Suzette Brewer, Indian Country Today Media Network
On Thursday, the day after the South Carolina Supreme Court denied an appeal filed by Dusten Brown and the Cherokee Nation to consider a “best interest determination” hearing, Veronica’s birth mother filed yet another suit in South Carolina federal court claiming that placement preferences for Indian families violates equal protection provisions because the law uses “race” as a factor in custodial placement.
But legal experts across the country have questioned the validity of the lawsuit because of the sovereign immunity of the United States and tribes from being sued without their permission.
“Frankly, it’s frivolous and without merit,” said one legal expert who works exclusively on Supreme Court cases. “This birth mother cannot show that there has been ‘controversy’ or that there is some ‘injury’ by the placement preference of Indian children with their own families and tribes. So most likely this case will be dismissed on jurisprudential grounds by the Department of Justice.”
J. Eric Reed, a Dallas-based attorney who has practiced law as a tribal prosecutor and also as a special assistant United States attorney for the Cheyenne River Sioux Nation, points to the extensive legislative history of the Indian Child Welfare Act (ICWA) and the sound reasoning for its existence. Reed has extensive experience in matters related to ICWA, tribal sovereignty and international indigenous human rights.
“The constitutional questions surrounding every aspect of the Indian Child Welfare Act were vigorously debated by Congress, which enacted this legislation to protect the ultimate health and welfare of all indigenous children in the United States. Those hearings uncovered a very tragic reality in the systematic abusive child welfare practices toward Indians in state courts that resulted in the separation of great numbers of Indian children from their families and tribes through a variety of adoption or foster care placements, which are almost always in non-Indian homes,” said Reed, who is a member of the Choctaw Nation of Oklahoma.
There are overwhelming examples, statistical data, and expert testimony documenting the evidence of these practices resulting in the wholesale removal of children from their tribal home and identity. The adoptive and foster care system operates much like the human trafficking version of ‘puppy mills’ where getting custody of a child results in increased funding for the foster operator. And private adoption agencies with wealthy clients are also in a position to entice the purchase of a child from the pregnant mother who may be in poverty. This often happens without proper notice to the Tribes or the fathers, who don’t get a hearing on the matter.”
For example, according to the Lakota People’s Law Project, nearly 750 Indian children are seized by the South Dakota Child Protective Services each year. Indian children comprise only 13.4 percent of the total population of children in South Dakota; and yet they account for a whopping 52.3 percent of the foster and adoptive placements in that state.
In March of this year, three Indian parents and two tribes represented by the American Civil Liberties Union and attorney Dana Hanna of Rapid City, filed a class action lawsuit (Oglala Sioux Tribe v. Van Hunnik) in the U.S. District Court for South Dakota. For decades, the suit alleges, Indian parents and families were denied due process in being separated from their children under the 14th amendment, as well as hundreds of ICWA violations.
Even as the parties prepare for the upcoming trial, it should be noted that the impact of Adoptive Couple v. Baby Girl is already being felt in Indian country. Last week, another unwed putative father in South Dakota had his parental rights terminated because of the decision.
Therefore, many legal experts, including Reed, see a troubling pattern emerging in both Adoptive Couple v. Baby Girl and in the systematic seizure of Indian children from reservations across the country. Because of the recent crackdown on American adoptions by Russia and other countries, they say the U.S. adoption industry has turned toward vulnerable women in this country who may be swayed by perks, such as new cars, gifts and financial compensation in return for their unwanted children. By attempting to invalidate all or parts of ICWA, the U.S. adoption industry has a vested stake in providing children and babies to infertile couples, who are equally vulnerable to less-than-savory adoption agencies, who charge up to $8,000 per couple for a listing on their websites.
As the extraordinary drama in Baby Girl continues to unfold, legal scholars agree that while Maldonado’s suit in South Carolina against the United States and the Cherokee Nation may not get much traction in court, it reveals yet another strike at tribal sovereignty in America.
“It’s not going to fly,” said Reed. “And honestly, this case is a perfect example of exactly why the Indian Child Welfare Act was needed in the first place.”
Suzette Brewer, Indian Country Today Media Network
Echoing the loud thunder of voices from Native communities and organizations across the U.S. and Canada in outcry over yesterday’s decision to return Veronica Brown to South Carolina, the Native American Rights Fund yesterday issued the strongest statement yet in a call to action to join the fight in protecting the girl’s right to be raised by her biological father, Dusten Brown.
“The Native American Rights Fund joins with the Brown family, the Cherokee Nation, the National Congress of American Indians, the National Indian Child Welfare Association, and many others inside and outside of Indian country who are expressing their outrage over the South Carolina Supreme Court’s imprudent order effectively granting the adoption of Veronica without due process of law or a hearing to determine what is in her best interest,” said the statement from the country’s oldest Native legal rights organization.
The Native American Rights Fund encourages all of the state attorneys general, adoption and child welfare organizations, past and present members of Congress, religious organizations, and others who submitted briefs in the case to express their concern and join with Indian country to take all necessary steps to stop the forced removal of this Indian child from her Indian father, her Indian family, and her Indian community.”
As rage over the decision began to take shape on Thursday, Native leaders, community members and legal experts were unanimous in their solidarity toward what they feel is a rubber stamp of approval from the court by taking Veronica from her home. In short, they feel that the Capobiancos “won ugly,” and have been rewarded by removing the child from a fit parent and a community in which she has thrived.
“This is Indian country’s Trayvon Martin moment; we cannot pass on this,” said a Native legal scholar in Washington, D.C., who asked not to be identified because of the ongoing litigation. “The message is clear: They are continuing to take our land, they’re taking our children, they’re taking our identity and now the courts have endorsed this whole pattern of white settler mentality.
This man and his daughter have been denied due process all the way down and he did not even get a hearing to determine what’s in his own daughter’s best interest, which in itself represents the destruction of tribes. He needs to have a fair hearing and we in Indian country support him 100 percent in retaining a child that never should have been put up for adoption in the first place.”
National native organizations and tribes have begun gathering and collaborating in mobilizing support for a case that has struck at the heart of tribal existence perhaps more so than any time since the Termination Era of the 1950s. Advocates say that the course this case has taken has forced many in Indian country from the sidelines to take a public stand and who are willing to take to the streets, if necessary.
“They don’t get it,” says A. Gay Kingman, executive director of the Great Plains Tribal Chairman’s Association. “Who is thinking and representing the best interests of this child? Like many of our American Indian children in South Dakota, she is being removed from her birth father, her Indian family and her tribe. Shouldn’t the child have due process?”
Whatever shape this case takes over the coming days, grassroots activism and legal mobilization are gaining momentum by the minute.
“This is not over,” said the legal scholar. “It’s not over by a longshot.”
Suzette Brewer, Indian Country Today Media Network
After years of silence surrounding the failed attempt to put up her biological child for adoption, Christine Maldonado finally went public with an editorial on custodial placement in Adoptive Couple v. Baby Girl in Friday’s Washington Post. By rehashing outdated talking points, Maldonado has reanimated her position as the central figure in a case that has pitted Veronica’s biological father, Dusten Brown, against a pre-adoptive couple in an epic crucible over race, class, tribal membership and father’s rights.
Following the United States Supreme Court ruling last month, which held that a specific section of the Indian Child Welfare Act did not apply, but the rest of the Act remained intact and in force, attorneys for Dusten Brown in both Oklahoma and South Carolina moved swiftly and decisively to follow the directions and guidance of what the court did—and did not—elaborate on in their decision to remand the case back to the lower courts for further review.
Meanwhile, the Capobianco’s camp, continuing a pattern of behavior prior to the Supreme Court hearing, again released court records regarding the juvenile matter to Andrew Knapp, a reporter for the Charleston Post and Courier, though requests to release the same records to Indian Country Today Media Network were denied by the South Carolina Supreme Court because the case is sealed under state law.
But since the contents of the documents are now in the public sphere, it appears that events unfolded quickly after the Supreme Court issued its ruling on June 25. On July 1, Brown and his wife, Robin, jointly filed for custody, adoption and guardianship in Nowata County, Oklahoma. The following day, his parents, Tommy and Alice Brown also filed a motion with the District Court of the Cherokee Nation as a certified adoptive placement preference of their granddaughter, in the event that Brown’s parental rights are terminated.
Under the law, however, the Indian Child Welfare Act is still applicable in Adoptive Couple v. Baby Girl and must be followed regarding adoptive placement preference with either family members or fellow tribal members in the event a parent is found unfit or their rights are terminated, according to Indian law experts.
Beating the Capobiancos to the punch, on Wednesday, July 3, Brown’s attorneys in South Carolina also filed a motion to remand the case back down to the family court in Charleston for a fulsome review and evaluation of all parties and current conditions. They argue that Veronica has been with her “fit and loving” biological father and her stepmother as part of an intact family for the last 18 months, therefore necessitating an updated determination of the “best interest” doctrine commonly used throughout the United States.
Also at issue is whether or not South Carolina should retain jurisdiction at this juncture in the case, considering that Veronica, her biological father and stepmother, her grandparents, siblings, cousins, friends, healthcare providers, et al, are domiciled in Oklahoma. The Capobiancos are the only parties in the case who live in South Carolina. Therefore, experts say it beggars belief that a South Carolina Court could even make a best interest custodial placement there, since the entire family and all the relevant experts reside in another jurisdiction, which would exact an enormous logistical and financial burden on all of the parties.
Bringing up the rear, the Capobiancos closed out the first week of July by filing a motion for immediate judgment with the South Carolina Supreme Court on Friday, July 5, which means in plain English that Dusten Brown’s rights would be immediately terminated, and Veronica would be transferred back to the pre-adoptive couple. In anticipation of such a ruling, the Capobiancos have offered a “transition plan” to the court in which they would move to Oklahoma to assist with Veronica’s transition back to South Carolina.
Legal experts, however, say that because the case has likely reverted back to a “best interest analysis,” it would be highly unusual that the court would strip Brown’s custody without a comprehensive and thorough review of all the evidence accrued since Veronica left South Carolina in December 2011.
Which brings the subject back to Maldonado’s editorial in Friday’s Washington Post. In her prose, she returned yet again to the infamous “text message” in which she claimed Dusten Brown “renounced” his parental rights, disregarding not only the fact that parental rights cannot be terminated via text message (even though Brown has repeatedly asserted that was never his intent), but also that that specific text message was ruled inadmissible.
Judge Deborah Malphrus refused to admit it into evidence unless the phone and the entire conversation was produced. Subsequently, the phone, which had been locked away in a safe, mysteriously went “missing” the next day at court. And along with it, the full transcript of what actually transpired between Maldonado and Brown.
Therefore, say family law experts, the “text message” that was used against Brown is without context and is therefore irrelevant to the current situation on the ground and further court proceedings that are no doubt getting ready to happen—whether they occur in South Carolina or are ceded to Oklahoma.
Additionally, it ignores the South Carolina’s Supreme Court’s written finding that both she and the Capobiancos twisted the facts and the strained the limits of truth to fit their legal strategy in attempting to terminate Dusten Brown’s parental rights to push the adoption through without his approval or consent. Finally, it is a miraculous recovery of her memory of events that she could not seem to recall, based on her own previous court-recorded testimony.
“The optics of this case are very clear,” says one legal scholar who asked not to be identified because the case is ongoing. “This is a mother who very early on decided that she did not want this child. So it strains the imagination that this entitles her to abrogate the father’s parental rights to his daughter simply because of her personal issues with him. At some point, this case has to be about what’s in Veronica’s best interest, and unfortunately, it’s become about winning.”
Baby Veronica’s biological father, stepmother and paternal grandparents have filed court papers in Oklahoma to adopt the 3-year-old girl, a move that dissenting U.S. Supreme Court justices warned could happen and will likely complicate the custody dispute.
Attorneys for Matt and Melanie Capobianco of James Island and for Veronica’s biological mother said Monday that the action defies the high court justices, who asked South Carolina judges to determine where Veronica should live.
The toddler’s mother found the Capobiancos through an adoption agency and, when the girl was born in September 2009, gave custody to them.
Lori Alvino McGill, the Washington attorney for Veronica’s biological mother, said her client, Christinna Maldonado, has not agreed to allow the adoption by anyone other than the Capobiancos and will fight the termination of her parental rights if the couple’s adoption doesn’t go through.
“We believe these frivolous filings in other jurisdictions are designed to further delay the proceedings,” McGill said, “in the hope that it will make it harder for South Carolina to finalize the (Capobiancos’) adoption.”
A Charleston attorney for Veronica’s father said Dusten Brown simply wants to continue raising his daughter.
“We are just trying to follow the direction and guidance of the majority opinion,” Shannon Jones said, “and let the court decide what is in the child’s best interest at this point.”
Brown, a member of the Cherokee Nation in Oklahoma, challenged Veronica’s adoption through the Indian Child Welfare Act, arguing that their shared American Indian heritage gave him preference as a parent.
The Supreme Court ruled late last month that ICWA didn’t apply to the dispute the way a South Carolina judge thought it did. Brown’s parental rights could have been terminated because he never had custody of the girl and never supported her, the justices said.
Justice Samuel Alito, who wrote the majority opinion, tossed the case back to the S.C. Supreme Court and ordered that it be expedited so that Veronica’s custody status could be determined.
But in documents filed with the South Carolina’s top court Wednesday, Brown’s attorneys used portions of the ruling that went against them in Washington to their own advantage.
Veronica has lived with Brown in Oklahoma since he was awarded custody in late 2011, and removing her from the “continued custody” of a loving home wouldn’t be in her best interests, Brown’s filing stated.
His attorneys asked that the case be sent back to Family Court in Charleston so that judges could consider “fresh” evidence. Because 18 months have passed since the custody switch, they argued, much of the information ferreted out during the Family Court trial is stale and wouldn’t serve as a legitimate basis for a custody ruling.
They said she should stay with the “fit and loving father” she’s with now. The girl also has matured emotionally and physically and has developed social skills with her new family, they said.
Veronica “has been extremely well cared for and loved by her father and has thrived,” the document stated.
But if Brown’s parental rights are terminated, his attorneys have a backup plan.
In disagreeing with Alito’s opinion, Justice Sonia Sotomayor wrote that the U.S. Supreme Court’s ruling could mean that Brown’s relatives could be considered as adoptive parents and that ICWA would give them preference.
Brown and his wife, Robin Brown, both filed adoption petitions in the District Court of Nowata County, where they lived. Veronica’s stepmother would be a logical choice to raise the girl because they already live in the same home, Brown’s attorneys argued.
But Brown’s parents, Tommy and Alice Brown, also asked the District Court of the Cherokee Nation for a chance to adopt Veronica under ICWA. They have been a certified placement family for the Cherokee Nation since 2011, the court filings stated.
Such petitions could require that the case be transferred from South Carolina to Oklahoma courts.
But those arguments are “absurd” and “offensive to the authority of the United States Supreme Court,” attorneys for the Capobiancos said in a response to Brown’s filing. They noted that some of Brown’s argument was based on the dissenting opinion, not the majority’s.
The Capobiancos had asked the state’s high court Friday to take up the case on an emergency basis, arguing that the ruling in Washington “unequivocally cleared the way” for the couple’s adoption of Veronica to be finalized.
The couple is “willing and able” to move to Oklahoma to ease Veronica’s transition, the document added.
But the competing adoption attempts might further delay a final ruling.
The Capobiancos’ attorneys said the added petitions violate the federal Parental Kidnapping Prevention Act, which outlaws “forum shopping” in seeking a more favorable venue when a different court already is addressing the case.
They added that the U.S. Supreme Court could not have possibly overturned the lower court’s decision and asked that South Carolina judges take up the case promptly without intending a tangible outcome.
“(Brown) audaciously treats the (U.S. Supreme Court) reversal as an academic exercise with no real world consequences,” their filing stated. “(He) acts as if a decision … is just a technicality — an inconvenient bump in the road that has no practical effect.”
Reach Andrew Knapp at 937-5414 or twitter.com/offlede.
Dusten Brown with daughter Baby Veronica in their Nowata, Oklahoma home (Cherokee Nation)
Suzette Brewer, Indian Country Today Media Network
In a move that ensured the protracted continuance of the four-year custody battle over Veronica Brown, the Supreme Court today reversed and remanded Adoptive Couple v. Baby Girl back to the South Carolina courts for further review. In a narrow 5-4 ruling that revealed the philosophical fracture among the justices, the nation’s highest Court held that sections of the Indian Child Welfare Act “did not bar the termination of parental rights” under state law.
Justice Samuel Alito, writing for the majority, rested the majority argument on the hair-splitting phrase “continued custody,” holding that “showing that serious harm to the Indian child is likely to result from the parent’s ‘continued custody’ of the child—does not apply when, as here, the relevant parent never had custody of the child.” Further, the majority ruled that existing Indian family placement preference do not apply when “no alternative party has formally sought to adopt the child.”
Though the Court did not terminate the parental rights of Dusten Brown or transfer custody of Veronica back to the Capobiancos, the justices left intact the remainder of the Indian Child Welfare Act and remanded the case back to South Carolina. Now, Brown and the Capobiancos will square off yet again in what has become one of the longest, most bitter, contentious and expensive custody fights in U.S. History. In his ominous concurrence with the majority ruling, Justice Clarence Thomas raised the stakes by included a voluminous appraisal of the Indian Commerce Clause and its rhetorical application in the difference between “tribes” and “Indian persons.”
In her dissent, Justice Sonia Sotomayor made clear that simply because the majority disagreed with the Congressional policies outlined in ICWA, it was not a valid reason to “distort the provisions of the Act.”
“The majority does not and cannot reasonably dispute that ICWA grants biological fathers, as “parent[s],” the right to be present at a termination of parental rights proceeding and to have their views and claims heard there.” wrote Justice Sotomayor. “But the majority gives with one hand and takes away with the other. Having assumed a uniform federal definition of “parent” that confers certain procedural rights, the majority then illogically concludes that ICWA’ substantive protections are available only to a subset of “parent[s]”: those who have previously had physical or state-recognized legal custody of his or her child. The statute does not support this departure.”
Court watchers in this case have now shifted the focus from the stricken provisions of the Indian Child Welfare Act to the broader, more widely interpreted standard of “best interest analysis” in determining custodial placement of Veronica between Matt and Melanie Capobianco and Dusten and Robin Brown.
“What this Court said is that going forward, unwed birth fathers who do not take the steps required to acquire parental rights will not benefit from the provisions in ICWA,” said Martin Guggenheim, Professor of Law at New York University. “By remanding back to the lower courts, ‘best interest’ is now a new question before the courts, and that she may suffer a second disruption in her life. But Sotomayor did remind the reader in her dissent that the Cherokee Nation could put forward other options in jurisdiction and adoptive preference. Either way, the Supreme Court won’t care what South Carolina does with respect to interest, though the length of time [Veronica] spent with the father is now a factor in his favor.”
While the Court did strike certain sections of the law, it left intact the rest of the act, which is still applicable under federal mandate.
“We’re relieved that the Court upheld Congressional authority to protect Indian children,” said Terry Cross, executive director of the National Indian Child Welfare Association. “This decision only applies to unwed fathers, but it remains our job to make sure people know that ICWA is still law, it’s still in force and they have to follow it.”
At the Cherokee Nation tribal headquarters in Tahlequah, Oklahoma, Principal Chief Bill John Baker pledged the tribe’s support in assisting Dusten Brown in the duration of this litigation.
“Certainly we’re disappointed with the ruling, namely because Dusten Brown now has a whole litany of legal issues still before him,” said Baker. “But we are hopeful that he will prevail because the facts in this case are on his side. As a father and grandfather, it’s hard to see any parent be told that they can’t raise their own biological child. Regardless of the circumstances, it has been extremely painful to watch.”
Little ‘Baby Veronica’ was adopted for more than two years, but an obscure law preventing the breakup of Native American families had forced her return to her father.
Richard Wolf, USA TODAY 1:01 p.m. EDT June 25, 2013
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.
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 35th 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.
Suzette Brewer, Indian Country Today Media Network
Editor’s Note: The Baby Veronica Case, recently argued before the U.S. Supreme Court, is one of the most important Indian legal battles of the last generation. It is the story of Dusten Brown, a member of the Cherokee Nation, who has invoked the Indian Child Welfare Act to prevent Christina Maldonado, the non-Indian mother of his baby daughter, Veronica, from putting their child up for adoption by Matt and Melanie Capobianco of South Carolina.
That bare outline does not begin to describe the convoluted dimensions of the case formally known as Adoptive Couple v. Baby Girl. Its drama includes an unplanned pregnancy, a broken engagement, charges of bad faith, an adoption agency that did not comply with federal Indian law, a couple who fought to adopt a child who was never legally eligible, and even the intervention of the Cherokee Nation.
Chrissi Nimmo had taken a few days off. It was New Year’s Eve 2011, and she and her husband were on a camping trip at Cedar Lake in the Quachita National Forest in southeastern Oklahoma. They had been horseback riding that day and were ringing in the New Year around the campfire with his family when her cell phone started ringing.
Nimmo, assistant attorney general for the Cherokee Nation, thought it was strange that she was able to receive calls in a place that is notoriously void of cell service. She didn’t recognize the phone number, but she answered anyway, thinking it may be important. In fact, it was life-changing.
It was a reporter from South Carolina. The very public transfer of custody involving Baby Veronica to her father was happening that very moment in downtown Charleston—did Ms. Nimmo wish to comment on behalf of the Cherokee Nation?
“Of course I wasn’t going to comment,” says Nimmo. “We don’t comment on confidential juvenile matters, which is what this should have been. But the other side was already out there on television with names, facts and identifying information that was clearly under seal by Judge Garfinkel. But there they were, the Capobiancos, their attorney and the guardian ad litem, all parading this child around the streets of Charleston in front of the cameras. It was, to say the very least, unethical and appalling.”
Nimmo hung up and immediately called the tribe’s then-attorney general, Diane Hammons, to give her boss the heads up in the event that any reporters tried to contact the tribe. Based on the Capobianco’s denied attempt at a stay of transfer until they could file another appeal, Nimmo knew that it was just a matter of time before the case would be back in appellate court.
“We knew when the hand-off happened that they were going to appeal [to the South Carolina Supreme Court],” says Nimmo. “So from that point on, we were focused on two things: Upholding the Indian Child Welfare Act and preparing for the South Carolina Supreme Court.”
Two days later, Nimmo went back to work with no time to waste. For the next four months, Nimmo put in 18-hour days gathering records, going through case files, reading case law, reviewing potential arguments, and collaborating with the appellate attorneys for Brown in South Carolina. She also worked around the clock coordinating the legal and media strategy with national Indian organizations, states’ attorneys general and a growing number of Indian tribes, all of whom had been cautiously watching the case, but were now on red alert for the upcoming legal showdown.
One of those observers was Terry Cross, executive director of the Portland, Oregon-based National Indian Child Welfare Association, who monitored the ongoing dispute with growing unease.
“We try to watch cases where we know it may become contentious and we try to help, but this case just spun out of control,” says Cross. “Look, every adoptive family knows that anything could go wrong at any time in the adoptive process and that it could fall through. But after losing in the lower courts, the first thing this family did was hire a PR firm and start talking to the media about things they know they were not supposed to talk about. That does not portend a happy ending.”
Back in South Carolina, John Nichols, a Columbia-based appellate attorney, had been already been working with Shannon Jones on legal strategy for Adoptive Couple for several months. As of January 2012, however, he was now taking the lead on the subsequent state supreme court hearing.
“This case has taken a track like no other case I’ve ever seen in all my years as an attorney,” says Nichols. “This was expedited before the Supreme Court of South Carolina in just four months, which is record time under any circumstance, but especially for one of this nature.”
Operating under new administrative rules established by the South Carolina Supreme Court in cases where parental rights are being terminated, both sides were required to submit all briefs and responses within a mandatory 30-day filing period, with no extensions granted. The court set April 17, 2012 for the hearing.
In the meantime, growing increasingly frustrated by the Capobianco’s continued media presence, Nichols filed a motion to put a stop to their activities. On their behalf, Trio Solutions, had launched an ugly media campaign designed, said Nichols, to eviscerate his client and undermine the rights of all Indian parents under ICWA. In addition to violating the law and codes of ethics, he says, they displayed a stunning lack of regard for the child at the center of the case by denigrating her father in front of the world. Though the court stopped short of issuing a gag order, the justices did issue a warning: Juvenile cases are sealed under South Carolina state statute and are not open to public discourse.
“The Capobiancos, their lawyers and their PR team broke the law,” says Nichols matter-of-factly. “There is no question that the statute is very clear on these matters. But I at least wanted to send a message that we were not going to tolerate them violating the law on a sealed juvenile case that should have been kept confidential.”
Nichols said that the court’s admonition did seem to slow the firehose of media stories—for a short time. But what did not stop was the marketing and selling of the Capobianco’s side of the story, using Veronica’s name and likeness on a variety of social media to seek attention, support and financial donations to pay their legal fees in their fight to terminate Dusten Brown’s parental rights and retain custody of Veronica.
“Save Veronica” became the clarion call of the Capobiancos’ media strategy. Starting with a website and a Facebook page, they posted regular, emotionally-charged status updates and pleas for money via a “donation” link. Additionally, bracelets, perfume, magnets, artwork and various other trinkets were sold to finance their PR firm and legal defense fund—all the while ginning up public outrage bordering on frenzy toward not only Dusten Brown, but the entire foundation of the Indian Child Welfare Act.
Meanwhile, Dusten Brown kept quiet and stayed focused on building his life after returning from Iraq. But he did not like the way the Capobianco’s portrayed him in the media, especially after he allowed them to maintain contact with Veronica after the transfer. In particular, as a parent, it was the unauthorized use of his daughter’s name and likeness to build their case against her own father that hurt the most.
“They plastered her name and face all over the Internet asking for handouts,” says Brown evenly. “I never once asked for a penny from anyone, I never said a bad word about them or the birth mother. But I’ve told my lawyers that I want all those websites and Facebook pages shut down. I do not want them using her that way. If they really love her like they say they do, they wouldn’t do that to her.”
From the beginning, the insidious undertones of class and race in their messaging was clear: The Capobiancos are a well-to-do couple who can afford expensive vacations and private schools for Veronica; Dusten Brown is in the Army. The Capobiancos are both highly educated—Melanie Capobianco, in fact, holds a Ph.D in child developmental psychology (more on that later); Dusten Brown went to Vo-tech. The Capobiancos are white; but Dusten Brown, they argued fiercely—is not “Indian enough” for federal law to apply to them in disrupting their adoption plans.
Therein lies the central question hovering over this case. The legal concept of who is an “Indian” and what constitutes tribal membership has plagued and confounded many in Indian Affairs for centuries. But, regardless of countless attempts to reinterpret, circumvent and override tribal sovereignty regarding their membership, the law is unmistakably clear on the matter, according to Richard Guest, staff attorney and director of the Tribal Supreme Court Project for the Native American Rights Fund.
“As a matter of law, tribes determine their own membership,” says Guest. “Membership is based on a number of factors. Some tribes go by the Census, some go by blood quantum, but some, like the Cherokee Nation, base theirs on the Dawes Rolls—and they are within their rights to do so. Many tribes are now confronted with these issues and are changing their requirements to reflect these complexities, because some people may belong to one tribe, but may be full-blood from several different tribes through their grandparents. One person may appear white or black, but have been raised in the community, speaking the language. Others may be from urban areas and have never seen their homeland, but they’re still tribal members. There are also many marriages between people from different tribes, but their children can only be enrolled in one tribe. It’s a very complex process, especially for the courts.”
One thing is clear, says Guest. Though at first glance Adoptive Couple v. Baby Girl is a failed adoption, it carries with it a powerful subterranean threat to the very existence of tribal life in America.
“The Cherokee Nation is a federally-recognized tribe and Dusten Brown is an enrolled member of that tribe. And in the case of Baby Veronica, the terms of the Indian Child Welfare Act are absolutely clear: She is eligible, therefore ICWA applies. To determine otherwise could have far-reaching implications for all Indian matters. The real issue is: Who gets to say who’s an Indian?”
On April 17, 2012, Adoptive Couple v. Baby Girl was argued before the South Carolina Supreme Court. By this time, the case has long since blown any semblance of confidentiality and had become high conflict because of the steady diet of media assaults on Dusten Brown, ICWA and Indian tribes in general.
Because of potential security issues, the Court took the unusual step of closing the courthouse to the general public. Only the parties, their attorneys and essential personnel were allowed into the hearing. Both sides were taken into and out of separate entrances and elevators by police escort and were not allowed even to pass each other in the hallways. Relations between the two families had soured to the point where they had to be sequestered in separate chambers before the arguments.
Outside the courthouse, protesters for the Capobiancos had gathered and were going full force with signs and banners beseeching the South Carolina Supreme Court to “Save Veronica.” Several media outlets also covered the hearing, which had by then become national news.
Inside the courthouse, the atmosphere was tense and unyielding as the attorney for the Capobiancos, Robert Hill, argued that Brown was a deadbeat dad who did nothing to contribute to the birth mother or his child during her pregnancy. Under state law, he said, Brown therefore had not established or obtained parental rights. Because he had not established paternity or obtained parental rights, ICWA did not apply under the definitions of the act. Additionally, Hill argued that because Veronica had already been with her adoptive family, removing her from the Capobiancos would psychologically harm her. The court should find “good cause,” he said, to deviate from the Indian adoptive placement preferences outlined in ICWA and return her to the Capobiancos.
John Nichols, appellate attorney for Dusten Brown, defended his client by asserting that all along, the mother and the Capobiancos had conspired and colluded to hide this adoption and obfuscate his Indian heritage, knowing full well that he would object. Nichols pointed out that they had waited until Brown was in lock down at Ft. Sill to serve him the notice of parental termination. Brown’s immediate reaction upon hearing that his child had been adopted without his consent or approval, he said, was to seek custody. But most importantly, Nichols argued that Dusten Brown, as a tribal member, is considered a “parent” under ICWA and that Veronica is therefore by definition is “an Indian child.” These facts alone, he argued, required that the Court rule in favor of Brown.
Chrissi Nimmo, arguing on behalf of the Cherokee Nation, also told the court that they should only consider the time that Veronica was with the pre-adoptive parents from birth to four months, because it was only then that Brown learned of her situation and sought custody. Further, Nimmo asserted that gaining temporary custody of a child in violation of the law and maintaining custody throughout protracted litigation does not entitle the adoptive couple to permanent custody.
Three months later, on July 26, 2012, the South Carolina Supreme Court issued a 78-page ruling affirming the lower court rulings of Judges Garfinkel and Malphrus. In a 3-2 decision affirming Brown’s status as an Indian parent, Veronica’s status as an Indian child, the court upheld the Indian Child Welfare Act. In a stunning rebuke of the birth mother and the Capobiancos, the court wrote the following:
“Mother testified that she knew “from the beginning” that Father was a registered member of the Cherokee Nation, and that she deemed this information “important” throughout the adoption process.5 Further, she testified she knew that if the Cherokee Nation were alerted to Baby Girl’s status as an Indian child, “some things were going to come into effect, but [she] wasn’t for [sic] sure what.” Mother reported Father’s Indian heritage on the Nightlight Agency’s adoption form and testified she made Father’s Indian heritage known to Appellants and every agency involved in the adoption. However, it appears that there were some efforts to conceal his Indian status. In fact, the pre-placement form reflects Mother’s reluctance to share this information:
the birth mother did not wish to identify the father, said she
wanted to keep things low-key as possible for the [Appellants],
because he’s registered in the Cherokee tribe. It was determined that
naming him would be detrimental to the adoption.”
For the first time in several years, Dusten Brown and his legal team breathed a sigh of relief. It was felt that the case had finally reached its conclusion and he and his new wife, Robin, and Veronica, could move on with their lives in Oklahoma.
But it was not to be. On October 1, 2012, the Capobiancos, who now has the estimable Lisa Blatt of the Washington, D.C. firm of Arnold and Porter, as their lead counsel, filed a petition of certiorari with the United States Supreme Court. Three months later, on January 4, 2013, certiorari was granted in Adoptive Couple v. Baby Girl. The most important Indian law case in three decades was going before the nation’s highest court.
A little girl is at the heart of a big case at the Supreme Court next week, a racially-tinged fight over Native American rights and state custody laws.
Veronica with her biological father Dusten Brown and his wife, Robin. (Courtesy of John Nichols)
The United States Supreme Court next Tuesday hears argument in a head-spinning case that blends the rank bigotry of the nation’s past with the glib sophistry of the country’s present. The case is about a little girl and a Nation, a family and a People. The question at the center of it has been asked (and answered) over and over again on this blessed continent for the past 400 years: Is the law of the land going to preclude or permit yet another attempt to take something precious away from an Indian?
The case is styled Adoptive Couple v. Baby Girl, but everyone knows it as the “Baby Veronica” case. The “baby” is a little girl, now three-and-a-half years old, born of the fleeting union of an American Indian man named Dusten Brown and a Hispanic woman named Christina Maldonado. Before Veronica was born, her mother arranged for her to be adopted without telling the baby’s father. When, months after the baby’s birth, the father found out about the adoption, he exercised his rights under federal law to block the adoption and gain custody. The two state courts which have reviewed the case have both sided with him.
The adoptive family, the couple who joyfully took Baby Veronica home from the hospital to South Carolina following her birth, claim that Brown waived his rights to custody under state law. The father, who now lives with the little girl in Oklahoma, claims that his conducts falls perfectly into the safe harbor of the Indian Child Welfare Act (ICWA) of 1978, a federal law designed to protect Indian families from “abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster case placement.”
So there is an intensely personal component to the case. And there is the larger picture, the political calculus, that seems to animate every high-profile Supreme Court case. This is yet another case about federalism — about states’ rights — some experts have told the Court. And Paul Clement, the conservative lawyer representing the child’s guardian in the case, has made an extraordinary argument designed to undercut federal oversight over Indian affairs: These statutes, he argues, are unconstitutional because they are based upon racial classifications that violate the equal protection rights of non-Indians.
Some of the elements of the case, sadly, harken back to the bad old days of dark stereotypes about Indians. The adoptive couple, who’ve relentlessly argued their case in the court of public opinion by appearing on television with the likes of Anderson Cooper and Dr. Phil, have been widely portrayed as the innocent victims of the story. Meanwhile, Baby Veronica’s father has been largely portrayed as little more than a shifty, good-for-nothing drifter. The truth lies somewhere in the middle — and the fact is that Baby Veronica’s story is precisely the sort of story Congress had in mind when it passed the ICWA.
Which is why it was a surprise to many when the justices in Washington agreed to hear the case. The Supreme Court of South Carolina, where the adoptive couple lives and where Baby Veronica was located at the time of the lawsuit, ruled that the federal law trumped state law and gave custody of the child back to her biological father. So did the justices take the case to reaffirm the primacy of Congressional authority over the lives of Native Americans? Did they take the case to strengthen the federal law? Or did they take the case to force Baby Veronica’s father to give her back to the white couple who thought they had successfully adopted her?
Some Facts
Like most cases that come before the Supreme Court, the “Baby Veronica” case has many more villains in it than heroes. Neither of the little girl’s biological parents respected each other enough to do right by their legal or moral obligations to one another. The father did not want to pay child support. The mother did not tell the father that she intended to place the baby up for adoption. The adoptive couple filed for adoption three days after Baby Veronica was born but didn’t give her father official notice of the proceedings for four months — that is, until just a few days before Brown, a U.S. Army soldier, deployed to Iraq.
There was a lot more of this sort of shadiness surrounding the adoption. Baby Veronica’s mother knew that the father was a member of the Cherokee Nation. She evidently told both the adoption agency and the adoptive couple that the father was Cherokee, but also acted in ways designed to conceal the situation from Indian officials (and, for that matter, from the little girl’s father). Before the baby’s birth, for example, there was an unsuccessful attempt to notify tribal officials, but Brown’s first name was misspelled on the notice, and his birth date on the form was, as the South Carolina Supreme Court later found, “misrepresented.”
Transporting the baby from Oklahoma, where she was born, to South Carolina, where the adoptive couple lived, required the consent of Oklahoma officials. On the state form, one option for identification was labeled “Caucasian/Native-American-Indian/Hispanic.” The word “Hispanic” was circled (although it is unclear who circled it). Had the Cherokee Nation known about the baby’s heritage, an Indian official later testified at the four-day hearing in the case, it would have objected and prevented the child from leaving the state. In short, everyone knew that there were “Native American” interests in the adoption, but no one at the time did all they could to ensure that these interests were fairly represented.*
Some Law
The South Carolina Supreme Court viewed these facts as consistent with the language and purpose of the Indian Child Welfare Act, and it’s not hard to see why. The law was passed 35 years ago because Congress was concerned with adoption practices that separated large numbers of Native American children from their parents (and their heritage). In plain English, having for centuries implemented policies and practices which shattered the centrality of Native American family life, federal lawmakers tried to do something remedial about it. From an amicus brief filed in the case by current and former members of Congress:
Congressional inquiry over several years [in the mid 1970s] demonstrated the severity of the problem: a large percentage of Indian children — one-quarter to one-third — were being adopted or placed in foster care families outside of the Indian tribes; state adoption policies provided little to no protection for maintaining the tribal affiliations of these adopted Indian children; and the loss of millions of acres of tribal lands at the turn of the twentieth century rendered the continued existence of an Indian tribe’s sovereign identity dependent on the tribe’s ability to maintain its future generations of citizens — citizens who would learn the tribe’s language, practice its traditions, and participate in its tribal government, regardless of whether they lived on or off a reservation.
The purpose of the law was to help protect Native American parents like Brown by preventing the “involuntary removal” of Indian children as well as any voluntary adoptions — like this one — which did not give preference to the child’s Indian relatives. It was designed to help keep Indian families together — or at least to give Indian fathers a better chance at keeping custody of their children. In recognizing the purpose of the federal law, and the concomitant need to protect Indian children from having their lives determined by non-Indians, the South Carolina Supreme Court cited a tribal chief’s poignant Congressional testimony:
One of the most serious failings of the present system is that Indian children are removed from the custody of their natural parents by nontribal government authorities who have no basis for intelligently evaluating the cultural and social premises underlying Indian home life and childrearing. Many of the individuals who decide the fate of our children are at best ignorant of our cultural values, and at worst contemptful of the Indian way and convinced that removal, usually to a non-Indian household or institution, can only benefit an Indian child.
The law has been successful — but not entirely. There will be no argument here that the law must be struck down because it has achieved its goal. In their amicus brief in the case, Indian rights groups point out that “recent analyses of national child welfare data indicate that the out-of-home placement of Indian children is still disproportionate to the percentage of Indian youth in the general population and that Indian children still continue to be regularly placed in non-Indian homes.” The law also has been consistently upheld by the justices in Washington as a constitutional exercise of Congress’s authority over Native American affairs.
Matt and Melanie Capobianco
All sides agree that the key legal question in this case is essentially a definitional one. The adoptive couple, Matt and Melanie Capobianco, argue that Baby Veronica’s Indian father “unceremoniously” renounced his “parental rights to his unborn daughter” and thus forever waived his rights to be considered an Indian “parent” under federal law. They say that South Carolina’s law would not have required his consent to the adoption and that the Indian Child Welfare Act wasn’t designed to protect the rights of Native American parents. From their brief:
The state court’s application of ICWA here transformed a statute that prevents the removal of Indian children from their homes into a statute that required the removal of an Indian child from her home …The court held that an unwed biological father of Indian lineage who has abandoned a pregnant mother and child may veto the non-Indian mother’s lawful decision to place her child for adoption, even though under state law the father lacked custodial rights and his consent was not required for the adoptive placement.
But the state courts disagreed. Regardless of how state law might have resolved the dispute, the judges ruled that the girl would never made it to South Carolina, and into the Capobianco’s home, had the couple followed federal law. Brown was a “parent” under the ICWA, two state courts ruled, because he was the girl’s “biological parent” who had established his federal rights by “acknowledging his paternity … as soon as he realized” the girl had been put up for adoption. His waiver of his parental rights was invalid, the South Carolina courts concluded, because the adoptive couple “did not follow the clear procedural directives” of the federal law.
This is all wrong, the Capobiancos told the justices, and a grave injustice is going to occur if Baby Veronica gets to stay with her father. Federal law “does not countenance the chaos and heartbreak that would ensue if tribes or noncustodial fathers with no right to object to an adoption could later uproot Indian children from their adoptive families.” Of course, the “chaos and heartbreak” over adoptions that took Native American children away from their families and tribes is the very reason why Congress enacted the Indian Child Welfare Act in the first place. At least in this case, it appears the Indians have the letter of the law on their side.
Turning Equal Protection on its Head
This is another case where state law conflicts with federal law — which means it is yet another Supreme Court case involving principles of federalism and states’ rights. Enter Clement, the conservative lawyer, who on behalf of the child’s guardian (more on her later), has filed a jaw-dropping brief. Clement doesn’t just want to win for the Capobiancos. He wants also to undermine Congressional authority over the ICWA and all federal Indian law, and he wants to do so not just for this client but for another client, a non-Indian gaming client (who, as you might imagine, also has great eagerness to see the demise of federal Indian law).
So the federalism argument is here. And Clement also makes explicit some of the ugliest threads of this story. Brown doesn’t deserve to have custody of his daughter, Clement argues, in part because he has only “a sliver of genetic material” making him a Native American. The child is “predominantly Hispanic with some Native American and Caucasian background,” Clement writes, as a prelude to his argument that the little girl’s equal protection rights have been violated because the ICWA is a law based unlawfully upon race. Got that? By protecting Indian fathers and Native American heritage, the federal law unfairly burdens white people.
This is another version of the same argument conservatives like Clement have made with such force recently in their challenge to affirmative action and the Voting Rights Act. In this view, the federal law which gave Baby Veronica back to her father wasn’t a laudable shield protecting Indian families from questionable adoptions, but rather a “race-based preference” that lifts Native American fathers to an unlawfully exalted place in custody law. Because it’s a law based on race, Clement then argues, the statute must be evaluated by the courts using the toughest constitutional standard of review. It can’t withstand that review, he writes.
The Justice Department
The Obama Administration sides with Dusten Brown and the federal law upon which he relies. “The South Carolina court properly awarded custody of Baby Girl to Father,” wrote Justice Department lawyers in their brief to the justices. The federal law applies to any “child custody proceeding” involving an “Indian child,” the feds argue, and it is “uncontested that those two predicates are satisfied here. The Capobiancos, the feds wrote, seek a “judicially-invented exemption to the ICWA” that would allow state judges to circumvent it whenever they feel they are justified in doing so. The text of the federal law is clear, they say, and it covers this case.
The “exemption” the feds mention here is likely the reason the justices took this case. Some states have tried to evade the mandate of the ICWA in cases where “the adoption is voluntary and is initiated by a non-Indian mother with sole custodial rights.” But most other states have refused to recognize such an exemption. It’s hard to imagine the justices not resolving this case without resolving that conflict in the way the federal law has been interpreted. The exemption is “particularly problematic,” the feds contend, “because, as sometimes applied in the lower courts, it requires assessment of the ‘Indianness’ of a particular parent or child.”
The Justice Department also responded to Clement’s equal protection argument by briefly — perhaps too briefly — telling the justices that the ICWA is based entirely on political, not racial, classifications. Both biological parents of Indian children — whether both are Indian or not — have rights under the federal law, the feds say. Moreover, “the definition of ‘Indian child’ does not comprise all children who are ethnically Indian,” the feds write, “but rather only those who are members of federally recognizable Tribes or are eligible for membership and have a biological parent who is a member of such a Tribe.”
Postscript
When you don’t have the law, you argue the facts. When you don’t have the facts, you argue the law. And when you have neither the law nor the facts on your side, you argue for equity and justice. The adoptive couple, the Capobiancos, have been out and about telling anyone who will listen that the Indian Child Welfare Act “is destroying families” and has, in fact, destroyed theirs. Technically, it has done exactly that. Without it, Brown would not now have custody of the girl. But that begs the question of the case — did the Capobiancos have the legal right in the first place to take the girl home to South Carolina?
Inevitably, I suppose, this spin campaign has brought with it religious and racial overtones that surely trigger terrible memories for Native Americans, whether in the end they really care about Baby Veronica or not. For example, there was a popular online petition to amend the federal law — in which Baby Veronica’s return to her biological father is considered a “human rights” violation and Indian tribes are deemed to have “unjust power to remove children from happy, healthy homes.” And there is the work of the Christian Alliance for Indian Child Welfare, with a website dedicated to “saving” Baby Veronica by returning her to the Capobiancos.
And then there is the unseemly role of the guardian in the case, a woman who demonstrably has no business being involved in any case involving the rights of Native American citizens, be they little girls or adults. The guardian, according to Brown’s brief, told him that “she knew the adoptive couple prior to the child being placed in their home,” that the Capobiancos could afford to send the little girl to private school, and that as a result Brown’s family “really need[ed] to get down on [their] knees and pray to God that [they] can make the right decision for this baby.”
At first, the brief alleges, the guardian ignored Baby Veronica’s Indian heritage, but then said “that the advantages of Native American heritage “includ[ed] free lunches and free medical care and that they did have their little get-togethers and their little dances.” This is Paul Clement’s client. And this is part of the record of this case. It shouldn’t be about religion. It shouldn’t be about which family can provide this little girl with tuition. It shouldn’t be about white perceptions of Indian culture. It should be about whether or not the justices are going to support efforts to protect Indian families in the fashion set forth in the ICWA.
Indeed, this law is a rare example where Congress actually did something right by the Indians, by creating a national standard designed to preclude the type of state-centered “home-court advantage” symbolized by the attitude of the guardian in this case. The law adds a layer of protection for Indian fathers who face the possibility of losing their children in adoption to couples like the Capobiancos. And it refuses to reward adoptive parents who have failed to properly notify the biological fathers of Indian children that they are about to lose custody of their kids — as the South Carolina courts found in this case.
Cases like this are among the most difficult the justices ever have to decide. If you don’t believe me, ask Justice Antonin Scalia, who last fall cited an ICWA case from 1989 as one of his hardest in 27 years on the Supreme Court bench. They are difficult because there is only one child and two families seeking to raise her and thus no wiggle room for Solomon’s compromise. The Capobiancos surely deserve to have a child of their own. And so, federal law says, does Dusten Brown. In this instance, at least, the white man’s burden figures to be too much to bear.
* A lawyer for Baby Veronica’s mother contests these facts, argues that the Cherokee Nation was properly informed of the adoption, and contends that both the Nation and the Bureau of Indian Affairs now acknowledge they received timely and adequate notice. Brown and the Nation, in turn, dispute these characterizations. The Bureau of Indian Affairs acknowledged proper notice only after Brown had begun his lawsuit to stop the adoption, they say. So far, as set forth above, the only two courts which have reviewed the facts of this case have sided with Brown and the Cherokee Nation.
The Supreme Court decision will impact every tribe in the country
Cherokee Nation Assistant Attorney General Chrissi Nimmo speaks at the April 8 press conference concerning the case Adoptive Couple v. Baby Girl at Hard Rock Hotel and Casino Tulsa. (NICWA)
After the April 8 press conference at Hard Rock Hotel and Casino Tulsa in which the National Indian Child Welfare Association (NICWA) and the Cherokee Nation shared the latest developments in the case Adoptive Couple v. Baby Girl, Indian Country Today Media Network spoke with Chrissi Nimmo, the counsel of record for the Cherokee Nation.
In the “Baby Veronica Case” that has generated significant media interest in the past year, Cherokee Nation tribal member Dusten Brown is fighting to retain custody of his daughter. This particular case has consisted of a vast coalition of attorneys and support from tribes and tribal organizations, including the Native American Rights Fund, the National Congress of American Indians and NICWA. With future implications of the Indian Child Welfare Act on the line, the case will be heard in the United States Supreme Court on April 16, with an actual decision taking place by June of this year.
What has been your involvement?
I represented Cherokee Nation in South Carolina in family court in September 2011 when it went to trial the first time. It was a four-day trial in Charleston [South Carolina]. I then represented Cherokee Nation and presented oral argument at the South Carolina Supreme Court when it was appealed there. I am also counsel of record for the United States Supreme Court.
Do you consider the attention to the Indian Child Welfare Act positive or negative right now?
I think it’s both. This case has grown a lot of attention to the Indian Child Welfare Act. A lot of people who don’t understand it, don’t like it. I also think it’s good in that more people know about it. Once people really understand why the law was passed and what it’s intended to do and what it is doing, it sometimes changes from bad attention to good intention.
If the Supreme Court rules in favor of Dusten Brown and his family, what will this mean for the Indian Child Welfare Act?
There are splits in the state court system. One way or the other, the Supreme Court will answer those questions. If they affirm the lower court decision, it’s a strong statement to state courts across the country that they need to follow the Indian Child Welfare Act to a T.
What would happen if they rule against the Indian Child Welfare Act in the Supreme Court?
It would be devastating for Indian children, but it would be devastating for tribes as well. There are bigger Indian law issues wrapped up in this case. A detrimental decision could call into question several other federal laws that deal with tribes as tribal organizations but also as Natives as individuals.
What has the preparation been like for this case?
For the last four months, I’ve worked on nothing but this case. I was fortunate to have other co-workers that could take over my other duties.
What are you anticipating from the adoptive couple side of the case?
We know what their legal arguments are, because the briefs are already all done. That’s where the oral argument is an hour total. In this case, four different attorneys are speaking. Most of that time is spent with the Justices asking questions. I don’t think there’s going to be anything that’s a surprise.
How will this case change the Indian Child Welfare Act?
I think it’s one of two outcomes. If what we believe happens and what we think should legally happen, it strengthens the enforcement of the Indian Child Welfare Act. The other situation is a loss for a father of the Cherokee Nation. It would undo [over] 35 years of work on the Indian Child Welfare Act. Any adverse decision would impact every tribe in the country. There’s no doubt.
