The case of an adopted American Indian child who was returned to her biological father has reached the nation’s highest court and may interest Colorado residents. The dispute pits a father’s rights, as well as his heritage, against the rights of the adoptive parents, who wish only what they believe is in the best interest of the child.
The law protecting the rights of Native American children and governing their adoption is the Indian Child Welfare Act. The law was passed in 1978 to ensure that the heritage of American Indians is protected from the consequences of being adopted by and assimilated into non-Indian families.
The act gives protection to the Indian father, who wants his daughter to grow up in the environment of his racial and cultural heritage. On the other side of the case are the girl’s adoptive parents, who have developed a deep bond with the child and who believe she will be better off staying with them.
By law, children are not to be taken from their Indian families unless there is reasonable evidence that custody by their Indian parents will result in serious emotional or physical harm to them. The adoptive parents therefore have to prove to the court that being with the child’s biological father would not be beneficial to her.
Other aspects of the case are being disputed. A court brief for the adoptive parents and guardian suggests that the ICWA might cause a racial preference that should be voided under the Equal Protection Clause. An earlier decision had affirmed that the nature of the protection is political, not racial, and that Indian tribes are considered dependent nations, not a race.
Judging such a case will be difficult, and one can only feel bad for the child caught in the middle of the dispute. The decision of the presiding judges will have a great impact on related future decisions and possibly on federal law.
But not all paternity cases are as complex. Those going through disputes over paternity, in Colorado or elsewhere in the nation, should understand their legal rights.
Source: The Atlantic, “When is an Indian parent a ‘parent’?,” Garrett Epps, April 17, 2013