The case pits a natural dad against adoptive parents making a BIOTCh argument. The dad would have lost and no one cared, but for the fact that he has 2% Cherokee blood and an obscure 1978 federal law (ICWA) was passed to block an epidemic of social workers taking kids from Indian parents and giving them to non-Indian adoptive or foster parents.
I am annoyed that some dad has more rights than I do just because he has 2% Cherokee blood. That got the feds to goto bat for him, got the attention of the federal courts, and got his kid back. Millions of other non-Cherokee dads have much better (non-ICWA) legal arguments, but they do not get any help getting their kids back.
Here are some opinions:
“Cases like this are among the most difficult the justices ever have to decide. If you don’t believe me, ask Justice Antonin Scalia, who last fall cited an ICWA case from 1989 as one of his hardest in 27 years on the Supreme Court bench. They are difficult because there is only one child and two families seeking to raise her and thus no room for Solomon’s compromise.”This case is not difficult at all. The mom put the kid up for adoption. The dad wants the kid, even tho he was tricked into signing some papers while being shipped off to the Iraq War. The adoptive parents did not follow the ICWA law. Even without ICWA, the law should favor the natural parent over strangers.
“The Indian Child Welfare Act, which grants individuals and tribes statutory rights, does not trump the child’s constitutional rights,” McCarthy said. “The case provides an excellent opportunity for the Supreme Court to finally, hopefully and at long last clarify: Does a child have a constitutional right to a secure and stable home? They’ve never reached that issue yet.”
Yes, this would be a big case of the Supreme Court suddenly decided that all our Indian laws are unconstitutionally racially discriminatory, or that dads have a constitutional right to their kids, or that social workers can adopt out a kid on a belief that adoptive parents have a more secure and stable home. But none of those are likely. The court does not have the guts to directly address parental rights.
I hope this case gets lots of publicity, and forces the public to think about the issues. Some people sympathize with the adoptive parents for having to give up the kid after 2 years of custody. But they are not parents and they never even talked to the real dad. They only had custody for 2 years because they spent 2 years fighting ICWA in court.
This sort of argument is made all the time in family court. A mom will make a phony domestic violence charge, get temporary custody pending an investigation, and when the investigation fails to back her up, she argues that preserving her sole custody would be in the BIOTCh because the kid is accustomed to that.