Ryan Dreveskracht: Troubling decision in Baby Veronica case

The Supreme Court’s decision in Adoptive Couple v. Baby Girl is most certainly a blow to Indian sovereignty by way of an assault on core notions of Indian family and tribal identity. Yet what is even more disturbing is how the “Baby Veronica” ruling so vividly highlights the Roberts Court’s deep investment in white supremacy, capitalism, patriarchy, heterosexism, and a coercive binary gender system. Adoptive Couple is about far more than the rights of adoptive parents. The decision should serve as a warning to all marginalized groups such as Indians, ethnic minorities, the lower class, or the LGBT community: If given the opportunity the High Court will construe legislation to serve its own institutionalized interests, in spite of the law’s intent.

Generally, issues of tribal sovereignty—the ability for tribal governments to make their own rules and be ruled by them—receive very little press. And when the occasional Indian issue is more widely followed, misunderstandings about Indian law, history, and deep-seated anxieties about Indian rights become apparent. The recent debate over the new Violence Against Women Act (“VAWA”)—which included provisions that would, for the first time since 1978, allow tribes to exercise limited criminal jurisdiction over certain non-Indians that would otherwise escape domestic violence prosecution—made this clear. Those supporting the VAWA were criticized for using the domestic violence issue “as a way to assert and reclaim broader sovereign powers” and “violating the Constitution in the process.” What these critics failed to observe was that: (1) prior to VAWA, a jurisdictional gap existed that that allowed non-Indians to commit domestic violence with impunity; (2) the consensus, among every expert in the field, was that the only solution was to re-recognize the authority of tribal institutions; “ones that reflect American Indian nations’ sovereignty”; and (3) the Supreme Court has explicitly held that “Congress does possess the constitutional power to lift the restrictions on the tribes’ criminal jurisdiction.” The VAWA eventually passed, but not without a fight, and not without some give-and-take that, legally speaking, is nonsensical. You can bet that these seemingly contradictory requirements will soon be litigated—and when they are, Indian Country may hastily lose a piece of the inherent sovereignty that it successfully fought to restore for 35 years.