ROBERT SIEGEL, HOST:
Today at the Supreme Court, emotions boiled over. The case involved the fate of an adopted American Indian baby girl under the Indian Child Welfare Act. The 1978 law was enacted after Congress found that more than a third of all Indian children were being taken from their families and given to white adoptive and foster parents.
NPR legal affairs correspondent Nina Totenberg has more on today's arguments.
NINA TOTENBERG, BYLINE: Christy Maldonado's ethnic background is Hispanic. Dusten Brown considers himself Cherokee. When Christy became pregnant and refused to marry Dusten, he refused to support her or the child and gave up his parental rights. He said later that he thought he was relinquishing those rights to Christy, and when he learned that she had given up the child for adoption, he went to court to get custody.
Two years later, the South Carolina courts ruled that the Indian Child Welfare Act, ICWA, trumped state law and ordered the adoptive parents to turn the child over to Dusten.
At the U.S. Supreme Court today, emotions were pretty raw. Not particularly surprising, given the fact that two of the justices, Chief Justice Roberts and Justice Thomas, have adopted children. But it was Justice Sotomayor who jumped in feet first, repeatedly cutting off the adoptive parents' lawyer, Lisa Blatt. Finally, the chief justice silenced Sotomayor, saying could I hear her answer, please?
Blatt said that Dusten Brown had no rights because he'd given them up.
Justice Scalia: This guy is the father of the child, and they're taking the child away from him even though he wants it.
Replied Blatt: He has a biological link that under state law was equivalent to a sperm donor.
Justice Scalia: This isn't state law. This is a federal statute, which uses expansive language to define the Indian family and to prevent its breakup.
Justice Sotomayor: If the choice is between a mother, a biological father or a stranger, and if the father's fit, why would you think that the federal statute requires the child to be given to the stranger, the adoptive parents?
The only stranger here, shot back Blatt, was the birth father.
Following Blatt to the lectern was lawyer Paul Clement, representing the guardian ad litem appointed by the state court to determine the best interests of the child. The state courts had misread ICWA, he maintained, otherwise the law would amount to an unconstitutional racial classification that changes the inquiry away from the child's best interests and focuses instead on biology and racial heritage.
Not so, said lawyer Charles Rothfeld, representing the father. Dusten Brown had been found fit. He was a loving and caring father to his other children. And by the terms of ICWA, that means he should be awarded custody.
Pressed by the chief justice, Rothfeld said that it doesn't matter how large or small a child's Indian heritage is - here it was 1 percent - an adoption cannot go forward under ICWA if a biological parent wants custody and is not a threat to the emotional or physical safety of the child.
Justice Breyer: If you accept that view, a woman who's a rape victim would face the risk of having her child taken and given to the Indian father who probably has just gotten out of prison.
Rothfeld replied that such a father could be shown to be unfit. ICWA, he went on, was aimed at preventing the breakup of Indian families. And here, there unquestionably was an Indian family in the ordinary sense, including Indian grandparents.
At this point in the argument, Rothfeld seemed to become irrelevant as the justices battled it out.
Justice Scalia: He offered to marry the mother, and she rejected that.
Justice Ginsburg: There was some ambiguity about that.
Chief Justice Roberts: He paid nothing during the pregnancy and nothing at the time of the birth to support the mother or child.
Justice Kennedy seemed to call a time-out, wishing wistfully for the assistance of King Solomon. Instead, as Kennedy observed, what we have here is a question of a federal statute which displaces the ordinary "best interests of the child" determinations made by the state courts.
If observers thought that moment of quiet consideration might be the last word, they were mistaken.
In rebuttal, Lisa Blatt, the lawyer for the adoptive parents, had a warning for the court: If you rule in favor of the father, she said, you're basically banning the interracial adoption of abandoned Indian children because no non-Indian adoptive parents are going to go through these Kafkaesque hoops.
Your decision is going to apply to any other absentee Indian father who has impregnated a non-Indian woman. The women will be second-class citizens with inferior rights, and you're basically relegating the child to a piece of property with a sign that says: Indian - keep off.
Nina Totenberg, NPR News, Washington.
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