GWEN IFILL: Tribal law, federal law, and the fate of a young girl. The Supreme Court heard a rare child custody case today.
Ray Suarez has that.
RAY SUAREZ: The little girl at the center of this case is known as Baby Veronica. She’s caught in a custody battle, the kind normally heard in local courts. But the case was heard today by high court justices since it raises larger questions about federal law because the girl is part Cherokee Indian.
The Indian Child Welfare Act was passed in 1978 to protect children and the stability of Indian tribes. It allows tribal involvement in custody decisions, so Indian children aren’t unnecessarily removed from their ethnic origins.
Marcia Coyle of the National Law Journal was in the courtroom this morning, and is back with us tonight.
And, Marcia, when people hear custody battle, they tend to think mother vs. father, but this was kind of a three- or even four-way legal argument, wasn’t it?
MARCIA COYLE, National Law Journal: Absolutely, Ray.
You had the lawyer for the adoptive couple here who had custody of the child for about 27 months. You had the lawyer for the guardian ad litem for the child. And then on the other side, you had a lawyer for the biological father of the child and a lawyer for the United States arguing.
RAY SUAREZ: So why was the Indian Welfare Act — Child Welfare Act passed in the first place, and does the biological father clearly fall under its provisions?
MARCIA COYLE: The act was passed in response to a real crisis.
It’s estimated that roughly 35 percent of Indian children were being removed from Indian families by abusive child welfare agencies and being placed in — either in adoptive homes or in foster care and generally non-Indian foster care or adoptive homes.
So Congress responded to that with this act, which does provide special protections for Indian families, as well as for Indian tribes.
RAY SUAREZ: Was there any argument over what makes someone an Indian?
MARCIA COYLE: There really wasn’t specific argument about that, but there were questions raised, some skepticism about how much of an Indian this child is.
Chief Justice Roberts, Justice Alito raised questions about, well, this child is three-and-256ths of Cherokee blood. What if you had a tribe, for example, that decided that it would allow anyone to enroll who didn’t have any Cherokee blood, and someone did enroll like that, had a child; would that child then be considered an Indian child?
They posed several hypotheticals trying to get at how far the act really reaches. But, as the lawyer for the biological father explained, there are federal requirements for recognition of tribes, and those hypotheticals are rather extreme. But, also …
RAY SUAREZ: But this is an issue in this case, isn’t it, because it’s the father’s status as an Indian which he’s arguing trumps other kinds of claims and other findings in state courts, which normally handle custody battles.
MARCIA COYLE: That’s right.
And there are no blood tests under this act. He — because he is the biological father, he does fall under the definition of an Indian parent. But the parties do dispute how the act applies in the situation where they claim — at least the adoptive couple claims that the biological father here, he was an unwed father. There’s an exclusion under the act for parents, unwed fathers who do not assert or establish paternity.
The dispute is that the biological father says that he did do that as soon as he was made aware of the adoption proceedings. The adoptive couple’s attorney claims too little, too late.
RAY SUAREZ: The non-Indian couple, the Capobiancos from South Carolina …
MARCIA COYLE: Yes.
RAY SUAREZ: … who adopted the little girl, it appeared from the transcript as if some of the justices weren’t altogether comfortable with having to make a call in this case.
MARCIA COYLE: I think there really was some discomfort.
Justice Kennedy at one point pointed out that federal — I’m sorry — state courts, family courts deal with these kinds of problems all the time. And he said the first family judge really was King Solomon, and if they could appoint King Solomon as a special master here, they would, but they can’t.
So it clearly is posing some difficult issues for them. There seemed to be almost a divide on the court between justices who felt that the language of the law is quite clear, that the father is a parent under the law, and that special protections kick in because he is an Indian parent and this is an Indian child, and other justices concerned about whether the best interests of the child were — are really considered in this situation. Does state law apply at all in making the decision as to who should have custody?
So, yes, I would say that they’re uncomfortable with this.
RAY SUAREZ: There were separate arguments from the lawyers for the adoptive couple …
MARCIA COYLE: Right.
RAY SUAREZ: … for the biological father, Dusten Brown, and for the guardian appointed by the South Carolina state government.
MARCIA COYLE: Right.
RAY SUAREZ: What were the central conflicts from these three separate views of the law?
MARCIA COYLE: Well, on the adoptive parents’ side — and they are supported by the guardian ad litem in this case — they argue that, even if the father — even if the father is a parent under the law, he has no legal rights. He had no relationship with this child, that the Indian Child Welfare Act presumes an existing Indian family. It’s all geared to preserving an Indian family, and there was no family here.
On the other side, the father and the United States argue that the father does fit the definition of parent, and the South Carolina Supreme Court, as well as the state family court, applied the federal law accurately in refusing to terminate his parental rights. They found that he would provide a loving home and family for the child and met the other requirements of the law.
RAY SUAREZ: The Obama administration and many Indian tribes came in on the side of the biological father. We will find out how it all turns out later in the term.
Marcia Coyle, thanks a lot.
MARCIA COYLE: My pleasure, Ray.