Commentary

The Constitutional Flaws of the Indian Child Welfare Act

“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.

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.”

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.

Walter Olson is a senior fellow at the Cato Institute’s Center for Constitutional Studies.