A new blow to Native sovereignty

July 9, 2013

The U.S. Supreme Court further reduced the powers and rights of tribal nations with a decision last month in Adoptive Couple v. Baby Girl. In a case involving adoption, a majority of the justices went against past precedent in privileging state law over the protections of the Indian Child Welfare Act, which was passed half a century ago with the intent of counteracting the long pattern of Indian children being removed from their families and tribes through adoption. In the process, the Baby Girl case gave a stark view of the attitudes of Supreme Court justices who viewed the case in terms of racial categorizations rather than the sovereign right of the Cherokee Nation to determine tribal membership.

Here, Jeremy Wood outlines the issues in the case and how it fits into a long history of discrimination and oppression inflicted on Native American peoples.

VERONICA REMINDS me of my nicopan (grandmother). With both, the state deemed, while they were young children, that their best interests didn't lie with a natural family whose rights it disregarded, nor with a tribal nation whose legitimacy it trivialized.

My nicopan was taken away from her mixed Metis/Cree community in Northwest Saskatchewan and sent to the Duck Lake Indian Residential School. Veronica was sent to South Carolina, to be placed in the adoptive custody of good, wholesome, white parents.

Veronica, the "baby girl" in the court case Adoptive Couple v. Baby Girl ruled on by the U.S. Supreme Court last month, is actually a toddler now. She was born in 2009 to Dusten Brown, an enrolled citizen of the Cherokee Nation, and his fiancé Christina Maldonando, a non-Indian Latina woman. The two parted before Veronica was born, in part because of Brown's upcoming deployment with the U.S. Army to Iraq.

In the four months between Veronica's birth and her father's deployment, she lived with Maldonado, who chose to put her daughter up for adoption. She provided an incorrect date of birth for Brown, and her daughter was identified as Latina, with no mention of her eligibility for enrollment in the Cherokee Nation. As such, the infant's nation was never informed, as is their right and the duty of court officials under the Indian Child Welfare Act (ICWA).

The U.S. Supreme Court
The U.S. Supreme Court (Scott Lenger)

Brown was informed days before shipping out to Iraq that his daughter would be moved to the custody of Matt and Melanie Capobianco in South Carolina. At this point, he legally blocked the adoption proceedings and, together with the Cherokee Nation, challenged the legitimacy of the process. Put another way, through legal malpractice, baby Veronica was kidnapped from her nation and moved into the U.S. adoption system.

VERONICA'S CASE is part of a much longer history. It is the story not only of one child, but a history of many children like Veronica and my grandmother, who were kidnapped and subjected to forced assimilation. These crimes have been cloaked in the rhetoric of education and the welfare of children, but the goal has always been the same, summed up in the unforgettable words of Richard Pratt, superintendent of the Carlisle Indian Industrial School: to "kill the Indian and save the man" (or as it were, the baby girl).

Many of these crimes were the outgrowth of the "civilizing" ideologies this country was founded on. Many of those who carried them out did so with good, if racist intentions, believing they were giving Native children a chance in a superior white America. These people started organizations with names like "Friends of the Indian" and gave money to pay for speaking tours by Indians trained as doctors, engineers and ministers.

The goal of men like Pratt, however, was not to train Indian doctors. Pratt was a military man, a veteran of the Indian wars, who served as a white officer commanding Black cavalrymen. He saw his efforts as one more front of those wars.

For him, the goal of Carlisle and the other schools it inspired was twofold: one, to further the removal of a generation of Indian children from connection with their territories and nations in the West, depopulating the latter and opening the former up to white settlement; and two, to transform this generation into a morally, politically and culturally devastated labor force. It was a school like this in Canada that my nicopan attended--there, she was beaten for speaking Nihiyah or Michif, her languages.

Many more children were removed from their communities and placed into foster and adoptive care, at a rate far exceeding the national average and threatening the demographic integrity of tribal nations across the country. The reasons involved are diverse, ranging from outright colonial racism, to a failure to appreciate tribal family structures that deviated from the Euro-American norm, to the logic of boarding school proponents that adoption would give children more chances.

U.S. government policy was supported and encouraged by various white-dominated grassroots institutions, including church groups. As a result of schools modeled after Carlisle, a generation was raised without family, community, heritage and dignity, and racialized into inferiority. In the words of Louis La Rose of the Winnebago tribe in Nebraska:

I think the cruelest trick that the white man has ever done to Indian children is to take them into adoption court, erase all of their records and send them off to some nebulous family...residing in a white community, and he goes back to the reservation, and he has absolutely no idea who his relatives are, and they effectively make him a non-person and I think...they destroy him.

Congress was finally forced by the Red Power movement of the 1960s to confront this problem.

In 1968, the Association of American Indian Affairs found that throughout Indian Country, 25 to 35 percent of Indian children were removed from their homes--in some states, the figure was as high as 90 percent. Indian children were being adopted out at a rate 16 times the national average. This devastated the integrity of tribal nations, in some cases making their very survival an impossibility.

In response, Congress passed the Indian Child Welfare Act of 1978 (ICWA). During the hearings on ICWA, Chief Calvin Isaac of the Mississippi Band of Choctaw testified:

One of the most serious failings of the current system is that Indian children are removed from the custody of the natural parents by non-tribal governmental authorities who have no basis for intelligently evaluating the cultural and social premises underlying the Indian home life and childrearing...[C]ulturally, the chances of Indian survival are significantly reduced if our children, the only real means for transmission of tribal heritage, are raised in non-Indian homes and denied exposure to the ways of their people.

The law gave added protection both to the custodial rights of Indian parents and to tribal communities in establishing a system of adoptive placement preference that would keep children within the tribe, rather than place them with non-Indian families. These provisions took precedence over state law. Since the act was passed, the number of adoptions of Indian children into white family was significantly reduced.

As Charles Wilkinson wrote in his book Blood Struggle: The Rise of Modern Indian Nations, "The Indian Child Welfare Act, which Indian people created and which fortifies the futures of tribes by giving them the tools to protect their children, stands as testament to how Indian leaders have mobilized in order to define and implement priorities."

The Act has been challenged numerous times, including before the Supreme Court, but has always been upheld. Until last month, that is.

FOLLOWING DUSTEN Brown's challenge to Veronica's adoption proceedings, the Charleston County Family Court in South Carolina returned the girl to her father and nation, citing the state's lack of jurisdiction to overrule the protections of ICWA. The South Carolina Supreme Court upheld this decision. It ruled that the Capobiancos' claim that Brown failed to follow South Carolina requirements for maintaining custodial rights didn't overrule Brown's biological rights of paternity under ICWA or Veronica's status as a Cherokee citizen, as defined by that nation's rules of membership.

In its decision, the South Carolina Supreme Court quoted the U.S. Supreme Court's upholding of ICWA in Mississippi Band of Choctaw Indians v. Holyfield, where the justices made a very strongly worded rebuttal to the paternalistic rhetoric of Indian child removal. According to the justices then, ICWA recognized that:

where an Indian child's best interests are at stake, our inquiry into that child's best interests must also account for his or her status as an Indian, and therefore, we must also inquire into whether the placement is in the best interests of the Indian child, based on the fundamental assumption that it is in the Indian child's best interest that its relationship to the tribe be protected.

The Capobiancos appealed their case against Brown and the Cherokee Nation to the Supreme Court. By the time the justices heard oral arguments last April, Brown had had custody of his daughter for more than a year, during which time, all government reports characterized him as an adequate, even admirable father. Furthermore, Veronica enjoyed the care of her extended family and the entire nation.

While the case hinged on a legal matter of whether the protections of ICWA came ahead of rules of custody established by state laws, the gave space for the racist biases of both the Supreme Court justices and the lawyers for the Capobiancos to emerge.

According to Chief Justice John Roberts, ICWA didn't apply because Veronica, with 1.2 percent Cherokee blood, was just not Indian enough for him--despite the fact that she more than qualified for Cherokee Nation membership. Roberts even suggested that the legal dispute was akin to him forming his own Indian tribe with membership offered to non-Indians based on its own self-definitions.

But the Cherokee are a sovereign nation with the recognized power to determine their membership requirements, something long recognized under American law. Veronica's Cherokee status is based on that tribal law and her relationship to family and community, not how she fits into a racial category. She can no more be 1.2 percent Cherokee than one can be 1.2 percent American.

In posing his hypothetical scenario, Roberts positioned himself and the Capobiancos in the long history of the U.S. war against Indian sovereignty, and in favor of a system of identity defined by racial categorization.

Throughout the case, the Capobiancos have been supported by friendly media--including the likes of Dr. Phil--and a grassroots campaign calling itself "Save Veronica." It's doubtful that campaign's organizers were aware of their allusion to Pratt's desire to "kill the Indian and save the man," but the coincidence is telling. The Capobiancos, along with their supporters like Roberts, hope to "save" Veronica from her nation and her Indianness, citing the lack of legal basis for custody, where earlier such proponents were content enough to cite the dangers of "savagery."

The ugliness of this sentiment was expressed in its most raw form by the attorney for the Capobiancos, who told the justices during oral arguments: "Your decision is going to apply to the next case and to an apartment in New York City where a tribal member impregnates someone who's African American or Jewish or Asian Indian. Even though the father is a completely absentee father, you are rendering these women second-class citizens with inferior rights to direct their reproductive rights and who raises their child.

Settler newspapers used to be full of captivity stories--tales of wild Indians raiding wagon trains and stealing women and children. What has changed here is to re-characterize the victims of Indian violence as other people of color in a multicultural empire.

BY A 5-4 vote, the justices overruled the lower court's decision and found for the Capobiancos, weakening the protections of ICWA for the first time. According to the majority opinion written by Justice Samuel Alito, ICWA's recognition of the Indian parent was subject to meeting the qualifications South Carolina state law, which Dusten Brown did not.

Justice Clarence Thomas wrote a concurring opinion that called for the overturning of ICWA itself. Justice Stephen Breyer also wrote a concurring opinion stating that the Cherokee Nation might be able to gain placement preference in adoption, providing some hope that Brown's custody might be protected--but that hope has been weakened, along with ICWA itself.

The Supreme Court majority rejected its own precedent in the Mississippi Choctaw case that recognized the priority of Indian status as determined by tribal sovereignty--and ultimately the colonial history of Indian child removal.

This is all part of a much larger attack on tribal nations and Indian people in North America that continues under the radar in the 21st century. Organizing and solidarity is how we will force Congress to pass bills like ICWA that respect tribal sovereignty and mend the historical injustices inflicted on first peoples--and that's how we will force the courts to recognize those laws.

Brian Ward contributed to this article.

Further Reading

From the archives