In the Baby Veronica case, Associate Supreme Court Justice Thomas writes that the Indian Child Welfare Act is unconstitutional because it is not “commerce” in the sense of “trade.” Domestic relations, he says, are left to the states. When it comes to American Indians, Native Nations and the Constitution, Thomas is wrong. The Constitution’s Treaty, Commerce, Supremacy, Apportionment and Property Clauses, the War Powers, and the 14thAmendment are the foundation for the Indian affairs powers and the United States’ nation-to-nation relations with Native Nations.
The starting point for analysis is always: Indian nations and tribes were independent, sovereign nations prior to the formation of the United States. Indian nations managed native justice systems, economies, education, health care, and domestic relations. In the earliest Indian treaties, the United States extended its protection to Indian nations—for example, the Cherokee Nation Treaty of 1785 provides that: “[t]he Indians for themselves and their respective tribes … do acknowledge all the Cherokees to be under the protection of the United States of America, and of no other sovereign whosoever.” The United States intended this provision to oust the British from North America, yet it must be read as the Cherokee Nation would have understood it—a pledge of protection for the Native Nation, not U.S. dictatorship, tyranny or despotism. Thomas Jefferson recognized that Native Nations were governed by native traditions, customs, and laws.
The Articles of Confederation, America’s original governing document, provides that:
The United States in Congress assembled shall also have the sole and exclusive right and power of … regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any State within its own limits be not infringed or violated.
Articles of Confederation, Art. XI (Passed by Continental Congress 1777, ratified 1781–1789). In practice, this allocation of power was not practical because the grant of authority to Congress was too qualified and the states continued to claim concurrent power over Indian affairs. The weakness of the Indian Affairs power was exemplary of the overall problems for the United States under the Articles of Confederation. This provision does not inform the Constitution by reserving state’s rights in the field of Indian affairs.
General George Washington chaired the Constitutional Convention, and contrary to Justice Thomas’s suggestion, he did not carry forward the Articles of Confederation. In partnership with Franklin, Jefferson and others, Washington and his party of Federalists, Jay, Hamilton, and Madison, rewrote the Constitution to ensure the success of the United States of America as one Nation. Washington made sure that the Federal Government had plenary authority—vis-à-vis the states—over Indian affairs (and other areas of Federal authority). Washington sought to forestall brushfire wars along the United States border because he knew that American citizens, who encroached on Indian lands and “endangered” the peace of the Union by violating Indian treaties, started Indian wars.
Accordingly, the Constitution says simply, “Congress shall have the power to regulate Commerce … with the Indian Tribes,” and state laws that are contrary to Federal law are preempted by the Supremacy Clause. Thomas’s broadside notwith-standing, this is not the only font of Federal authority concerning government-to-government relations with Indian nations and tribes. The United States negotiated 17 treaties under the Articles of Confederation prior to the Constitution, and 10 of those were treaties with Indian Nations (Cherokee Nation, Choctaw Nation, Six Nations). The Constitution affirms those treaties already made, including the treaty pledges of protection for Indian nations. The Constitution also authorizes new treaties. The Constitution, through the Treaty and Supremacy Clauses, recognizes Indian nations and tribes as prior sovereigns, with authority to enter treaties and those treaties reserved tribal self-governance over Indian lands and tribal citizens. Over 370 Indian treaties were entered under the Treaty Clause. The Apportionment Clause expressly excludes tribal citizens from direct taxation and congressional apportionment as “Indians not taxed.” Our people were citizens of our own Native Nations, not the United States.
As Chairman of the Constitutional Convention, Washington is a reliable guide to the Constitution’s meaning. In 1790, one year after its ratification, President Washington entered the Treaty with the Creek Nation, guaranteeing Creek territory, pledging protection, promoting justice, agriculture, and civilization. With regard to the “beloved” Cherokee Nation, President Washington exhorted them to undertake agriculture, sell their surplus to their white neighbors, gather in national council and send delegates to Congress, expressing their priorities and concerns.
Jefferson’s legacy is the Louisiana Purchase. In the 1803 Louisiana Purchase Treaty, the United States pledged to honor the international treaties with Indian nations, until such time as the United States by “mutual consent” entered its own treaties. Under Jefferson’s leadership, the United States passed laws for Indian traders, Indian education, and restricted liquor sales. Later, Indian treaties included provisions for tribal territorial integrity, self-government, agriculture, allotment of lands, education, health care, “civilization.” Domestic relations were addressed through treaties, when non-Indian husbands of Indian women were included in allotment of tribal lands and crimes between Indians were reserved to tribal self-government. Indian children were often sent far from home to military boarding schools, like Carlisle School in Pennsylvania, or educated in government boarding schools on Indian reservations. InUnited States v. Quiver(1916), the Supreme Court explained that:
At an early period it became the settled policy of Congress to permit the personal and domestic relations of the Indians with each other to be regulated, and offenses by one Indian against the person or property of another Indian to be dealt with, according to their tribal customs and laws. Thus the Indian intercourse acts of 1796 and 1802 provided for the punishment of various offenses by white persons against Indians and by Indians against white persons, but left untouched those by Indians against each other.
After 90 years of Indian treaty-making, Congress promulgated, and the states ratified, the 14thAmendment. Congress intended to make freed slaves citizens through the Citizenship Clause, but intentionally excluded the citizens of Indian nations from U.S. Citizenship. Native people were not “subject to” the jurisdiction of the United States, as required by the new Clause. Our people were subject to tribal government jurisdiction.
When the 14thAmendment removed the constitutional reference to slavery (3/5s of other persons) and counted “All persons, excluding Indians not taxed,” the political status of tribal citizens was affirmed. Under the Indian Peace Policy of the post-Civil War era, the United States entered into over 70 Indian treaties while the 14thAmendment was considered and ratified. By repeating the original language of the Constitution, the 14thAmendment should be read to affirm the original Indian affairs powers of the United States. In this way, the Nation approved an expansive view of the Indian affairs power and the government-to-government relationship between the United States and Indian nations.
The Supreme Court has found that the War Powers are also among the Indian affairs powers because the United States, having made war on Indian nations, also had the power to make peace. Indeed, President Washington put Secretary of War Knox in charge of treaty-making with the Cherokee Nation in 1790. The Department of War was the original home of the Bureau of Indian Affairs. The United States destroyed traditional tribal economies and disrupted our Indian communities by warfare, so the United States has the power to assist Indian nations in restoring tribal economies and Indian communities. (Think of the Marshall Plan.) And, under the Constitution’s Property Clause, the United States, having taken original Indian lands as “surplus” and having claimed title over remaining Indian lands to protect them against alienation, also had the power to restore Indian lands.
In his Baby Veronica opinion, Thomas would have us believe that because no furs, beads or kettles, hatchets or guns were traded, the Indian Child Welfare Act is unconstitutional. His view ignores the history of the United States relations with Indian nations, the Constitution’s text, treaties, statutes, and a rich body of Supreme Court precedent. As Chief Justice Marshall said in the 1830s Cherokee Nation cases, the duty to protect is not a license to destroy. Where the United States pledged through treaties (affirmed by the 14thAmendment) to protect Indian nations, Congress now has the power to protect our Indian children so they, as our future citizens, are not stripped away from our Indian nations.
Under the Constitution, it is well within Congress’s power to protect Indian families and children through the Indian Child Welfare Act. Justice Thomas is just plain wrong when he says otherwise.
Mark C. Van Norman is the Executive Director for the National Indian Gaming Association.
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.
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.
The biological father: Dusten Brown claimed the right to his daughter under the Indian child Welfare Act, which claims to preserve parental rights and tribal sanctity.
When Matt and Melanie Capobianco watched the birth of their adoptive daughter in 2009, they had no idea their love for this little girl would put them at the center of a decades-old national debate with racial, cultural and political overtones.
But that’s exactly where the James Island couple have found themselves after the U.S. Supreme Court agreed this month to take up their long-running custody battle with 3-year-old Veronica’s biological father, Dusten Brown, a Cherokee Indian.
The decision, which surprised many legal scholars, marks the first time in more than two decades that the high court has taken up a case involving the Indian Child Welfare Act, a 1978 federal law aimed at preserving American Indian families, tribes and their heritage.
Among other things, the act gives American Indian parents preference in custody disputes involving Native American children.
South Carolina courts cited the act in forcing the Capobiancos in late 2011 to turn over Veronica to Brown, who was a stranger to the child.
He returned home to Oklahoma with Veronica, and the Capobiancos haven’t seen her since.
Oral arguments are expected as soon as April, and the case is being closely watched by a variety of groups with a stake in its outcome — tribal groups, adoption agencies and attorneys, Indian law and constitutional-rights experts. It has the potential to affect the way thousands of adoptions are handled each year and alter the playing field for Native American groups from coast-to-coast.
Predicting the way the high court will rule is always a dicey proposition. But the speed with which the court grabbed the case leads many observers to suspect that the justices intend to make a bold statement on this contentious subject. After all, the high court hears only about 1 percent of the roughly 10,000 cases submitted for its consideration each year.
But the justices’ aim remains a mystery.
“I’m a little bit perplexed by this,” said Lorie M. Graham, a professor and Indian law scholar at Suffolk University Law School in Boston. “You would really have to look long and hard to find ambiguity in this legislation. There is not a lot of room for interpretation here.”
Marcia Zug, an associate professor at the University of South Carolina School of Law and an expert in American Indian law, agreed. But that doesn’t mean the court isn’t looking toward change, she said.
“The Supreme Court doesn’t take up cases just to affirm them,” she said.
Zug said she believes South Carolina courts ruled correctly, and she can find no legal basis for the U.S. Supreme Court to take up the case. She fears the high court is looking to dismantle the Indian Child Welfare Act, which she said many consider to be the most important piece of American Indian legislation ever passed.
“It strikes me that the Supreme Court is looking for a way to overthrow (the act), and I really don’t see how they can do that,” she said.
Tribal groups have similar fears, and they worry that the court is preparing to roll back protections put into place to keep outsiders from legally stealing children from their tribes through coercive adoptions and deceit.
The law aims to preserve parental rights and tribal sanctity, placing a child first with blood relatives and, in their absence, with a tribe member.
“We are very concerned,” said Terry Cross, executive director of the Oregon-based National Indian Child Welfare Association. “We don’t want to go back to those times when those deceptive practices were the norm and people felt like they could take our children away in this manner.”
Others say the law is complicated, confusing and applied differently from state to state and from tribe to tribe. They argue that a Supreme Court review is much needed and would likely result in clearer guidelines for all to follow, potentially avoiding the heartache and drama surrounding Veronica’s case.
“What we are looking for is some clarity, not necessarily a dismantling of the act,” said Washington state attorney Mark Demaray, immediate past president of the American Academy of Adoption Attorneys, which has submitted briefs in the Veronica case. “We need to know what the rules of the game are.”
Divisive decisions
Before Veronica was born in September 2009 in Oklahoma, her biological parents canceled their engagement and went separate ways. Brown, an Army soldier, acknowledged paternity in text messages to the mother, but did not give her financial support.
The Capobiancos, who had been through seven failed attempts at in vitro fertilization, met Veronica’s mother through an adoption agency, developed a close relationship with her and adopted the baby at birth. The mother is not an American Indian.
Brown filed for paternity and custody after learning of the adoption four months later, and, as an enrolled member of the Cherokee Nation, argued his case under the Indian Child Welfare Act.
A Charleston County family court judge sided with Brown, and the Capobiancos were forced to surrender the girl to him on New Year’s Eve 2011. The couple then appealed that decision, but failed to win over the state Supreme Court, which upheld the family court ruling by a 3-2 vote in July.
The justices said they ruled with “a heavy heart,” but they were bound by law to give Brown an edge. Though Brown did not support the girl’s mother during pregnancy, his rights as a parent should not be stripped, the court confirmed.
The rulings have fueled strong feelings on both sides.
The Capobiancos’ supporters argue that the courts overlooked Veronica’s best interests, split a loving family and ignored the wishes of Veronica’s birth mother just because Brown is an Indian.
Johnston Moore, a founding member of the Coalition for the Protection of Indian Children & Families, had this to say in an opinion piece published in The Oklahoman, “It was the unfair exploitation of the law’s loopholes that gave rights to a biological father who would have had no rights under state law, resulting in an innocent little girl’s world being turned upside down in an instant.”
Brown’s supporters say the law was fairly applied, helping to reunite Veronica — dubbed “Little Star” by the Cherokee — with her loving father and preserve their culture. They are hoping the high court will do nothing to change that.
“Cherokee Nation believes that ICWA is one of the most important federal laws for the continued existence of tribes,” said Chrissi Nimmo Ross, assistant attorney general for the Cherokee Nation. “The Cherokee Nation is hopeful that the Supreme Court has accepted this case to confirm the lower court decisions and reaffirm the importance of ICWA at the federal level.”
Wide interest
The case and its emotional underpinnings have attracted widespread national attention as it moves through the courts.
The Capobiancos have appeared on the Dr. Phil show, and their story has appeared in The New York Times, The Washington Post and other publications. They also reportedly have fielded offers from Oprah Winfrey’s network, CNN and People magazine to chronicle their legal journey.
For now, however, the couple is keeping a low profile and declining interviews on the advice of their attorneys before the Supreme Court hearing.
Family spokeswoman Jessica Munday would say only that “they are hopeful, and it lies in the hands of the court now.”
The couple has some heavy legal hitters on their side, including Washington, D.C., attorney Lisa Blatt. Blatt has won 29 of the 30 cases she has argued before the Supreme Court. Washingtonian Magazine named Blatt a “superstar” lawyer and one of the “100 Most Powerful Women in Washington.”
Paul Clement, U.S. solicitor general from 2005-08, is working on behalf of the guardian ad litem in the case and has filed a brief in support of returning Veronica to the Capobiancos.
On the other side, Washington, D.C., lawyer Charles Rothfeld is representing Brown and the Cherokee Nation. Rothfeld has worked on more than 200 cases that have gone before the high court, and the National Law Journal last year named him “one of the leading members of the Supreme Court bar.”
Charleston lawyer Shannon Jones, Brown’s local counsel, said Rothfeld also has law students from Yale University working on the case. He is founder and co-director of the Yale Law School’s Supreme Court Clinic, among the largest appellate advocacy programs in the nation.
A tough call
Zug, the USC law professor, said the case should have never reached this point. Had Veronica’s Indian heritage been properly considered from the start, the adoption likely never would have gotten to the point it did, she said.
“There shouldn’t have been this emotional heartbreak,” Zug said.
Yet here we are.
The Capobiancos have said they have been emotionally devastated by the loss of the daughter that became the center of their world.
Brown’s lawyer has said he too has been victimized, vilified for asserting his parental rights and rattled by the venom directed at him.
The Indian Child Welfare Act has been reviewed only once at the highest level. In 1989, Justice William Brennan’s ruling sided with Mississippi’s Choctaw tribe, which challenged an adoption of twins.
In a recent television interview with Charlie Rose, Justice Antonin Scalia, who joined with the majority in 1989, described the case as among the toughest of his career.
Now, Scalia will get another opportunity to weigh in on the law with a court that has a different makeup and, perhaps, a different perspective, said William B. Allen, emeritus professor of political science philosophy at Michigan State University and former chairman of U.S. Commission on Civil Rights under President Ronald Reagan.
Allen, who has been critical of the Indian Child Welfare Act, said the case carries the potential for the court to weigh the constitutional implications of the law and manner in which it is applied. But he is not surprised that the justices have sidestepped the issue for so long.
“I appreciate and understand the court’s reluctance to open this area because federal Indian law is an ugly morass and a big black hole in our law,” he said. “The court has probably wisely decided to stay away from it before now.”
