Supreme Court rules against Cherokee father

The case, Adoptive Couple v. Baby Girl, involved a girl whose father, Dusten Brown, had fought to get custody of her despite her adoption as a newborn by a non-Native couple from South Carolina. Brown had argued in the lower courts that his daughter’s mother had given her up without his consent and the Indian Child Welfare Act required the child be placed with him rather than the non-Native couple.

Enacted by Congress in 1978, the act gives preference to Native parents and tribes when considering placement of Native children. It was passed to combat the high number of Native children being removed from their homes by public and private agencies.

A South Carolina court sided with Brown, and he took 3-year-old Veronica back to Oklahoma with him in 2011.

The current case before the U.S. Supreme Court pitted advocates of the law against those who wanted it changed or abolished.

In a 5-4 decision on Tuesday, the U.S. Supreme Court ruled that the federal law didn’t provide protection in situations where no existing Native family existed. Because Brown didn’t have custody at the time the South Carolina Supreme Court ruled in his favor, the law shouldn’t have applied to his case, Justice Samuel Alito wrote in the majority opinion.

The high court didn’t terminate Brown’s parental rights, but it sent the case back to the South Carolina Supreme Court to decide whether to do so.

Robert McEwen, an attorney for Nebraska Appleseed, said the high court’s ruling likely won’t affect many Native child welfare cases because the court ruled narrowly on the law Tuesday. That’s because most Native child welfare cases involve children being taken from Native parents who had custody of their children, he said. Brown didn’t have custody of his daughter prior to his efforts to gain custody of her.

McEwen said the lower court would need to consider whether to terminate Brown’s parental rights and likely would place some emphasis on the fact that his daughter has now lived with him for the past year and a half.

“The Supreme Court chose to narrowly tailor its opinion to the facts of the case while still upholding the law as good,” he said. “It remains one of the best practices within child welfare for Native children.”

Misty Thomas, social services director for the Santee Sioux Tribe, said she couldn’t think of a child custody dispute involving a Santee Sioux family in which a parent who had never had custody of a child was suing for custody. She said she still feared the ruling could hurt efforts to reunite Native children with their Native families.

Keeping Native children connected to their tribal cultures is important for developing strong identities for children, Thomas said. She said Native children who are taken from their families and given to non-Native families often struggle to find their Native families later in life.

“It can be very hurtful at times in their lives,” she said. “It leads to other things, like drugs and alcohol abuse.”