(USA Today)-WASHINGTON -- A sharply divided Supreme Court delivered a 3-year-old girl back to her adoptive parents from her biological father Tuesday despite her 1% Cherokee blood.
In doing so, the justices expressed skepticism about a 1978 federal law that's intended to prevent the breakup of Native American families -- but in this case may have created one between father and daughter that barely existed originally.
While four justices from both sides of the ideological spectrum found no way to deny dad his rights under the Indian Child Welfare Act, five others -- including Chief Justice John Roberts, an adoptive father -- noted that the adoptive parents were the consistently reliable adults in "Baby Veronica's" life.
That the nation's highest court was playing King Solomon in a child custody dispute was unusual to begin with. It had jurisdiction because Veronica is 3/256th Cherokee, and the law passed by Congress 35 years ago was intended to prevent the involuntary breakup of Native American families and tribes.
In this case, however, the family that got broken up was the adoptive one in South Carolina, led by Melanie and Matt Capobianco. They had raised Veronica for 27 months after her mother put her up for adoption. The father, Dusten Brown of Oklahoma, only objected to the adoption after the fact.
Brown won custody 18 months ago after county and state courts in South Carolina said the unique federal law protecting Native American families was paramount. The Capobiancos' attorney, Lisa Blatt, had argued in court that the law was racially discriminatory -- in effect banning adoptions of American Indian children by anyone who's not American Indian.
Associate Justice Samuel Alito ruled for the majority that the law's ban on breaking up Native American families cannot apply if the family didn't exist in the first place. He noted the father had not supported the mother during pregnancy, texted his willingness to give up parental rights, and only changed his mind much later.
"In that situation, no Indian family is broken up," Alito said.
Justice Sonia Sotomayor, who dissented along with liberals Ruth Bader Ginsburg and Elena Kagan and conservative Antonin Scalia, said Veronica now will have her life interrupted for a second time.
"The anguish this case has caused will only be compounded by today's decision," she said.
Only once before has the law been tested at the nation's highest court. Nearly a quarter-century ago, the court took Native American twins from their adoptive family and handed them back to a tribal council in a case that Scalia recently said was the toughest in his 26 years on the bench.
Only Scalia and Justice Anthony Kennedy were on the court for that 1989 case, in which the court ruled 6-3 for an Indian tribe's custody rights. Scalia sided with the majority, while Kennedy joined the dissent. They were in similar positions this time as the court ruled against the law's intent -- Scalia again on the father's side, Kennedy with the adoptive couple.