On Friday January 4, 2013, the U.S. Supreme Court agreed to review a South Carolina court’s decision to return custody of a 27-month old child to her biological father who was an enrolled member of the Cherokee tribe. They made this decision with a “heavy heart” because the child had lived with her adoptive non-Indian parents since birth. In addition, the birthfather had terminated his parental rights. The South Carolina court ruled that the Indian Child Welfare Act (ICWA) mandated that they return the child to the biological father.
The last time the U.S. Supreme Court issued a ruling on ICWA was in 1989 in Band of Choctow Indians v. Holyfield, when the Court ruled that the Mississippi Band of Choctaw Indians had jurisdiction over a voluntary adoption made off the reservation by Indian parents to a non-Indian adoptive family. Ultimately, the tribal court decided to leave the children (twins) with the adoptive family, but mandated that they stay in touch with their birth families (essentially an open adoption).
Congress passed ICWA in 1978 to stop the involuntary removal of Indian children from Indian families. Nevertheless, ICWA includes provisions for voluntary adoptions recognizing that given the unique tribal cultural heritage of Indian nations, the best interests of the child, extended family, and tribe may be contrary to the interests of the Indian parents who are making a voluntary adoption plan. As a result, the tribe may intervene in adoptions that involve Indian children even if the birthparents oppose the intervention.
It is not clear from the news stories about this case if the adoption agency handling the case ever notified the Cherokee tribe of the adoption. This is a requirement of ICWA even if the birthfather had terminated his parental rights. Once the tribe learned of the adoption, they intervened in the adoption stating that ICWA gave them jurisdiction in the adoption, and the South Carolina court agreed.
The adoptive parents in this case asked the U.S. Supreme court to rule on whether ICWA applies when a custodial non-Indian parent initiates a voluntary adoption, and the other parent has not established legal parental rights. The birthfather believes he established legal paternity, and that the birthmother tried to hide the Indian heritage of his daughter. There is no way to know what issues the U.S. Supreme Court will ultimately address. Lawyers for both sides will probably argue their cases before the court in April, with a decision expected in June.
The Independent Adoption Center supports ICWA, but only if it is in the best interest of the child. In Band of Choctow Indians v. Holyfield the tribal courts wisely decided to mandate an open adoption so that the children would maintain contact with their tribal cultural while remaining with the adoptive family, the only home they had ever known.