On the “better late than never” theory I thought I would take the time to offer some reflections about the ICWA case that was argued this week. For those who took the time to look, there were many reactions to it out there. News reports, transcripts and blogs are all available and I don’t have the facility to link to them just at the moment. I suppose, though, I can summarize reactions in two different ways.
First off, the justices didn’t seem to be heading in a uniform direction. It’s always a bit dangerous to place too much weight on the questions that get asked, but it’s still an interesting thing to look at. In this case the questions suggested a range of views on the part of the justices–which isn’t surprising, really. It does, however, make it nigh on impossible to predict any outcome here. As is often the case these days, Justice Kennedy may hold the pivotal vote.
Second, the reaction in terms of commentary seemed to be quite polarized. People see the case and the underlying issues in remarkably different ways. For some, this is a story about a conniving woman assisted by an unscrupulous adoption agency who was determined to thwart the efforts of both the man and the tribe involved. For others, this a story about a child torn from the only parents she ever knew because of a small trace of genetic material. (I don’t mean the man’s overall genetic contribution–which of course is 1/2 her genes, but rather the fraction Cherokee blood that makes this an ICWA case.) Many of these competing accounts turn on the specific facts of the case here, some of which are hotly disputed.
Maybe it is because it is days later, but I do wonder if these polarized views are really helpful in sorting things out. (Of course, you might argue that polarized views never are helpful.) As I’ve been thinking about the case I’ve found a calmer way to consider the issues–which is not to say I’ve found a way to make them all easy. I’m going to walk thought that here.
First I will take it as given that under South Carolina law the man here would not have been entitled to notice or to block the adoption. He did not do the things that state law requires in the time frame state law specifies. Now you can think South Carolina law is right or wrong–I understand that. And I offer no judgment on that. I just want to identify this as my first assumption.
Second, it seems to me clear that Congress, in trying to protect and preserve the sovereign tribes, could enact a law that says that any time there is a child conceived who would have the blood tie necessary to make the child a tribal member then that potential link to the tribe must be protected. To be clear, I think that generally speaking, the blood tie necessary to make a child a tribal member is something for the tribe to decide. That’s about self-definition. But where there is a child who could be a tribal member, Congress could recognize that and provide protections before the child is effectively removed from the tribe. Again–I am not saying this is right or wrong just at the moment–I’m only asserting that it seems pretty clear to me that Congress COULD do this if it wanted to.
Finally, if Congress did do something like what I just described then it would pretty clearly override state law to the contrary. That’s fundamental to our structure of government–the Supremacy Clause–which I believe is Article VI of the US Constitution. In other words, if Congress acted as described then South Carolina law to the contrary would be ignored in a case that fell within the Congressional action.
With those assumptions in mind, the case before the Court just looks like a case of statutory interpretation. Did Congress in fact do what I described? What does the statute say? What do the words mean?
Now that isn’t an uncontroversial question. The statute isn’t as clear as it might be, as is often the case. People offer all different readings. And in interpreting the statute the Court perhaps should think about what the implications of its interpretation will be, which does raise hard questions. But the Court isn’t just making policy–resolving the underlying questions about what the right balance between various interests is. Congress, at least in theory, already did that. Or can do it in the future.
I think the really hard questions here are the underlying policy questions. Tribes should be able to define themselves. Tribes define themselves in terms of genetic lineage. If tribes define themselves in expansive ways–say that anyone with the proverbial “one drop” of tribal blood is a tribal member–then the reach of ICWA is vast. (I’m not sure tribes really have any interest in defining themselves so expansively.) Those difficult policy questions don’t get any easier when they get bound up in the polarized reactions to the present case.
I really do worry that the Court, not fully understanding the complexity of family law, will include language in its opinion that destabilizes existing law. For better or worse, there are a string of Supreme Court cases that do talk about the rights of unmarried men outside of ICWA. (For the law geeks here, I’m thinking of the line from Stanley to Lehr and possibly including Michael H.) These cases weren’t much in evidence in the argument, but I’m hoping that the justices remember they are not writing on a blank slate.