Supreme Court | Should ‘best interest’ or the Indian Child Welfare Act determine the custody of a toddler who is 3/256 parts Cherokee?
by Les Sillars
Posted 6/19/13, 10:38 am
The Supreme Court could rule this week on a wrenching adoption case that sent a baby girl back to her biological father after she spent the first 27 months of her life with an adopted family because she is 3/256 parts Cherokee.
When Veronica’s mother discovered she was pregnant in 2009, she turned down a marriage proposal from the father, Dusten Brown, a member of the Cherokee Nation in Oklahoma. Brown reportedly agreed to give up parental rights rather than pay child support, but when he discovered that a South Carolina couple, Matt and Melanie Capobianco, wanted to adopt the child, he filed for custody.
Courts usually decide such cases based on the “best interest of the child,” so normally Brown would have had little chance. But because of the 1978 Indian Child Welfare Act, South Carolina courts ruled in his favor in late 2011, leading to a tearful parting from the Capobiancos. The ICWA gives relatives and even tribal councils a huge say in decisions affecting children who are members or even eligible to be members of recognized Native American tribes.
During oral arguments in April, Justice Antonin Scalia seemed clear on the father’s rights under the ICWA, while Chief Justice John Roberts asked, “Is it one drop of blood that triggers all these extraordinary rights?” Veronica has now lived more than a year with Brown in Oklahoma, so no matter what the court decides, there will be more weeping.
In 2006, WORLD profiled the Moore family of Long Beach, Calif., who went through a very similar situation. In 2000, the Moores became foster parents to Chris and Anthony, then 5 and 4 years old, whose mother had abandoned them in a Compton, Calif., flop house. They were at most one-sixteenth Indian, but the boys’ grandmother—who is white—nearly halted the Moore’s adoption because of the ICWA.
Since then, John Moore has been advocating for adoptive parents on this issue. He took time yesterday from his beach vacation to speak with WORLD.
What is your assessment of this case?I believe every individual child custody case should be based on that child’s best interest, and not on tribal authority or culture.
I don’t know all the details [of this case], but the birth father had not asserted his rights, taken responsibility for his child, or financially supported the birth mother, and only four months after the child’s birth did he step forward and want custody. In almost any other state, he would not have been given any other rights at that point. To give him special rights simply because he’s eligible for membership in the Cherokee nation is absurd.
The focus needs to be on [Veronica]. Every morning for the first 27 months of her life she woke up in the same room, looked around, saw the same walls, the same pictures, the same toys, the same mom and dad. And then one day that all changed, and she hadn’t done anything wrong.
Even if she was fully Cherokee, I don’t think it would have been right to apply this law to her. To have her world completely uprooted because of some tragedies and travesties that took place 40 or 50 years ago, it’s not fair to the child, and I see it all the time with this law.
Was there a legitimate purpose for this law when it was passed? Congress had noble intentions, and I don’t deny that there was a problem. Non-native social workers [who didn’t understand native culture] were coming onto reservations and plucking kids out of their homes and saying they were being neglected. The tribes said, hey, we’re losing all our kids, and the kids are losing their culture. So Congress stepped up and did something about it.
But it went way too far, and now it’s impacting kids that Congress was never talking about. Imagine if the tribes had gone to Congress in the 1974 hearings and said, look, we’ve got these kids who are 3/256part native, and they’re living far from the reservation, and they’re not involved in tribal culture at all, and they’re being placed for adoption in non-native homes, and we’ve got to put a stop to this. Congress would have sent them packing. But that’s how it’s being applied today, in many cases.
The talking points the tribes gave Congress 40 years ago were real. But [tribal advocates] are using those same talking points now. They say systemic bias is the reason Native American kids are overrepresented in foster care. Instead of saying, wait a second, the suicide rate among Native American teens on reservations is astronomical, substance abuse is astronomical, there’s poverty, there’s neglect, there’s all these problems—well, maybe that’s the reason all these kids are in foster care.
What do you hope for in this Supreme Court ruling? If [the justices] make a very narrow ruling it may affect very few cases. But if they make a much broader ruling it could help many more. I personally would like to see the [ICWA] either severely amended or just thrown out altogether.