The Supreme Court of the United States allows no cameras to record oral arguments, but they have allowed audio recordings. Wide access to the remarks of the Justices (excepting Justice Clarence Thomas, who is customarily silent) has combined with the 24-hour news cycle to create a cottage industry of pundits predicting outcomes.
On the Court’s docket, this case was Adoptive Couple v. Baby Girl. In the real world, it’s about the fate of a child we’ve come to know as Baby Veronica.
As a judge, I’ve always considered the idea that I know better about somebody else’s child to be preposterous, excepting cases of abuse, where protecting the child from further harm is the obvious course.
Baby Veronica came to the Court with more advantages than many children. A loving parent and an eager adoptive couple cared enough to fight over her. Unlike many children, she will have adults who care for her regardless of the outcome.
Veronica is less lucky in that her life has become entangled in the political agendas of the adoption industry and three levels of government: federal, state, and tribal.
Then there is the 800 lb. gorilla of federal Indian law: race. Justice Antonin Scalia recently referred to the Voting Rights Act as a “racial entitlement,” and the people who despise the Indian Child Welfare Act see ICWA the same way.
The conservative wing of the Court is Justices Scalia, Thomas, Samuel Alito, and Chief Justice Roberts. The liberal wing would be Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor.
Justice Anthony Kennedy, a conservative placed on the Court by President Reagan, is perceived to be the “swing vote.”
Indian lawyers know, however, that the conservative-liberal divide does not predict positions on federal Indian law.
These were my notes from the oral argument of the case announced on the same day the SCOTUS neutered the Voting Rights Act. It did the same on the same day to the Indian Child Welfare Act, bringing turmoil back to Baby Veronica's life and leading me to describe June 25, 2013, as White Power Day in the US Supreme Court.
This diary combines two columns of mine originally published in Indian Country Today, which also carried the most detailed coverage of the facts.
Upon reading about the Baby Veronica oral argument, a Kossack policy wonk friend of mine wrote, “This is not about race. It is about treachery.”
She could be right.
If you searched the Cherokee Nation registry for my name, you would have to know it appears there as “Stephen.” Did the adoption lawyers make an innocent mistake or accomplish purposeful deception when they misspelled the father's name and misreported his birth date?
What about timing the adoption to coincide with the Cherokee father’s deployment to Iraq? Biology rather than tactics could have driven the adoption lawyers, since the adoption was arranged before birth.
Treachery implies purpose.
Purposeful or not, there’s a foul stench of treachery around the case that would exist without the Indian Child Welfare Act. The purpose of ICWA is to protect tribal cultures, not to give individual Indians a weapon in child custody cases. But without ICWA, this garden variety injustice to a GI father could never have attracted the resources to make a federal case of it, let alone a SCOTUS case.
