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.