On Tuesday, the Supreme Court ruled in favor of the South Carolina couple caring for "Baby Veronica," barring the biological father from gaining custody.
The ruling could threaten the stability of the Indian Child Welfare Act, and raises questions about tribal membership.
On his way to deployment in Iraq, Cherokee tribal member Dustin Brown was asked to relinquish his parental rights by the unwed mother of his child. Days before Brown began his tour, the mother gave the baby up for adoption.
Upon learning this, Brown sought custody of the baby girl. Eighteen months after filing for custody, Veronica was returned to Brown.
But on Tuesday, the Supreme Court ruled the child should have remained with her adoptive parents, and returned the case to South Carolina.
At the heart of the case is the 1978 Indian Child Welfare Act, which was passed at a time when many state governments terminated parental rights of Native Americans and placed Native children to non-Native families. With ICWA, Native Americans are given preference in the adoption of Native children.
Writing for the courts majority Justice Samuel Alito quantified Veronica's race to 1.2 percent Cherokee, and Justice Clarence Thomas questioned the constitutionality of ICWA writing that Congress cannot enact special laws for Brown because of his Indian status.
Matthew Fletcher is a professor of law at Michigan State University. He said the ruling challenges the notion of tribal membership.
“It doesn't matter how much blood quantum an Indian person has, so long as they're a member of a federally recognized tribe under the Indian Child Welfare Act,” Fletcher said. “So the Supreme Court is really imposing it's own policy preferences when it comes to Indian Affairs, and that's unfortunate.”
Fletcher said a final decision on the case by a South Carolina court will determine whether tribal members and extended family will still have preference over non-Indians on the question of adoption.