Here.
This much is clear: If one did not know that this small family was at the center of one of the most important Indian law cases in the last 30 years, the Browns would seem like any other family at 6 o’clock in America. Two tired parents, a three-year-old with endless energy, dinner on the stove, dogs yapping, geese squawking and a house in the middle of remodeling. In military-speak, they are squared away.
We thought it would be helpful to make available a few useful law review articles that parse through the issues raised in the Baby Veronica case.
Indian Child Welfare Act: generally and legislative history
B.J. Jones, The Indian Child Welfare Act: In Search of a Federal Forum to Vindicate the Rights of Indian Tribes and Children against the Vagaries of State Courts, 73 N.D. L. Rev. 395 (1997) (PDF)
Patrice Kunesh-Hartman, The Indian Child Welfare Act of 1978: Protecting Essential Tribal Interests, 60 U. Colo. L. Rev. 131 (1989) (PDF)
Existing Indian Family Exception
Barbara Atwood, Flashpoints Under the Indian Child Welfare Act: Toward a New Understanding of State Court Resistance, 51 Emory L.J. 587 (2002) (PDF)
Christine Metteer, The Existing Indian Family Exception: An Impediment to the Trust Responsibility to Preserve Tribal Existence and Culture as Manifested in the Indian Child Welfare Act, 30 Loy. L. A. L. Rev. 647 (1997) (PDF)
ICWA Constitutionality
Matthew L.M. Fletcher, ICWA and the Commerce Clause, in The Indian Child Welfare Act at 30: Facing to the Future (2009) (PDF)
Here. Judge Allie Maldonado, Judge Tim Connors, and our own Kate Fort are interviewed. [Everyone’s name is spelled wrong, but there’s no spelling on radio….]
An excerpt:
The state law is called the Michigan Indian Family Preservation Act. People in the know shorten it to MIFPA.
As State Court Judge Tim Connors sees it, the law could be a model for the whole state. He get’s really passionate about the law, going so far as to call it “salvation” and “a tremendous gift.” Connors sees MIFPA’s approach as an alternative to breaking apart families when the state takes children away from their parents. Connors is not afraid to say what he thinks about that approach. “The truth of the matter is that what we do in our state courts and (sic) family courts is very destructive to families, to individuals, to children,” he says.
The tribes want families kept out of this system. Their history and a ton of statistics tell them it takes kids a long time to get out, and it can be pretty damaging.
Tribes would rather parents get the help they need to be better parents and keep a family together.
Of course that isn’t always possible. Abusive and neglectful parents should not get to keep their kids under MIFPA or any other law.
But for many other families who have problems, MIFPA says the state needs to work a little harder to connect Indian families to the resources that can make a difference for them and their children. It’s called an “active efforts” requirement. Judge Connors explains it to himself as “following through” and “walking the talk.” Connors also says he thinks the active efforts requirement should be the law for all kids in the state.
Judge Connors highlights something that always gets lost in discussions about the Indian Child Welfare Act — ICWA and MIFPA really are best practices statutes, and when someone asks why Indians should get a “special” statute, the answer is that every child should have these legal rights.
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.
Here.
[Blatt’s] line of argument fell flat with at least three Justices – Scalia, Ginsburg, and Sotomayor – who throughout the argument generally regarded the case as covered by the plain language, even if not the purpose, of ICWA. Justice Elena Kagan’s vote was less certain, but she also seemed to at least be leaning that way: she pressed both Blatt and Deputy Solicitor General Ed Kneedler, representing the federal government as an amicus, to explain why, if Father is a “parent” for purposes of ICWA, he wouldn’t also be able to rely on the protections of Sections 1912(d) and (f). What, she asked Blatt, is the point of labeling Father as a “parent” if he doesn’t have any rights as such? Returning to this topic again later, Justice Kagan suggested that the Adoptive Couple’s construction of the law would effectively create two classes of parents under the statute – those with the protections provided in subsections (d) and (f), and those without. If Congress intended to do so, she queried, why didn’t it say so more explicitly?
At least three other Justices – the Chief Justice and Justices Breyer and Alito – seemed inclined to agree with Blatt and interpret ICWA more narrowly, particularly given what they clearly regarded as Baby Girl’s somewhat tenuous link to the Indian Tribe in question, the Cherokee Nation. Thus, the Chief Justice expressed some astonishment that “one drop of blood” could “trigger[] all these rights” under ICWA; both he and Justice Alito also tried to test the limits of the position taken by Charles Rothfeld, representing the Father, by asking him about a scenario in which the Tribe would allow virtually anyone to join the Tribe, regardless of whether the would-be members had any actual Indian ancestry. On this point, Justice Scalia chimed in to suggest that the hypothetical was a “null set” because there are federal criteria, including some blood relationship, that must be met for a Tribe to receive federal recognition. Rothfeld countered that in this case Father has significant ties to the Cherokee Nation, but in any event this is an issue that Congress or the executive branch can address.
This first analysis will have two components. The first component is an account of how many questions each side received. The rule of thumb — the side getting the most questions from the bench loses.
I have two counts: the first being mere interruptions (as noted in the transcript) and the second being a more careful count of actual questions (and by questions I include interjections and statements).
Count 1 (total interruptions): Petitioner side (both Blatt and Clement) interrupted 71 times; Respondent side (both Rothfield and Kneedler) interrupted 72 times. Blatt (arguing 20 minutes, including rebuttal), interrupted 59 times; Clement (arguing 10 minutes, plus additional time granted by Roberts, C.J.) interrupted 13 times). Rothfield (arguing 20 minutes, plus additional time granted by Roberts, C.J.) interrupted 53 times. Kneedler (arguing 10 minutes) interrupted 19 times.
Count 2 (total questions): Petitioner side — 57 questions; Respondent side — 66 questions.
In either count, the petitioner has a slight edge. Based on questions and interruptions in total, it is clear that Paul Clement (to whom the Court granted a short period of extra time) was the most successful in oral argument, followed by Charles Rothfield. Both Lisa Blatt and, especially, Ed Kneedler, faced more scrutiny than did the others.
The second component is a quick look at whether this case will be decided on constitutional/federal common law grounds or statutory interpretation grounds. This is more important to me than who wins, even. As those of you who heard my talk at Fed Bar last Thursday, I believe this case is a winner for Indian country overall if it is decided on statutory interpretation grounds, even if the Cherokee Nation and the Father lose, because it will mean that the Indian Child Welfare Act survives to fight again another day. With a few exceptions, mostly relating to questions from the Chief Justice and Justice Scalia, constitutional/federal common law questions rarely came into the discussion today, even during Mr. Clement’s portion of argument (he had raised questions on the constitutionality of ICWA). However, both Mr. Clement (who raised then-DOJ lawyer Patricia Wald’s constitutionality analysis), and Ms. Blatt (who offered up a canned attack on the broadest possible implications of the case at the end), both raised the question, to be sure. Even so, the vast, vast majority of the discussion involved the interpretation of ICWA, not the constitutionality of ICWA.
So, given these factors, my prediction is that the petitioners stand a better chance to win, but the Indian Child Welfare Act stand a good chance of survival.
Kate Fort and I will be posting more on the argument as the day moves on.
Here.
TT analysis to follow shortly.
Ugh.
Here.
John Echohawk, Jaqueline Pata, and Terry Cross have a scathing op-ed on Politico here.
An excerpt:
Poke beneath the basic facts, though, and you will find the ugly underbelly of the American adoption business. All across this country – but especially in states that are home to multiple Native American Tribes – unethical adoption attorneys are purposely circumventing the federal law that is meant to protect Native American children. Even worse are the continuing attempts by some adoption lawyers to take advantage of active duty service members in the process of being deployed to combat, or in active deployments.
Brown’s case is a sad example of both of these disturbing trends. At its very heart, this case is about a father’s deep desire to raise his daughter, named Veronica. Veronica’s mother and Brown were engaged when she was conceived, but her mother broke off the engagement while Brown was serving in the Army and stationed at Fort Sill, Okla. Unbeknownst to Brown, his fiancé began the process of placing her child up for adoption.
In the final months of pregnancy, the mother cut off all communication with Brown and worked closely with an agency and attorney to place the child with a non-Indian couple from South Carolina, the Capobiancos. Brown was not informed of Veronica’s birth on September 15, 2009. Instead, Veronica was placed with the Capobiancos three days after her birth in Oklahoma, and they relocated her to South Carolina shortly thereafter.
Four months later, the day before Brown’s scheduled deployment to Iraq, the couple’s lawyer (who was also the lawyer for the adoption agency) finally served Brown with notice of their intent to adopt Veronica. The notice was served to Brown in the parking lot of a mall.
Turtle Talk 
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