THE INDIAN CHILD WELFARE ACT IN THE MULTIVERSE.

• Author: Pearl, M. Alexander

Adoptive Couple v. Baby Girl. By Matthew LM. 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, RA Lenhardt and Angela Onwuachi-Willig. Cambridge: Cambridge University Press. 2022. Pp. xxx, 694. Cloth, $84.75; paper, $39.19.

INTRODUCTION

As a kid, I grew up reading comic books. Among my favorites were those wherein the old and well-known characters, like Captain America or SpiderMan, 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 (1) and Kathryn Fort, (2) 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, (3) 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." (4) 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.

1. THE ROLE OF HISTORY

   "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).

   Including the "multitude of generations" language in the first line implicitly recognizes an idea central to the heart of the opinion: the events in Adoptive Couple are not necessarily new or unique to our contemporary moment--they are part of a long history. The invocation of the "multitude of generations before her" (p. 452) directs the reader's attention to the long story of Indian children in the United States, and it draws readers into that story from the Indigenous perspective. On the surface, the new holding speaks to the meaning of a statutory term and protects the rights of Native biological parents consistent with the general understanding of the statute's purpose set forth by the Court in its first case interpreting the Indian Child Welfare Act ("ICWA"), Mississippi Band of Choctaw Indians v. Holyfield. (5) But this decision goes much deeper by interpreting the statutory meaning in light of the significant historical background which demanded a legislative response by Congress in the first place. It couches this history and the need to act legislatively in the context of the federal government's longstanding duty to protect Indian Nations and Native children. The decision operates on two planes--the superficial and the deep. What unites these two planes is the role of history in producing these meanings.

   In recent federal Indian law decisions, the Court--in particular Justice Gorsuch--has deployed similar historically...