By Matthew Fletcher and Kate Fort
This second read-through incorporates a broader analysis of how the argument went on the merits.
Best Interests of the Child
While it’s true oral argument advocates exaggerate their arguments in order to make a point, Lisa Blatt’s arguments in Adoptive Couple v. Baby Girl today were particularly onerous. From claiming that this case “involves accretion and conscripting other people’s children to grow the tribal population based solely on biological link” (p. 19, lines 16-18) to her comment about the white adoptive parents being at “the back of the bus” (page 62 line 20), she pushed so much anti-tribal and racial animus claims it is hard to keep up. Beyond that, her claim that there was no best interest determination was just plain wrong—as Charles Rothfeld pointed out immediately — the first line out of his mouth:
It is simply false to say that this child’s custody was transferred without a best interest determination, as is apparent from any reading of the lower court decisions in this case. (page 30, lines 20-23)
The Justices did seem to get the distinction between a best interests determination and determining the unfitness of a parent. They also seemed to understand that the father in this case is a fit parent, ready, willing, and able to parent his child. They appeared to recognize that allowing a best interests of the child standard to be used against a fit parent would create rights for a child far beyond what has been acknowledged so far by the Court: (pages 36-37, lines 20-25, 1-3):
JUSTICE GINSBURG: But I think Justice Breyer is quite wrong because a standard that says results in serious emotional or physical damage to the child is far from a best interest standard.
JUSTICE SCALIA: It sure is. And do you know of any State that — that applies best interest of the child standard to termination of parental rights as opposed to adoption?
MR. ROTHFELD: Absolutely not.
Interpretation of Sections 1912(d) and (f)
Perhaps because of its commitment to preserving the OSG’s reputation for objectivity, the federal government was of little help to tribal interests. The SG’s admittedly confusing position of claiming 1912(d) applies (what we know as active efforts, what Blatt characterized as an “exhaustion obligation” (page 8, line 11) and what Justice Kagan called the “curing provision” (page 58, line 14)), but 1912(f) does not (the heightened standard for termination of parental rights), the government may have done more harm than good. In fact, the interpretation about how ICWA is a balancing statute between two sovereigns, the state and the tribe may not be all that persuasive to the Court. This line of argument may be the deciding factor for the case. In a vast majority of cases, a child would not be in the custody of her parents when there is a termination of parental rights hearing. In an abuse and neglect case (which this is not), the child would have been removed, and the court would make the determination about “continued custody” while the child was in foster or family care — not, generally, while the child was in the actual physical custody of the parent. To interpret 1912(f) otherwise eliminates the provision for virtually all parents under ICWA.
Another question is if Justice Scalia believes everything he was saying in oral argument. He is “quite sure” (page 42, line 13) he is right on how tribal membership is determined and ended up shutting down Chief Justice Roberts concern about random groups of people calling themselves tribes and getting the protection of ICWA. Scalia also talked about the legislative policy of the law, argued with the government about the separation of sections 1912 (d) and (f), and stated an “Indian family” is a father, a mother, and a kid, with no additional requirements.
Assorted Weirdness — Chief Justice Roberts Edition
The Chief had to go there — he asks counsel for the Birth Father about blood quantum on pages 38-29, lines 25-25, 1-6:
If — if you had a tribe, is there at all a threshold before you can call, under the statute, a child an “Indian child”? 3/256ths? And what if the tribe — what if you had a tribe with a zero percent blood requirement; they’re open for, you know, people who want to apply, who think culturally they’re a Cherokee or — or any number of fundamentally accepted conversions.
It’s so easy to attack the Cherokee Nation on blood quantum. On one hand, everyone and their brother thinks they have a Cherokee princess in the ancestry. On the other hand, there’s sort of a Cherokee obsession about blood quantum when it comes to the Freedmen. The Cherokees do use a lineal descendancy membership rule. But you still have to prove blood quantum, using the 19th century rolls, and yes even 3/256ths will do the trick. But the Chief Justice’s obsession with fractions, as one our of esteemed and fearless commentators noted in an email to us just now, “very easily could have been applied to John Ross — our chief at time of removal. He was 1/8th Cherokee, which by the CJ’s logic is almost zero Cherokee. Almost zero Cherokee was enough to get your butt marched west. And his wife, probably not all Cherokee either, died in Little Rock along the way.”
Assorted Weirdness — Adoptive Parents as Victim
Ms. Blatt’s final entreaty to the Court was that a ruling against her clients would”relegat[e] adoptive parents to the back of the bus….” (page 62, line 19-20). Naturally, since Chief Justice Roberts is an adoptive parent, she probably thinks she has a receptive audience. Why she felt she needed to do this baffles me. If it was wasn’t clear already from the Chief’s snarkily false comments about Indian identity, she has his vote. What’s this about?
We found this to be terrifically offensive.
Last we checked, it costs adoptive parents $27,500 to adopt a child (see here: In re TSW, page 127). The vast majority of American Indian families (and other people of color, frankly), who reside in the poorest socioeconomic categories in the United States when it comes to income, cannot afford to adopt a child. We fear Ms. Blatt is arguing for the power of white families to adopt; she is most certainly arguing for the power of wealthy families to adopt).
The Possible Line-Up?
As Matthew said at Fed Bar, a decision in Adoptive Couple that rides on constitutional law (federal common law, or federal Indian law) likely will be more ideological than tribal interests can withstand (as in, they don’t have the votes). We think this one is going to be decided through an interpretation of the statute, as SCOTUSblog’s analysis of the oral argument seems to confirm.
Assuming Justice Scalia is not being facetious (but, seriously, how can one predict?), oral arguments made it sound like Justices Sotomayor, Kagan, and Scalia voting for father, Chief Justice Roberts, and Justices Kennedy, Alito, and Thomas (he never votes for Indians) against, with Breyer and Ginsberg up in the air. As Justice Sotomayor stated, we can’t believe any of them “want to be that judge” (page 24, lines 9-10), the judge who takes the child away from her father after nearly two years.
Turtle Talk 
Ms. Blatt has it right. The average cost of adoption or $27,500 is alot of money. It could be spent to reduce economic disparities or to encourage greater transparency and less discriminatory policies. It is self indocrination at its most blatant!
good job, Matthew
I should feel better reading this but I don’t. As an adoptee and as someone who lost her connection to tribe and relatives (because my adoption was prior to the ICWA), I could be this child. My father said he would have raised me if he had known. I would want my father to fight for me. I want this father to have the right to raise his daughter. Racism/ignorance about Indian people by any authority should not be tolerated, What century are we in?
I would like to suggest that it is really not such a great idea to try to predict USSC votes on the basis of questions asked or comments made during oral arguments. It’s just not a reliable basis for prediction, especially in a case like this one.
And this case is of such a different nature than the usual controversial case that gets to the Court, I’m thinking that the usual 5-4 split along ideological lines isn’t going to be what shapes this decision. In fact, my prediction is that Justice Scalia wants to use this as a case to reinforce strict statutory interpretation, and that he’ll side with the father, following a strict interpretation of ICWA, AND that Scalia will bring along others with him. I’m thinking 6-3 or 7-2 in favor of the father. Could easily be wrong, of course, but that’s my guess. FWIW.
We can only hope…
Thanks for breaking this down for us and providing us links!
The following analysis misunderstands the US position: “[T]he child would have been removed, and the court would make the determination about ‘continued custody’ while the child was in foster or family care — not, generally, while the child was in the actual physical custody of the parent. To interpret 1912(f) otherwise eliminates the provision for virtually all parents under ICWA.”
Pursuant to the US interpretation, “custody” in 1912(f) encompasses both legal and physical custody. As a result, the parents in your hypothetical (who have had their child removed from their home) still have legal custody over the child. Thus 1912(f) would apply with full force.
In Adoptive Couple, however, the US argues that the heightened burden in 1912(f) does not apply (although the applicable state standard would apply) because the biological father has neither physical nor legal custody.
While the point is absolutely well taken, I would only respond that we have seen courts blur and metastasize distinctions like that into much broader holdings against Indian people and tribes. Claiming (d) applies while (f) does not is an unnecessarily narrow and confusing reading of the statute regardless.
KF
Perhaps, but this is a tough case, requiring scrutiny of imprecise and confusing ICWA provisions. The meaning of “continued custody” in 1912(f) is far from clear. Congress should have used “custody” or “parental rights,” if it wanted to reach the situation of the unwed father. In a more perfect world, Congress would fine-tune ICWA; unfortunately, the powerful adoption industry/lobby (which seems to have taken a page from the NRA playbook) would try to use any amendments to ICWA as an opportunity to gut the Act. re
Well, stated…and yes, ICWA review by the current Congress or given the general political status would not be adviseable!
I do not find the issue in the Baby Veronica so complicated.
ICWA establishes placement preferences in adoptions of Indian children. An Indian child can be a defined as an unmarried minor who is the biological child of an Indian tribal member. The associated tribe has the right to notice and to intervene in the adoption proceeding when the court has reason to believe that the child is an Indian child. ICWA prefers placing the Indian child within the tribe. A tribe’s interest in retaining its children cannot be defeated by the acts of individual tribal members. Holyfield.
Here, the adoption petitioners were trying to terminate the parental rights of the putative father so they could adopt the child. The court had reason to believe that Veronica was an Indian child because her mother told the parties that the putative father was Cherokee. That gave the tribe right to receive notice of the adoption petition and to intervene at any time. The adoption petitioners gave the tribe that notice. When the putative father’s paternity was established, the tribe intervened. The adoption petitioners argued that because the father abandoned the mother, he has no rights, making ICWA inapplicable and justifying the return of Veronica to them.
Those arguments lack merit. The tribe must have an interest in intervening that differs from the father’s interest, lest their intervention be pointless. That interest is to enforce the placement preferences when a parent cannot or will not take custody of the Indian child. Otherwise, the father’s action of abandoning the child lets the tribe be defeated by the actions of an individual tribal member. So even if the father lost his rights, the tribe can enforce the preference for tribal placement.
The placement preferences apply unless placement within the tribe would, in itself, harm the child. As the South Carolina Supreme Court held, the time the child lives with the adoption petitioners during the litigation does not, in itself, constitute good cause. Otherwise, ICWA could routinely be thwarted by placing the child initially with strangers before notifying the tribe. The South Carolina courts found insufficient evidence of potential harm. Accordingly, the adoption petitioners lose this case.
To me, this is a case of federal pre-emption, because the paternal rights of the biological father were recognized under federal law but not under South Carolina law. Whether paternity requires more than biological parentage, or whether 1912(d) or (f) applies, are both issues which are only consequential to the fundamental error of treating the father’s rights as having been terminated by operation of South Carolina law.