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
April 16, 2013

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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Comments

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
Anonymous
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
Blue
Submitted by Blue on

Its your blood and only you can love this baby the way she deserves. She is beautiful great job dad!!

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