Veronica in Bartlesville, Oklahoma, in September 2012 (Courtsey National Congress of American Indians)

Supreme Court Takes on Indian Child Welfare Act in Baby Veronica Case

Suzette Brewer

JUSTICE SCALIA: Your -- your argument assumes that the phrase in the statute "to prevent the breakup of the Indian family" only applies where -where the father has custody. I don't -- I don't know why that should be true. If -- if that's what Congress meant, they could have put it much more narrowly. They had a very broad phrase, "to prevent the break up of an Indian family." And this guy is -- is the father of the child -

MS. BLATT: So he -

JUSTICE SCALIA: -- and they're taking the child away from him even though he wants it.

MS. BLATT: Okay. But when you -

JUSTICE SCALIA: And that -- that is not the breakup of -- of an Indian family?

On a day that began with prayer vigils and ceremonies on the Supreme Court steps by American Indian organizations in a show of support for the Indian Child Welfare Act, the nation's highest Court today heard arguments in Adoptive Couple v. Baby Girl. The bitter dispute over custody of “Baby Veronica,” between Dusten Brown, her biological father of Native descent, and an a pre-adoptive couple from South Carolina came to a head today as legal teams for both sides made their cases before the justices in what has become perhaps the most contentious and important Indian law case in decades.

At issue before the Court: First, whether a non-custodial parent can invoke the Indian Child Welfare Act of 1978 (ICWA), to block an adoption; and second, whether ICWA defines “parent” to include an unwed biological father who has not complied with state law rules to attain legal status as a parent.

By now, the story is well-known: Brown and the girl's birth mother, Christie Maldanado, were engaged at the time of Veronica's conception, but Maldanado broke off the engagement and cut off all contact with Brown in the final months of her pregnancy. Subsequently, Maldanado waived her parental rights and put Veronica in pre-adoptive placement in South Carolina with Matt and Melanie Capobianco three days after her birth.

Brown, who was never notified of the child's birth, was served notice of the birth mother's intent to place the child for adoption four months later by a process server in a Wal-Mart parking lot. Immediately, Brown went to court to request a stay of adoption until he returned from deployment in Iraq.

Thus began one of the most contentious, litigious and expensive custody battles in U.S. History.

“It's a case that's going to interpret ICWA, and it's going to impact everyone involved in the Act,” said John Echohawk, Executive Director of the Native American Rights Fund. “That's one part of it, but also possibly how it implicates all laws that involve Indians.”

A point of fact: Veronica was never adopted by the Capobiancos. The hearing before the Court today is a final attempt by the couple to reverse an adoption denial by both the South Carolina Family Court and a later ruling affirming the parental rights of Dusten Brown by the South Carolina Supreme Court. Veronica has since that time been under the custody of her father, who has since married, for over a year.

“We're optimistic,” said Chrissi Nimmo, Assistant Attorney General of the Cherokee Nation, who attended the hearing with Dusten Brown and his legal team. “The court was obviously familiar with the case and very engaged, I don't think anyone heard a question that was not expected and that we didn't prepare for. The court was equally hard on both sides but they also understood what was at stake on both sides. We were concerned about the extremely negative and untruthful media reports about this case and how this may affect members of the Court. But it was clear that it did not. They were applying the law to the facts.”

John Nichols, one of the South Carolina attorneys representing Brown, said that this is the first case he's been involved with that reached oral arguments.

“It was apparent to me, with the exception of Thomas, who never speaks, that they were all informed and they were thinking about the issues,” said Nichols. “It was a hot bench. They were interrupting the lawyers on both sides to the point where justice Roberts had to stop them.”

For Nichols and the legal team representing Brown, this case was more than just another custody dispute.

“Since early on, the legal team working for Mr. Brown have all been working pro bono on this case,” said Nichols, who argued the case before the South Carolina Supreme Court. “We are all dedicated to the right side of the law and there's no doubt in our minds that we are on the right side of this case. I always say that I never want a client of mine to lose because they have been outspent. The volunteer efforts by the entire team have been very gracious.”

And although only one hour was allotted for both sides to make their argument, Nimmo said there were also unanswered questions that still sit before the Court.

“There were parts of the case that weren't addressed that we know will be addressed in the opinion,” said Nimmo. “That's the nature of oral argument. But we are confident that this will turn out in our favor.”

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Jane Cook's picture
Jane Cook
Submitted by Jane Cook on
Good luck to baby Veronica. I hope she gets to stay with her father. My family and I are victims of Southern California DCFS and the children's court judicial system who have denied my children and I any kind of "indian status". I am an enrolled member of a federally recognized tribe. My children have over 45% blood quantum and were denied ICWA status, were told they were not American Indian children and were stolen and given to a non citizen of the United States. That's Southern California, where they don't care about federal laws.

tshunke wakan maza win's picture
tshunke wakan m...
Submitted by tshunke wakan m... on
i glad the father has the courage to step up for his child. i was raised in non native foster homes half of my life. now i'm learning my culture and clan all over. she needs to be with her people no one other then her native family

Xenia Andrews's picture
Xenia Andrews
Submitted by Xenia Andrews on
And the Government Cries about Child Support. And spends Millions on trying to find the Dead Beat Dads. He is the Father and he is Trying to take the Positive steps to save his daughter from another type of Abuse. Usually when the Foster Parents find out what kind of Abuse the Child went through. They start doing it Themselves to the Children.

Anonymous's picture
Submitted by Anonymous on
To begin with, this Indian Child Welfare Law, was put in place to keep our children safe, within our own family units. For the Supreme Court of the United States to be interpreting, or ruling on these arguments, is ridiculous, We as Native people, can only interpret this on behalf of our own, the U.S. has a long history of breaking down, and tearing our families apart, Why then, I ask, are we allowing them to make this call for us. We, because of their imposed Indian Reorganization act, are suppose to be able to SELF RULE.....our children belong to us, and only us, gone are the days when the United States should be allowed to claim their so called " BIG BROTHER STATUS " over a people they have stolen from, our resources built this country, they call U.S.A., and to this very day....we still feed and fuel their ever greedy hunger for OUR resources....including our most precious, THE CHILDREN... This should not be left to them....But the Tribes themselves.

Gert Cardinal's picture
Gert Cardinal
Submitted by Gert Cardinal on
If the biological father has come forward and stated his intent to raise his daughter, what is the issue? If the mother says he is the little girl's father I really don't see why he can't be given the right to raise her. The mother has given up rights to the little girl but the father wants her in his life and he sounds like he has a good life planned for his daughter so why not leave well enough alone?There are thousands of children out there in need of a home, why take children away from natural parents who love them and want to nurture them, doesn't make sense to me.

Blue's picture
Submitted by Blue on
Its your blood and only you can love this baby the way she deserves. She is beautiful great job dad!!

Sarah's picture
Submitted by Sarah on
I wish you and your family all the best Mr. Brown. I pray the courts see that your daughter belongs with you.

Mark's picture
Submitted by Mark on
I really think that this case transcends the issue of Indian rights and touches on the rights of the father. While I am sure that the ICWA did help to speed the process, this is a case where the Father seeks to maintain his relationship with the child. I believe that Courts should only be able to terminate Parental rights in cases of abuse and neglect. This is not the case here. As a non-Indian Father I am pulling for Mr. Brown.

T Martin's picture
T Martin
Submitted by T Martin on
It is heartwarming to see a father wanting to raise his child. Nothing can compare with a child with their biological families. I can imagine the heartbreak the foster parents will feel and will always love little Veronica, but again, nothing can compare with a loving daddy, aunties, uncles, cousins, etc. What I do not understand is the reason she chose to adopt the child out rather than give the father a choice to begin with. Little Veronica is so lucky because there are so many fathers who do not responsibility of a child/ren. Perhaps they can part as friends and little Veronica can have a "special" uncle and auntie..

Melissa Chenot's picture
Melissa Chenot
Submitted by Melissa Chenot on
The biological father of Veronica stepped up to fight for her and him serving our Country well he shall get her back legally. She is a Native American child and for a non-native family going to adopt her is so wrong. She needs to be with her own people come on wake up don't you have children of your own or adopt another race. Good luck to you little sister and Dusten the father and your legal team... Peace from California...

Deneen's picture
Submitted by Deneen on
My daugther is going thru the same thing here in minnesota, letting the courts know that she she and her son have indian blood in them on both side of my family. I hope every thing come out right.

Anonymous's picture
Submitted by Anonymous on
There is a unique relationship between the Federal Government and the Native American people... however, the taking away of children from their respective Tribes is totally, wrong. She is where she belongs. ICWA is a safety net for Native American children to help stay within their culture so they will not lose their identity and self-esteem by connected to their birth heritage and Tribal community.

goat380's picture
Submitted by goat380 on
Native parents have the same rights to their children as non-native parents do. The courts of family law have to address the needs of the child specifically for each family situation. The family courts have the power to decide if a child is psychologically bonded with an interested party. What defines the lines of psychological bonding where foster placement is concerned? All foster placements are informed of the bonding issues concerning their roles as a foster parent. When the intentions of the foster parent is to ultimately adopt then there is a conflict of interest in their primary motive to be foster parents. Foster parents are not the parents nor do they have the same rights as parents. They are temporary guardians who look after the welfare of the child in need. Institutional racism influences mainstreams societies views concerning the Indian Child Welfare Act and it also influences a biased interpretation of the ICWA mandate where non-native foster parents are involved that are wanting to adopt. The Indian Child Welfare Act serves the best interest of our native children and that is a statistical fact. Empirical evidence has already been provided to prove the necessity of the ICWA to prevent to the further break up of Native families. This litigation is further proof of the need for ICWA. Right there in front our faces but the law stands to be tested and economic inequalities and western ideologies still preside. So in a good way we pray yet today for our people. Mitake Oyasin

Anonymous's picture
Submitted by Anonymous on
Native Americans should be up in arms about this Supreme Court Case. If someone came knocking and took your child away you would be devastated. Its shocking that our government is in charge of the Native American lineage and heritage of our children. Not knowing which Tribal Community you come from, your history, your relatives is not some trivial thing. Children need to know their tribe to be enrolled. They have rights but no voice. Keep the ICWA intact...

Ashley Griffith
Ashley Griffith
Submitted by Ashley Griffith on
As a citizen of The Cherokee Nation, my question is: if we are a sovereign nation, why was this case taken to The Supreme Court? This should have been handled in the Tribal Courts. Even if Mr. Brown was found an unfit parent, the child should be adopted by native parents. I first was made aware of this case when it was on Dr. Phil. I was FURIOUS at the way it was being portrayed that the potential adoptive parents were the victims. As I previously stated, even if he was found unfit to parent the child, there are many loving, caring native families looking to adopt. It's not a matter of blood quantum, it's a matter of keeping our children ours. Raising them with the love and respect of our culture, struggle and most of all our pride.

lostchild's picture
Submitted by lostchild on
Kudos !! to this Native father and his legal team for fighting this long and heartbreaking battle. I know I went all the way up to a state supreme court fighting for my child ( we are both registered members of Cherokee Nation in Tahlequah.) I eventually moved to Tahlequah to try and get some help, however Lou over at ICW in Tahlequah did not seem to want to help. I did everything possible and then some. Finally DH tried to come to my rescue but even she could not get my child back. Everyone told me going to the Supreme Court would be useless, unfortunately I listened to that bit of advice. I have not seen my child in years as she was put under a guardianship with my now 80 year old mother. The whole thing is a nightmare. Here I stand a mother who loves her child so much and wants her back so badly, instead she lives with an 80 year old woman !!! Something I would like other Native parents to know it is up the whatever courtroom judge you get as to whether or not they will abide by ICWA or find ways to simply go around it. In my case they ignored it. Good luck again to this father, my prayers are with him and every day and night with my own daughter. Hopefully someday I will see her again and she will know how hard I fought for her.

woman from germany's picture
woman from germany
Submitted by woman from germany on
Every human being is a genetic part of his mother and father, just as well as their family. The family is a part of everyone´s Identity, and the raising and the environment too. Do we miss one part of mother and father, we are so often on the seek for our identity, there is a feeling of a whole inside or/and something is wrong; this part we are looking for: "Who is my mother, who is my mother, what part of both do I find in myself? What do I want, what do I like to live with, what do I don´t like, what do I want to change for my life, for the children I will have one day?" For these questions we need identity, not just our own one`s, the identity of our own family too. Children, who raise up in "foreign" families got a lot problems, they miss the balance, sometimes they can´t grasp, what´s going on, sometimes it is just a feeling, that something inside feels not ok. Sometimes it is good for the children to step out of their own families, too much violence, too much hunger, ... and no solution is in sight. But this is really a difficult situation. And these adoptive parents should never forget: This life will be never easy. They got to know, what kind of problems will come in their life - and don´t hide away, these adoptive people owing this to the young one´s. This is hard. Do we remember of all the people with their psychological problems, for e. g., the young ones with anorexia and borderline, their biography tells about a lot of problems during their life. These people are a part of our society.

Anonymous's picture
Submitted by Anonymous on
I honor and pray for that father that he rightfully receive his child. Common sense says he should have been informed of her birth and things not done sneaky and behind his back. He is a good man rightfully pursuing the right to raise his child. A child that that woman who gave her away did not have the decency to give her a chance to be with her blood father. It is a natural right that that child be given the chance of living out her child hood with her own dad.

Anonymous's picture
Submitted by Anonymous on
I honor and pray for that father that he rightfully receive his child. Common sense says he should have been informed of her birth and things not done sneaky and behind his back. He is a good man rightfully pursuing the right to raise his child. A child that that woman who gave her away did not have the decency to give her a chance to be with her blood father. It is a natural right that that child be given the chance of living out her child hood with her own dad.

Bella's picture
Submitted by Bella on
She needs to stay with her father. Do not take her from her people. This is so wrong.

Anonymous's picture
Submitted by Anonymous on
Their are many Native American families that will well come her .She belongs with her family we are (1 ) Native American Indian s,we come in all shades & colors.I know

Anonymous's picture
Submitted by Anonymous on
With the boarding schools, they would take away the Native American children from their families and travel many miles to teach Native Children the way of the white man and to forget their culture, their languages, their people. First they would cut off their hair which is a tradition of honor and respect. The only reason they would cut their hair was when someone died. Then, they made them wear clothes which were binding and constrictive, and would be punished if they spoke a word of their language. Who gave them the license to take away the Native American children... the methodist or quaker preachers? The taking of our children started a long time ago. What gives them the right to keep taking our children from us? It is not right.

Concerned for the Child's picture
Concerned for t...
Submitted by Concerned for t... on
All the facts were not presented in this article. Let’s remove the fact that there is any Indian heritage for a moment, the father also ceased contact with the mother while she was pregnant. No relationship is one-sided. He did not offer any monetary or emotional support during or after the pregnancy. He was aware of the child and still did nothing. A chief judge for the tribe (practicing for the past 35 years) admitted it on tv! The father told the mother that he did not want anything to do with the child. He only changed his mind after he found out she was placed for adoption. Under normal law, he already forfeited his parental rights by not being involved in the first place. No law, Indian related or not, should trump the fact that he was neglectful to start with. With that said, why is no one addressing the emotional damage that has been inflicted on this child by being ripped away from two loving parents that she lived with for 2 years? He very well may be an outstanding father but why can’t both parties be involved in this child’s life? The more people who love you and support you, the better off you are, especially in this world of hate. I would be disappointed to think that this child is being told that her pre-adoptive parents didn’t want her anymore. And let’s not forget that the mother supports the pre-adoptive parents.