WASHINGTON - For the first time since 1989, the United States Supreme Court will consider a case involving the Indian Child Welfare Act (ICWA).
The U.S. government enacted ICWA in 1978 because of the high number of Indian children public and private agencie removed from their homes. The act gives relatives of the children and the tribes a say in what happens to Indian children. The act was designed to preserve Indian culture and heritage.
The Supreme Court will consider a December 2011 South Carolina family court decision ordering Matt and Melanie Capobianco to surrender custody of 27-month-old Veronica who had lived with them since her birth. The court gave her biological father, Dusten Brown, a member of the Cherokee nation, custody. Veronica lives with him today.
Amy Howe, the editor of Scotusblog (a blog that watches and writes about Supreme Court proceedings), thinks the Supreme Court may reverse the decision of the South Carolina courts.
"The court overwhelmingly grants certiorari to reverse a lower court's decision - a statistic that no doubt has ICWA supporters concerned, particularly when combined with the overall poor track record of Native Americans at the court in recent years," she said.
Brown, who was in the military, was estranged from Veronica's birth mother Christina Maldonado, though they had been engaged when the child was conceived. Brown declined to support Maldonado during the pregnancy unless Maldonado agreed to move up the date of their engagement and marry him. Maldonado eventually called off the engagement and asked Brown to provide child support or to surrender his parental rights. Brown decided to relinquish his rights.
Despite Brown's lack of support for either Maldonado or the child during the pregnancy or after the child was born, the South Carolina family court decided under ICWA that Brown had proved his parental rights by invoking ICWA to stop the adoption and taking a DNA test to prove he was Veronica's father. The South Carolina state and Supreme Court affirmed the family court's decision.
The Capobiancos say the fact that Brown is Veronica's biological father is not sufficient, as South Carolina law did not require Maldonado to seek Brown's consent as he was unwed and had failed to support the child and Maldonado.
And supporters of the Capobiancos say that all children should be treated equally under the law and that the ICWA treats children differently based on race.
Native American groups point to a long history of Indian children being removed from the care of their families and tribal members.
"Some who fiercely assert the evils of ICWA contend that all children should be treated equally and therefore ICWA should be dismantled," said Terry Cross, executive director of the National Indian Child Welfare Association. "This argument sounds reasonable to those unfamiliar with the long history that led to ICWA's passage. At that time 25-30 percent of all American Indian children were removed from their homes... 80 percent were placed, often permanently, in white homes."
Tribal groups, adoption agencies and attorneys and Indian law and constitutional rights experts are all watching this case closely, and some have filed briefs in this case. Depending on how the Supreme Court rules, the ICWA could be significantly diminished or ruled unconstitutional and adoptions of Indian and non-Indian children could be greatly affected.