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?
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.*
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.