Tuesday morning Supreme Court justices had to ask hypothetical, and meticulous questions about the federal statute at the heart of the fight for baby Veronica, the Indian Child Welfare Act.
In the video you hear some of the challenging questions justices presented to both legal representatives.
Chief Justice John Roberts: “As is appears, this case is he had 3 Cherokee ancestors at the time of George Washington's father. Now, you say oh well that's a different issue. But I don't see how to decide that case without thinking about this issue because if your view is taken and you accept that definition, a woman who is a rape victim who has never seen the father, could, would in fact be at risk under this statute… And you don't know that this beyond a reasonable doubt standard would satisfy that, now that's obviously something I find disturbing as a person and as a judge.”
Charles Rothfeld (attorney for biological father Dusten Brown): “I am confident on an application through sect. 19-12F would lead to termination of that father's parental rights and so he would never be in the picture as a possible. Well, the question whether or not custody of someone who has engaged in such conduct would lead to serious emotional or physical damage to the chi ld I think would be no difficulty in reaching that conclusion.”
Lisa Blatt (attorney for adoptive couple): This case is going to affect any interracial adoption of children.
Justice Antonin Scalia: That was its intent.
Scalia: You don't think that's what its intent was?…
Scalia: It only applies to children, to tribal children and the purpose was to establish much more difficult standards for the adoption of a tribal child.
Blatt: No, Justice Scalia.
Scalia: Now maybe you disagree with that policy but that's clearly..
Blatt: No I think the policy is fantastic! It was talking about Indian families who were being ripped away because of cultural biases and insensitivity. This case didn't involve cultural biases.
Scalia: It didn't say that. Its definition…
Blatt: There's 30,000 pages of legislative history that's talking about the removal.
Justice Ruth Bader Ginsburg: That's what provoked the act. That Indian children were being removed from their families but the act is written in much broader terms.
Blatt: I agree! 1915 is extraordinary if you read it the way the tribe does which is, and the government does and a little bit about the membership criteria, the tribe's view is any child born Indian is automatically a member so even if the parents withdrew their tribal membership this child would be covered.