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Veronica Brown, 3, is a member of the Cherokee Nation of Oklahoma. For the past year and a half, she has lived with her biological father, Dusten Brown, Cherokee, and his wife in Nowata, Oklahoma. (Suzette Brewer)

Baby Veronica's Birth Mother Files Suit, Claims ICWA Unconstitutional

Suzette Brewer
7/26/13

On Thursday, the day after the South Carolina Supreme Court denied an appeal filed by Dusten Brown and the Cherokee Nation to consider a “best interest determination” hearing, Veronica's birth mother filed yet another suit in South Carolina federal court claiming that placement preferences for Indian families violates equal protection provisions because the law uses “race” as a factor in custodial placement.

RELATED: Cherokee Nation Blasts Court Reversal in Baby Veronica Case

Supreme Court Thwarts ICWA Intent in Baby Veronica Case

But legal experts across the country have questioned the validity of the lawsuit because of the sovereign immunity of the United States and tribes from being sued without their permission.

“Frankly, it's frivolous and without merit,” said one legal expert who works exclusively on Supreme Court cases. “This birth mother cannot show that there has been 'controversy' or that there is some 'injury' by the placement preference of Indian children with their own families and tribes. So most likely this case will be dismissed on jurisprudential grounds by the Department of Justice.”

J. Eric Reed, a Dallas-based attorney who has practiced law as a tribal prosecutor and also as a special assistant United States attorney for the Cheyenne River Sioux Nation, points to the extensive legislative history of the Indian Child Welfare Act (ICWA) and the sound reasoning for its existence. Reed has extensive experience in matters related to ICWA, tribal sovereignty and international indigenous human rights.

“The constitutional questions surrounding every aspect of the Indian Child Welfare Act were vigorously debated by Congress, which enacted this legislation to protect the ultimate health and welfare of all indigenous children in the United States. Those hearings uncovered a very tragic reality in the systematic abusive child welfare practices toward Indians in state courts that resulted in the separation of great numbers of Indian children from their families and tribes through a variety of adoption or foster care placements, which are almost always in non-Indian homes,” said Reed, who is a member of the Choctaw Nation of Oklahoma.

There are overwhelming examples, statistical data, and expert testimony documenting the evidence of these practices resulting in the wholesale removal of children from their tribal home and identity. The adoptive and foster care system operates much like the human trafficking version of 'puppy mills' where getting custody of a child results in increased funding for the foster operator. And private adoption agencies with wealthy clients are also in a position to entice the purchase of a child from the pregnant mother who may be in poverty. This often happens without proper notice to the Tribes or the fathers, who don't get a hearing on the matter.”

For example, according to the Lakota People's Law Project, nearly 750 Indian children are seized by the South Dakota Child Protective Services each year. Indian children comprise only 13.4 percent of the total population of children in South Dakota; and yet they account for a whopping 52.3 percent of the foster and adoptive placements in that state.

RELATED: South Dakota Tribes Charge State With ICWA Violations

In March of this year, three Indian parents and two tribes represented by the American Civil Liberties Union and attorney Dana Hanna of Rapid City, filed a class action lawsuit (Oglala Sioux Tribe v. Van Hunnik) in the U.S. District Court for South Dakota. For decades, the suit alleges, Indian parents and families were denied due process in being separated from their children under the 14th amendment, as well as hundreds of ICWA violations.

Even as the parties prepare for the upcoming trial, it should be noted that the impact of Adoptive Couple v. Baby Girl is already being felt in Indian country. Last week, another unwed putative father in South Dakota had his parental rights terminated because of the decision.

Therefore, many legal experts, including Reed, see a troubling pattern emerging in both Adoptive Couple v. Baby Girl and in the systematic seizure of Indian children from reservations across the country. Because of the recent crackdown on American adoptions by Russia and other countries, they say the U.S. adoption industry has turned toward vulnerable women in this country who may be swayed by perks, such as new cars, gifts and financial compensation in return for their unwanted children. By attempting to invalidate all or parts of ICWA, the U.S. adoption industry has a vested stake in providing children and babies to infertile couples, who are equally vulnerable to less-than-savory adoption agencies, who charge up to $8,000 per couple for a listing on their websites.

As the extraordinary drama in Baby Girl continues to unfold, legal scholars agree that while Maldonado's suit in South Carolina against the United States and the Cherokee Nation may not get much traction in court, it reveals yet another strike at tribal sovereignty in America.

“It's not going to fly,” said Reed. “And honestly, this case is a perfect example of exactly why the Indian Child Welfare Act was needed in the first place.”

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cojee's picture
cojee
Submitted by cojee on
I have followed this case daily in detail because my heart and soul are in it. I am a proud 5th-gen Oklahoman on my father's side (with whom I am very close) and at least 9th-gen SC-GA-AL on my mother's (with whom I am estranged). I was conceived in Florida, born in Oklahoma, and, at my mother's demand, brought back to Florida when 6 months old. I'm now 67 yrs old, both parents deceased. I've spent many summers and lived a portion of my adult life in Oklahoma. I understand historically why no Muskogee would want to be there, so many having been herded there at gunpoint during the Removals. HOWEVER: There is red mud in my veins. My most cherished life circumstance is being born Oklahoman in what was the Cherokee Strip. My Cherokee sister lives in Claremore. I still cry myself to sleep many nights because I am so homesick. If Florida did not have so many powwows and so many indigenous here, I couldn't live here, never mind trading water and palms for ice storms. I WILL NEVER FORGIVE MY MOTHER FOR TAKING ME FROM OKLAHOMA AND MY FATHER'S FAMILY. NEVER, NEVER, NEVER, NEVER!!!! I think the Capobiancos should find some white (how about Italian?) child to adopt, because if they win (which I pray they do not), Veronica will remember and never forgive them or her mother. She may very well do as the protagonist in Sherman Alexie's novel did and torment them by playing Northern drum at top volume at 3 a.m. I have contributed multiple times to Native American Rights Fund to fight in this case, and I urge others to do so as well. To quote Carson Gardner, "Grandmother hid her hope in Johnny's DNA."

Two Bears Growling's picture
Two Bears Growling
Submitted by Two Bears Growling on
This female is a disgrace! She is so wicked in what she is doing. If she has any tribal affiliation at all I hope her tribe casts her out from among her nation if she is a tribal person. A lifetime banishment is what she deserves! Let her walk the avenue of shame as all her tribe & relations turns their backs to her as she walks by!

hesutu's picture
hesutu
Submitted by hesutu on
Cousins! Are we to believe that this impoverished woman, who was so poor she had to sell her baby for $10,000 to a couple from another state, is able to afford to hire lawyers to launch this lawsuit against the United States Government? Obviously there is someone else behind this, in the shadows, pushing this case forward at every step, because they have a political agenda. What political agenda? To use this circus to dismantle what is left of our sovereignty. And they have no shame at returning to the days of forced kidnappings of our children in order to accomplish it, and they do not care that they are destroying this young Tsalagi girl's life by forcibly removing her from her loving father and her Tsalagi family. Maldonado is a pawn in this game. Matt and Melanie Capobianco and their lawyers have given her advice at every stage, to falsify names, to play games, to deliver papers the day before Dusten was deployed, and lying to him about what those papers written in legalese really said. Taking advantage of his good will and trust. Who is pushing this case, and what is their real agenda? Who is standing behind them? We must determine these answers to defend against what has become clear is a coordinated attack against our right to exist.

native4sure17's picture
native4sure17
Submitted by native4sure17 on
Looks to me like the mother is attempting to rock the native brothers world. The Russians stopped "all" adoptions with the United States.She reminds me of that native lady that helped Lewis and Clark.Sorry.

native4sure17's picture
native4sure17
Submitted by native4sure17 on
Looks to me like the mother is attempting to rock the native brothers world. The Russians stopped "all" adoptions with the United States.She reminds me of that native lady that helped Lewis and Clark.Sorry.

native4sure17's picture
native4sure17
Submitted by native4sure17 on
This has nothing to do with the case but i have to say this.The very rich (oil cartels) are after what lies beneath reservation lands and they'll "stoop to the very lowes"t to get it.Just look at Wisconsin.The mining industry has those GOP in their "back pockets.

Two Bears Growling's picture
Two Bears Growling
Submitted by Two Bears Growling on
I think it is obvious as to who is fronting this female who has attempted to sell this precious child: The couple from South Carolina. I also think there is a reason the Great Spirit will not allow them to have their own child: They are selfish, have evil hearts & do not like the word, " No!" Our Creator will NEVER bless this couple in the endeavor to have or obtain a child regardless of how much money they spend trying to steal someone else's child. They have proved they do not deserve a child. When a heart is black with evil intents Man Above will stop you from making your dreams come true. Instead, the Creator will stop you at every turn until you give up. Trust me, the Great Spirit knows EXACTLY how to make that all come about. Evil couple in South Carolina, you need to stop this wickedness & accept your fate of NEVER getting a child. You have cursed yourselves in your shamefulness, deceits & conniving to obtain a child. Since you refuse to listen to reason & insist your wealth will get what you want, be prepared for what is about to take place at every turn in your web of deceit: Defeat! Our tribal governments & special fund raisers are on to you folks. Between us all you have no chance of winning this war you started by trying to steal this child from her loving father & relations in Oklahoma. The Great Spirit has cursed you both & all those who are working with you in this evil ploy. I feel sorry for all of you as this curse unfolds in ways you cannot even begin to imagine.

metis22's picture
metis22
Submitted by metis22 on
Now the REAL reason comes through. The mother who sells her own flesh-and-blood for less than 30 pieces of silver can afford to hire a big lawyer to help the adoption industry and casinos void 1st Peoples rights. It isn't about "race," it's about being a People, something which US American society has never known or understood. The best out-come, either way, is that the birth money won't be raising her. She, like Debbie Jackson (Michael Jackson's children birth mother,) forfeited their rights to ANY say for money. It was a commercial transaction. In Ms. Maldonado's case it was also vindictive. All birth mothers-and adoption agencies-that deliberated mis-spell the fathers names and deceive the law should spend years in jail for felonious intent. I have deep sympathy for Ms. Maldonado's other children - she couldn't sell them off. Yet, it isn't about Ms. Maldonado, Dustin Brown or the Capobiancos - they're just your average upper-middle class vain, greedy couple who expect money to buy whatever they want. Make them sign they'll not further commercialize Veronica with books, movies, articles or speaking engagements. If they're interested in Veronica for herself, they'll agree. To further high-light how this has been about disenfranchising 1st People, think about the fact South Carolina - the pinnacle of lily-white ante-bellum elitism unanimously decided this without comment. Donald Beatty, one of them, showed how Green (Almighty Dollar) he has gone. At one time he was known for real work for PEOPLES rights, he was suppose to be the beginning of a new South Carolina supreme court. Now he has proven to his sponsors he's truly "one of them," not an independent voice on the court. No, President Obama will not speak up for 1st Peoples; he, Clarence Thomas and Donald Beatty know it's necessary to grown up in a White household to go to the top. They're children could have been Trayvon, not Veronica. Look at the pictures: If the Capabiancos buy this child, they will be looking at the face of Dustin Brown for the next 20 years. For those of you who remember the '08 elections, re-look at the picture of President Obama with his maternal grandparents at his college graduation; just as he looks so much like his maternal grandfather, baby Veronica will know who she looks like, that she came from a real People, she's not a test-tuber with no history.

nokomis's picture
nokomis
Submitted by nokomis on
This significant case is the result of accountability and if you read the comments, it’s clear that too many assumptions are being created here. Most people have a predetermined version of what really happened in their heads, yet none of them actually now what happened. The Capobiancos had an open adoption with the birthmother and Maldonado's piece of the story discloses that when Dusten took custody of Baby Veronica, he did not allow Maldonado or the adoptive parents any contact with Baby Veronica. So basically, Dusten got custody and then cut off contact with the birth mother and Baby Veronica's two (half) siblings. The Capobiancos, Maldonado, and Brown are not bad parents for fighting for the best interest of their baby daughter. Maldonado is not an evil person because she chose to give life rather than have an abortion. Lastly, I hope that Veronica is able to have a loving relationship with all of the parents who love her so much.
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