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67 Fla. L. Rev. Forum 1 (2015)

handle is hein.journals/flrf67 and id is 1 raw text is: A RESPONSE TO PROFESSOR BERGER 'S 'IN THE NAME OF THE CHILD: RACE, GENDER, AND ECONOMICS IN ADOPTIVE COUPLE V. BABY GIRL' Barbara A. Atwood* In her intriguing article1 about Adoptive Couple v. Baby Girl,2 Professor Bethany R. Berger argues that the Supreme Court participated in a long- standing trend of using children to forward racial, gender, and economic agendas that violate the rights of their birth parents and, ultimately the interests of the children themselves.3 On the one hand, she delivers an astute critique of the holdings and reasoning of Adoptive Couple, pointing out the Court's missteps in interpreting the Indian Child Welfare Act of 1978 (ICWA).4 While I might have approached the analysis slightly differently, I agree with her core arguments and share her concern that the Court's decision will undermine enforcement of ICWA. On the other hand, Professor Berger also uses the case as a vehicle to explore adoption and child welfare policies more generally, policies she sees as deeply classist and racist. She provides a damning analysis of the economics and class bias of the American child welfare system and the adoption industry.5 While her arguments are provocative, she necessarily skims over complexities when she characterizes such varied targets as Supreme Court case law, the Adoption and Safe Families Act6, and the Uniform Parentage Act as the result of an over-arching class bias against unmarried mothers and fathers. As her broader critique strays rather far from the issues in Adoptive Couple, my comments will focus on her extremely perceptive analysis of the case itself. The central contribution of Professor Berger's article is its careful dismantling of Justice Alito's majority opinion from a federal Indian law perspective. She shows that Justice Alito's emphasis on Baby Veronica's blood quantum7-an emphasis that sets a tone of skepticism and disrespect for the child's Cherokee heritage-disregards the cultural and political meaning of tribal membership.8 She also demonstrates why the Court's interpretations of 25 USC § 1912(d) and (f) are inconsistent with the * Mary Anne Richey Professor of Law Emerita, University of Arizona James E. Rogers College of Law. 1. Bethany R. Berger, In the Name of the Child: Race, Gender, and Economics in Adoptive Couple v. Baby Girl, 67 FLA. L. REV. 295 (2015). 2. 133 S. Ct. 2552 (2013). 3. Berger, supra note 1, at 297. 4. 25 U.S.C. §§ 1901-63. 5. See Berger, supra note 1, at 336-62. Curiously, Professor Berger does not address the continued over-representation of Native youth in foster care or the pressing need for tribal foster homes, topics that would have related more directly to JCWA. 6. Pub. L. No. 105-89 (1997), 111 Stat. 2115 (codified at 42 U.S.C. § 670 (2012)). 7. Adoptive Couple, 133 S. Ct. at 2556 (noting that Baby Girl was 3/256 Cherokee). 8. Berger, supra note 1, at 325-36.

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