Adoptive Couple v. Baby Girl: Why It's NOT About American Indian Rights

By Chris Hoenig


Lost in the maze of landmark Supreme Court decisions this week (affirmative action on Monday, voting rights on Tuesday, same-gender marriage on Wednesday) was a case that didn’t include anyone’s name: Adoptive Couple v. Baby Girl. In it, the justices ruled by a 5-to-4 margin to return a young girl to her adoptive parents in South Carolina, dismissing the legal claim of her biological father, who is a member of the Cherokee Nation.

The case centered on the Indian Child Welfare Act, a law passed in 1978 to prevent American Indian children from being taken from their homes and adopted by non-American Indian families. The claim by the biological father relies on generations of ancestry—the baby girl is 3/256ths Cherokee—in asking the court to apply the law and keep the girl with her father.

But the majority justices did not see this as a case of American Indian rights, but rather parental rights at large. The biological father had abandoned the baby’s mother during pregnancy, did not follow state guidelines for legal recognition as a parent (he had, in fact, renounced his custodial rights) and made no claim for parental status until the girl’s adoption was being finalized. Rather, the biological father had actually signed off on the adoption—he claimed due to a misunderstanding—which he would not have had to do if he wasn’t an American Indian.

In the opinion, written by Justice Samuel Alito, the court’s majority found that a noncustodial biological father with no legal parental rights (the court found that his claims to legal parental rights were unjustified) was trying to assert protections that the law afforded to custodial American Indian parents. “It would be absurd to think that Congress enacted a provision that permits termination of a custodial parent’s rights, while simultaneously prohibiting termination of a noncustodial parent’s rights,” the opinion states. “If the statute draws any distinction between custodial and noncustodial parents, that distinction surely does not provide greater protection for noncustodial parents.”

Further, the justices ruled that the purpose of the law was to prevent the unlawful breakup of American Indian families, but in this case, the “family” was not in existence to break up. “When an Indian parent abandons an Indian child prior to birth and that child has never been in the Indian parent’s legal or physical custody, there is no ‘relationship’ that would be ‘discontinu[ed]’—and no ‘effective entity’ that would be ‘end[ed]’—by the termination of the Indian parent’s rights.

“In such a situation, the ‘breakup of the Indian family’ has long since occurred.”

One of the men behind the law disagrees.

“It’s an attack on tribal sovereignty through the children. I can’t believe they did this,” retired Senator James Abourezk (D., S.D.) said.

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