Adoptive Couple v. Baby Girl: The Indian Child Welfare Act Before the U.S. Supreme Court

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In 2001, the Child Welfare League of America (CWLA) entered into a process of truth, healing, and reconciliation with Indigenous organizations, including the National Indian Child Welfare Association (NICWA), and pledged to take restorative action in support of American Indian families. For more than a decade now, CWLA and NICWA have worked closely together on strengthening compliance with the Indian Child Welfare Act of 1978 (ICWA), helping people understand the history that led to ICWA and the necessity for its continued enforcement. Just recently, CWLA published a timely special issue of its Child Welfare journal dedicated to these issues. Our joint belief is that ICWA is good child welfare practice. The special issue of Child Welfare (Volume 91, Number 3) illustrates this clearly. Unfortunately, children and families can suffer needlessly when ICWA is not followed. If we continue to work together, we can continue to strengthen practice and thus Indian families--and we can avoid situations like what has transpired in the case Adoptive Couple v. Baby Girl.

For more than a year, the national spotlight has focused on an emotionally charged case involving ICWA. Often referred to as the "Baby Veronica" case, it first arose in South Carolina. It involves a Cherokee girl, her American Indian father, mixed-race mother, and a non-Indian prospective adoptive couple. Veronica's father and mother were engaged when she was conceived, but her mother broke off the engagement while the father, Dusten Brown, was serving in the U.S. Army, stationed at Fort Sill, Oklahoma. Unbeknownst to Brown, Veronica's mother began the process of placing her child up for adoption.

In the final months of her pregnancy, the mother cut off all communication with Brown and worked closely with an agency and attorney to adopt the child to a non-Indian couple from South Carolina, the Capobiancos. Brown was not informed of Veronica's birth on September 15, 2009. Veronica was placed with the Capobiancos three days after her birth in Oklahoma, and they relocated her to South Carolina shortly thereafter.

Four months later, the couple finally served Brown with notice of their intent to adopt Veronica. Immediately, he went to court to request a stay of the adoption until after his deployment (which, because of his military status, is provided for by federal law). He also began the legal steps to establish paternity and gain custody. He was then deployed to Iraq. Because the Capobiancos waited until just days before Brown was deployed, the adoption hearing was not completed until he returned home.

At this hearing, the South Carolina Family Court denied the Capobiancos' petition to adopt and ordered Veronica's transfer to her father. The court found that ICWA applied and was not an unconstitutional law, that Brown had acknowledged and established paternity, and that an exception to ICWA called the "Existing Indian Family Exception" (EIFE) was inapplicable to ICWA and therefore to the case. Most decisively, it found that Brown had not voluntarily consented to the termination of his parental rights or the adoption, and that Veronica's placement with him would not result in serious emotional or physical damage.

The Capobiancos subsequently appealed to the South Carolina Court of Appeals to stay the transfer of custody, where they lost. They then appealed to the South Carolina Supreme Court, which upheld the family court's decision. Last October, they asked the U.S. Supreme Court to review the case. In early January 2013, the U.S. Supreme Court accepted review.

In accepting the case, the Court will review two questions: First, should ICWA be interpreted to include the Existing Indian Family Exception? EIFE 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. And second, does ICWA's definition of "parent" require unwed fathers to meet state law requirements to establish and acknowledge paternity or consent to an adoption? Additionally, the Court is also being asked to weigh in on the constitutionality of ICWA itself.

These facts surrounding the case have been largely obscured during the onslaught of media attention that it has received. For the last year, a media campaign orchestrated by the Capobiancos' full-service public relations firm has parlayed an absence of details (South Carolina sealed the records of the case and Brown was unwilling to subject his family to the media circus) into a compelling--albeit inaccurate--narrative. This proved highly successful, as media pundits, tens of thousands of individuals, organizations with demonstrated ties to the anti-sovereignty movement, and others all joined together to decry the Indian Child Welfare Act and to call for its undoing. Absent among the outcry was any scrutiny of the legal advice that was dispensed to, and followed by, the Capobiancos in their unsuccessful attempt to adopt Veronica via problematic notification of the Cherokee Nation, and without securing termination of both parents' rights.

In Adoptive Couple v. Baby Girl, we find ICWA called into question before a Roberts Court noted by legal scholars as markedly unfavorable to tribal interests. Arguing on behalf of the Capobiancos will be Lisa Blatt, who holds the record for most cases argued before the U.S. Supreme Court by a female attorney. She has won 30 of the 31 cases she has argued before them, and has been called named one of the "100 Most Powerful Women in Washington."

Indeed, it is clear that "Adoptive Couple" has assembled the best team that money can buy in their bid to regain custody of Veronica. Yet supporters of "Baby Girl," like myself, remain cautiously optimistic. Courts at every level have ruled in favor of "Baby Girl," rejected the EIFE, and affirmed that Brown established paternity under federal law.

Furthermore, an impressive coalition has amassed that recognizes the dangerous implications a ruling in favor of "Adoptive Couple" would produce. Notably, non-Indian entities are leading these efforts. State attorneys general, current and former members of Congress, national adoption and children's advocacy groups, military and veterans' rights organizations, psychologists' associations, and law professors have coalesced along with American Indian tribes from every region to submit briefs in support of "Baby Girl."

Still, as a pragmatist who has worked in Indian child welfare for nearly four decades, I understand the grave possibility that despite all of these factors, a favorable rul- ing is far from a given. Despite this, my optimism is intact. NICWA has weathered challenges to ICWA and our commitment to protect Indian children and families before.

Whatever the decision in this case, we will continue addressing disproportionality in Indian child welfare, preventing circumvention of laws created to protect Indian children, and creating mechanisms for enforcement of the laws. Supported by our deep relationships on Capitol Hill and sustained by longstanding partnerships with organizations like the CWLA, NICWA's work perseveres because of Indian families like the Browns, and Indian children like Veronica.

She, by all accounts, is thriving within her immediate and extended family, and is a cherished member of her tribal community in Oklahoma.

Terry Cross is a member of the Seneca Nation and the executive director of the National Indian Child Welfare Association in Portland, Oregon.

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