I haven’t followed Adoptive Couple v. Baby Girl very closely. My only interest was in Justice Thomas’s unique concurring opinion finding that Congress lacks the power under the Indian Commerce clause to enact the Indian Child Welfare Act. Now in the aftermath of the case, where it seems there have been many disputes about where the girl should go, the biological mother has filed suit challenging the constitutionality of the ICWA.
Christinna Maldonado on Wednesday sued U.S. Attorney General Eric Holder seeking a declaration that parts of the Indian Child Welfare Act are unconstitutional.
The injunction seeks to stop the usage the named challenged provisions of ICWA to protect a birth mother’s right to protect her child.
Maldonado’s says the law considers race in determining with whom a child should live and therefore violates equal protection provisions.
Interesting intersection of the Indian Commerce Clause and the 5th Amendment’s equal protection component. Thomas avoided the equal protection issue .
Petitioners and the guardian ad litem contend that applying the ICWA to child custody proceedings on the basis of race implicates equal protection concerns. See Brief for Petitioners 45 (arguing that the statute would be unconstitutional “if unwed fathers with no preexisting substantive parental rights receive a statutory preference based solely on the Indian child’s race”); Brief for Respondent Guardian Ad Litem 48–49 (same). I need not address this argument because I am satisfied that Congress lacks authority to regulate the child custody proceedings in this case
Hint. Raise the Indian commerce clause issue. You don’t want one of those cases where Justice Thomas says, oh I would’ve found it unconstitutional, but it wasn’t raised.