No area of law presents such intractable human problems as domestic relations, especially when a child is involved. Only rarely do federal judges need to deal with custodial issues. But currently the U.S. Supreme Court is considering a case that pits the interests of a white, would-be adoptive couple, to whom a Latina biological mother surrendered her baby girl at birth, against those of the natural father and his Cherokee tribe. Adoptive Couple v. Baby Girl, No. 12-399.
This tug of war concerns an Oklahoma child, now more than 3 1/2, who—possessing a mere "sliver of [Cherokee] genetic material" (Brief for Guardian Ad Litem at 4)—is nonetheless deemed an "Indian child" because she qualifies for tribe membership. She therefore falls under the rubric of the Indian Child Welfare Act. 25 U.S.C, 1901 et seq. The act was designed to safeguard Native American families, an "alarmingly high percentage" of which were subject to the removal and placement of their children in non-Native American settings. In adopting "minimum federal standards" for custody proceedings relating to Native American children, Congress declared that it sought to protect their "best interests" as well as promote stable Indian tribes and families. However, the justices’ ability to fulfill both aims in the case of this child, and many others, is doubtful at best.
Originally, Baby Girl’s mother and father were planning to marry. After the mother broke off their engagement, the father said that he would relinquish his parental rights rather than have to pay child support. She then gave up the newborn to a well-off South Carolina couple. He signed a form that conceded his fatherhood and also stated that he was not contesting the adoption. (He subsequently claimed he had thought he was yielding the baby to the mother.) Yet a few days later, he petitioned for custody. Until that point, the father had never sought any contact with the girl, then 4 months old, nor paid any money on her behalf. Under state law, as is typical in such circumstances, he had abandoned his rights to his daughter. The question before the justices is whether the act compels a different result, as the state courts held in denying adoption and transferring custody to the father, when the child was 27 months old and had bonded with the adoptive parents.
The couple, joined by Baby Girl’s guardian ad litem, face a number of significant obstacles in their efforts to obtain reversal. Initially, they argue that the father’s lack of substantive state-law parental rights takes him out of the statute’s purview. This claim flies in the face of the statutory text, which defines a "parent" as "any biological parent… of an Indian child," not including an "unwed father where paternity has not been acknowledged or established." His paternity was both conceded and resolved by DNA testing.
Next, they contend that the lack of an existing Indian family removed the need to satisfy two of the act’s provisions. The first mandates that before parental rights’ termination, remedial efforts "designed to prevent the breakup of the Indian family" must have been made, without success; here, none were undertaken. The second forbids such termination unless proof beyond a reasonable doubt shows that the child’s "continued custody" by the Indian parent "is likely to result in serious emotional or physical damage to the child"; the court below found to the contrary. While the facts at hand do not seem to fit the continuity language of the latter section, the less specific term "breakup," contained in the former, could encompass both past and future, and thus derail the challengers’ quest. Finally, the would-be adoption violates the statutory preference accorded Indians. The petitioners’ endeavor to limit this provision by requiring at least a preferred nonparent’s attempt to gain custody is unpersuasive.
Despite the objective imbalance of positions, oral argument was not one-sided. Although justices Antonin Scalia, Ruth Bader Ginsburg, Sonia Sotomayor and perhaps Elena Kagan appeared to buy the father’s contentions, Chief Justice John Roberts Jr. and justices Stephen Breyer and Samuel Alito Jr. seemed more open to the petitioners’ arguments. The chief justice was especially troubled by the father’s failure to support his daughter. Significantly, he (like Justice Clarence Thomas, who as usual did not tip his hand) is an adoptive parent. Justice Anthony Kennedy, invoking King Solomon, expressed anguish over the difficulty of deciding cases like this one. His may be the pivotal vote.
The two lower-court dissenters accused the majority of settling Baby Girl’s fate without regard to her best interests. Indeed, the whole point of the act’s custodial provisions is to place a thumb on the scale inclining it toward the Indian parent, irrespective of the needs of the child: they strongly presume identity, or at least harmony, between her welfare and that of "her" tribe. The absence of such actual convergence in specific cases cannot help but sway some justices.
Notably, the child has now spent almost 1 1/2 years with her father. This late in the day, the question of her ultimate placement may, tragically, admit of no good answer.
Vivian Berger is professor emerita at Columbia Law School.