Can Indian Child Welfare Act Block Adoptions? High Court to Hear Arguments

by Lauren Kawana

The U.S. Supreme Court will hear a case involving the adoption of a baby of Cherokee descent by two white parents.

The South Carolina case, Adoptive Couple v. Baby Girl, examines whether or not the Indian Child Welfare Act (ICWA) should halt the adoption of a Cherokee baby to  white parents.

This 1978 federal law was established to ensure that American Indian children are kept in their families or tribal communities unless it is in the best interest of the child to be placed in foster or permanent care with non-Indian families.

The justices will hear oral arguments on two issues: whether ICWA can be used to block the adoption of an American Indian child by a non-Indian family, and whether the law defines parent in such a way that it gives standing to a biological father who has not obtained legal status through state laws.

In January 2011, the South Carolina Supreme Court ruled that Dusten Brown of the Cherokee Nation could negate the adoption of his biological daughter Veronica by a couple in South Carolina through ICWA, even though he was not recognized as a custodial parent under state law.

Although states usually govern parental rights, the court deemed ICWA as the overriding authority in this case and declared that Veronica should stay with her biological Native American father.

The contention is rooted in the fact that Veronica’s non-Indian birth mother had put her daughter up for adoption because she felt she could no longer care for the child.

In addition, she had asked Brown if he would support the child financially or wished to give up his parental rights. He sent her a text message saying he would give up his rights, at which point baby Veronica was put up for adoption.

Veronica was adopted by Matt and Melanie Capobianco, and moved in with them shortly after she was born in September 2009. But when the South Carolina Supreme Court ruled in favor of Brown, she was moved to his home in Oklahoma at the end of 2011.

This case is similar to one that took place in California in 1996 with twin American Indian girls who had been adopted by a couple from Ohio. Their parents had consented to the adoption but, at the urging of their paternal grandparents who are of Pomo Indian descent, they later invoked ICWA to stop it. The twins’ parents eventually dropped their plea for custody and the twins remained with their adoptive family.

University of California-Berkeley law professor Joan Hollinger, who has followed children’s issues for over 25 years, got involved in the twins’ Los Angeles County case, filing an amicus brief stating that ICWA was being misused.

In the cases of both the twins and Veronica, Hollinger said there is no reason to invoke ICWA because they did not “involve an existing Indian family where there was a visible and ongoing known tribal connection.” Prior to the adoption process, in both cases, “neither parent acknowledged or knew much about their own backgrounds with regards to any sort of tribal connections,” Hollinger said.

Hollinger also argued that the twins had a ”constitutionally protected right to a custody hearing” that would determine whether giving custody to the parents, grandparents, other family or adoptive parents would be in their best interest.

“Biology by itself is not sufficient to give someone such complete sweeping power in a circumstance like this,” Hollinger said. In Adoptive Couple v Baby Girl, she said, ICWA only applies “if the child has been raised in a tribal family by one or both partners with tribal ties and then changed somewhere else.”

The court is expected to issue its opinion on the case in June.

Lauren Kawana is a student at California-Berkeley’s Graduate School of Journalism. She wrote this story as part of her coursework for a class called Journalism for Social Change offered at the Goldman School of Public Policy

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