(Reuters) – The U.S. Supreme Court on Tuesday threw out a lower court order requiring a South Carolina couple to turn over a young girl they had raised since birth to her biological father simply because he was an American Indian.

By a 5-4 vote, the court ruled in favor of Matt and Melanie Capobianco, who had been caring for the girl they named Veronica until a family court ordered them to turn her over to her biological father Dusten Brown, a member of the Cherokee Nation.

Brown had argued that the Indian Child Welfare Act of 1978, intended to curb practices that caused many Native American children to be separated from their families, entitled him to custody of the girl, who was 3/256th Cherokee.

He took custody at the end of 2011 when the girl was just over 2 years old, and South Carolina’s highest court later upheld his custody.

But conservative Justice Samuel Alito, writing for the Supreme Court majority, concluded that the law did not bar the termination of Brown’s parental rights.

“Under the State Supreme Court’s reading,” Alito wrote, “a biological Indian father could abandon his child in utero and refuse any support for the birth mother … and then could play his ICWA trump card at the eleventh hour to override the mother’s decision and the child’s best interests,” Alito wrote. “If this were possible, many prospective adoptive parents would surely pause before adopting any child who might possibly qualify as an Indian under the ICWA.”

The Supreme Court did not grant the couple an adoption, but threw out the South Carolina court decisions awarding custody to the father.

The court returned the case to the South Carolina state courts for further proceedings.

The case is Adoptive Couple v. Baby Girl et al, U.S. Supreme Court, No. 12-399.

(Reporting by Jonathan Stempel in New York; Editing by Howard Goller)\