"If we could appoint King Solomon, who was the first domestic relations judge, as special master we could do it," said Justice Anthony Kennedy during Tuesday's oral argument in Adoptive Couple v. Baby Girl. "But we can't do it."
In family cases, though, even Solomon was no Solomon. Faced with two competing claims of maternity, Solomon threatened to hack the baby in half with a sword.
There were no swords in the chamber Tuesday, but the words were sharp. Two usually smooth-as-silk advocates, Lisa Blatt (appearing for the couple seeking to adopt the "Baby Girl" of the case's title) and the Paul Clement (appearing as Baby Girl's court appointed guardian) all but screamed their outrage. Clement labeled the adoptive father's argument "crazy." Blatt seethed, "If you affirm below, you're basically banning the interracial adoption of abandoned Indian children. . . . You are relegating adopted parents to go to the back of the bus and wait in line if they can adopt. And you're basically relegating the child, the child to a piece of property with a sign that says, 'Indian, keep off. Do not disturb.'"
The Justices seemed to find in the case a mirror of their own obsessions: racial classifications (Chief Justice John G. Roberts), the rights of biological fathers (Justice Antonin Scalia), the welfare of children (Justice Anthony Kennedy), the prerogatives of state courts (Justice Samuel Alito), and women's rights (Justice Stephen Breyer).
What are the details of the case that has gotten all these parties so agitated? Adoptive Couple is a test of the Indian Child Welfare Act, passed in 1978 to put an end to a silent near-genocide being carried out in some states by child service agencies, who were removing American Indian children from their parents' custody under questionable circumstances, with the end result inevitably being the children's adoption and assimilation into non-Indian families. (In case you think the word "genocide" overblown, consider that at the time of the ICWA's adoption, authorities in Minnesota had put one-quarter of Indian babies under 1 out for adoption.)
The Act set up a complex series of presumptions and procedures that must be applied before an Indian child (defined as a child of tribal member and eligible for tribal membership) can be adopted by non-Indian parents. The Act gave tribal courts exclusive jurisdiction over adoptions of children living on reservations; it also gave both an Indian custodian of a child or the tribe itself the right to intervene in foster-care and adoption proceedings. Special formalities were required before an Indian parent could waive custody or parental rights, and an Indian parent could withdraw consent any time before a final adoption. Indian families were to have preference in adoption of Indian children. And children were not to be taken from an Indian parent unless a court found beyond reasonable doubt that "continued custody" by the Indian parent "is likely to result in serious emotional or physical damage to the child."
The child in this case was born in September 2009 to a Latina mother and a father who is a member of the Cherokee nation. The father, serving in the Army, offered to marry the mother; but when she declined, he refused to pay child support or take responsibility. The mother arranged an open adoption with a South Carolina couple. They took the child home and began to raise her. Five days after learning of the pending adoption, the father, returned from Iraq, intervened to block it; so did the Cherokee tribe. A South Carolina family court, applying the Act and South Carolina law, found that the father had not relinquished his rights and that he was a fit parent, entitled to custody. Had the father not been an Indian, his actions before the child's birth would have been enough under state law to extinguish his rights; but the Act's provisions, the state courts held, took precedence. At the age of 27 months, the child left the adoptive home. Her father took her to Oklahoma, where he is raising her amid extended family; he has refused contact with the adoptive parents. She has been with her father now for 15 months.
Alarm bells sounded in Indian country when briefs for the adoptive parents and for the guardian began to suggest that the Act might constitute a "racial preference" and thus be void under the Equal Protection Clause. A unanimous 1974 decision named Morton v. Mancari enshrined a fundamental doctrine of Indian law: federal preferences for Indians in areas like employment and health are "political rather than racial in nature"--meaning they are accommodations to Indian tribes as "dependent nations" rather than to the "race" of those favored.
An attack on Morton could set the stage for a wholesale gutting of federal Indian law. On Tuesday, however, only Roberts seemed eager to go that far in resolving the case of Baby Girl. Roberts has long made clear his contempt for what he has called in another context the "sordid business" of "divvying us up by race." Tuesday he seemed outraged that the child is only 3/256 of Cherokee "blood." He asked, "is it one drop of blood that triggers all these extraordinary rights?"
Remarkably enough, Scalia seemed to know more Indian law than anyone on the bench. He corrected Roberts's distorted notions by pointing out that federal law sets the rules for recognition of tribal membership.
Scalia, however, was mostly concerned with the rights of a biological father. The key question in the case was whether the father was a "parent" under the Act. State law said he had given up his rights; but the Act specifically protects "any biological parent" except "the unwed father whose paternity has not been acknowledged or established." The father had turned his back, but his biological paternity was unquestioned. "This guy . . . is the father of the child . . . and they're taking the child away from him even though he wants it," Scalia said to Blatt. "[I]t seems to me he's the father, the other woman's the mother, that's the--that's the Indian family, the father, the mother and the kid."
Kennedy seemed troubled that the statute might displace state custody rules, which center on "the best interest of the child." Alito sounded concern for state law as well. "[F]amily law is traditionally a State province," he asked Edwin Kneedler of the Solicitor General's Office, who argued in support of the Act, "but your argument is that Federal law can take a traditional family law term like 'parent' and perhaps others and give it a meaning that is very different from its traditional meaning or its meaning under State law?"
And Breyer posed this bizarre hypothetical to Charles Rothwell, representing the father and the tribe: "a woman who is a rape victim who has never seen the father could, would, in fact, be at risk under this statute that the child would be taken and given to the father who has never seen it and probably just got out of prison, all right?" Rothwell responded that the Act allows termination if there is a danger of "serious emotional or physical damage to the child."
On the other side, Justice Sonia Sotomayor was on fire in her eagerness to defend the Act. Her questions for Blatt and Clement were so aggressive that she was shushed like a child not once but twice, first by Roberts and next by Scalia. Justices Ruth Bader Ginsburg and Elena Kagan seemed to be leaning toward support for the statute. Breyer, and his haunting hypothetical, may hold the balance in what seems likely to be a 5-4 decision.
The Court will most likely decide whether the father is a "parent" within the meaning of the Act, and then send the case back down to South Carolina's courts. If the father is not a "parent" under the Act, the child will probably head back to the adoptive parents; if he is, she is likely to stay in Oklahoma.
When argument ended Tuesday, dozens of Native American spectators stood and left the courtroom. On the sidewalk outside, Indian demonstrators chanted, prayed, and burned cedar and sage incense. The Justices turned their attention to the full extent of federal preemption worked by the Federal Aviation Administration Authorization Act of 1994. It is the sort of question the Court seems more suited to decide, and probably one its members turned to with relief.