It is very rare that a family law case reaches the Supreme Court. However, on Tuesday, emotions boiled over at the U.S. Supreme Court as the justices heard arguments in a case testing the meaning and reach of the Indian Child Welfare Act, known as ICWAA. This is a case that touches on the already complex process of adoption and the United States' embarrassing history of taking away Native American children from their family - this is no typical family law case.
According to the Huffington Post, the case involves a South Carolina couple fighting for custody of their adopted daughter who, after a court battle, was returned to her biological father in Oklahoma.
At issue is the Indian Child Welfare Act, a federal law that gives tribes and relatives a say in decisions affecting children with Native American heritage. Passed in 1978 because of the high number of Indian children being removed from their homes by public and private agencies, the act gives the tribe and relatives a say in decisions affecting the child. In the current case, to be heard Tuesday, more than a dozen states and 23 current and former members of Congress have filed briefs supporting the law.
Matt and Melanie Capobianco adopted a baby several years ago, but the girl's father - a member of the Cherokee Nation whom she had never met - argued that the child's mother gave her up without his consent. The state's highest court sided with him, and she was returned to Oklahoma.
When Dusten Brown challenged the Capobiancos' adoption, he said federal law favored the girl living with him and growing up learning tribal traditions. A South Carolina court agreed with Brown, who took the girl - named Veronica, and now age 3 - back to Oklahoma in 2011.
Appealing to the state Supreme Court, the Capobiancos said they had bonded with Veronica and argued that removing her was detrimental to her development. But justices sided with Brown last summer, saying in an emotional opinion that, while the Capobiancos were "ideal parents," federal law requires that custodial preference be given to the child's Native American parent.
As reported by NPR, emotions were pretty raw inside the Supreme Court chamber. That's not particularly surprising, given that two of the justices -- Chief Justice John Roberts and Justice Clarence Thomas -- have adopted children.
But it was Justice Sonia Sotomayor who jumped in feet first, repeatedly cutting off the adoptive parents' lawyer, Lisa Blatt, before Blatt could answer a question.
Finally the chief justice silenced Sotomayor, saying, "Could I hear her answer, please!"
Blatt argued that Brown could not invoke ICWA to get custody of his daughter. He had "no legal rights whatsoever," she said, because he had given them up and failed to provide any financial support.
Justice Antonin Scalia disagreed, saying, "This guy is the father of the child, and they're taking the child away from him even though he wants it."
Blatt replied that the birth father, who had not had any contact with the child and provided no financial support, had "a biological link that under state law was equivalent to a sperm donor."
But "this isn't state law," countered Scalia -- it's a federal statute that uses "expansive" language to define the Indian family and to prevent its breakup.
Sotomayor took a similar view, asking, "If the choice is between a mother, a biological father or a stranger, and if the father's fit, why do you think" that the federal statute requires the child to be given to a stranger -- namely, the adoptive parents?
The only stranger here, shot back Blatt, was the birth father, "who expressly repudiated all parental rights."
Justice Ruth Bader Ginsburg challenged Blatt's characterization, noting that the birth father said he only intended to surrender his custodial rights to the mother, not to adoptive parents, and that when he found out about the adoption, he objected.
Nonetheless, Blatt argued, Congress did not intend for ICWA to reach a situation like this one, where there was no existing Indian family with custody prior to the adoption. Applying ICWA to this adoption dispute, she said, would amount to "conscripting other people's children to grow the tribal population based solely on a biological link."
Attorney Michele Jackson, who chairs the Adoption Law Division, notes that the ICWA was enacted federally, but does apply in each state, including Indiana. "The purpose of the law is well-meaning and generally good but potentially too far reaching into ancestry, as in this case in which the father is 2% Native American, so we assume child has even less ancestry." There is a dichotomy in the law, in that putative fathers may have little rights in Indiana but yet Indian tribes potentially have more rights than a father. Indiana likely needs to revise their statutes to provide better and more clear protections to birth families and potentially Indian tribes. Ms. Jackson concludes, "You can be pro-adoption and pro-birth family/history at the same time."
A decision in the case is expected by the end of June.
Michele Jackson, an attorney at Harden Jackson Law, is presenting on International Adoption at the 37th Annual Child Welfare Symposium sponsored by the Joint Council on international children's services (JCICS) on May 21st, 2013. 
