On Tuesday, the U.S. Supreme Court heard oral arguments in an adoption case involving the Indian Child Welfare Act. The law was enacted in 1978 after Congress discovered that over one-third of all Native American children were taken from their families and given to white adoptive and foster parents.
The law gives tribal governments a strong voice in child custody proceedings involving Indian children. It does this by giving tribes exclusive jurisdiction over the case when the child lives on, or is domiciled on, the reservation, or when the child is a ward of the tribe. It also gives tribes concurrent, but presumptive, jurisdiction over non-reservation Native Americans’ foster care placement proceedings.
The case currently before the court involves the question of whether a Native American biological father who gave up his parental rights some months after the birth of his daughter and who refused to provide financial support to the mother of the child can later object to the non-Indian mother’s decision to put the child up for adoption.
The case is a difficult one, involving a little girl who went to live with an adoptive family for almost two years before being placed back in the custody of her father. The latter, sources say, has only a distant connection to the Cherokee tribe, making the focus on biology somewhat interesting given the law at work in this case.
Not all custody cases involve such specialized questions as this case does, but many custody cases are difficult from an emotional perspective. When it comes to children, it is important to make decisions that are in their best interests. In this case, the involvement of the Indian Child Welfare Act, in some ways, mitigates the influence of the “best interests” standard.
It will be interesting to see how this case plays out-whether or not this little girl will remain with her father or will be forced once again to switch caretakers.