This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee. Because Baby Girl is classified in this way, the South Carolina Supreme Court held that certain provisions of the federal Indian Child Welfare Act of 1978 required her to be taken, at the age of 27 months, from the only parents she had ever known and handed over to her biological father, who had attempted to relinquish his parental rights and who had no prior contact with the child. The provisions of the federal statute at issue here do not demand this result.
The majority opinion is about statutory interpretation. Justice Thomas joined the majority opinion, and also wrote a concurrence. His concurrence explained that the doctrine of constitutional avoidance was the reason that he joined the majority on statutory interpretation, thus finding that South Carolina’s adoption laws had not been preempted by the Indian Child Welfare Act. As Justice Thomas’s concurrence points out, the Constitution grants Congress the power “To regulate Commerce…with the Indian tribes.” Some persons have over-read the Indian Commerce Clause as a grant to Congress of plenary authority over anything involving Indians. Justice Thomas points out the error: the Indian Commerce Clause is about commercial relations with tribes. It is a not a grant of plenary congressional power over every Indian anywhere in the United States. Thus, Congress has no constitutional power to displace state adoption laws simply because a child has a drop of Indian blood.
Cited 9 times in the Thomas opinion is The Original Understanding of the Indian Commerce Clause, […]