Upon reading my first column on the Baby Veronica oral argument, a policy wonk friend of mine wrote, “This is not about race. It is about treachery.”
She could be right. If you searched the Cherokee Nation registry for my name, you would have to know it appears there as “Stephen.” Did the adoption lawyers make an innocent mistake or accomplish purposeful deception? What about timing the adoption to coincide with the Cherokee father’s deployment to Iraq? Biology rather than tactics could have driven the adoption lawyers. Treachery implies purpose.
Purposeful or not, there’s a foul stench of treachery around the case that would exist without the Indian Child Welfare Act. The purpose of ICWA is to protect tribal cultures, not to give individual Indians a weapon in child custody cases. But without ICWA, this garden variety injustice to a GI father could never have attracted the resources to make a federal case of it, let alone a SCOTUS case.
The Petitioners in the Supreme Court, the adoptive couple, had just opened up the issue of race—whether ICWA puts an unfair thumb on the scales based on the race of one parent—when Charles Rothfeld rose to argue for the Cherokee father.
Rothfeld pointed out that the trial court had found the father to be a fit parent and suggested that amounts to a “best interests of the child” determination.
Chief Justice Roberts immediately went on the racial attack: “Where in …(ICWA) does it say that you need to consider whether or not the father…would be a good parent? I thought your reading was that it doesn’t matter, all that matters is that he has in his case 3/128ths Cherokee blood.”
Justice Stephen Breyer wanted to know if ICWA “has something of the best interest standard tilted towards the Indian parent?”
There was much back and forth about whether ICWA applies to an adoption case or only a termination of parental rights.
Non-lawyers need to understand that if, at the moment the father surrendered his parental rights to the mother, they terminated, then the adoptive parents would be correct that he was reduced to the status of “sperm donor.” The father’s position is that the purported termination was defective for failure to comply with ICWA. That failure meant that the tribe could not intervene to protect tribal interests.
Chief Justice Roberts kept returning to whether ICWA is racial privilege, and whether it’s even rational when understood as racial privilege: “(W)hat if you had a tribe with zero percent blood requirement; they’re open for, you know, people who want to apply, who think that culturally they’re a Cherokee…?”
Rothfeld had to admit that in that case ICWA would apply, leading Justice Breyer to chime in “…that is a problem…as it appears in this case (the father) had three Cherokee ancestors at the time of George Washington’s father.”
Justice Breyer then wanted to know whether a woman who was raped by an enrolled Cherokee, who did not want to raise the rapist’s child but did not want an abortion, would have to surrender custody to the rapist?
Justice Scalia wanted to know, and Indian policy wonks need to pay attention here to the degree of ignorance, “Aren’t there federal definitions of approvals of tribes? Not every group of native (sic) Americans who get together can call themselves a tribe.”
Chief Justice Roberts was still troubled that “…one drop of blood triggers all these extraordinary rights?”
I would not have done well in the argument, because I doubt I could have refrained from lecturing the Chief Justice of the United States on the history of one drop of African blood triggering extraordinary disabilities.
Had I done so, he could have said I was precisely right, but we are beyond such things now, so what is the moral and legal justification for race law in the 21st century? This is exactly where the adversaries of Indian sovereignty want us.
One way to respond is to cling to blood quantum, which puts the game on their playing field and determines the eventual outcome, because over half of Indian marriages are exogamous.
Another way to respond is to cling to culture. The US imposes an examination for naturalized citizenship that tests knowledge of the history and culture of the country. No Indian nation goes this far, let alone giving the test in a Native language.
Speaking of ignorance, Justice Samuel Alito wanted to know if a tribe could establish DNA testing as a citizenship requirement? At least, I assume he’s ignorant of the fact that DNA cannot tell one Indian tribe from another and can only establish a statistical probability that a person is of indigenous descent.
Faced with a parade of imagined horribles, Rothfeld retreated to the position that the federal government would not allow it, would withdraw recognition from a tribe if the US disagreed with its citizenship criteria. This is not an answer that would satisfy most Indian lawyers.
With a little help from Justice Sonia Sotomayor, Rothfeld finally extracted himself from the racial thicket and went on to why this was an “Indian family” within the meaning of ICWA.
Justice Scalia interrupted again with another clue to how he views the case in very traditional terms. Was it not true, he asked, that the Indian father offered to marry the mother? Yes, it was true.
Rothfeld cited the trial court’s finding that the Indian father was “excited about” the pregnancy and looked forward to marrying the mother so the child could get GI benefits while he was in a combat zone. This set up a laugh line at the father’s expense.
Chief Justice Roberts, after eliciting from Rothfeld that the father had paid no costs of the pregnancy and no child support: “So he was excited by it; he just didn’t want to take any responsibility.”
The next lawyer up was Edwin Kneedler, representing the Obama administration through the Solicitor General’s office, and taking the side of the Indian father.
Justice Alito, in a stunning display of hypocrisy, wanted to know if a federal law (ICWA) could disturb family law, which has traditionally been a province of state law? This comes on the heels of the Defense of Marriage Act case, where the conservative position was exactly that: the federal government could deny benefits to gay couples who were lawfully married under state law.
Another way to read Alito’s comment is that the SCOTUS has already voted on the DOMA case, with a clear majority holding family law to be state law, and he is breaking the confidentiality of deliberations to accuse the majority of hypocrisy, challenging them to say why ICWA can insert federal law into the family and DOMA cannot.
Kneedler then became the first lawyer in the case to mention the separate sovereigns doctrine, an application of which would recognize the family law of the Cherokee Nation being as relevant as Oklahoma or South Carolina law. He argued that the purpose of ICWA is to allow the tribe to protect its citizens and potential citizens.
Justice Breyer pulled the conversation back to the rapist or sperm donor who happens to be an Indian.
Chief Justice Roberts wanted to know whether the adoptive parents were required to provide the remedial services for an Indian parent set out in ICWA?
Kneedler replied no, but they had to demonstrate that the tribe had the opportunity to do so. With that, the Solicitor General was out of time, and Lisa Blatt offered the closing argument, for the adoptive parents.
“If you affirm (the South Carolina courts’ application of ICWA), you're basically banning the interracial adoption of abandoned Indian children.”
Justice Sotomayor: “Counsel, this Act, in terms of voluntary surrender of Indian children by parents, says that it's not final for an adoptive parent until the court does the adoption decree. It gives the mother the right—or father—to rescind the voluntary adoption till the very last minute. Has that stopped voluntary adoptions?”
Undeterred, Blatt continued “…you're basically relegating the child… to a piece of property with a sign that says, ‘Indian, keep off. Do not disturb.’ This case is going to affect any interracial adoption of children.”
Justice Scalia interrupted: “That was its intent.”
Perhaps recoiling from the beating she took in her first argument, Blatt engaged Scalia in a spirited disagreement about the intent of ICWA.
Justice Scalia: “Now, maybe you—you disagree with that policy, but that's clearly a policy behind the law”
Blatt: “No, I think the policy is fantastic. It was talking about Indian families who were being ripped away because of cultural biases and insensitivity. This case didn't involve cultural biases.”
Blatt went on to point out correctly that even with two Indian parents, both of whom had renounced their tribal citizenship (“withdrew their tribal membership”), the Cherokee Nation would still have standing to contest the adoption. Time ran out before she could say why she was troubled by this or, more to the point, why the SCOTUS should be troubled.
It seems probable that the SCOTUS will agree this particular case was more about treachery than about race, although they’re unlikely to use either word in the opinion. Indians need to understand that every federal Indian law case the SCOTUS considers carries the subtextual argument that all of Title 25 of the United States Code (“Indians”) is unconstitutional because it advantages some US citizens over others based on race.
The conclusion may be to beat up my tribal government for failure to enforce a blood quantum. In light of the marriage patterns of Indians, that just postpones the inevitable result of blood quantum.
Others may join me in beating up my tribal government for not erecting cultural barriers to citizenship.
One thing is certain. The enemies of Indian sovereignty understand the 14th Amendment equal protection clause to be their friend. For those of us who have signed on as briefcase warriors, to protect Indian people from those who would do them harm, that is the battle we must join.