Veronica for adoption by a non-Indian family.383 After her birth, the father withdrew his
consent, and two years later, the South Carolina Supreme Court awarded him custody—all based
solely on the fact that Veronica had Cherokee blood in her veins.384 The Supreme Court found
this improper. Although it resolved the case on statutory rather than constitutional grounds, it
observed that allowing the father to “play his ICWA trump card at the eleventh hour to override
the mother’s decision and the child’s best interests . . . solely because an ancestor—even a
remote one—was an Indian . . . would raise equal protection concerns.”385
In one ongoing case, attorneys for the federal government have argued that ICWA does
not establish a racial category, but rather that the law uses blood descent “as a shorthand for the
social, cultural, and communal ties a person has with a sovereign tribal entity.”386 But using a
person’s ethnic heritage as a “shorthand” for her cultural and political affiliations is the very
definition of racial discrimination. That, after all, is precisely what occurred when the federal
government ordered Americans of Japanese ancestry to report to detention centers during World
War II.387 That was nevertheless a racial categorization subject to strict scrutiny.388
B. The Existing Indian Family Doctrine
State courts, wary of the equal protection problems caused by applying a different set of
laws to children based solely on their biological ancestry, have sometimes declined to apply
384 Adoptive Couple v. Baby Girl, 398 S.C. 625, 655 (2012) (“in transferring custody to Father . . . Baby Girl’s
familial and tribal ties may be established . . . in furtherance of the clear purpose of the ICWA, which is to preserve
American Indian culture by retaining its children within the tribe.” (emphasis added)).
386 Defendants’ Motion to Dismiss, A.D., et al., v. Washburn, et al. (D. Ariz. No. 2:15-cv-01259) (Oct. 16, 2015) at
23 (on file with Goldwater Institute).
387 Korematsu v. United States, 323 U.S. 214 (1944).
388 Id. at 216. Korematsu was the first case in which the Supreme Court employed strict scrutiny for racial