Update: On June 26, 2013, the U.S Supreme Court reversed the judgment of the South Carolina Supreme Court and remanded the case for further proceedings based on its holding that 25 USC §1912(f) (part of the Indian Child Welfare Act) doesn’t apply when the parent opposing the adoption never had custody of the Indian child.
An episode of A&E’s series Longmire (“The Dog Soldier”) delved into the complicated world of Indian child fostering and adoption. The show got the law wrong, but that’s not surprising in this complicated area. Although the Supreme Court may offer some clarity in its upcoming decision on the appeal of Adoptive Couple v Baby Girl (SC 2012) 731 SE2d 550, it would take the wisdom of Solomon, invoked wistfully by Justice Kennedy, to fashion a happy outcome for one Indian child.
On the A&E show, a villainous social worker and a group home director schemed to take children from the nearby Indian reservation, fabricating allegations of parental abuse or neglect, then skimming the premium paid to the foster parents. This made for a tension-filled story, but the show’s writers were apparently ignorant of the Indian Child Welfare Act of 1978 (ICWA) in exercising their poetic license.
During the 19th century, the Bureau of Indian Affairs founded boarding schools where Indian children were taught to become assimilated into mainstream American culture. By the early 1970s, as many as 60,000 Indian children were enrolled in such schools, and that, along with the fact that up to 90 percent of Indian children removed from their families were being adopted by non-Indian parents, became cause for concern in Congress.
In response, Congress enacted The Indian Child Welfare Act of 1978 (ICWA) (25 USC §§1901-1963)
[t]o protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture.
Unlike other family law matters, which are specifically reserved to the states, ICWA sets federal standards for Indian child custody proceedings including adoption, termination of parental rights, and removal and foster care placement of Indian children residing within their own tribal reservation or otherwise meeting the definition of an “Indian child.”
The case currently before the Supreme Court involves an engaged couple whose relationship deteriorated after the woman became pregnant. The mother arranged for an open adoption with a South Carolina couple, but the father, a member of the Cherokee Nation, opposed it. Following a family court trial, the over two-year-old child was transferred from her adoptive parents to the biological father she had never seen. The South Carolina Supreme Court affirmed the lower court’s decision. Adoptive Couple v Baby Girl (SC 2012) 731 SE2d 550.
This isn’t going to be an easy decision for the Supreme Court. As NPR reported, Justice Kennedy observed that “[w]hat we have here is a question of a federal statute which…displaces the ordinary best interest [of the child] determinations of the state courts.”
We’ll see how Solomonian the Court can be when it decides this case. To understand how ICWA applies to juvenile dependency and adoption cases, turn to CEB’s California Juvenile Dependency Practice, chap 9, and California Child Custody Litigation and Practice, §§5.32-5.37.
Other CEB blog posts you may find interesting:
- If We Die, Where Will the Kids Go?
- Juvenile Dependency Primer
- So How Is this Custody Arrangement Going to Work? 4 Things to Go into Any Joint Custody Order
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