[JURIST] The US Supreme Court [official website] heard oral arguments Tuesday in Adoptive Couple v. Baby Girl [transcript, PDF; JURIST report] on who should have rightful custody of Baby Veronica [adoptive parents’ advocacy website; NICWA advocacy website] in light of the Indian Child Welfare Act (ICWA) [text]. A non-Indian woman put her baby, who was fathered by an American Indian, up for adoption. A South Carolina couple attempted to adopt the child, but once the biological father was notified about the adoption proceedings, he attempted to gain custody. An attorney for the Adoptive Couple argued that it the courts have interpreted the ICWA too broadly in applying it to this case:

[T]here’s nothing in this Act that anyone can point to that was a basis for transferring custody to this father. At most, there is an obligation, an exhaustion obligation, that if a custodial parent has something like a drug abuse problem the State has to remediate before the family is broken up.

What is so extraordinary about this case, particularly the United States’ position, is that the adoptive parents’ failure to remediate a dad meant that the child got custody of the dad. So if this dad had had a drug problem, because there was no treatment of him the court held, well, that’s a basis for giving the dad custody. But there’s no language in the statute that even remotely suggests that it’s a rights-creating provision. All of both of (d), (e), and (f) are protections that assume existing rights and then make it harder to terminate those rights.

Paul Clement represented the appointed guardian ad litem [backgrounder], who favored Adoptive Couple’s claim for custody. The attorney for Dustin Brown, the custodial father of Baby Girl, argued that ICWA allows that, barring Brown’s inability to be a good father under the statute, his parental rights had to be terminated affirmatively, and as he is willing to father he should be allowed to. The Solicitor General supported Brown’s claim: “What you have here are people who are citizens of two separate sovereigns. An Indian tribe is a sovereign and a State. Congress tried to accommodate those competing interests by leaving the cases in State court, letting them be subject to State law, but subject to minimum standards to protect the people who are citizens—or eligible for citizenship in the Indian tribe. That is a classic implementation of Congress’s plenary responsibility in the Federal trust and guardianship for Indians, and nothing could be more at the core of tribal self-determination and tribal survival than the determination of tribal membership and the care about what happens to Indian children.”

The court also heard arguments [transcript, PDF] in American Trucking Ass’ns, Inc. v. Los Angeles [JURIST report] on whether the 49 USC § 14501(c)(1) [text] exemption permits a municipal governmental entity to take action that conflicts with the express preemption clause, if it occurs in a market in which the municipal entity does not participate, and is unconnected with any interest in the efficient procurement of services. An attorney for the American Trucking Association [official website] argued that “[t]he Port is imposing binding standards of conduct on motor carriers as a condition of accessing a channel of interstate commerce,” impermissibly, through criminal penalties. An attorney for the city of Los Angeles argued that they were simply acting under the same standards as private entities. “They set forth conditions under which drayage trucks can enter the nonpublic portions of the Port, and they are indistinguishable, indistinguishable from contract provisions that private parties routinely impose on those who seek to enter their property. In our view, [49 USC § 1450 (c)(1)] does not deal with contracts, and it doesn’t deal with the right of landowners to condition those seeking entry into their Port.”