WASHINGTON — Supreme Court justices appeared torn on Tuesday over whether a federal law intended to protect Indian families allowed a Cherokee father to take his daughter from the adoptive parents who had been raising her.
The high court heard oral arguments in a case involving an Oklahoma man who is a Cherokee Nation citizen and his biological daughter, placed for adoption at birth by the girl's mother after the father refused to provide financial support.
The parents were not married, and Dusten Brown, the father, relinquished his parental rights by text message to the mother, though he later said he did so thinking the child would be raised by the mother and not put up for adoption.
About the case
The child, now 3, was adopted by a South Carolina couple.
However, Brown, of Nowata, challenged the adoption with the aid of the Cherokee Nation and won custody of the girl because of the Indian Child Welfare Act, passed by Congress in 1978.
The act was intended to keep Indian children with their parents or extended families at a time when many of those children were being removed from their homes by state agencies and others and placed with non-Indian parents.
The South Carolina couple that had raised the girl for more than two years appealed the case to the U.S. Supreme Court after losing custody in their home state courts.
Attorney Lisa Blatt, arguing for the South Carolina parents, told the justices on Tuesday that Brown had no legal rights in South Carolina and that the federal law was intended to prevent the breakup of Indian families.
“There is no Indian family here,” Blatt said, adding that there had been no legal relationship between the child and the birth father to break up.
Justice Antonin Scalia said Blatt's interpretation of the law rested on the assumption that the father had to have custody of the child for the family to be broken up.
“I don't know why that should be true,” he said.
“If that's what Congress meant, they could have put it much more narrowly. They had a very broad phrase, ‘to prevent the break up of an Indian family.' And this guy is … the father of the child.”
Chief Justice John Roberts noted that the child at the center of the case has less than 1 percent of Cherokee blood.
“Is it one drop of blood that triggers all these extraordinary rights?” he said.
Roberts asked whether the law would also to apply to a tribe that required no tribal blood for membership.
Justices also questioned attorneys about whether the best interests of the child were a factor in the case or in the federal law.
Justice Anthony M. Kennedy said the federal law displaces the determinations typically made by state courts about a child's best interests.
Arguing for the Obama administration, which is backing Brown and the Cherokee Nation in the case, Deputy Solicitor General Edwin Kneedler told justices that the federal law was meant to balance the competing interests of states and Indian tribes.
Kneedler said “nothing could be more at the core of tribal self-determination and tribal survival than the determination of tribal membership and the care about what happens to Indian children.”
What they're saying
Outside the Supreme Court before the arguments, Cherokee Nation Chief Bill John Baker prayed with Brown and tribal leaders and said, “If we fail, it will be a disaster for Indian country.”
In a brief interview, Baker said the federal law was approved when Indian children were being “shipped off” and removed from their heritage.
Inside the court, Blatt, the attorney for the adoptive couple, said the policy behind the law was “fantastic.”
“It was talking about Indian families who were being ripped away because of cultural biases and insensitivity,” she said.
“This case didn't involve cultural biases.”