Next week, the Supreme Court will hear oral arguments in the Adoptive Couple v. Baby Girl case. This is only the second time since the passage of ICWA that the Court will hear a case involving the statute. The case is drawing intense media attention, and has since its arrival in the South Carolina Supreme Court. Today Andrew Cohen posted his piece at the Atlantic, one of the few mainstream media outlets to give a balanced view of the case and a defense of the law at the heart of the case.
Very briefly, the case involves the child of a non-Indian mother and a father who is a citizen of the Cherokee Nation. As in almost all family law cases, there are various disputed facts about the involvement of the father in the mother's life after he found out the mother was pregnant. It bears noting again the trial court found the mother's testimony less compelling than the father's, and found for the father, as did the South Carolina Supreme Court. Father (while the names of all the parties are very easily ascertained, I prefer not to the publicize the name of the 3 year-old child at the center of this dispute) was serving at Fort Sill when he found out the mother was pregnant. He wanted to get married, she did not. When asked to surrender his parental rights, he believed he was surrending the rights to the mother, not to give up his daughter for adoption. When he found out his parental rights were being terminated for adoption purposes, he contacted his attorney on the base and started the legal process to get his child back. Days later he was deployed to Iraq for a year. Upon his return, he continued to fight the legal battle and the courts returned his child to him just after Christmas, 2011.
I've been asked repeatedly why the Court took the case, what caught the Court's eye, what I think will happen. I honestly don't know. I will say that the posture of the case--the tribal interest/father winning in state court and appealled up by the non-Indian party--fits Prof. Matthew Fletcher's analysis of the cert process for tribal interests these days. His work demonstrates that when a tribe wins below, the Supreme Court is more likely to take notice of the case.
While some are worried that the Adoptive Couple's aggressive use of the media in this case attracted the Court's attention. The more I think about this, the more I don't think this is the situation. The briefs of the Adoptive Couple and the Guardian ad Litem attack the very foundation of federal Indian law, claiming applying the Indian Child Welfare Act in this case is a prohibited race based use of the law (impermissable preferences). There is also a question of the use of state law to define terms in the federal statute (federalism concerns). Cohen's article details these claims, and shines a welcome light on the horrible role of the guardian ad litem in this case. Those concerns, plus the posture of the case, led to Court taking the case.
The amicus briefs on the side of the father, including 18 state attorneys general, the Solicitor General, and child welfare agencies and non-profits, are incredibly strong. And when we talk to child welfare professionals at the state and county level about the requirements of ICWA, the responses are almost always along the lines of surprise--that the law is really a best practices statute, and the practices it guarantees for American Indian children are practies our family law courts should aspire to for all children.