Impact of the Baby Veronica Case on the ICWA

By Caitlin Barbas

In 1978, following an investigation into the widespread relocation of Native American children from tribal homes, Congress enacted the Indian Child Welfare Act (ICWA). This act was aimed at protecting the rights of Native American parents and ensuring the survival of the Native American family by setting a law of preferential placement (National Indian Child Welfare Association, "Adoptive Couple v. Baby Girl: Information and Resources). Section 1912 of the ICWA dictates that parents must be made aware of their child’s removal and adoption and the child must be placed with a member of their extended family or tribe, if available, in order to both protect the child and “prevent the breakup of the Indian Family”(National Indian Child Welfare Association, “Indian Child Welfare Act).

This became a pivotal point of contention in the trial Adoptive Couple vs. Baby Girl, a four-year long custody battle between biological father, Dusten Brown, a Cherokee Nation citizen, and the adoptive couple, the Capobianco family. What would have otherwise been a typical child custody case became a symbol of Native American rights and the authority of Congress in protecting these rights (National Indian Child Welfare Association, "Adoptive Couple v. Baby Girl: Information and Resources). As the case journeyed to both the South Carolina and United States Supreme Courts, many wondered whether a decision against Brown and the Cherokee Nation would undermine the ICWA and other Native American rights legislation.

On April 16, 2013, the case Adoptive Couple v. Baby Girl arrived in front of the United States Supreme Court after both a trial and appeal in South Carolina released the child into Brown’s custody, with the State citing the ICWA as the main grounds for the denial of adoption (570 U.S. 12-399). Ultimately, the US Supreme Court ruled 5-4 that the Indian Child Welfare Act was non-applicable in this case of adoption, despite the daughter’s classification as an “Indian Child” under Section 1903 of the Indian Child Welfare Act of 1978, for two key reasons: the Father’s status as non-custodial following the daughter’s birth and the absence of another tribe member petitioning to adopt the daughter (570 U.S. 12-399).

While concern, along with controversy, arose over the idea that this may debase the rights of Native American families, the US Supreme Court ruled in a way that did not invalidate the act as a whole; rather, it invalidated its application to this specific circumstance. In this instance, the father was not present during the biological mother’s pregnancy and did not pay child support. He was not aware of the adoption process until notified four months after the birth, while the adoption was pending. He contested that he gave up custodial rights under the belief that the daughter was to be raised by the birth mother, and not by the Capobiancos. The father’s absence in the daughter’s life before the adoption motion was put forward as the main argument against the application of the ICWA Section 1912, as the phrasing “breakup of the Indian family” of Section 1912 was ruled to be unsuitable, despite the State’s original ruling (570 U.S. 12-399). The daughter had not been in contact with the father within his home on the reservation before the adoption process began; therefore, the adoption did not threaten the initial family structure. Furthermore, Brown’s argument was found to be ineligible in conjunction with section 1912 as no other tribal members (at the time of the US Supreme Court Hearing) had presented themselves to take guardianship of the child (570 U.S. 12-399).

The case was sent back to the South Carolina Supreme Court following the US Supreme Court’s ruling that the implications noted in the previous paragraph rendered the ICWA inadmissible in the State’s custody decision. Custody was ruled to the adoptive parents and in October 2013, the father and the Cherokee Nation dropped the custody case, citing concern for the welfare of the child (Peralta, 2013).  Although this case focused on the custody of the daughter, it was also an integral case for Native Americans, who believed that a denial of the biological father’s loss would undermine the effectiveness of the act, as well as for those who believe the ICWA is unnecessary and outdated. The ruling of the justices shows that the ICWA, though not applicable in this case, is taken seriously under the code of law. This became clear in the explanation of the preferential placement; the justices’ discussion of the possible presence of another tribal member to adopt the child, thus demonstrates that this preference will still be practiced under appropriate measures. Furthermore, the focus of this case on the ICWA and the reasoning of the judges show that this act is still necessary in determining child custody and protecting the Native American family, even after it was ruled inapplicable in this specific case.

Bibliography

Adoptive Couple v. Baby Girl., 570 US12-339 (2013).National Indian Child Welfare Association. "Adoptive Couple v. Baby Girl: Information and Resources." Accessed October 11, 2013.

National Indian Child Welfare Association. "Indian Child Welfare Act." Accessed October 12, 2013.

Peralta, Eyder. "Baby Veronica's Biological Dad, Cherokee Nation Drop Legal Fight." National Public Radio. Accessed October 11, 2013.