On April 16th, the United States Supreme Court heard oral arguments in the case of Adoptive Couple v. Baby Girl. In Charleston where the adoptive parents reside, it is more commonly known as the Baby Veronica case. The South Carolina Supreme Court issued a decision, in July of 2012, upholding the decision of the Charleston Family Court which denied the adoption and required the adoptive parents to transfer custody of the baby girl to her biological father, a member of the Cherokee tribe. Chief Justice Toal authored the opinion.
In January of 2013, the United States Supreme Court granted certiorari. According to the Court, “[t]he Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-63, applies to state custody proceedings involving an Indian child. A dozen state courts of last resort are openly and intractably divided on two critical questions involving the administration of ICWA in thousands of custody disputes each year” The Court framed the issues before it as whether “(1) … a non-custodial parent can invoke ICWA to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law…. (2) …ICWA defines “parent” in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent.”
According to Marcia Coyle of the National Law Journal, the justices appeared to struggle with the case as they heard oral arguments last Tuesday. Justices Kennedy, Kagan and Roberts all asked difficult questions with Justice Kennedy noting that if the court could “appoint a King Solomon…as a special master…” it would.
Lisa Blatt, of Arnold & Porter, represented the adoptive parents and argued that “…there was no way to return this child to anybody other than the mother. And I want you to keep in mind about this case, is your decision is going to apply to the next case and to a 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 their — who raises their child. 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.'”
A decision is expected in June.