Arguments in a complicated and wrenching American Indian child adoption case had at least one U.S. Supreme Court justice Tuesday wishing for a modern-day King Solomon.
"Our domestic relations judges all by themselves every day have these difficult problems," said Justice Anthony Kennedy during arguments in Adoptive Couple v. Baby Girl, 12-399. "If we could appoint King Solomon, who was the first domestic relations judge, as special master, we could do it. But we can’t do it."
After 60 minutes of sometimes passionate advocacy by the lawyers, there appeared to be neither solomonic wisdom nor consensus among the justices on how to decide the case.
The Supreme Court rarely reviews domestic-relations cases, but the Baby Girl challenge involves interpretation of the federal Indian Child Welfare Act, enacted by Congress in 1978 "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families."
Congress passed the ICWA in response to abusive child-welfare practices in the 1970s. Large numbers of Indian children were being separated from their families and tribes—an estimated 25 percent to 35 percent—through adoption or foster care placement, usually in non-Indian homes. Among other key provisions, the act establishes preferences for the placement of an Indian child, beginning with the biological parent, the parent’s family and other Indian families, before considering placement outside the tribe.
Baby Girl Veronica was born in Oklahoma to an unmarried, non-Indian mother and a Cherokee father. The child is 3/256ths Cherokee. The mother, after refusing to marry the father, asked him if he wanted to pay child support or terminate his parental rights. He told her, in a text message, to terminate his rights. He later said he misunderstood her question and thought he was giving her full custody of their child.
The mother decided to place the child with a couple from South Carolina who began the adoption process. The biological father was notified of the adoption proceedings 12 days before his deployment to Iraq. He then asserted his paternity and sought custody. The South Carolina family court and the state Supreme Court ruled that the ICWA required custody by the father who had shown he would provide a loving and good home. Veronica, who had been with the adoptive couple for 27 months, was transferred to her father.
Representing the adoptive couple, Lisa Blatt of Arnold & Porter argued that, even if the biological father met the definition of "parent" in the ICWA, he could not take advantage of the law’s other protections, particularly one designed to prevent "the break up" of Indian families.
"This father had no legal rights whatsoever, parental or custodial, and the word ‘break up,’ even the other side concedes, it’s discontinuance of an existing legal relationship," she said. "There was no legal relationship between this child and the birth father or his relatives." There was no existing Indian family, she argued.
But Justice Antonin Scalia was skeptical of her argument that there was no existing Indian family. "I mean, it seems to me he’s the father, the other woman’s the mother, that’s the Indian family, the father, the mother and the kid."
Justice Elena Kagan also pressed Blatt about the father’s rights under the ICWA, asking, "But what’s the point of labeling him a parent if he gets no parental rights under the statute and if the [parental] termination provisions don’t apply to him?"
The father had rights to notice, counsel and heightened consent requirements, Blatt said. "Just because he’s in the door as a parent, that doesn’t mean the statute lets him leave out the back door with the child."
Blatt and Paul Clement of Bancroft, counsel to the guardian ad litem in the case, repeatedly said the best interests of the child was never the standard for determining custody by the lower courts. Those courts looked to the ICWA’s requirement that there be an effort to remediate the breakup of the Indian family, and, they ruled, the adoptive couple failed to do that. Clement urged the justices to remand the case to the South Carolina Supreme Court for a determination of the child’s best interests.
Just as the facts of the case have been in dispute, so too are the parties’ understanding of what the lower courts did.
Representing the father, Charles Rothfeld of Mayer Brown said it was "simply false" that custody was transferred to the father without a determination of the child’s best interests.
Chief Justice John Roberts Jr., who is an adoptive father of two, seemed troubled by the fact that a child who is 3/256ths Cherokee is an "Indian child" under the ICWA. He asked if a hypothetical tribe allowed someone to enroll without a blood requirement and that person had a child, would the child be considered an "Indian child" under the ICWA?
Rothfeld said that would be true "in theory," but with an assist from Scalia, added there were federal requirements for approval of tribes and one of the conditions is blood.
Roberts later made a comment in response to Rothfeld’s claim that the father in the case was excited about the mother’s pregnancy and wanted to marry her. The father was excited, said the chief justice, but he paid nothing during pregnancy nor at birth, "so he was excited by it; he just didn’t want to take any responsibility."
In her rebuttal, an emotional Blatt warned the justices that if they affirmed the South Carolina Supreme Court, they would basically be banning the interracial adoption of abandoned Indian children.
"Your decision is going to apply to the next case and to an apartment in New York City where a tribal member impregnates someone who’s African-American or Jewish or Asian Indian, and in that view, even though the father is a completely absentee father, you are rendering these women second-class citizens with inferior rights to direct their reproductive rights and who raises their child," she said. "You are relegating adopted parents to go to the back of the bus and wait in line if they can adopt. And you’re basically relegating the child, the child to a piece of property with a sign that says, ‘Indian, keep off. Do not disturb.’"
Marcia Coyle is the chief Washington correspondent for The National Law Journal, a Legal affiliate based in New York.