There was a story about this on NPR on my way home from work today.
Emotions boiled over at the U.S. Supreme Court on Tuesday as the justices heard arguments in a case testing the meaning and reach of the Indian Child Welfare Act, known as ICWA.
The 1978 law was enacted after Congress found that more than a third of all Native American children were being taken from their families and given to white adoptive and foster parents.
The question before the court was whether a Native American biological father who gave up his parental rights and refused to provide financial support to the mother and child could later object after the non-Indian mother gave up the child for adoption.
The birth father, Dusten Brown, considers himself Cherokee. The birth mother, Christy Maldonado, is of Hispanic heritage. Maldonado got pregnant while engaged to Brown, but subsequently broke off the engagement. Brown refused to support her or the child and eventually texted Maldonado that he was giving up his parental rights. He says he thought he was turning over his rights to Maldonado and therefore was angry to learn, four months after the birth, that she had put the child up for adoption. He then filed an objection in court and sought custody.
Two years later, the South Carolina Supreme Court ruled that while Brown would have had no rights under state law, the Indian Child Welfare Act trumped state law. The court ordered the adoptive parents to turn the little girl, by then 2 years old, over to Brown.
The Father's Rights
On Tuesday, emotions were pretty raw inside the Supreme Court chamber. That's not particularly surprising, given that two of the justices — Chief Justice John Roberts and Justice Clarence Thomas — have adopted children.
But it was Justice Sonia Sotomayor who jumped in feet first, repeatedly cutting off the adoptive parents' lawyer, Lisa Blatt, before Blatt could answer a question.
Finally the chief justice silenced Sotomayor, saying, "Could I hear her answer, please!"
Blatt argued that Brown could not invoke ICWA to get custody of his daughter. He had "no legal rights whatsoever," she said, because he had given them up and failed to provide any financial support.
Justice Antonin Scalia disagreed, saying, "This guy is the father of the child, and they're taking the child away from him even though he wants it."
Blatt replied that the birth father, who had not had any contact with the child and provided no financial support, had "a biological link that under state law was equivalent to a sperm donor."
But "this isn't state law," countered Scalia — it's a federal statute that uses "expansive" language to define the Indian family and to prevent its breakup.
Sotomayor took a similar view, asking, "If the choice is between a mother, a biological father or a stranger, and if the father's fit, why do you think" that the federal statute requires the child to be given to a stranger — namely, the adoptive parents?
The only stranger here, shot back Blatt, was the birth father, "who expressly repudiated all parental rights."
Justice Ruth Bader Ginsburg challenged Blatt's characterization, noting that the birth father said he only intended to surrender his custodial rights to the mother, not to adoptive parents, and that when he found out about the adoption, he objected.
Nonetheless, Blatt argued, Congress did not intend for ICWA to reach a situation like this one, where there was no existing Indian family with custody prior to the adoption. Applying ICWA to this adoption dispute, she said, would amount to "conscripting other people's children to grow the tribal population based solely on a biological link."
A Focus On Biology?
Following Blatt to the lectern was lawyer Paul Clement, representing the guardian ad litem appointed by the state court to determine the child's best interest. The state courts had misread ICWA, he maintained. And if indeed there were such preferences for noncustodial Indian parents under the law, it would amount to an unconstitutional racial classification.
Under the state court's interpretation, said Clement, ICWA moves the inquiry away from the child's best interests to focus instead on biology, the birth father and race — namely, that the child has 1 percent Indian blood.
Not so, said lawyer Charles Rothfeld, representing the father. Brown had been found a "fit, devoted and loving father" to his other children, and by the terms of the statute, that means he should be awarded custody.
Pressed by the chief justice, Rothfeld said that it doesn't matter how large or small a child's Indian heritage is because under ICWA, an adoption cannot go forward if a biological parent wants custody and is not a threat to the emotional or physical safety of the child.
Troubled by Rothfeld's contention, Justice Stephen Breyer noted that the father here appears to have "three Cherokee ancestors at the time of George Washington's father." And if you accept that view, said Breyer, "a woman who is a rape victim" could be at risk of having her child taken and given to the Indian father, who "probably just got out of prison."
Rothfeld swiftly replied that such a father could be shown to be unfit to have custody.
ICWA, he noted, was aimed at preventing the breakup of Indian families, and "there unquestionably was an [Indian] family here in the ordinary sense," including grandparents.
A Call For King Solomon And A Warning
At this point in the argument, Rothfeld seemed to become irrelevant as the justices battled it out.
"He had offered to marry the mother, and she rejected that," Scalia said.
Ginsburg interjected that she thought that there was some "ambiguity" about that.
Rothfeld chimed in to say that Brown "was excited by the pregnancy, was looking forward" to the child.
Roberts said, sarcastically, "He was excited, but ... he paid nothing during the pregnancy and nothing at the time of the birth" to support the child or the mother.
Justice Anthony Kennedy at this point seemed to call a timeout, wishing wistfully for the assistance of King Solomon.
Instead, as Kennedy observed, "What we have here is a question of a federal statute which ... displaces the ordinary best interest [of the child] determinations of the state courts."
If anyone thought that moment of quiet consideration might be the last word, they were mistaken.
In rebuttal, Blatt, the lawyer for the adoptive parents, had a warning for the justices. If you rule in favor of the father, she said, "you're basically banning the interracial adoption of abandoned Indian children. There's not a single adoptive parent in their right mind who is going to ... go through these Kafkaesque hoops."
The court's decision in this case, she told the justices, is going to apply to other absentee Indian fathers who have impregnated non-Indian women. These women, she said, will be rendered "second-class citizens" with "inferior rights," and "you're basically relegating the child ... to a piece of property with a sign that says 'Indian, keep off, do not disturb.' "
After the argument, Indian rights groups hotly disputed that notion, saying the ICWA has worked well for 35 years.
A decision in the case is expected by the end of June.
I'm still not sure how I feel about this. I feel bad for that kid, she's old enough for it to be quite an ordeal to be taken from who she thinks are her parents.