ICWA, Part 2: About Baby Veronica
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. – Suzette Brewer, Indian Country Today in “The Fight for Baby Veronica”
35 years ago, Congress passed the Indian Child Welfare Act (ICWA) to counter widespread cases of American Indian children being adopted out to non-Indian families, as had occurred in the years leading up to 1978. Yet, even with ICWA, American Indians are still coping with the fallout.
Currently, the Supreme Court is deliberating on the outcome of the controversial case, Adoptive Couple v. Baby Girl. In brief, this case came before the US Supreme Court after South Carolina’s Supreme Court granted custody of Veronica to Dustin Brown in line with ICWA guidelines. Brown is the biological father and an enrolled member of the Cherokee Tribe of Oklahoma.
For the first year-and-a half of her life, Veronica was in the custody of her adoptive parents, the Capobiancos. Unknown to Brown, the non-Indian biological mother put Veronica up for adoption shortly after discovering she was pregnant. It wasn’t until later, while preparing for deployment to Iraq, that Brown was served with papers he thought would sign over parental rights to the mother while he served military duty. Instead, they signed over the right for Veronica to be adopted by a non-Indian family.
Once at the military base and 12 days prior to deployment, Brown was served with notice of an impending adoption (January 2010). He immediately filed a stay of the adoption proceedings, according to NICWA, and then focused on establishing paternity, child custody, and support for his daughter. About 18 months later (July 2011), the SC Family Court ruled in his favor to block the adoption. Custody of Veronica was restored to Brown (December 2011), after which the adoptive parents appealed to the SC Supreme Court. The SC Supreme Court upheld the Family Court’s ruling (July 2012), relying on ICWA for their decision. The adoptive parents then appealed to the US Supreme Court (January 2013).
The US Supreme Court is now considering the following questions:
- Should ICWA be interpreted to include the Existing Indian Family Exception? The exception posits that ICWA was designed only to prevent the breakup of existing Indian families where a state court determines if the child, but for the adoption, would have grown up with strong ties to tribal culture?
- Does ICWA’s definition of ‘parent’ require unwed fathers to meet state law requirements to establish and acknowledge paternity or consent to an adoption?
The court must also revisit the constitutionality of ICWA, which was strongly upheld in 1989 by the U.S. Supreme Court in Mississippi Choctaw vs. Holyfield (490 U.S. 30 (1989)). The question of constitutionality revolves around special treatment for a particular race or ethnic group. However, the US government has over 500 treaties with tribes, and scores of federal policies relating only to American Indians and tribes. A decision against constitutionality of ICWA could also call into question those other federal laws and policies too.
While the events leading up to the final appeal, and the questions before the US Supreme Court, are too complex to fully summarize here, I encourage you to visit NICWA’s web page: Adoptive Couple v. Baby Girl.