Baby Veronica, a 2-year-old Cherokee girl adopted by non-Native parents in 2009, will remain with her biological father following a South Carolina Supreme Court ruling filed July 26 that upholds the 1978 Indian Child Welfare Act.
The decision means Veronica has a permanent home on the Cherokee Nation, where her family has “a deeply embedded relationship” with its heritage, the Supreme Court ruling states. It also means a victory for the Indian Child Welfare Act and for the Cherokee Nation.
“We’re very pleased with the results,” Cherokee Nation Attorney General Todd Hembree said in a statement posted on the tribe’s website. “This is a victory not only for the Cherokee baby and her father, but for all of Indian Country. The Cherokee Nation has done a great job to ensure the Indian Child Welfare Act is enforced to preserve Indian families.”
The act, which protects American Indian families from being separated, trumped South Carolina law in a Dec. 28, 2011, appellate court ruling. Biological father Dusten Brown on New Year’s Eve took his daughter home to Bartlesville, Okla., a city bordering the Tahlequah-based Cherokee Nation.
Adoptive parents Matt and Melanie Capobianco, who live in South Carolina, appealed to the state high court, arguing that state law strips a biological father’s paternity rights if he does not provide pre-birth support or take steps to be a father shortly after birth. The Capobianco couple adopted Veronica from her birth mother, Christina Maldonado.
Brown, a registered member of the Cherokee Nation and a U.S. Army soldier not married to Maldonado, agreed to surrender his parental rights and admitted that his behavior was not conducive to being a father, the July 26 ruling states. Four months after Veronica’s birth, however, Brown took legal action, seeking custody of his daughter and claiming he did not consent to his daughter’s adoption.
After the appellate court ruled in Brown’s favor in December, the Capobianco couple started a petition on change.org to “consider the best interests of the child.” The Christian Alliance for Indian Child Welfare also joined the battle to keep Veronica with her adoptive parents. The Capobiancos took the matter to the South Carolina Supreme Court in a case that pitted the couple against the toddler, her birth father and the Cherokee Nation.
Seven months after the first decision, however, the high court upheld the December ruling and decided in favor of the Indian Child Welfare Act, though at the same time stated that the adoptive family did nothing wrong.
“We affirm the decision of the family court denying the adoption and awarding custody to the biological father,” the ruling states. Three of the high court’s five justices affirmed the ruling while two dissented.
“We do not take lightly the grave interests at stake in this case,” the ruling states. “However, we are constrained by the law and convinced by the facts that the transfer of custody to father was required under the law. Adoptive couple are ideal parents who have exhibited the ability to provide a loving family environment for baby girl. Thus, it is with a heavy heart that we affirm the family court order.”
Because the case involved the Indian Child Welfare Act, custodial preference had to be given to the biological father, the ruling states.
“We simply see this case as one in which the dictates of federal Indian law supersede state law where the adoption and custody of an Indian child is at issue,” the ruling states.
The decision means much more than upholding a federal law, however, said Terry Cross, executive director of the National Indian Child Welfare Association. The ruling ensures Baby Veronica grows up surrounded by her culture and people and the rights and responsibilities that come with it.
“I can’t say enough about the importance of a child’s rights throughout their lives,” Cross said. “These are things as simple as voting in tribal elections, running for office, taking advantage of tribal scholarships and benefits, participating in customary and ceremony rights, plus their relationships with extended families. It’s about a notion of a sense of belonging. Indian children are as tied to their extended families as they are to their parents. There’s a rich network of culture there, and that’s what we rely on for wellbeing.”
Cross expressed sympathy for the adoptive parents, but said the South Carolina court acted in accordance with the federal law.
“The decision was entirely consistent with the act,” he said. “There’s no question about the validity of the act. The words I would say are that any suffering of the child or of the adoptive family was about the violation of the law and not the law itself.”
“Our hearts go out to the family,” Cross added. “No family should have to go through something like that.”
The Indian Child Welfare Act, designed to stop the large numbers of involuntary adoption of American Indian children by non-Native families during the 1970s, outlines three acceptable alternatives. The most preferred solution is to place an adoptive American Indian child with members of his or her extended family. The child also can be placed with members of the same tribe or with other American Indian families.
slate argues in favor of the ruling as well, citing more fully the historical context in which the icwa was created.