Tulalip News

Suzette Brewer, Indian Country Today Media Network

The United States Supreme Court

Dusten Brown couldn’t sleep. In the early hours of April 16, 2013, he lay awake in a hotel room in Washington, D.C., contemplating the events that led him to this place. He and his wife, Robin, had flown into town the previous day, where they remained in seclusion at the District Hotel. With the exception of his legal team, Brown spoke to no one. His mood was somber as he focused on preparing for court.

Four years ago, he was in the Army and dating his high school sweetheart, Christinna Maldonado, back in Oklahoma. But on this day, Adoptive Couple v. Baby Girl would be heard before the United States Supreme Court. The fate of his daughter, future generations of other Indian children and even the basis for tribal existence, was hanging in the balance. For four nerve-wracking months, since Robin had called him at work to tell him the Supreme Court had taken the case, he had dreaded this day.

“I was scared,” said Brown. “But there was no other alternative. [Going to the Supreme Court] is not what I wanted, but I always said I don’t care how much it costs, I don’t care where I have to go, I don’t care what people say, I’m not giving up. I am her father.”

Brown’s legal team had now grown into a small army, all of whom were present for the hearing. His previous attorneys from South Carolina, John Nichols, Lesley Sasser and Shannon Jones, were in town, as was a large delegation from Oklahoma that included Chrissi Nimmo, Cherokee Nation Principal Chief Bill John Baker, Cherokee Nation Attorney General Todd Hembree, several tribal council members and other staffers. Additionally, there were the attorneys from the law firms of Sonosky Chambers and from Sidley Austin who, as outside counsel for the Cherokee Nation, had assisted the tribe with its brief for the Court.

In an awe-inspiring show of solidarity, dozens of other native leaders representing tribes and every major national Indian organization in the country, as well as older Indian adoptees and tribal elders, were also in attendance. Hundreds of Indian people had made the journey to Washington to support Dusten Brown, Veronica, and the Cherokee Nation in upholding the letter and spirit of the the Indian Child Welfare Act. It was, perhaps, the most significant show of force by native people in Washington since the opening week of the National Museum of the American Indian in September 2004.

Across town, Charles Rothfeld quietly drove himself to the Supreme Court that morning. Having written the brief in opposition to the Capobianco’s petition of certiorari in October 2012, he had signed on as Dusten Brown’s lead counsel last January. Rothfeld, who is an attorney at Mayer Brown, is one of the leading Supreme Court practitioners in the country. Of significance to this case, his areas of expertise include due process and federal preemption.

As the founder and director of the Yale Law Clinic, Rothfeld had spent four intense months working with a team of approximately half a dozen law students and faculty in shaping the contours of the briefs and arguments for Adoptive Couple. Commuting back and forth from Washington to New Haven, Connecticut, Rothfeld also collaborated and consulted with numerous other legal experts and their staffers, who were now organizing amicus, or “friend of the court” briefs, among tribes, states attorneys generals and a growing number of groups in support of the Indian Child Welfare Act who had a vested interest in the case.

It would be the first of two cases this year in which Rothfeld would square off against Lisa Blatt, the lead attorney for the Capobiancos. The following week, on April 23, the two legal giants would also go head-to-head over Tarrant County v. Herrmann in a water rights dispute between Oklahoma and Texas, so he knew his opponent well. Blatt, arguably one of the most successful female Supreme Court attorneys in U.S. History, has argued 33 cases before the court; she has prevailed in 31. She is widely known for her no-nonsense style before the court and her meticulous preparation.

But in an unusual move for a custody dispute, Paul Clement, a nationally known conservative legal firebrand, had also mysteriously insinuated himself into the case as counsel for the South Carolina guardian ad litem, Jo Prowell, who did not need representation at this stage of the game. Clement, however, was inexplicably seeking time before the Court on her behalf. Legally speaking, it is the equivalent of Kobe Bryant playing for a high school basketball team.

Tellingly, the Court allowed Clement time for argument, even though neither he nor his client was a party in this case. They did not, however, allow time for the Cherokee Nation to argue the merits of the Indian Child Welfare Act, even though the tribe is a party in the dispute. But they did give Edwin Kneedler, of the United States Solicitor General’s Office, who had sided with Dusten Brown, time before the court.

Before arguments began, the courtroom was already filled to capacity. The audience even included the venerable former Justice Sandra Day O’Connor, who had made the trip to Washington to sit in on the hearing.

All Rise

“All parties agree that even if the birth father is a parent under the Indian Child Welfare Act,” Blatt told the Court, “the State court decision below awarding custody to the father must nonetheless be reversed unless [sections in the act] create rights that the father concededly does not have under State law.”

Out of the gate, Justice Sotomayor immediately pushed back, arguing that not all of the parties had fully conceded to Blatt’s thesis.

“Putting that aside,” said Sotomayor, “if it is a father who has visitation rights, and exercising all of his support obligations, is it your position that because father’s not a custodian, he has no protection whatsoever under [sections of the Act]?”

“Well,” began Blatt, “under state law—”

“I’m not asking about state law,” insisted Sotomayor. “I’m asking about federal law.”

“Yes, it’s federal law,” conceded Blatt, “which requires custodial rights, would protect a father who has visitation, i.e., custodial rights under state law.”

“…You do think a parent with custody is the only definition of family,” Sotomayor persisted. “But why wouldn’t a noncustodial parent with visitation rights be considered a family with that child?”

But Blatt persisted in her argument that because Brown had not established his parental rights under South Carolina state law, that he had no existing rights to terminate under existing federal ICWA standards. Herein lies the federal preemption doctrine of ICWA over the adoption of Veronica.

“Your argument assumes that the phrase in the statute ‘to prevent the breakup of an Indian family’ only applies where the father has custody,” Justice Scalia chimed in. “If that’s what Congress meant, they would have put it much more narrowly… And this guy is the father of the child. And they’re taking the child away from him even though he wants it. And that is not the breakup of an Indian family?”

“The only relationship the dad had is one of biology,” responded Blatt. “And Justice Scalia, you cannot logically break up that biological relationship…”

“Oh, I see,” Scalia said. “You’re reading ‘Indian family’ to mean something more than a biological relationship, right? You’re going to hang a lot of other ornaments on that phrase?”

“Well, I’m hanging a lot on two things,” Blatt stumbled.

“I mean it seems to me he’s the father, the other woman’s the mother—that’s the Indian family, the father, the mother and the kid,” said Scalia.

“He has the biological link that under state law was equivalent to a sperm donor,” Blatt said.

“This isn’t state law,” Scalia reminded her. “This is a Federal statute which uses an expansive phrase, ‘the breakup of an Indian family.”

“What’s the difference with a sperm donor?” Sotomayor rejoined. “…If the choice is between a mother, a biological father, or a stranger, and if the father’s fit, why do you think the Federal statute requires that [the child] be given to a stranger rather than to the biological father when the statute defines ‘parent’ as the biological father?”

It is at this point in oral arguments, says Martin Guggenheim, New York University law professor, that the court is being asked to make a legal distinction between a biological parent versus a parent with codified rights.

“There are two ways, conceptually, to ask the court to recognize someone as a ‘parent’ with rights,” says Guggenheim, arguably the foremost expert on family law and children’s rights in the country. “The first is, ‘This is the biological parent.’ The second recognizes someone as a parent because they have done something in addition to simply siring a child. So the divide here is not over the mother, but the father, because mother is already presumed to have gone that extra mile.”

Guggenheim points out that Congress has made it very clear under the Indian Child Welfare Act that the definition of ‘parent’ is a right that is conferred at the birth of the child. This is at odds with the United States adoption bar, whose fall back position he says requires “real, additional steps to acquire parental rights by unwed fathers.”

Therefore, under Blatt’s argument, Brown had simply acted “too late” to have a say in his daughter’s fate. Glossing over specific sections in the federal statute that provide for an Indian father to receive notice of termination proceedings, as well as his right to withdraw his consent, intervene and contest an adoption at any time, his right to counsel, et al, she pounded away on the point that Dusten Brown never had legal rights under South Carolina law to contest the adoption.

“But what’s the point of labeling him a parent if he gets no parental rights under the statute and if the termination provisions don’t apply to him?” asked Justice Kagan. “…I’m trying to understand [Blatt’s argument] because if [father] gets notice, but then you have nothing to say in the proceeding because the statute gives you no rights and the statute doesn’t provide any standards for terminating those rights, what [is a father] supposed to do once you get notice?”

“Justice Kagan,” began Blatt. “Just because he’s in the door as a parent doesn’t mean the statute let him the leave out the back door with the child when there was no determination with respect to [his parental rights].”

“I think you’re not answering the question,” responded Kagan. “What’s the point of labeling him a parent if he gets none of the protections that the Act provides to the parent?”

The argument then made a hairpin turn toward the modern legal doctrine for custody and adoption disputes in the United States: The standard known as “best interest” of the child. A vague and broadly interpreted phrase, it is perhaps one of the most hotly contested legal issues among parents, their attorneys, and child welfare experts in family courts across the country. Over the years, its application has become a very large, bitter and expensive legal battlefield as most parties claim to have “best interests” in child custody disputes. It is up to the jurists to decide which party’s claim is more believable.

To wit, for example, Melanie Capobianco holds a Ph.D in child developmental psychology and is a practitioner in Charleston, South Carolina. Indeed, prior to the Supreme Court hearing, friends and colleagues in the profession signed on to a petition supporting the Capobianco’s claim that giving Veronica to her biological father was not in her “best interest.” Dozens of colleagues from across the U.S. and Canada signed the petition, which was eventually released to the public and the media by the Capobianco’s PR team.

A review of the American Psychology Association’s ethics guidelines, however, indicates that there is a potential question as to whether this was an appropriate venue for a petition of this nature by asking those in the profession to publicly take sides in a high conflict, high profile custody battle.

“What a petition does, in effect, is ask them to render a professional opinion on two families and a child whom they do not personally know, whom they have never met or had a chance to professionally assess in any clinical or objective sense of the word,” says Dr. Art Martinez, a child and family therapist in California. “It says that they have knowledge regarding the merits of that child’s custodial placement. That does not fall within the parameters of the APA ethics guidelines.”

In his oral arguments, however, Paul Clement steadily invoked the principle of “best interest” in determining the merits of Adoptive Couple.

“Everywhere in the law, including ICWA, when you make an initial placement of a child in a new custodial setting, you don’t do that unless you look at the child’s best interests,” Paul Clement told the justices. “…And in that situation, recognizing that there’s been a break of custody, you don’t just send somebody off to a new setting based on reasonable doubt; you look at best interests of the child.”

“The old saw in law is that if you can’t argue the law, you argue the facts,” says Guggenheim. “And if you can’t argue the facts, you argue ‘equity,’ which is an alternative to formal law. Most lawyers argue ‘best interest’ when things are not going in their favor. It is meant to eliminate the emotional dissonance that these cases bring upon judges who are put in the position of having to decide a difficult issue.

The amazing thing about this case is that South Carolina correctly followed the law and transferred custody. The court could not avoid disrupting this child’s life. But interestingly, Dusten Brown has now turned the tables on the Capobiancos in this way. This is because he has very little in the negative side of the ledger against him and all you can say is that he was single, which he’s not anymore. He has now had custody of his daughter for over a year and we would be foolish to further disrupt her life again by taking her from her own father.”

Here again, Justice Sotomayor challenged Clement’s reasoning by raising the issue of “estoppel,” which roughly translates into the “possession is 9/10ths of the law” argument: That kidnapping or unlawfully retaining custody of a child does not entitle a parent or individual to maintain custody based on the premise that the child has been residing with them.

“If there’s serious emotional harm, I think the court below said: We’re not looking at what happens at the time we’re deciding the custody issues, because otherwise, we’re going to give custody by estoppel. We’re going to encourage people to hold on to kids and create the serious physical harm.”

“Justice Sotomayor was absolutely correct in that assessment,” said Guggenheim, who filed an amicus brief in support of ICWA for the Casey Family Foundation with the Court. “Clement’s argument is an invitation to lawlessness and it rewards people who violate the law. And the law was clearly violated in this case. Children’s rights are best served by enforcing the laws that we believe in, and therefore, fit, natural parents under ICWA should have custody.”

Under siege by the justices for his “best interest” argument in dismantling the law, Clement then invoked what many Indian law experts consider “the nuclear option.”

“Nowhere in the law do you see any child being transferred to a new custodial arrangement without a best interest determination,” he said. “And why did it happen here? It happened because of ICWA, which by its terms does not apply to these situations, and it happened because of 3/256ths of Cherokee blood.”

In reality, Clement had another, less opaque reason to raise the thorny hackles of race, blood quantum and tribal membership before the justices. His client list includes the commercial developer KG Urban in Massachusetts, where they are seeking to challenge what they consider to be “race-based” gaming compacts with the tribes in that state. The developer has already challenged the constitutionality of the compacts hoping to build their own casino in New Bedford. And by challenging Dusten Brown’s legitimacy as an “Indian person” under the law in Adoptive Couple, Clement was apparently seeking to sow the seeds of a future “race-based” precedent for the developing Indian gaming battle in Massachusetts. It is a legal end run with potentially dire consequences for millions of tribal members.

Stepping to the podium, Charles Rothfeld immediately dispensed with the “best interest” argument and flatly told the justices that the issue had already been exhaustively addressed by the lower courts in South Carolina.

“Both of the state courts looked very closely at the situation here,” he said. “And they found, in their words, that the father was a ‘fit, devoted, and loving father,’ and they said expressly and found expressly as a factual matter that it was in the best interest of this child [to transfer custody to her father].

Chief Justice Roberts was already indicating a concern about the blood quantum issue raised by Clement in the fair application of ICWA in this case.

“I thought your reading was that [best interest] doesn’t matter,” said Roberts. “All that matters is that he has in his case 3/128ths Cherokee blood.”

“ICWA does not assign custody, ICWA addresses the question of whether or not the parental rights of a parent of an Indian child can be terminated…both [South Carolina] courts correctly held that under the plain application of ICWA…clearly parental rights could not be terminated,” Rothfeld explained. “The question then arose: What happens to the child? And the court then, because there were a natural parent with intact parental rights, applied the usual rule that there is a strong presumption that a fit parent, a natural parent, who wants to exercise custody of his or her child should get custody. That was what happened here.”

Scalia then pushed forward one of the central questions in the case.

“Do you apply a ‘best interest of the child’ standard to a termination of parental rights?”

No, replied Rothfeld, who argued in effect that “best interest” and termination of parental rights fall under completely different thresholds in determination of custody. Under the Act, he said, Brown’s right to a termination proceeding had been denied, hence, his parental rights were still intact. Therefore, by definition, he is the legal, natural parent of Veronica. Parental rights, he continued, cannot be terminated unless these issues have first been addressed by the courts.

Justice Roberts again circled back to the issue of blood quantum as a measuring stick of tribal affiliation.

“If you have a tribe, is there at all a threshold before you can call, under the statute, a child an ‘Indian child’?” posited Roberts. “3/256ths? And what if you had a tribe with a zero percent blood requirement?”

“…As this Court has said consistently,” said Rothfeld, “it is a fundamental basis of tribal sovereignty that a tribe gets to determine [its membership requirements].”

But Roberts and Breyer were unrelenting.

“Because look, I mean, as it appears in this case [Brown] had three Cherokee ancestors at the time of George Washington’s father,” said Breyer. “All right? Now you say, oh, that’s a different issue. But I don’t see how to decide that case without thinking about this issue…”

“Aren’t there Federal definitions of approvals of tribes?” Scalia eventually interjected. “Not every group of native Americans who get together can call themselves a tribe.”

“That is quite right,” replied Rothfeld.

“And isn’t one of the conditions of that a condition of blood and not of voluntary membership?” asked Scalia. “I’m quite sure that’s right. So I think the hypothetical is a null set. I don’t think it ever exists.”

Chief Justice Roberts pressed on, but Rothfeld steadfastly defended previous federal and legal precedents which ensure the sovereign right of tribes to apply their own standards for membership determination.

Cherokee membership has always been based on lineal ancestry to a person who was listed on the Dawes Rolls, he said. No court has ever questioned that right as a legitimate basis for establishing tribal citizenship. Additionally, he added, Justice Scalia was correct in his assertion that there is a federal element to the recognition of an Indian tribe. The facts in this case, he asserted, require that the Court uphold both the Indian Child Welfare Act and both of the lower court rulings.

But the specter of blood quantum raised by Clement had hit their mark and struck the intended nerve on the bench. Even if Brown had no ties to the Cherokee Nation other than membership on paper, it was a legal straw man designed specifically to elicit judicial rancor.

“Even if he was from say, Indiana, and never had any contact with the Cherokee Nation, legally it does not make any difference under ICWA,” said Nimmo. “But Dusten Brown was born and raised in the tribal jurisdictional area of the Cherokee Nation in Oklahoma. His daughter was born within that same jurisdiction. He is a tribal member, he is a part of the Cherokee community geographically, politically and culturally speaking. So it is a long stretch to say that he has no standing or parental rights under ICWA. It simply ignores the facts.”

The Long Way Home

For nearly three and a half years, Dusten Brown had been operating virtually alone in his fight to raise the daughter who had been spirited away without his knowledge or consent. Quiet, polite and soft-spoken, he never talked ill about his ex-fiancee or the Capobiancos to anyone. He had no “media strategy” and did not post comments on social sites or send out press releases; he never called a press conference to refute the prevaricated fabrications and holes in their story; he never held a fundraiser or sold tchotchkes to pay his legal fees. Having long since given up even going on the Internet because of the rage directed at him, he had no idea that anyone one outside of his legal team, his immediate family and his tribe were supporting and advocating on his behalf.

So when he arrived at at the Supreme Court in April, Brown was shocked when he got out of the vehicle to a large number of Indian people and supporters on the steps of the Supreme Court. They were quietly waiting to begin a prayer ceremony in his honor.

“Up to that point I felt pretty alone and beat up from people saying hateful things about me,” he says quietly. “All I had heard was that I was a loser and a deadbeat, even though I was trying to do the right thing by my daughter. So to see all these people there to support me was not what I expected. The Cherokee and the Delawares were there, and there were other people hugging me and shaking my hand and wishing me the best. It was the first time I knew that anyone else understood or cared about what I was trying to do.”

After the opening prayer by Gil Vigil, who is president of the board of the National Indian Child Welfare Association, an elder began singing and drumming as those in attendance stood quietly in a circle.

Suddenly, groups of tourists, people on their way to work, and people milling around the Supreme Court stopped in their tracks and stood in silent respect for the lone Indian man singing and drumming in the middle of the large circle of native people who had gathered on the steps to attend the hearing. The irony of that day is that 2013 marks the 35^th anniversary of the passage of the Indian Child Welfare Act. And yet Dusten Brown is a cautionary tale that Act is still vulnerable to outside intrusion and misinterpretation.

For centuries, the theft and displacement of Indian children has historically been the most direct route by which Native cultures were destroyed. Often, as a matter of colonial and then governmental policy, they were rounded up against their parent’s will and forced into missions and later boarding schools. Many times, they were also adopted under illegal circumstances, literally taken out of hospital nurseries and sent to live with white families because it was determined that it was in their “best interest” to be raised in a white family. Sometimes, the children were taken from their parent’s homes simply because they could not speak English or did not wear shoes. The passage of ICWA in 1978 was a Congressional attempt to halt the illegal and systematic abduction of Indian children by giving their parents extra protections under the law to reinforce the fragile fabric of tribal culture in the United States. Within only one generation, a language was lost, a family connection was broken and a tribe disintegrated piece by piece as their children were scattered across the country.

Today as Indian Country awaits the ruling in Adoptive Couple v. Baby Girl, in places like South Dakota, American Indian children continue to live under constant threat of being taken from their homes and forced into a foster system that has willfully failed to comply with federal standards for the foster placement and termination of parental rights. In May, the American Civil Liberties Union, headed by Stephen Pevar, filed suit in federal court against the state of South Dakota on behalf of the tribes. So the battle continues.

In the end, even with all of its attendant heartbreak and vicissitudes, perhaps the story of Veronica Brown will help other lost children find their way back home.