The Supreme Court has decided to hear the “Baby Veronica” case:
The custody case pertains to a 3-year-old Cherokee girl born in Oklahoma in 2009 to an unwed couple, the non-Native Christina Maldonado and Dusten Brown, an enrolled member of the Cherokee Nation. Without the father’s consent, Maldonado agreed to pre-adoptive placement. When Brown learned of the adoption, he immediately sought custody of Veronica, who was living with the adoptive couple, South Carolina residents Matt and Melanie Capobianco.
On December 28, 2011, the South Carolina Appellate Court ruled the Indian Child Welfare Act (ICWA) trumped state law. On New Year’s Eve, Brown took his daughter home to Bartlesville, Oklahoma, a neighboring city of the Tahlequah-based Cherokee Nation.
On the surface, this is a case about balancing the competing rights of a biological father and adoptive parents. The adoptive parents, for their part, appear to be presenting a fairly narrow question: whether ICWA bars a state court from terminating the parental rights of a non-custodial Indian parent when the custodial non-Indian parent has initiated an adoption process with non-Indian adoptive parents.
But I happened to talk to a lawyer last week who had his eye on this case, and he thinks the Court is itching to reconsider, and limit, a foundational case in federal Indian law, Morton v. Mancari. Mancari essentially rescued all of Title 25 of the U.S. Code from post-Brown v. Board equal protection law by establishing that laws about “Indians” were not violations of equal protection, because membership in an Indian tribe was a political, not racial, category.
ICWA involves the same sort of categorization. Like the regulation in Mancari, it rests on definitions of terms like “Indian” and “Indian child” that are ostensibly political, relying on tribal membership as the chief criterion. But this is tricky, because often membership depends specifically on an inquiry into ancestry, which the conservative modern Court has, in a more recent case, called a proxy for race.
If the lawyer I spoke to is correct, this case may allow the conservative majority, which favors an ahistorical, “color-blind” approach to equal protection, to overturn or greatly circumscribe Mancari. The other approach to equal protection, generally favored by liberals, allows for the law to take account of race in limited circumstances in order to account for historical factors like past discrimination. The Mancari opinion, by Justice Blackmun, was a clever attempt to shield Indian law from this debate. (The particular law in question was a regulation creating a hiring preference for Indians in the Bureau of Indian Affairs — what would probably be called “affirmative action” under other circumstances.)
But Indian law is, realistically, very much tied to race. It is an attempt to create a category of people — “Indians” — with whom the United States has a certain historical relationship, and to whom certain obligations are now owed. Because both the relationship and the obligations arise from a history of racial discrimination, they are rightly defined at least in part by a biological connection to the victims of that history. That the construction of “Indianness” is frequently arbitrary (sometimes resting, for example, on who was or was not on the allotment rolls when the Dawes Act was passed) is just a reflection of the fact that “race” is, itself, a socially-constructed category, not susceptible to exact scientific measurement.
On the other hand, the people who lived on the North America continent before Europeans settled here were also indisputably organized into political units, and many of those units have survived in some form to become today’s Indian tribes. And the U.S. has historical relationships with, and obligations to, those political entities as well. So Mancari‘s formulation is more than just a dodge — it’s a reflection of a very real, if perhaps incomplete, way of looking at Indian affairs.
The Ninth Circuit has suggested that Mancari might be limited to situations where “uniquely Indian” concerns were implicated. In the court’s colorful example, Congress could not assign Indians — or even Indian tribes — an exclusive right to all Space Shuttle contracts. And the Supreme Court has hinted that it may be ready to limit Mancari to situations where tribes’ right to self-government is involved. But this mimics the language of U.S. v. Montana, which denies tribes civil jurisdiction except where necessary to protect their powers of self-government. Montana is generally seen as setting a threshold that’s very difficult to meet, so if the Court were to apply a similar logic to the constitutionality of federal Indian law under the Equal Protection Clause, we could see a significant curtailment of Congress’s ability to pass laws benefiting “Indians” collectively.
It could, of course, still meet many of its obligations to tribes on a government-to-government basis. But ICWA really illustrates the way this would tie Congress’s hands. The Act is designed, among other things, to place Indian children who are up for adoption with members of their family, tribe, or, as a last resort, some Indian family. This policy exists in part to ameliorate the horrible mid-twentieth century practice of removing Indian children from their families and their tribal culture to send them away to become assimilated and “civilized.” It attempts to recognize both that it is cruel to wrench children from their cultural context and that it is destructive to tribal communities to rob them of their children in large numbers. Obvious, these are social concerns that are not directly related to skin color or other genetic epiphenomena. But there is, realistically, probably no way to institute such a preference that does not lean in some way on racial categorization.
In short, the Baby Veronica case may give the conservative wing of the Court a sympathetic stalking-horse — the adoptive couple who lost a daughter they thought was theirs — under which to re-examine and attack Mancari and other Indian law, applying its theory of a “color-blind Constitution” in another venue (one less well-policed by liberals than collegiate affirmative action), and perhaps undermining Congress’s ability to rectify problems created by historical racism and injustice.