The Indian Child Welfare Act (ICWA) is a law that was passed in 1978 for the purpose of protecting Native American families. The case of Adoptive Couple v. Baby Girl cornered a Native American father against a white adoptive couple, pinned a child in between and changed many of the protections offered to Native families by ICWA. The law previously provided specific stipulations to keep Native families intact; it still does now but only under certain circumstances. The requirement that efforts be made to prevent the breakup of Indian families no longer applies if it is related to a father who has not had custody of his child. Also, the “adoptive placement preferences” statute only applies if another party (ex. the child’s biological grandparents) formally seek adoption. The decision in this case by the United States Supreme Court has and will continue to have adverse effects on the application and meaning of ICWA.

 

The Adoptive Couple v. Baby Girl case is surrounded in gross injustices, misrepresentations of the laws related to general adoptions and ICWA and the removal of a little girl named Veronica from families who loved her.  Dusten Brown, the baby's father, spent the better part of four years in court fighting for custody of his daughter after she was adopted by Matt and Melanie Capobianco without his knowledge or consent.

 

Dusten Brown is an enrolled member of the Cherokee Nation of Oklahoma, who like all other sovereign Indian Nations, has the right to determine its eligibility requirements. Enrollment is available to those who are direct descendants a person listed on the original Dawes Rolls and has nothing whatsoever to do with blood quantum. Blood quantum would become one of the main focus points of the Capobianco’s in the fight for baby Veronica in court. Because of Brown’s status as an American Indian, his child is covered under the laws of ICWA.

 

When Veronica was 18 months old, Brown sought custody. He had just returned from a tour in Iraq and started the court process as soon as possible upon his return. The Cherokee Nation had already filed motions and intervention on his behalf while he was away. He won cases in the South Carolina court and the State Supreme Court, both of which upheld that he was protected under ICWA and Veronica had been removed under illegal pretenses.

 

On their website “Save Veronica,” the Capobiano’s stated “Veronica was removed from her home in Charleston, South Carolina where she was a happy, thriving 2 1/2 year old little girl. The reason for her removal? The misapplication of the controversial Indian Child Welfare Act. Veronica is a multiracial child, predominantly Hispanic and Caucasian and approximately 1 percent Cherokee. Her birth father, who would have otherwise had no rights under state law, used this federal law to block Veronica’s adoption.” They also went on the Dr. Phil show to plead their case on National TV. In the segment, Dr. Phil called ICWA “unjust.”

 

Dusten Brown retained custody of his daughter until 2013 when the United States Supreme Court ruled in a 5-4 vote in favor of the Capobiancos. The greatest blow by the adoptive couple’s campaign was to call into question Dusten Brown’s blood quantum and whether he should actually be considered Indian, not taking into account the fact that he is enrolled in the Cherokee Nation and lived on tribal land.  It was enough for the court to rule that ICWA could not constitutionally be applied. The biggest concern for the court was that ICWA prevents the involuntary termination of Indian parent’s rights is that it might dissuade potential adoptive parents from seeking to adopt Indian children. One Justice stated “ICWA does not address how to treat absentee fathers.” This statement was grossly inaccurate as Dusten Brown was never an absentee father but a war veteran whose rights weren’t taken account before his deployment to Iraq.

 

The article “The Baby Veronica Saga: Denial of a Father's Rights and Now a $1 Million Lesson,” by Adam Pertman does an excellent job describing in detail some of the more sketchy things done by the Capobianos which were overlooked by the courts and eventually won them custody of Baby Veronica:

 

• The South Carolina director of Nightlight Christian Adoptions, which handled Veronica's adoption, arranged for her own husband -- who is an adoption attorney -- to represent the Capobiancos. While not explicitly prohibited in South Carolina, such arrangements are viewed as a serious ethical problem in other jurisdictions. The concern is that, in such a situation, it could appear that an attorney had loyalties other than to his/her ostensible clients; in addition, even if the clients had issues with this conflict of interest, they might not risk complaining out of fear that the agency would put their adoption at risk.

 

• The Capobiancos arranged and paid for Maldonado's [Veronica's biological mother] attorney. As a result, there was the prospect -- or at least the appearance -- of divided loyalties, since the Capobiancos were paying the bills. Though permitted by South Carolina's lax adoption laws, this is also a practice that has been widely derided as unethical. The American Bar Association in 1987 concluded that the conflicts of interest inherent in such "dual representation" cannot be reconciled because the interests of birth and adoptive parents are so distinct.

 

• According to several media outlets, the Capobiancos were quite generous to Maldonado during and after her pregnancy. While states generally permit some payment of living expenses for women contemplating adoption for their babies, most set limits as a way of curtailing potential economic inducements for mothers to feel pressured or, worse, to effectively sell their children. While no details have been disclosed about payments to Maldonado, for context, it is known that two judges who reportedly have approved unorthodox payments -- such as television sets and breast augmentation surgery -- were recently called to testify before a grand jury in Oklahoma (where Veronica was born).

 

• During her pregnancy, Maldonado cut off all contact with Brown, which prevented him from asserting his right to parent his child. Under South Carolina law, an unmarried father can only contest an adoption if he has lived with the mother or has paid significant prenatal expenses. On the advice of her counsel (reminder: paid for by the Capobiancos), Maldonado closed both of these doors by ending contact, even directing hospital staff to pretend she had never been admitted if Brown called. Notably, through the entire case, he was never found unfit. Rather, the final South Carolina court decision -- after a remand from the U.S. Supreme Court -- said he not only had no right to object to the adoption, but also did not even have a right to a hearing to determine the best interests of his daughter.

 

• Moving Veronica out of Oklahoma after her birth presented another obstacle because of her Native American heritage, which Maldonado disclosed at the outset to Nightlight and the Capobiancos. The adoptive parents were legally required to secure Oklahoma's permission to move the child to another state, under a federal law known as the Interstate Compact on the Placement of Children (ICPC). They were also required to alert her tribe prior to relocation under the federal Indian Child Welfare Act. The problem for the Capobiancos, Nightlight, Maldonado and their lawyers was that if they followed legal requirements and alerted the Cherokee Nation, the tribe was almost certain to block the child's removal from Oklahoma and prevent the adoption request from even being filed.

 

In the end, after losing his daughter, the Capobiancos sued Dusten Brown and the Cherokee Nation for $1 million in legal fees. The case is still pending. Adam Pertman goes on to say in the above mentioned article, “If adoption is to be a humane, thoughtful and ethical process, everyone's rights must be protected from deceptive or predatory practices, and that means mothers and fathers -- pointedly including Brown -- should never be deprived of their children simply because they were legally out-maneuvered.”

 

As recently as October of this year, the Alaska Supreme Court used language from the Adoptive Couple v. Baby Girl ruling to deny the adoption of a six year old Yup’ik child  by his biological grandmother who wished to raise him and upheld his adoption to a non-native couple. Groups like the National Indian Child Welfare Association and the Native American Rights Fund continue to fight for the appropriate application and interpretation of ICWA but with the Supreme Courts recent ruling; no one is sure how the law that was meant to protect Native American Families will stand in the future.