Dusten Brown, Cherokee, reads to daughter Veronica at their home in Nowata, Oklahoma. (Courtesy NCIA)

Supreme Court Thwarts ICWA Intent in Baby Veronica Case

Rob Capriccioso

The U.S. Supreme Court, in a 5-4 ruling drafted by Justice Samuel Alito, has used provisions of the Indian Child Welfare Act (ICWA) to say that a child, widely known as Baby Veronica, does not have to live with her biological Cherokee father.

"[T]he parent abandoned the Indian child before birth and never had custody of the child," Alito wrote for the majority that was joined by Chief Justice John G. Roberts Jr., and Justices Anthony M. Kennedy, Clarence Thomas and Stephen G. Breyer.

Alito wrote that Section 1912 of ICWA does not apply because Brown never had custody of his biological daughter, and wrote that Section 1915 of ICWA does not apply because no other Cherokee relatives, or other Indian families, stepped forward to assert custody.

The child was taken from her adoptive white parents’ home after living there for the first two years of her life. Dusten Brown, a Cherokee Nation citizen, prevented the adoption, saying ICWA applied in his case. The South Carolina courts agreed, and the child, now 3 1/2, has lived with Brown since his challenge.

The high court’s decision paves the way for Matt and Melanie Capobianco, the adoptive parents, to ask the South Carolina Courts to have the child returned to them.

Writing for the minority, Justice Sonya Sotomayor said the majority’s opinion was based on “hollow literalism” that “distorts the statute and ignores Congress’ purpose in order to rectify a perceived wrong that, while heartbreaking at the time, was a correct application of federal law and that in any case cannot be undone.”

“Baby Girl has now resided with her father for 18 months,” Sotomayor wrote. “However difficult it must have been for her to leave Adoptive Couple’s home when she was just over 2  years old, it will be equally devastating now if, at the age  of 3½, she is again removed from her home and sent to live halfway across the country. Such a fate is not foreordained, of course. But it can be said with certainty that the anguish this case has caused will only be compounded by today’s decision.”

Immediate reactions from Indian country to the ruling were, not surprisingly, concerned.

“The problem with the court building a case for the existing family doctrine based solely on custody is that it has huge ramifications for Indian country,” said Chris Stearns, a Navajo lawyer with Hobbs Straus Dean & Walker. “There’s no other way around it—it is commonplace in Indian country to find cases where one parent has never had custody.” 

Stearns said the court’s reading of ICWA is “extremely flawed and it will literally affect thousands of Native children because they do not happen to have two custodial parents.” 

“The Court misses the core concept behind ICWA—which is to protect the cultural resource and treasure that are Indian children,” Stearns added. “It’s not about protecting so-called traditional or nuclear families.  It’s about recognizing the prevalence of extended families and culture.”

For now, because the court did not find the law unconstitutional (as Justice Thomas wanted to happen, according to his own brief filed with the majority opinion), ICWA appears safe. That outcome was a concern of several tribal officials monitoring the case. Writes Kate Fort at Turtle Talk, “The decision is a setback, and a devastating blow to the family, but it’s also not the end of ICWA.”

“This was not a constitutional case, but rather one of statutory interpretation,” Stearns said.  “Congress is free to go back and ‘fix’ the law [so something like this case doesn’t happen again].  The question is whether there are the votes in Congress to do so.  Fixing a Supreme Court decision is not easy.”

The concluding portion of the majority opinion says that there might be constitutional concerns about a reading of ICWA that would allow a father to use ICWA as an eleventh hour trump card, but the majority does not go further than raising that possibility. 

Sotomayor’s dissent states that classifications based on tribal citizenship are permissible under the Constitution.

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Nathan White's picture
Nathan White
Submitted by Nathan White on
ICWA should have completely been struck down but at least this is a start

Anonymous's picture
Submitted by Anonymous on
Not surprised with the ruling because as Justice Alito wrote "[T]he parent abandoned the Indian child before birth and never had custody of the child." Prayers for all concerned, especially Baby Veronica.

talyn's picture
Submitted by talyn on
Oh my god, I feel sick. Are they now going to take this poor child from a perfectly fit biological parent? More importantly, how can they have so willfully misinterpretted ICWA? Native children are a precious resource that has been STOLEN far too many times!

Adam's picture
Submitted by Adam on
ICWA should be disbanded. I understand why this law was made but I have been involved first hand with how it is abused. Whay do we not have this law for African Americans, Hispanics or any other race?

Caroline Tassey's picture
Caroline Tassey
Submitted by Caroline Tassey on
The tribe is a sovereign nation. they should refuse to surrender the child.

native4sure17's picture
Submitted by native4sure17 on
We need to get rid of ICWA.Why? I've been to court to observe ICWA AND quite frankly their all "show" No substance!They have "no power" at all when it comes time for the dads to step up and take responsibility for their children ,when the Native American father wants to do the right thing ICWA ignores the father "and" Grand Parents.Grand Parents "have" no rights if they want to go to court and take custody of their grand children when the parents cant.What i have observed in Minneapolis is ICWA seems to not recognize the Native American fathers,it appears their in on adopting away Native American children.

steve conn's picture
steve conn
Submitted by steve conn on
Anyone who knows how ICWA came about and has read the hearings knows that Congressional intent has been ignored by the High Court.

Nancy StJohn's picture
Nancy StJohn
Submitted by Nancy StJohn on
The Cherokee Nation should stand up and fight for the father,, she is a Cherokee citizen,, her, natural father should have her not a couple that knows nothing of her heritage

Ron "Beef" Randall's picture
Ron "Beef" Randall
Submitted by Ron "Beef" Randall on
We as Lakota's, Native need to understand / read, what is written, not just learn how to read...........there is a reason.........read what is behind the 'word"..........

Anonymous's picture
Submitted by Anonymous on
How can Duston Brown be a member of the Cherokee Nation when ,as I understand it, his only native connection is one half-Cherokee ancestor seven generations ago. I would guess that most of the "whites" in Oklahoma and Western North Carolina are more Native than he is.

Laura Waterman Wittstock
Laura Waterman ...
Submitted by Laura Waterman ... on
ICWA Clarence Thomas went through a great deal of trouble trying to sort out the commerce clause from the rights of individual Indians but he failed to make the case that the Cherokee Nation stands there as a sovereign. People who misunderstand the Constitution, and apparently Thomas is one of them, will try to put Indians in the same category as African Americans, for example buy it does not work. As Justice Sotomayor said, the Cherokee Nation has some moves left under the ICWA Act. Thomas could not sweep it off the table.

Pancho's picture
Submitted by Pancho on
This is the majority that thinks that corporations are people, and the Bush/Reagan appointees who prevented counting votes in Florida and installed Bush as president. What more should anyone expect of them?

nokomis's picture
Submitted by nokomis on
Maybe the Cherokee father should try reading more cultural material to his young impressionable daughter, instead of Green Eggs and Ham!

Kelly La Rue's picture
Kelly La Rue
Submitted by Kelly La Rue on
The time to have fought this battle was when the child was born, not two years later. Veronica's emotional well-being has now been ignored twice. There's a lack of commonsense evident here and the misuse of an important law.