The transcript of the oral arguments in Adoptive Couple v. Baby Girl is available here.
Matthew Fletcher and Kate Fort take a look at the arguments presented, and in particular appeals by Lisa Blatt and Paul Clement to some sense of racial injustice being perpetrated against the adoptive couple:
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. . . .
Chief Justice Roberts also got in on the act, trying to parse out at what level of “blood quantum” a child ceases to be an “Indian child” for purposes of ICWA:
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 . . . ?
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.”
So that’s one argument: that if it was enough to merit discrimination in the past, perhaps it should be enough to merit statutory protection now, especially since that statutory protection exists largely to remedy and hedge against known discriminatory practices.
But a second, more fundamental argument might be that the Chief Justice is racializing what need not be a racial matter. If we think of tribal membership as analogous to (though not exactly identical to) national citizenship, it becomes apparent that both are, by default, hereditary in nature. That is, you inherit them from your parents. There are some wrinkles, because in the U.S. the 14th Amendment provides for citizenship to anyone born within our sovereign territory. But let’s bracket that for a moment, by turning to a hypothetical that doesn’t rely on birthplace.
Imagine an American woman who goes abroad for a couple of years, has a child by a foreign father, and returns to the U.S. to raise the child. Then imagine that that child, a girl, grows up to be a woman much like her mother: she goes abroad, has a child by a foreign father, and returns to the U.S. to raise her baby. Now imagine that this happens (improbably, I grant) for eight generations in a row. Each girl child will, of course, be an American citizen, under 8 U.S.C. 1409(c). But why? It’s evident that “Americanness” is somehow passed from mother to daughter hereditarily. If we imagine that the original mother was defined to be “fully” American, there’s a way of looking at this scenario as implying that the eighth descendant is only 1/256th “American” — a very tiny “blood quantum” indeed.
1st daughter: 1/2 American
2nd daughter: 1/4 American
3rd daughter: 1/8 American
4th daughter: 1/16 American
5th daughter: 1/32 American
6th daughter: 1/64 American
7th daughter: 1/128 American
8th daughter: 1/256 American
But that, of course, is not how we view American citizenship at all. We view each succeeding generation as being as “fully” American as the next. In other words, if your heritage earns you citizenship at all, then you are completely, 100% American.
As Prof. Fletcher points out above, the Cherokee Nation (the tribe involved in Adoptive Couple) uses a “lineal descent” rule. See the Cherokee Constitution here: “All citizens of the Cherokee Nation must be original enrollees or descendants of original enrollees listed on the Dawes Commission Rolls . . . .” In essence, citizenship is hereditary, just as U.S. citizenship is hereditary. So one can argue that “lineal descent” rules, at least, have nothing more to do with racial heritage, per se, than the federal citizenship statute. (This also, I should think, gives a bit of the lie to the Rice v. Cayetano assertion that “ancestry” is merely a “proxy for race.” If that’s true, why allow hereditary citizenship on the national level?)
Tribes that use a strict “blood quantum” requirement are operating on a slightly different plane — at the very least, they are setting an outside limit on the heritability of citizenship. But isn’t this actually what Chief Justice Roberts wants? If heritability = ancestry = race, then doesn’t his concern about a child with “3/256” blood quantum retaining Cherokee citizenship suggest that it is he who wants to see “Indianness” and tribal membership more heavily racialized? Look at his words again:
[W]hat 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 . . . ?
Isn’t that just naturalization? And doesn’t the possibility of naturalization make Indian tribal membership less racial and more political — as the Mancari/Rice line of cases seems to want it to be? I confess, I simply don’t understand what the Chief Justice wants here.