Adoption is a popular option for many people who want to open their homes and help a child who is without a permanent family. Sometimes these children are mere infants, born to single parents without the financial means to care for the child and who want their child to grow up in a loving environment. With four Indian tribes in Kansas, it is not unusual for a couple to adopt a baby that may be of Native American descent.
The Indian Child Welfare Act
When it comes to Native American children, the adoption process has additional hurdles due to the existence of the Indian Child Welfare Act. The ICWA was enacted in 1978, according to NPR News, to protect Native American children from being taken from their families and placed for adoption in white foster and adoptive families. Fathers with Native American blood have used the ICWA with success in family law courts to stop adoptions.
However, a recent case brought before the U.S. Supreme Court by an adoptive couple, asked for clarification on the rule. The arguments were made in April by the couple’s attorney and the attorney of the child’s father who is a member of the Cherokee tribe. The couple was appealing the decision of the South Carolina Supreme Court, which handed custody over to the biological father, stating that the ICWA overruled the fact that the father had given up his parental rights.
The justices appeared to be divided as each side argued their case. Two of the justices are adoptive parents themselves and the case seemed to touch a sensitive nerve with them as well as with other justices whose questions reflected the emotions that the case involved. The following are the main arguments made:
- The birth father only intended to give parental rights to the mother; he objected immediately when he learned of the adoption.
- The birth father did not provide any financial support to the mother for the child.
- No Indian family had custody of the child when the child was placed for adoption.
- The ICWA was designed to prevent Indian families from being torn apart.
- The father had been shown to be a loving and fit parent.
- Non-Indian mothers would have little say in the matter of their child’s future.
Before arguments ended, it was also pointed out that the decision the justices made could also affect the adoptability of such children; families would be reluctant to pursue adoptions of Native American children if the court ruled in favor of the father, according to the family’s attorney.
After two months, the U.S. Supreme Court decided in a 5-4 ruling that the ICWA did not apply in this case because the father had already told the birth mother that he was giving up his rights according to U.S. News. The ruling means that a birth father will no longer be able to use the ICWA if he has previously given up his parental rights. However, if the father has not given up his parental rights, it appears that he may be able to use the ICWA to obtain custody of the child.
If you are considering adoption it is important to seek the experience of a qualified attorney in your area to explore your options.