Today, the Supreme Court hears arguments on a long standing federal law on the adoption of Native American children. The case, Adoptive Couple v. Baby Girl, centers on the constitutionality of the Indian Child Welfare Act (ICWA). Enacted in 1978, ICWA was intended to address the routine removal of Indian children from their families, culture and communities without justified cause. The law’s focus is on keeping children safe by working together with families and communities. ICWA has provided critical procedural safeguards that help prevent the unnecessary separation of Native American children and families. ICWA’s safeguards also aim to reduce the placement of children with strangers in foster care and instead look to relatives who may be able to care for children, thereby maintaining the bonds of family and community. The Act also promotes the reunification of families when it is safe and appropriate to do so, and places the responsibility for deciding how to best serve children in the hands of local communities. Under the Act, tribal courts have jurisdiction for making decisions about when, how and with who a child should be placed or adopted.
The details of the case are heart wrenching, and no matter the outcome, all involved stand to lose. The case involves a little girl, Veronica, now 3. She was adopted after birth in an open adoption by a South Carolina couple, Matt and Melanie Capobianco. The Capobianco’s are now fighting for custody of Veronica, who in 2011 was returned to her biological father, Dusten Brown. Brown is a member of the Cherokee Nation. Although Veronica had never met her father, Brown argued that the child’s mother gave her up without his consent. The South Carolina Supreme Court sided with him – voting 3 to 2 – that ICWA trumped state law, and she was returned to her birth father. As Chief Justice Jean Hoefer Toal wrote, “because this case involves an Indian child, the ICWA applies and confers conclusive custodial preference to the Indian parent.”
Now before the Supreme Court, we’ll wait and see. This is an important case and will change the course of life for all involved.