When it ruled that a Cherokee girl could be returned to her adoptive parents, the Supreme Court came close to invalidating an act that has protected Indians for 40 years. It could have been worse, writes Marcia Zug
On Tuesday, the Supreme Court decided Adoptive Couple v. Baby Girl. As an ardent supporter of the Indian Child Welfare Act (ICWA), the act at the heart of this case, my initial reaction was, “it could have been worse.” If fact, two months ago I wrote an article detailing the numerous ways the Baby Girl decision could decimate ICWA and even destroy most federal Indian law legislation. However, Tuesday’s decision was a narrow one. Only one justice, Justice Thomas, decided to directly question the constitutionality of ICWA, while the remaining justices who formed the 5-4 majority based their decision on a very limited reading of a particular provision of ICWA.
ICWA is a federal statute that was passed in 1978 in response to the disproportionate removal and adoption of Indian children. One of the ways in which the act attempts to prevent unnecessary removals is by forbidding the involuntary termination of an Indian parent’s parental rights unless “continued custody” with the parent would pose a serious risk to the child. In yesterday’s decision, the Court interpreted this provision as limited to Indian parents who had previously exercised legal or physical custody of their child. According to the court, any other interpretation did not comport with the well-established meaning of “continue.”
Consequently, on its face, the Baby Girl decision is a limited one. This fact is further supported by Justice Breyer’s concurrence. In his concurrence, Breyer recites a long list of scenarios potentially implicated by this decision but which he explicitly states are not addressed by it. For example, Breyer notes that this case does not involve or decide whether involuntary termination is applicable to an Indian father with visitation rights, or a father who has paid child support, or a father that was deceived about the pregnancy. Instead, Breyer notes, the Baby Girl decision is fact specific and does not decide “more than is necessary.”
Nevertheless, despite the repeated reassurances that Baby Girl is a limited decision, there are indications in the Court’s opinion that a sweeping Indian law case may be on the horizon.
The most effective and permanent way to get rid of ICWA and other statutes like it would be to hold that statutes singling out Indian people for different treatment are an equal protection violation and unconstitutional. Although such concerns only appear as dicta in Baby Girl, there is no question that they are present.
The very first line of the case describes Baby Girl’s blood quantum, “1.2% (3/256) Cherokee”. Moreover, this racial recitation is not done as a neutral or factual explanation as to why Baby Girl is considered Cherokee. Instead, Justice Alito, author of the majority opinion, recites this fact to emphasize how racial criteria are being used in ways that potentially harm Indian children.
Although Alito raises the specter of an equal protection violation, he notes that such concerns are not implicated by this case because the Court finds ICWA inapplicable. However he also notes that any interpretation of ICWA “that would put certain vulnerable children at a great disadvantage solely because an ancestor – even a remote one—was an Indian” would raise grave equal protection concerns.
The Baby Girl decision was issued a day after the Fisher v. Texas affirmative action decision and on the same day the Court struck down a key section of the Voting Rights Act. Although the Court may have avoided addressing equal protection concerns in this case, it is clear that the racial implications of ICWA were considered and that they may be reconsidered in the near future.
This issue was previously addressed in a 1974 case called Morton v. Mancari, in which the Supreme Court upheld hiring preferences for Indians. The Court found these preferences constitutional because it acknowledged that “Indian” is a political affiliation rather than a racial group. This distinction is the reason why a person with 1.2% Indian blood can be “Indian” while another person with 50% Indian blood may not be. As the Mancari Court explained, tribal membership and blood quantum requirements are determined by tribes. Consequently, based on the Mancari reasoning, Baby Girl is an Indian child because she is a member of the Cherokee nation. She is not 1.2% Cherokee, she is simply Cherokee. This distinction between race and political affiliation has justified special legislation for Indian people for decades, but the majority’s opinion indicates that this distinction may soon be questioned.
Nevertheless, for now, most of ICWA remains intact. Even the lower court’s custody decision will likely continue. Although the Court ruled that ICWA does not bar the family court from terminating Dusten Brown’s parental rights, the Court’s decision certainly does not require that result. On remand the family court will consider whether termination is in Veronica’s best interest and it is hard to imagine the Court will take her away from a second loving home.