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Decision clarifies parental rights under Indian Child Welfare Act

A divided U.S. Supreme Court has overturned the South Carolina courts in the legal tug-of-war over a Cherokee girl named Veronica.

The court ruled 5-4 on Tuesday that the girl’s biological father was not protected by the Indian Child Welfare Act because he relinquished custody rights before the birth mother put the child up for adoption. The child was later adopted by a couple in the Charleston area.

Writing for the majority, Justice Samuel Alito said that ICWA, a federal law enacted in 1978 to protect and preserve Native American culture by keeping Indian children with their biological families, “does not apply when, as here, the relevant parent never had custody of the child.”

The decision, which marks the Supreme Court’s first ruling on ICWA since 1989, clarifies the law’s application, said a local attorney for the adoptive couple, Raymond W. Godwin of Greenville.

He said it also provides a roadmap for Indian birth fathers to follow if they want to protect their rights under ICWA, such as paying for pre-birth expenses, taking the mother to the doctor and assisting at the hospital.

“This is just common sense activities of a father. … That was not done here,” Godwin said. “He [the biological father] totally ignored the birth mother pre-birth, at birth and after birth.”

Moreover, the ruling also gives birth mothers the right to enter into adoption plans and protects adoptive couples from the “birth father using the ‘ICWA trump card at the eleventh hour to override the mother’s decision and the child’s best interests,’” Godwin said, quoting from the opinion.

“This decision indicates that an Indian parent can abandon an Indian child prior to birth,” he added. “And if that child has never been in the parent’s legal or physical custody then there has been no break up of an Indian family.”

The father’s attorneys had contended that the birth mother tricked him into giving up his rights and that the lawyers who handled the adoption failed to follow federal and state laws and may have attempted to cover up the fact that Veronica is part Cherokee.

The father’s attorneys and supporters, including the Cherokee Nation, had been concerned that a ruling in favor of the adoptive parents would undermine ICWA.

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