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.
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."
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.
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