Court sides with adoptive parents in test of Native American custody rights

McClatchy Washington BureauJune 25, 2013 

— A 27-month-old girl who lived with adoptive parents in South Carolina since her birth was handed over to a biological father she had never met in 2011.

Now, 18 months later, a Supreme Court decision will likely send her back to the adoptive parents.

The court ruled in a 5-4 decision that the Indian Child Welfare Act, a federal law granting extra protections to Native American parents, did not protect the father’s right to his biological child in this case.

The baby was conceived while her parents were still engaged, but her non-Native American mother broke off the engagement before she was born. When the mother asked the Native American father if he would rather pay child support or give up his rights to the child, he replied that he would relinquish his rights.

The father changed his mind after learning the mother had given the baby up for adoption to a couple in South Carolina; he hired a lawyer and sued for custody from the non-Native American couple.

A lower court granted him custody under a federal law called the Indian Child Welfare Act. If he had not been Native American, the law clearly states he would have no right to the child, who was 1.2 percent Cherokee.

The Supreme Court on Tuesday reversed that decision, ruling that the law’s language on protecting parents’ “continued custody of the child” refers to a parent already having custody who has that custody taken away.

“(The law) is inapplicable when, as here, the parent abandoned the Indian child before birth and never had custody of the child,” Justice Samuel Alito wrote for the majority.

Congress enacted the law in 1978 after a study revealed that 25 percent to 35 percent of Native American children were being separated from their homes in favor of foster or adoptive care, mostly because of culturally insensitive child welfare laws. The law barred the termination of Native American parents’ rights to their children unless it could be proven that significant harm to the child could result from the parents’ continued custody.

The law also gives preference to Native American adoptive couples over non-Native American couples. The court said that since no eligible Native American candidates sought to adopt the girl, the law did not bar the couple from adopting the child.

While Native American interest groups expressed disappointment for the member of their community, many said they were glad the court had at least chosen to uphold the Indian Child Welfare Act.

“Today’s decision sends a clear message that there is no question of (the act’s) role as the most important law to protect native children and families,” said Jefferson Keel, president of the National Congress of American Indians. “The decision also affirms congressional authority to protect Indian children.”

Justice Sonia Sotomayor dissented, writing that she would uphold the lower court’s ruling for the biological father’s custody.

“The majority . . . ignores Congress’ purpose in order to rectify a perceived wrong that, while heartbreaking at the time, was a correct application of federal law and that in any case cannot be undone,” she wrote. “It can be said with certainty that the anguish this case has caused will only be compounded by today’s decision.”

The case resulted in an odd divide among the justices, with Chief Justice John Roberts Jr. and Justices Anthony Kennedy, Clarence Thomas and Stephen Breyer joining Alito in the majority. Justices Sotomayor, Antonin Scalia, Ruth Bader Ginsburg and Elena Kagan dissented.

Email: kirby@mcclatchydc.com

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