as Congress’s likely intent, and in particular that it may be casting doubt on some rights of biological, noncustodial Indian fathers that Congress may have intended the law to protect. As Justice Thomas rightly argues, however, today’s ruling makes sense in light of the doctrine of constitutional avoidance, in which the Court construes doubtful laws so as to avoid possible unconstitutionality. Eventually, if not in this case, ICWA’s constitutional difficulties will be back before the Court in a form it can’t evade. My April coverage of the case in Reason is here; background at SCOTUSBlog, RadioLab. [cross-posted from Cato at Liberty]
P.S. Feelings run high on both sides of the Baby Veronica controversy. The Christian Alliance for Indian Child Welfare has backed the Adoptive Couple side and seeks reform of ICWA. By contrast, talk show personality Melissa Harris-Perry recently described adoption by non-Indians of kids with Indian blood as “transnational baby-snatching” [MSNBC, at 2:27] Another opposed view: Steve Russell, Indian Country Today [“The enemies of Indian sovereignty understand the 14th Amendment equal protection clause to be their friend.”]
7 Comments
How can someone who is 1.2% Cherokee be considered Cherokee? This sounds suspiciously like the one-drop rule for blacks in the old South
1.2% — Justice Sotomayor’s idea sounds like some of the Jim Crow laws. If you have “one drop”…
My husband is 12.5 percent Chocktaw, which makes both my blond haired, blue eyed kids, more Native American , than this baby.
My husband’s grandfather was half Chocktaw, but not on the tribal roles. Crazy world, isnt it?
Memo to “fathers’ rights” groups complaining about this decision:
If you want to gain the rights of a father, find a woman who is willing to marry you.
(I sympathize with married fathers and assessed child-supporters who get the brush-off from a biased family-court system, but those are separate issues.)
The Equal Protection clause: 1 strike and discrimination’s OUT.
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