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Supreme Court to hear child custody fight; at crux is law on tribal rights

US Supreme Court on Tuesday hears an appeal of an adoptive couple seeking the return of the girl they raised for two years. The child now lives with her father, a member of the Cherokee Nation, per order of a lower court.

By Staff writer / April 15, 2013

An American flag flies in front of the Supreme Court in Washington, D.C., June 2012.

Alex Brandon/AP/File


“Adoptive Couple v. Baby Girl” is not the kind of case that usually finds its way to the US Supreme Court. On Tuesday, the justices take up an appeal that could well require the wisdom of Solomon, and then some.

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The emotionally charged case involves a dispute over custody of a young child known in court papers simply as “Baby Girl.” At issue is the applicability of a federal law designed to preserve the culture and heritage of native Americans and the viability of their tribes.

Caught up in the dispute are the birth mother, known as “Mother” in court papers, who put the child up for adoption, the objecting “Father,” who is a member of the Cherokee Nation, and the “Adoptive Couple,” who are not members of a native American tribe.

The case is important because it will help clarify for judges across the country how to weigh conflicting claims at the intersection of state child custody laws and a federal law known as the Indian Child Welfare Act.

Here are the facts:

Baby Girl was born to an unwed mother in Oklahoma in September 2009. The next day, she was placed with Adoptive Parents and raised in Charleston, S.C. When Baby Girl’s biological father discovered she’d been placed for adoption, he opposed the action.

Lawyers for the adoptive couple argued that the father had relinquished his parental rights by failing to provide any financial support for the birth mother during her pregnancy.

But there is an important twist in the case. The father is a member of the Cherokee Nation, and a federal law – the Indian Child Welfare Act – generally bars the adoption of an Indian child by non-Indians.

Congress passed the ICWA in 1978 to address abusive child-welfare practices that had resulted in 25 percent to 35 percent of all Indian children being removed by government authorities from their families and placed for adoption or in foster homes. Ninety percent of adopted children were placed in non-Indian homes.

The ICWA was designed to protect the rights of every child born of Indian heritage, as well as the rights of the Indian community and tribe to preserve its culture by retaining and raising its own children.

Citing the ICWA, a South Carolina family court judge ordered the adoptive couple in Charleston to turn the child over to her father in Oklahoma. Until that point, the adoptive mother and father were the only parents the 2-year-old toddler had ever known.

The family court judge determined that the ICWA trumped state child custody laws that otherwise would have upheld the adoption. The South Carolina Supreme Court affirmed by a 3-to-2 vote.

“We do not take lightly the grave interests at stake in this case,” the state high court said, acknowledging that the law required that the child be transferred to the biological father.

“Adoptive Couple are ideal parents who have exhibited the ability to provide a loving family environment for Baby Girl,” the court said. “Thus, it is with a heavy heart that we affirm the family court order.”


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