Last week on Tuesday the U.S. Supreme Court heard oral arguments in a case that has received widespread media attention. This case, nicknamed The Baby Veronica Case but formally Adoptive Couple v. Baby Girl, surrounds adoption of Indian children and the Indian Child Welfare Act (ICWA).
ICWA is a law that was enacted in 1978 in order to prevent the unnecessary break-up of Indian families. It was a response to the often forced removal of children from Indian families by the U.S. government and private agencies, whose goal was to assimilate Native Americans into American (read: White) culture via boarding school and/or adoption into White families. Some of the most horrifying things I’ve ever heard in my life are the stories I heard in my MSW program about these forced removals, of social workers driving up in their cars and snatching children out of their front yards while their mothers were in the back, of mothers and fathers searching for years for their lost children, of children coming home after boarding school to a community whose language they didn’t speak, whose culture they didn’t know, who didn’t belong anymore. It’s a part of U.S. history that is so shameful and horrifying, most people like to pretend it didn’t happen or that everyone is now “over it.”
Sorry for the brief digression.
Brief Overview of The Baby Veronica Case
Just in case you haven’t been following this story (and even if you have, it might do you some good to read this): The Baby Veronica case involves a young girl named Veronica, whose mother attempted to put her up for private adoption prior to her birth. There are conflicting stories (“he said/she said”) about how the relationship between bio mom and bio dad ended or how much support bio dad was willing to give, so I won’t get into that. I’m sure it’s in the court documents somewhere. Pre-adoptive parents (Matt and Melanie Capobianco) were present at Veronica’s birth and filed for an adoption action shortly after.
Bio dad Dusten Brown received notice of the adoption action four months after the filing date, days before he was set to deploy to Iraq. He immediately filed for a stay on the adoption and attempted to get Veronica placed with Veronica’s grandfather (Dusten’s dad) while he was overseas. The courts ruled instead to keep her with the Capobiancos during his deployment. Upon Dusten’s return from Iraq, the family court in South Carolina held the adoption hearing and ruled in favor of Dusten, ordering custody of Veronica back to Dusten (from the pre-adoptive parents) and denying the Capobiancos’ adoption action. (Please note: The Capobiancos never adopted Veronica. This is very important.) The Capobiancos appealed, but the South Carolina Supreme Court upheld the family court’s decision, finding that [the following is taken from my Child Welfare Policy Blog post]:
- that ICWA was applicable in this case,
- that Mr. Brown had both acknowledged and established paternity according to state law,
- that the Existing Indian Family Exception was not valid under ICWA,
- that Mr. Brown did not voluntarily consent to give up his parental rights to Veronica*, and
- that placement with Mr. Brown would not cause Veronica serious emotional or physical damage.
Despite both courts finding in favor of Dusten Brown, this case is now at the U.S. Supreme Court and a decision that may or may not have major consequences for Indian children, their families, and their tribes is due in June.
Defending ICWA in terms of Baby Veronica
One of the major issues I have with this case is the number of individuals who are using it to slam ICWA, saying it is protecting the best interests of the tribe over the children, or saying it is breaking up the family and hurting Veronica. It bothers me because those same individuals are looking at the law from a (mostly) White/dominant perspective, without taking into consideration the Native perspective.
Best interests of the tribe vs. Best interests of the child
Who says “the best interests of the tribe” and “the best interests of the child” are mutually exclusive? Generally speaking, children are highly valued in Native communities. Through the children is how traditions and values are passed on from generation to generation. I wrote a couple of policy blog posts on this issue that you should read, if you have time:
- ‘Best interests of the Indian child’ – in whose eyes?
- The young Anishinaabe child in the context of child welfare
It’s really important for non-Native folks to understand the position that Indian children hold within their tribes, and to consider this issue from a Native perspective.
ICWA is breaking up this family!
In my opinion, this is probably the most infuriating argument against ICWA. As I said earlier, ICWA is meant to prevent the unnecessary break up of Indian families. White America had been breaking up Indian families for DECADES. The placement of an Indian child in a White/non-Native family means that an Indian family has already been broken up.
In the Baby Veronica case, had ICWA been followed from the get-go, this could have all been prevented. There are procedures that must be followed when a child is known to have Native heritage. Not only did Veronica’s bio mom know of Veronica’s Native heritage, but the pre-adoptive parents themselves acknowledged that they knew as well. Had Veronica’s Native heritage been properly reported (she was marked “Hispanic” instead, her mother’s ethnicity), Veronica would never have been able to leave Oklahoma without the tribe’s consent. Had Dusten’s first name and birthdate been accurately reported, the Cherokee Nation would have been able to locate him in their enrolled members’ roster.
ICWA is discriminatory!
ICWA IS NOT DISCRIMINATORY. ICWA is only applicable to eligible members of the federally-recognized tribe. Having membership in a tribe is a political status, the same as being a citizen of the U.S. Each tribe defines who is eligible for membership. Membership is not necessarily based on one’s ethnicity/racial makeup. Therefore, ICWA does not in any way violate equal protection clauses.
I’m 1/16 Ojibwe; according to the member eligibility rules for my tribe, I am not eligible for tribal membership, and should anything ever happen, ICWA would not apply to my children either (who are 1/32 Ojibwe).
The point of all this
Those who seek to reform ICWA to make it easier for non-Native families to adopt Native children are apparently forgetting the reasons for ICWA’s existence. There’s a reason why it is more difficult for non-Native families to adopt Native children: At one point it was incredibly easy to adopt Native children and a (mostly unsuccessful) cultural genocide ensued. We should never devalue another culture or assume that we know more about that culture and its values than the members themselves. We should be supporting Native families and tribes, not working to actively break them up.
I also want to add a caveat that sometimes a removal is necessary, in both Indian and non-Indian homes. ICWA was meant to prevent the unnecessary removal of children. In this case, there is a bio dad with strong connections to his tribe who wants to raise his child, and he should have that right.