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Supreme Court to hear Indian Child Welfare Act case next week

April 12, 2013 - Andrea Johnson
The U.S. Supreme Court is set to hear an adoption case next Tuesday that could result in some changes to the way the Indian Child Welfare Act is interpreted.

At issue is the custody of a three-year-old girl named Veronica, who is currently in the custody of her biological father, Dusten Brown, an enrolled member of the Cherokee Nation in Oklahoma.

Four years ago Brown had a brief affair with Christy Maldonado, a Hispanic American, and Maldonado became pregnant. In an interview with The Post and Courier in January 2012, Maldonado explained that Brown told her he would not help her out financially during the pregnancy unless they got married and that he stopped contacting her in her final trimester.

According to a friend of the court brief filed by Maldonado's attorney, when Maldonado asked if he would rather pay child support or give up his rights, Brown texted her that he wanted to give up his parental rights. In a brief filed by his attorneys, Brown said that he did not know Maldonado was considering placing the child for adoption and thought he was giving up his rights to his child's mother.

Maldonado, who has two older children to support, placed the baby for adoption with Matt and Melanie Capobianco, a South Carolina couple, after her birth in September 2009. Maldonado said the child had American Indian as well as Hispanic and Caucasian heritage, but her attorney spelled Brown's first name wrong and gave an incorrect month and year of birth when he contacted the Cherokee tribe. Based on that incorrect information, the Cherokee tribe replied that they could not find a record for Brown and Veronica did not appear to be an Indian child under the Indian Child Welfare Act, which protects Indian families.

Brown was served with papers stating that he "was not contesting the adoption" just before he was due to deploy to Iraq. Brown immediately contacted a JAG lawyer and has been fighting the adoption ever since.

A court ordered her returned to Brown on December 31, 2011 after ruling that the Indian Child Welfare Act wasn't correctly followed in this case. The Capobiancos are appealing the decision, arguing that Veronica was never part of an Indian family as the child of unmarried parents and that, under South Carolina state law, Brown had no standing to object to the adoption because he failed to support Maldonado during her pregnancy.

There are a lot of future cases that could be impacted here, particularly in a state like ours with a large American Indian population and families where one parent is Indian and the other is non-Indian. What do you think should happen here? Should the Indian Child Welfare Act or state law apply?

 
 

Article Comments

(9)

AndreaJohnson

Apr-17-13 12:52 PM

--Continued -- I knew Indian kids who were adopted by white parents before the Indian Child Welfare Act was passed. I think some of them probably dealt with some insecurities and racism directed at them growing up in predominantly white towns and schools, perhaps depending on how Indian they looked. That may still be the case these days.

I also knew or heard of cases of white women who had children with American Indian boyfriends and were extremely fearful of the tribal court system being biased against them when it came to a custody determination. In one case I believe a lawyer advised the mother not to even take her child onto the reservation. I think the rights of non-Indian parents and grandparents probably need to be clarified in a situation like this. If both parents are unfit, the kid should go to the relative who loves him and can take care of him best, not necessarily to the Indian relatives.

AndreaJohnson

Apr-17-13 12:45 PM

More thoughts on the Indian Child Welfare Act. The act was passed in 1978 because, as Native Girl says, a large number of American Indian children were being placed in foster care or put up for adoption by white families. The law requires that, if the kids can't remain with their parents, they be placed first with blood relatives in the tribe, then with other tribal members, then with members of another tribe and, if none of those options is feasible, with a white family. A fair number of Indian kids still end up with white foster or adoptive parents. There are still a lot of complaints about social service agencies not following the rules of the Indian Child Welfare Act. The law kicks in when the kid is the subject of a termination of parental rights hearing or if the parents have died or if the child is out of the custody of the parents. It wouldn't have applied if this couple were married and were getting divorced.

AndreaJohnson

Apr-17-13 12:12 PM

Reading the accounts of the Supreme Court hearing yesterday, it sounds like they may be inclined to send it back to a lower court with instructions to consider the best interests of the child. At this point the girl has lived with her dad (and his new wife) for 17 months, seems very happy and is calling them Mommy and Daddy. She doesn't remember her adoptive parents, according to the father, and asked who they were when he showed her a picture. Kids can be pretty adaptable. Her best interests now are likely to stay with him and her stepmother. In December 2011 I'm not sure if that was the case. What about the rights of the non-Indian parent in a case like this? The birth mother got to see her daughter when she was with the adoptive parents and now that she's with the father, he's completely cut off contact. The birth mother and adoptive parents haven't seen her in over a year.

nativegirl

Apr-17-13 5:07 AM

Well, I prefer Native American a lot of the older generation prefers Indian. Also I would like to say no we don’t feel like we are owed everything. In regards to the reason for this bill specially created for the protection of Native American children, it was due to the state(s) mishandling of Native American children and the parental rights of the Native American parents. Often the states sought to strip parents of their children and give the children to non-native families, without going through legal channels as there was a lot of gray area in regards to Native American children. However, in this particular case I don’t understanding why this father is fighting over a child he didn’t seem to want in the first place. I will say this to the racist on here perhaps you should try to understand things before you judge them.

AndreaJohnson

Apr-13-13 1:19 PM

A lot of the laws related to American Indians are complex.

Under the law, the various recognized tribes are sovereign nations. Some of their relations with the federal government are related to treaties signed between the tribe(s) and the federal government. The father in this case, as an enrolled member of the Cherokee Nation, is essentially a dual citizen of the Cherokees and the United States and he has rights as a Cherokee that other Americans don't. Even though this little girl is probably more Hispanic and Caucasian than she is Cherokee, as the daughter of her father she may also qualify for tribal membership/citizenship in the tribe and the laws that govern such things would apply. What the Supreme Court is going to consider here is whether the Indian Child Welfare Act was meant to be applied under the particular circumstances in this case.

Skimask

Apr-13-13 12:28 PM

Why does it have to be the "Indian Child Welfare Act"? Why does it have to be segmented like that? Why not just "Child Welfare Act"? Or even just "Welfare Act" and include EVERYBODY rather than just narrowing it down to a certain subset of people that BELIEVE are owed everything...

AndreaJohnson

Apr-13-13 12:05 PM

American Indian is the usual AP style. I think both are correct though it's probably more correct to refer to tribal identity.

EarlyBird

Apr-13-13 9:58 AM

Are they Indians or Native Americans? It never ends. IMO the Native Americans built and maintained a much greater society for themselves that lasted for thousands of years before the Native Europeans came and destroyed it. Some people seem to think they are so perfect everybody should be just like they are. I have so much respect for Native Americans and the Africans who came as slaves they are incredible to me. Endeavor to Persevere Great Peoples.

Bornandraised

Apr-12-13 11:48 PM

Both my sister and I are adopted. We are not "biological" siblings but we knew/know no differance. This situation seems like a mess. One would hope that the child goes to a home where she is wanted and loved and not being used for leverage or other means. Not always the case in some situations. It seems like the attorneys dropped the ball a few times along the way in this case.

 
 

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