Suzette Brewer
Veronica Brown and her father Dusten Brown play with geese at their home in Nowata, Oklahoma.

Why Feminists Should Care About the Baby Veronica Case

Laura Briggs
8/16/13

The “Baby Veronica” case (Adoptive Couple v. Baby Girl) currently before the Supreme Court is many things—a case that could undermine a great deal of federal Indian law by attacking the Indian Child Welfare Act (ICWA); a story about the stupid, mean things a couple will do to each other when they break up; and a sad story about a little kid who, at four, spent the first two years of her life with would-be adoptive parents and the next two living with her bio-father, his wife and other children. It’s also a story about the conservative right’s uses of marriage and its adoption crusade. What it’s not is a case that feminists have been on the right side of.

Facts

First, the facts, which have been widely misreported. In December 2008, Dusten Brown and Christina Maldonado were engaged; in January 2009, she became pregnant. She lived in his hometown, Bartlesville, OK, near his parents, but as he was active duty military, he lived four hours away at Fort Sill. On learning of her pregnancy, he began to press her to marry; she refused, and in May, they broke up. In an effort to get her to reconsider, he said, he refused to support her and said he wouldn’t pay child support, either. She told him he would have to relinquish his parental rights to her. Meanwhile, without his knowledge, she contacted the Nightlight Christian Adoption Agency (yes, you have heard of them—George Bush publically thanked them for pioneering “snowflake adoptions” of cryopreserved embryos, which they call “pre-born children”). With Nightlight assistance, Maldonado selected a couple in South Carolina to adopt her child, a state (not incidentally) that has laws very unfavorable to birth fathers—in order to have standing in an adoption case, fathers must have lived with the birth mother for at least six months prior to the birth of the child, and to have provided financial support, neither of which Brown had done.

Laura Briggs, chair and professor of Women, Gender, Sexuality Studies at the University of Massachusetts Amherst (Courtesy Laura Briggs)

There was, however, a potential complication, as Maldonado told Nightlight: Brown was Cherokee, which might have made the venue for any adoption Cherokee tribal court in Oklahoma, not South Carolina. Nightlight contacted the Cherokee Nation, but the agency misspelled Brown’s name and gave a wrong birth date for him. As a result, the Nation could not verify that Brown was Cherokee or that the baby was eligible for enrollment, and did not block the removal of the case to South Carolina. Baby Veronica was born in September with the would-be adoptive parents—the Capobiancos—present, but Maldonado told the hospital to deny she was there if Brown called. Four months later, less than two weeks before Brown was to be deployed to Iraq, the Capobiancos’ lawyer sent a process server with relinquishment papers. Thinking he was relinquishing to Maldonado during his deployment, Brown signed a form entitled “Acceptance of Service” but immediately asked for the paper back, saying he wanted to talk to an attorney. The process server threatened him with criminal prosecution if he touched the paper. Brown consulted an army attorney, and filed a stay of the adoption in South Carolina, establishing paternity, seeking custody (offering to place the baby with his parents until he returned from Iraq), and promised to support Veronica. The Cherokee Nation also intervened, identifying the father as a registered member and saying that ICWA applied and had not been followed. Adoption proceedings were halted, although the baby stayed with the Capobiancos. When Brown returned from Iraq in 2011, two South Carolina courts found that ICWA applied, that Brown had not consented to the termination of his parental rights and there never should have been an adoption case, and awarded custody of two-year old Veronica to Brown.

At that point, the Capobiancos and Nightlight got considerable attention from the Evangelical Christian right, and “Save Baby Veronica” websites and petitions popped up all over. Enter Paul Clement, patron saint of conservative causes at the Supreme Court–defender of the Defense of Marriage Act, leading the charge against Obama’s expansion of health care coverage, staunch defender of Arizona’s immigration law, and the mouthpiece of the Bush administration in torture cases. Clement also currently represents a non-Indian gaming client who wants to put a casino in New Bedford, Massachusetts, and is arguing that the state law on Indian gaming amounts to an illegal racial set-aside. This may be the real key to the Baby Veronica case—if conservatives are successful in gutting ICWA, much Indian law will also fall. Not for the first time in U.S. history, the successful claim by Native people on a resource—the lucrative gaming industry—is under full-scale legal assault.

 Baby Veronica Case Goes to the Supreme Court

Clement successfully brought the Baby Veronica case to the Supreme Court, making a series of interrelated arguments. First, his brief insists that Brown is not legally or meaningfully a father because he and Maldonado were not married. For me, as a lesbian mother who raised a child in Arizona where I could not adopt her because her other mother and I were not married, this argument terrifies me. Second, he makes an old (and racist) blood quantum argument, saying that the child is “really” Hispanic, because she doesn’t have a sufficient fraction of “Indian blood” to count—a point on which the Cherokee nation begs to differ. Finally, he says, ICWA is a law that gives unfair racial preferences to Native people in adoption and custody cases. In this, he is following Antonin Scalia, the Supreme Court Justice he clerked for. Scalia, commenting on Baby Veronica, said that the most wrenching case he ever decided was Holyfield, where he had to “turn [a] child over to the tribal council,” removing it from a “wealthy rancher” in an ICWA case. This is a strange description of Holyfield. What the Court actually did in Holyfield was determine that the jurisdiction for the adoption would be tribal court, much as it might find that one state rather than another was the proper place to hear an adoption or custody case. In Holyfield, the “wealthy rancher’s” family in fact adopted the children (there were twins); the tribal court found it was in the children’s best interest. This is a crucial point: ICWA does not determine who gets a child. It determines jurisdiction–who gets to decide who gets a child.

Jurisdiction matters a lot in adoption. State laws vary widely, and many Sunbelt states (plus Utah), are known as “easy adoption” states where Christian adoption agencies, in particular, often relocate pregnant women because they, and the birth fathers, have few rights there. ICWA is the only federal law that offers birthparents rights in adoption cases, so that enrolled members of Native Nations, at least, have uniform and enforceable rights. The jurisdiction is always tribal court, and the law is consistent.

As I have argued elsewhere, ICWA does not provide special “racial entitlements”; it treats (some) American Indians as having a distinct political status conferred by treaty rights. In fact, in 1974, the Supreme Court ruled on this very point. In Morton v. Mancari, the court held that Native people could be treated differently from non-Native people, not because they belonged to a distinct racial group, but because tribal nations are “quasi-political entities” whose status is determined by federal treaty. Being the parent of a child eligible for tribal enrollment is not a “race.” People otherwise identifiable as Native may have children that are not ICWA-eligible because they belong to a non-recognized or terminated tribe (of which there are about 200 in the United States), because of arcane blood quantum requirements, or because they are indigenous but from Latin America, Canada, or Hawaii. Two, all ICWA does is give birth parents rights that many think they should have regardless, and often do. If the Baby Veronica case had been in Massachusetts, for example, Dusten Brown would be treated as a legal parent, and his daughter could not be adopted unless he either relinquished his parental rights or was shown to be unfit—the same standard as ICWA.

“Where is the outrage from women’s groups over this issue?”

“Where is the outrage from women’s groups over this issue?” asks a recent blog post on the Christian Alliance for Indian Child Welfare’s website, wondering why feminists are not angry about an unmarried father demanding a say in the placement of a child for adoption. I’d ask the same question, but with opposite intent. So far, the only feminist voices in this debate have been Joan Heifetz Hollinger and Elizabeth Bartholet, who support Paul Clement and Nightlight Christian Adoption Agency in their brief in the case, which argues for a standard some states have invented, that ICWA should only apply when it disrupts an “existing Indian family,” a standard that has been interpreted very narrowly—a married heterosexual couple living on a reservation. Why feminists would think that is a good idea, when 48% of children are born to single mothers, is beyond me.

Why Feminists Should Care

Here’s why feminists should care about this: it’s a racist case designed to gut federal Indian law. It’s a “states rights” case, which should haunt anyone who thinks slavery was a bad thing. It involves a high-profile cast of right-wing actors, from an evangelical Christian adoption agency to lawyer Paul Clement. Making adoption easy and giving birth parents and unwed parents few rights has been a conservative anti-abortion agenda for a long time. It’s time feminists noticed, and opposed it. When unmarried fathers are not really parents, unmarried mothers are vulnerable too, as when Newt Gingrich threatened to take the children of welfare mothers and put them in orphanages. If this case is successful, it would make it much easier for poor people to lose children, including against their will, which mostly affects mothers.

Laura Briggs is chair and professor of Women, Gender, Sexuality Studies at the University of Massachusetts Amherst. She is the author of several books on race, questions of empire, and reproductive politics—including indigenous politics—in the U.S. and Latin America, most recently Somebody's Children: The Politics of Transracial and Transnational Adoption. She blogs at somebodyschildren.com

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nitrat's picture
nitrat
Submitted by nitrat on
Another group that needs to care is parents who may have sons who may have get girls pregnant and the girls may sell their grandchild before they can do anything about it.

sparrowtooth's picture
sparrowtooth
Submitted by sparrowtooth on
Thank you Ms. Briggs for a thoughtful, accurate and articulate article covering a few topics; this case, legal adoption, ICWA and those placed in a needlessly vulnerable position to retain their adopted child. I am an Alaskan Native adoptee. My interest in this case is for obvious reasons. My adoption was pre-ICWA. I follow the case and am astounded by the amazing lack of clarity and objective reporting on this case. I fear my biggest regret in the case as a feminist and an adult adoptee is: the amount of demeaning acrimony imposed on Mr. Brown...included by our hallowed Justices. Some seemed to have actual rancor and hostility toward him. My disappointment for this is immense. Finally I am forced to consider that there does still exist rancor toward Indian people...for whatever reason. We represent less that 1% of the US population. We collectively face a lot of misconceptions and ignorance of our peoples. Not being glib; Feminists and Indian people are not in vogue....or if they are it is for the wrong reasons. I champion both groups and consider myself representative of both. Thank you again for your very thoughtful article. I look forward to reading your blog.

Patty Hayes
Patty Hayes
Submitted by Patty Hayes on
Thank you for this very thoughtful article. One need look no further than the Jason Patric case (in California) to see that feminists are remaining silent in many fathers' rights cases. IMO, this is unfortunate and indirectly related to the issue of a woman's right to choose (abortion). There appears to be a reluctance to equate a father's right with a mother's right when it comes to custody. I'm old enough to remember a time when women remained in marriages because, if divorced, the courts granted custody of the children to the husband because he had the job and the money. But times have changed. Feminists should be intellectually and morally strong enough to condemn a birth mother and her advocates who use legal machinations to wrest custody of a child from the birth father. While I applaud the Cherokee Nation for standing behind Dusten Brown, and as you point out in this article, this case has far-reaching implications for non-Indian birth fathers. I am reminded of the Elian Gonzalez case and the resistance of those who fought tooth & nail to block his return to his father in Cuba, solely because they opposed Cuba's govt. This kind of interference in parental rights is frightening and must be stopped.

lki's picture
lki
Submitted by lki on
Hello. I was wondering if you could please reference your statement about Newt Gingrich suggesting that the children of welfare mothers should be put into orphanages. Thanks.

builds-the-fire's picture
builds-the-fire
Submitted by builds-the-fire on
Thank you for your clear, concise article. So much misinformation as been circulated about this case. So...Nightlife misspelled Dusten Brown's name? Don't you think a woman engaged to marry a man knows his birth date, and the correct spelling of his name??? Either Maldonado deliberately mislead Nightlife, or they deliberately misspelled his name. There was deliberate intent to mislead from one of them. Lawyers are paid to not make such a small mistake. Like reporters, they are trained to check the spelling, check the spelling, check the spelling. A misspelled name in a journalism class is an automatic "F". I would have to assume that in law school, the same holds true. Also, sending a form for Dusten to sign misleadingly titled "Acceptance of Service" two weeks before he was to deploy to "defend" a nation where U.S. military were being killed daily is...demonic. I would have to say that it was by God's grace that he survived his tour of duty in such a place--and probably with the worry of his baby daughter's safety on his mind. Maybe this case needed to be fought, and God has decided that such a strong person as Dusten Brown is the one to fight it. If God be for you... Perhaps all of "Nightlife's" apparently in the dark adoptions should be looked at a little closer by the government of SC.

editors's picture
editors
Submitted by editors on
@Iki: The author, Laura Briggs, chair and professor of Women, Gender, Sexuality Studies at the University of Massachusetts Amherst, published that reference in her book, Somebody's Children: The Politics of Transracial and Transnational Adoption. The reference can also be found in Time Magazine, December 12, 1994, "The Storm Over Orphanages."

Melissa Ann Paderewski
Melissa Ann Pad...
Submitted by Melissa Ann Pad... on
Look now, I'm a right-winger and the case pisses me off too. Do I believe a child should have a mother and a father? Yes, I do. Do I believe that taking a child away from their biological parent is right? No, I don't. The Capobiancos are wrong!

Julie Price's picture
Julie Price
Submitted by Julie Price on
As a left wing feminist and a child advocate, I am stunned that anyone as educated a you are would write an article that distorts basic facts in order to promote your personal areas of interest. Also stunning is the degree to which you omit any consideration of what is in the best interest of Veronica. I'd expect you to have some understanding of infant and early childhood development. However, your article shows none. You make no mention of the trauma Veronica undoubtably experienced when she was abruptly transferred to Dusten and driven halfway across the US. This episode in itself, coupled with his insistence on no contact with the Capobianco's, is enough for me to seriously doubt his judgement and ability to care for a child. This was child abuse, albeit court ordered. You blithely mention that Veronica would have been cared for by Dusten's parents, had he won custody before going overseas. So, first a disruption of care at four months (not at all insignificant), and then a transition to his parents. You failed to mention what would happen if he didn't return at all. Why would a feminist want to put an infant girl(or boy) through such life destroying transitions in early childhood? Elizabeth Young-Bruehl has written an excellent book about childism, titled Childism. In it, she introduces the idea of societal prejudice against children. It's a well researched and original work. I recommend it. In the comments below, the case of Elian Gonzalez was mentioned. He was returned to his father out of respect for his early childhood environment and attachment to his father, (who happened to be his biological father), the same reasons Veronica should be returned to the Capobiancos. I attended a conference where members of the psychoanalytical community, who were consulted about the case at the time, presented their recommendations. Early childhood experience was a pivotal consideration. Yes, moving back with the Capobiancos will be tricky. Veronica has been in Oklahoma for almost 20 months, (the c's had her for 27-not the same as the Browns, as you implied). However, the Capobianco's have shown continued intelligence in the choices they have made for her so far. Not to mention, they have been law abiding. Mosty likely, Veronica will need help. I believe they will be most able to help her. And she will remember them, regardless of whether or not she can express her memories in words, they are pre verbal memories that matter alot.

nmahaney's picture
nmahaney
Submitted by nmahaney on
Thanks Dr. Briggs for this article! Congratulations on your transition to Amherst!

videogamemaker's picture
videogamemaker
Submitted by videogamemaker on
I am also curious why you did not mention the fact that the father did not pay any child support. That is something feminists point out in nearly every article. If a man abandons his responsibility to care (and putting a stipulation that she has to marry him or no financial support does not count) for the child, he has relinquished custody in deed if not in legalities. That omission is pretty blatant when discussing why feminists care about this, and was clearly one of the arguments of the case as well.

Lynx2's picture
Lynx2
Submitted by Lynx2 on
"Why feminists would think that is a good idea, when 48% of children are born to single mothers, is beyond me." But I think that's part of the problem--a birth mother will always have to make the choice of abortion, adoption or parenting the child herself. Birth fathers (and the courts), unfortunately, seem to think that's something negotiable on their part.

Penny White
Penny White
Submitted by Penny White on
This is not a Father's Rights case or a Tribal Rights: this is a Children's Rights case. This baby has been kicked around like a football while the grownups stamp their feet and howl about their "right" to her. A child is not a possession; a child is a responsibility. Veronica spent the first two years of her life with her adoptive parents. As wrong as the adoption was , for the CHILD'S sake, she should have been allowed to remain with the only parents she's ever known. But she wasn't. Instead, she was treated like a piece of property and temporary "ownership" was transferred back to her biological father. She was with him for two years. For the CHILD'S sake, she should have been allowed to stay with him. But nope - she was treated like a piece of property again and "ownership" was transferred back to the adoptive parents. I am a feminist. And when it comes to rights, it is CHILDREN'S rights that are most in need of defense. They are not symbols of tribal independence or state's rights or ANYTHING. They are tiny vulnerable human beings who need at least ONE grown up in their lives who are willing to put their needs first. Sadly, Baby Veronica does not seem to have anyone in her life willing to do that.

AdoptionAttorney's picture
AdoptionAttorney
Submitted by AdoptionAttorney on
It is amazing to me that Ms. Briggs did not do her homework or check her spelling. The name of the agency is NightLIGHT, not NightLIFE! Second, she is absolutely wrong when she states that ICWA does not determine who gets the child. Besides the jurisdictional issues, ICWA has a very strict list of placement preferences that require placement with Native family members first, unless a court finds clear and convincing evidence to support a deviation from those preferences. Yes, if ICWA applies, ICWA almost always determines who gets the child! Also, there are hundreds upon hundreds of adoption agencies in the US, many of which have no religious affiliation whatsoever. Has Ms. Briggs done any research to support her claim that only Christian adoption agencies use the legal maneuverings about which she complains here? As an adoption attorney with cases that range all over the country, I can assure you that jurisdictional choices are made by every adoption agency and every adoption attorney involved in interstate cases. The faith (or lack thereof) of these agencies and attorneys has nothing to do with these choices, which are based on the attorney's legal duty to advocate for the best interests of the clients who have retained that attorney. Please Ms. Briggs, if you want to be taken seriously as a journalist, support your claims with hard data... and double-check all the names in your article.
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