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Adoption: What's the Indian Child Welfare Act?

By Aditi Mukherji, JD | Last updated on

In a painful adoption case involving a child with Native American ancestry, the Supreme Court justices are recognizing that some cases might have no clear happy ending. "Domestic relations pose the hardest problems for judges," Justice Anthony Kennedy said. The case involves a Cherokee biological father, a non-Native American adoptive couple and a little girl named Veronica.

At the center of the case is the Indian Child Welfare Act, which gives tribes and relatives a strong say in decisions affecting a Native American child.

The Indian Child Welfare Act

The Indian Child Welfare Act (ICWA) was enacted in 1978 in response to Indian children being removed from their homes and placed with non-Indian adoptive or foster parents, the Associated Press reports.

Its main goal is to give tribes a strong say over Indian children's custody proceedings and help keep Indian children with Indian families.

The ICWA generally shows a very strong preference to tribal courts. But for adoption proceedings, the Indian tribe and parents can't intervene unless it involves the termination of parental rights.

Adoptive Couple v. Baby Girl

The Supreme Court case here first asks whether Dusten Brown, the Cherokee biological father, can use the ICWA to block a completely legal adoption initiated by the girl's non-Indian mother, when he didn't have custody over Veronica.

The second question the case asks is whether the ICWA would consider Brown a "parent" since it seems he was unwed, didn't have a role during the pregnancy or birth, never paid child support and had never met Veronica, the AP reports.

When Brown found out that Veronica was going to be adopted, he reportedly said the ICWA favored him raising her and growing up learning tribal traditions.

South Carolina courts agreed with Brown and Brown took Veronica, now 3, back with him to Oklahoma. It's a difficult situation because Veronica was born in South Carolina and spent her first 27 months there with her adoptive parents.

Unlike normal family law cases, the justices aren't guided by the "best interests of the child." Instead, they follow constitutional law. According to Justice Scalia, the law clearly favors biological parents, reports The AP. Scalia received strong support from Justice Sotomayor.

However, Justice Ginsburg said even a "best interests" standard could very well favor Brown. She pointed out that since Veronica has been with him since 2011, uprooting her might not be in her best interest.

Chief Justice Roberts feels otherwise, reports The AP. When Brown's attorney told the court that his client was excited to hear about his girlfriend's pregnancy, Roberts retorted, "So he was excited about it. He just didn't want to take any responsibility."

It is interesting to note that this case hits home, literally, for two of the Supreme Court Justices. Both Chief Justice Roberts and Justice Thomas have adopted children of their own.

The decision, which comes out in June, can be expected to have a mix of statutory interpretation of the Indian Child Welfare Act and constitutional issues, with a sprinkle of family law.

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