Excerpted From: M. Alexander Pearl, The Indian Child Welfare Act in the Multiverse, 121 Michigan Law Review 1101 (April, 2023) (30 Footnotes) (Full Document)


Adoptive Couple v. Baby Girl. By Matthew L.M. Fletcher and Kathryn E. Fort, in Critical Race Judgments: Rewritten U.S. Court Opinions on Race and the Law 452, 471. Edited by Bennett Capers, Devon W. Carbado, R.A. Lenhardt and Angela Onwuachi-Willig. Cambridge: Cambridge University Press. 2022. Pp. xxx, 694. Cloth, $84.75; paper, $39.19.


MAlexanderPearlAs a kid, I grew up reading comic books. Among my favorites were those wherein the old and well-known characters, like Captain America or Spider-Man, were given a different origin story, persona, and set of objectives. It presented an alternative reality to the one all readers had come to know. Those stories made the old and predictable characters more interesting and spurred some imaginative reconstruction of comic book events in my nine-year-old mind. With the new box-office-dominating comic book movies now tracking this idea of the multiverse, the notion of different realities is part of popular culture. This opinion, written by Matthew Fletcher and Kathryn Fort, meets this moment's cultural mindset and reimagines a very different legal and social existence for Tribal Nations. In that alternative universe, the trajectory and coherence of federal Indian law have veered away from disorder and the courts are not directly presented with the question of whether to dismantle the federal protection of Indigenous children. Like those old alternative comic books I loved, I vastly prefer the world created by Fletcher and Fort's opinion in Adoptive Couple v. Baby Girl to the one we are all forced to live in today.

The original first line from Justice Alito's majority opinion does violence, to use Robert Cover's term, in stating that “[t]his case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee.” At first read, the line may seem innocuous enough. But its casual tone and matter-of-fact approach is violent. It is violent in its improper and inaccurate, racialized characterization of Baby Girl's status and in introducing the coming destruction of a Native family. In stark contrast, Fletcher and Fort's first line plainly conveys a different framing, but it contains much more than that. This Review amplifies three key components of the rewritten opinion. All three of these components are embedded within the very first line of the new opinion, which reads: “This case is about a little girl (Baby Girl) who is a citizen of the Cherokee Nation, like her father, grandparents, and a multitude of generations before her” (p. 452). First, this opinion shares in the emerging tradition of reengaging with and restating the history that served to produce a particular statute or legal dispute. Second, from a jurisprudential standpoint, the opinion does significant work in recasting longstanding concepts in federal Indian law, thereby increasing coherence and confidence in that body of law to the benefit of Tribal Nations, States, and the federal government. Finally, and perhaps most dynamically, the opinion offers a central place for the role of Tribal laws--emanating from Tribal culture and customary law--to be treated on par with state and federal counterparts.

[. . .]

Guiding my interpretation of Fletcher and Fort's opinion is the first line of the opinion. Not only is it a proper characterization of the legal status of Baby Girl, but it also has the benefit of refusing to perpetuate a longstanding misapprehension about the racial status of Native people. To put it another way, Fletcher and Fort's first line is both legally and socially correct while avoiding racist tropes. The painful contrast of the Fletcher and Fort opinion to our lived reality is uncomfortably apparent because the protection of all Native children hangs in the balance this Supreme Court term. The very real threat facing Tribal communities and Native children in 2023 would not be present if Fletcher and Fort's first line was real. Race-based concerns have long been present in federal Indian law, but Justice Alito's opinion telegraphed the arguments now before the Court nine years later.

The problems addressed by ICWA--regular removal of Native children and denial of Tribal communal interests in their children--will arise again and metastasize if the forthcoming Brackeen opinion continues in the misguided vision of the world expressed by Justice Alito. Hopefully, the Court will reject that racialized worldview and instead deploy a careful, historically informed analysis grounded in the legal obligations owed by the United States to Tribal Nations. The work done in Fletcher and Fort's opinion will help guide the Brackeen Court's mindset in restating a version of federal Indian law where the guardianship analogy gives way to a legal duty of protection and the plenary power doctrine is constrained by that duty and the necessity of connecting the statutory directive to improving the wellbeing of Tribal communities. Hope lies in the recent Supreme Court opinions in Cougar Den and McGirt. But the ahistorical disaster that is Adoptive Couple is part of our present reality.

Citizen of the Chickasaw Nation and Professor of Law at the University of Oklahoma.