Adoptive Couple v. Baby Girl

1. If you ran the world, what custody arrangement would exist for Baby Girl at the time the Supreme Court was deciding this case?  What about at her birth: where would you have placed her then?

2. Where does Congress get the power to regulate state court adoption rules and even the behavior of state courts in individual cases?

3. The majority decides this case as a matter of statutory interpretation. It is possible they did so to avoid constitutional issues that would have arisen otherwise. What are those other constitutional issues? Can you forsee a case in which federal courts would need to resolve them?

4. If Indians are a racial group, under what circumstances can Congress and/or the states provide preferential treatment to them? What might satisfy strict scrutiny?

5. How should the Constitution govern preferences given to tribes? Should equal protection claims be available if tribes are favored over non-tribes (or discriminated against)? That is, should the law treat differential treatment of tribes, which after all do contain human members, differently than differential treatment of humans based on tribal membership?  Should the law be any different for the federal government than for states?

6. For an excellent podcast on this case, see https://www.wnycstudios.org/podcasts/radiolab/articles/295210-adoptive-couple-v-baby-girl. There are also two YouTube videos that provide differing perspectives on ICWA as well as a second difficult case involving a six year old in foster care who is 1/64 Choctaw.  See https://www.youtube.com/watch?v=NGTvjn-hb4Y (anti-ICWA) vs https://www.youtube.com/watch?v=hi7fOOCbI-8 (pro-ICWA)

7. Justice Thomas does not address Chief Justice Marshall's comments in the Indian Trilogy on the history of federal relations with the Indian Tribes. Marshall contended that "Congress assumed the management of Indian affairs, first in the name of these United Colonies and, afterwards in the name of the United States." (Worcester v. Georgia). There is also the opinion of Justice McLean in that case: "Does not the Constitution give to the United States as exclusive jurisdiction in regulating intercourse with the Indians as has been given to them over any other subjects? Is there any doubt as to this investiture of power? Has it not been exercised by the Federal Government ever since its formation, not only without objection, but under the express sanction of all the States?"