In their appeal to the Supreme Court, the prospective adoptive parents question the definition of a parent and whether a non-custodial parent can invoke ICWA to block the other parent’s attempt to place a child up for adoption.
WASHINGTON – The U.S. Supreme Court heard oral arguments last week in a case one attorney claims will “affect any interracial adoption of children.”
Justices listened April 16 as attorneys for Matt and Melanie Capobianco challenged the definitions and intent behind the Indian Child Welfare Act.
Passed in 1978 in response to the high percentage of Native American children taken from their families and placed up for adoption, ICWA allows tribes to intervene when a child who is either an enrolled tribal citizen or eligible for citizenship through at least one biological parent is placed up for adoption.
The argument stems from the Capobianco’s attempted adoption of “Baby Veronica,” a now three-year-old Cherokee girl. The South Carolina residents are not Native American.
“You are relegating that adoptive parents go to the back of the bus and wait in line if they can adopt,” Capobianco attorney Lisa Blatt said. “And you’re basically relegating the child to a piece of property with a sign that says ‘Indian, keep off. Do not disturb.’”
Blatt went on to conclude the case outcome will have an impact on any interracial adoption.
Under ICWA, adoption placement preference is given to extended family members, members of the child’s tribe and Native American families from other tribes. The act also requires parents be thoroughly appraised of their custodial rights and only allow them to forfeit those rights before a judge.
Dusten Brown, Veronica’s biological father, is a Cherokee Nation citizen from Nowata, Okla. He was awarded custody of his daughter after a South Carolina family court denied the Capobiancos’ petition due to the terms of the ICWA. The couple appealed the decision to the South Carolina Court of Appeals, South Carolina Supreme Court and then the U.S. Supreme Court.
Shannon Jones, an attorney representing Brown in the case, said she has no doubt in her mind that Veronica is where she belongs.
“She is her daddy’s little girl,” Jones said April 15 during a conference call with reporters. “Her father is the one she goes to first. She is very bonded with him and has everything a little girl could want – grandparents living three miles down the road, a farm, pets.
“Since her father has taken custody, she’s learned about her Cherokee heritage and I can see how important that is to her. She’s very happy and extremely loved by her extended family.”
In their appeal to the Supreme Court, the prospective adoptive parents question the definition of a parent and whether a non-custodial parent can invoke ICWA to block the other parent’s attempt to place a child up for adoption. Under South Carolina law, Brown forfeited his parental rights when he did not provide financial support for the biological mother for the duration of her pregnancy or take steps to establish his paternity immediately after the child’s birth.
Brown’s attorneys maintain that he did not know when the child was born until he was served with adoption papers four months after her birth.
During oral arguments last week, Blatt argued that Brown and his family had no binding legal ties to the girl once Brown agreed to surrender custody to Veronica’s mother, Christy Maldonado.
“There is no familial legal custodial parental relationship that either this father or his parents – or his extended family – had with this child,” Blatt said. “This adoption no more broke up an Indian family than (if) this Hispanic sole custodial mother had raised the child herself.”
While questioning Brown’s attorney Charles Rothfeld, Chief Justice John Roberts asked whether a minimum blood quantum exists to determine whether a child is sufficiently Indian to qualify for the protections afforded under ICWA.
“…is there at all a threshold before you can call, under the statute, a child an ‘Indian child,?” Roberts asked. “3/256ths?”
Dawn Ferrill, a Tulsa foster mother who circulated a petition to make changes to ICWA, described Veronica as mostly Hispanic and “barely 1 percent Cherokee,” according to a Tulsa World article published April 16.
The Cherokee Nation does not have a minimum blood quantum requirement but does require proof of direct lineal descent from at least one person on the Dawes Rolls, which are lists of Cherokee Nation citizens compiled in the late 19th and early 20th centuries.
Chrissi Nimmo, Cherokee Nation assistant attorney general, was in Washington to hear the oral arguments. She told the Tulsa World it wasn’t a matter of percentages.
“Just as someone can’t be 1 percent United States citizen,” she said, “one can’t be 1 percent Cherokee citizen.”
Despite having attorneys present and intervening at the trial level to help Brown regain custody, the Cherokee Nation was not allowed to participate in last week’s hearing.
A ruling is expected before the court recesses in June.
Along with the Supreme Court challenge to the law, a group has submitted a petition with more than 23,000 signatures requesting Congress to amend ICWA to allow a child’s biological parents to choose their child’s adoptive parents, regardless of tribal affiliation. The group is also asking that the law take the child’s best interests into account, something ICWA’s supporters maintain is already done when the law is followed to the letter.
“The law was created to protect the best interest of children with our unique cultural needs in mind,” Cherokee Nation Principal Chief Bill John Baker said. “ICWA provides additional protection for our children.”
Veronica Brown