Supreme Court To Hear Arguments On Indian Child Welfare Act

Supreme Court Washington DC USA

Originally written by MEG KINNARD and published at the Huffington Post on 04/14/13.

COLUMBIA, S.C. -- The U.S. Supreme Court this week will hear an emotional family challenge to longstanding federal law on the adoption of Native American children, with several states, tribes and children's welfare groups lining up to support the current rules.

The case involves a South Carolina couple fighting for custody of their adopted daughter who, after a court battle, was returned to her biological father in Oklahoma.

At issue is the Indian Child Welfare Act, a federal law that gives tribes and relatives a say in decisions affecting children with Native American heritage. Passed in 1978 because of the high number of Indian children being removed from their homes by public and private agencies, the act gives the tribe and relatives a say in decisions affecting the child. In the current case, to be heard Tuesday, more than a dozen states and 23 current and former members of Congress have filed briefs supporting the law.

Matt and Melanie Capobianco adopted a baby several years ago, but the girl's father – a member of the Cherokee Nation whom she had never met – argued that the child's mother gave her up without his consent. The state's highest court sided with him, and she was returned to Oklahoma.

When Dusten Brown challenged the Capobiancos' adoption, he said federal law favored the girl living with him and growing up learning tribal traditions. A South Carolina court agreed with Brown, who took the girl – named Veronica, and now age 3 – back to Oklahoma in 2011.

Appealing to the state Supreme Court, the Capobiancos said they had bonded with Veronica and argued that removing her was detrimental to her development. But justices sided with Brown last summer, saying in an emotional opinion that, while the Capobiancos were "ideal parents," federal law requires that custodial preference be given to the child's Native American parent.

The U.S. Supreme Court has considered Native American adoption before. In 1989, the court ruled that it was up to tribal courts to make decisions about Indian adoptions. In that case, a tribal court ultimately ruled that a set of toddler twins could stay with their adoptive parents.

The 18 states that have signed onto a brief supporting the federal law are Alaska, Arizona, California, Colorado, Connecticut, Georgia, Idaho, Illinois, Maine, Michigan, Mississippi, Montana, New Mexico, New York, North Dakota, Oregon, Washington and Wisconsin.

In addition, the federal government has filed an amicus brief backing the law, as have more than a dozen child welfare organizations.

State courts have been at odds on the law's application. The American Association of Adoption Attorneys hopes the matter will be clarified by the high court. The group has filed a brief supporting the Capobiancos' case. It says the court previously has ruled on the rights of mothers and unwed fathers – rights that, a past president of the group said, federal law hasn't defined, at least for Native American children.

"Those cases clearly state that unwed fathers do not have an automatic fully protected right to participate in decisions about the child," Seattle adoption attorney Mark Demaray said last week during a conference call with reporters.

Case law aside, Demaray said, the emotional aspects of the case are hard to ignore.

"We often refer to cases like this one before the Supreme Court as a tragic situation we all want to avoid," Demaray said. "There's no question this case is tragic for all the families and parties involved in it, particularly for this child, no matter what the outcome."

Tuesday's case is Adoptive Couple v. Baby Girl, 12-399.


Bruce Smith contributed to this report from Charleston.


Kinnard can be reached at

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