Under the state court's interpretation, said [Paul Clement, representing the guardian ad litem appointed by the state court to determine the child's best interest], ICWA moves the inquiry away from the child's best interests to focus instead on biology, the birth father and race — namely, that the child has 1 percent Indian blood.1%!
I am reminded of the Court's pending affirmative action case, Fisher v. University of Texas, in which there were some pointed questions at oral argument about the problem of taking race into account when the individual's racial percentage — always a sticky topic — is minimal and self-reported:
Back to today's case:
Pressed by the chief justice, [Charles Rothfeld, representing the father] said that it doesn't matter how large or small a child's Indian heritage is because under ICWA, an adoption cannot go forward if a biological parent wants custody and is not a threat to the emotional or physical safety of the child.
Troubled by Rothfeld's contention, Justice Stephen Breyer noted that the father here appears to have "three Cherokee ancestors at the time of George Washington's father." And if you accept that view, said Breyer, "a woman who is a rape victim" could be at risk of having her child taken and given to the Indian father....
The court's decision in this case, [the adoptive parents' lawyer, Lisa Blatt] told the justices, is going to apply to other absentee Indian fathers who have impregnated non-Indian women. These women, she said, will be rendered "second-class citizens" with "inferior rights," and "you're basically relegating the child ... to a piece of property with a sign that says 'Indian, keep off, do not disturb.' "