4 History: Baby V

Trace L. Hentz (co-editor)

From left: Claire Chung, 3L, Supreme Court Advocacy Clinic, Yale Law School; Joel West Williams, Staff Attorney, Native American Rights Fund; Jacqueline Pata, Executive Director, National Congress of American Indians. Introducing them is Sparky Abraham, 3L, Yale Law School (moderator). The lecture hall was filled to capacity with law students. (Photo by Trace Hentz)

Baby Veronica case discussed at Yale

On Feb. 21, 2014 at Yale Law School in Connecticut, an expert panel (see photo) said that the adoptive couple, Matt and Melanie Capobianco, won this legal case in the media first which paved the way to their winning permanent custody of Veronica Brown in rulings handed down by the Supreme Court and the South Carolina Supreme Court.  Despite 17 total amicus briefs, written support by 393 tribes, 600 groups interested in this case including some adoption agencies, and 19 State’s Attorneys Generals in support of Dusten Brown keeping his own daughter, the Supreme Court did not and does not rule in favor of Indians.  American Indians don’t win in public opinion polls either.

Tribes are actually discouraged from taking cases to the Supreme Court: Out of nine Indian Law cases, only one won in the Roberts/Alito-controlled Supreme Court.

Asked whether the Indian Child Welfare Act should be amended or made stronger—NCAI’s Jackie Pata said no.  Pata admitted that NCAI and NARF waited too long to respond in the media to the Baby Veronica media circus, though they tried to rally support for Dusten and met in weekly committees to discuss the case and did try their own media coverage. (Too little, too late.)  Pata said by the time the Dr. Phil show happened with the Capobiancos, Dusten Brown had a gag order placed on him and he was not able to respond or play the same media game the Capobiancos did.

In the Q&A, a man in the audience asked Cherokee citizen and attorney Joel West Williams of NARF, “If the Capobiancos could sue the Cherokee Nation for one million dollars, then why can’t the Cherokee Nation sue the Nightlight Adoption Agency for their errors in notifying the Cherokee Nation (with Dusten’s name misspelled and the wrong birthdate)?”  These details were not insignificant and actually started the nightmare for Dusten Brown and the Cherokee Nation along with the adoption agency’s failure to abide by ICWA which is federal law.  Williams said he could not comment on any pending lawsuits.

As I have written on the American Indian Adoptees blog, the Department of Justice needs to interview Christy Maldonado and investigate the Nightlight Adoption Agency for moving and selling children like Veronica across state lines which is in violation of the Interstate Compact.

The way the Capobianco’s PR campaign was run by Jessica Munday and Trio Solutions who played this case in the media, capitalizing on Social Media with the Save Veronica Facebook page, filling mainstream newspaper opinion pieces with sympathy for the infertile Capobiancos in their late 30s, to demonizing Dusten Brown for text messages to his ex-fiance, then confusing the public and essentially attacking anyone who supported Dusten Brown retaining custody of his own daughter, this case was doomed from the beginning.

Dangerous Times

There is a clear and present danger that this will happen again—I say this because the American public (and Supreme Court) is clearly anti-Indian until a white couple wishes to purchase a newborn baby and the only ones available are from Indian reservations.  To be safe, NCAI, NICWA and NARF are obviously trying to educate on the Indian Child Welfare Act of 1978 since the Baby Veronica case created such a nationwide stir.

Sitting in the hallowed halls of Yale Law School, there weren’t any surprises for me unless you count how these panelists didn’t use the time to discuss the genocide that actually occurred prior the passing of the Indian Child Welfare Act of 1978 and the child abductions by social workers and missionaries—nor did they mention human trafficking and the Nightlight Adoption Agency dealings with Maldonado, the birthmother.  They did mention Indian boarding schools.

So, I was truly upset.  From what I heard, it appears American Indians are eons behind in civil rights and we can’t seem to win a case in the Supreme Court.  I’d heard that warning years prior but this time at Yale was a bit more in my face.  This case was about adoption by non-Indians, something I lived myself.

We had Justice Alito writing an opinion that Veronica is 1.2% Indian.  NARF attorney Joel West Williams asked the Yale audience, “Who in America is 1/16 or 3/256th anything?”  Yet we have a judge issuing his opinion by measuring an Indian for their Indian-ness which equates to measuring a child’s blood?  That is still happening?  What century is this?

JUSTICE ALITO delivered the opinion of the Court:

This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee. Because Baby Girl is classified in this way, the South Carolina Supreme Court held that certain provisions of the federal Indian Child Welfare Act of 1978 required her to be taken, at the age of 27 months, from the only parents she had ever known and handed over to her biological father, who had attempted to relinquish his [**736] parental rights and who had no prior contact with the child. The provisions of the federal statute [*2557] at issue here do not demand this result.

Jun 25 2013: Judgment REVERSED and case REMANDED. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and Breyer, JJ., joined. Thomas, J., and Breyer, J., filed concurring opinions. Scalia, J., filed a dissenting opinion. Sotomayor, J., filed a dissenting opinion, in which Ginsburg and Kagan, JJ., joined, and in which Scalia, J., joined in part. Read more at the Scotus blog here [1]

In my humble opinion, Dusten Brown never had a chance.  He went to Iraq knowing the Capobiancos had his daughter but he had to serve a year and a JAG lawyer took his case.   The puzzle remains why Maldonado mysteriously breaks up with him and severs all communication.  Was she manipulated by the adoption agency to take their money?

Then it hit me—keeping America ignorant of Indians, culture, actual history—all combined works to take Indian children.  Judgment is easy.  Third World poverty (which we didn’t create) somehow equates to abuse of children.  Add their general ignorance of sovereignty and culture, what it means to be Cherokee or Lakota or Navajo or any tribe—and it means you can’t win public opinion polls or cases before the Supreme Court?

Ignorance about Indians? Exactly!

It’s been going on since colonial contact.  Please, let’s not call them settlers anymore but invaders.  America has always been the Great Divider, building its fences, writing its laws, counting on classism and racism to divide us.  Look at maps and see how much land was stolen.

America perpetuates this ignorance of Indians.  Do Indians do a good job of educating others?  We’re way behind.

The late musician and American Indian Movement activist John Trudell explains:

“In my mind, the Indians could never have a civil rights movement. The civil rights issue was between the Blacks and the whites, our issue was around law.  It was legal.  There are five kinds of law in America: common law; criminal law; constitutional law; statute law; and treaty law.  That’s important to note—treaty law is one of the five principal laws in America.  The agreements that the United States made with the tribes were legal agreements.  So our movement was based around treaty law and making sure these were upheld and not broken. This isn’t about morals and ethics—I mean, of course it is to a degree—but the United States has a legal responsibility to us. So in the end this is about the law.”

What do Americans know about Indians?  Little.  Nothing.  Practically zilch.

America’s “taking care” of Indians only works to create HATE among Americans who view us as privileged in some way that they are not.  Like why do we even have a law that keeps nice white people from adopting Indian babies?  Trust me, ICWA is under attack.

I do know that Indians are way ahead in surviving every broken treaty and then fighting each other over small scraps of power.  Some tribes even subscribe to “blood quantum” as if they need to purge their citizen rolls of those who may be too white or too black.

We have Supreme Court Justices using the blood quantum argument and you see that is not entirely their fault (they all went to law school but didn’t even have a course on Indian Law at those Ivy League schools) but it tells me—do not go anywhere near them.  They are not even aware of their ignorance.

Dusten Brown didn’t have a chance, not in that court.

What the panel did say: each and every tribe needs to create and have their own child protection network.  I agree.  Only Indians can decide who the right people are to care for its children.  That person might be an auntie, grandmother or another relative, depending on who in the tribal family is willing and able.

And the panel said we need more American Indian lawyers who become judges—because the way it is now—Indians can’t win.

Nothing I learned in school was true or real about Indian culture or history.  I learned more sitting at the kitchen table of my friend Ellowyn who is Oglala Lakota, who gave me an education about Indians not written about anywhere.  Then there was my one adoptive aunt (a first-born American) who calls me a liar when I told her there were Indian Boarding Schools, and this was right after I visited Haskell in Kansas.

No, Americans are not learning about Indians or the truth, or our history.

For many years Vine Deloria and others bravely did try to educate others (with many brilliant books) on the white man’s level, even earning degrees in white man’s colleges like Yale and Harvard, but it all comes down to this: whites don’t really care.

And if we really think about it, this is a very dangerous situation to be in.


Kristen Carpenter and Lorie Graham have posted a very compelling and powerful paper about the Supreme Court’s decision in Adoptive Couple v. Baby Girl.  It is required reading for anyone interested in the case, and is destined to be the definitive paper on the international human rights aspects of the case.

The article is titled Human Rights to Culture, Family, and Self-Determination: The Case of Adoptive Couple v. Baby Girl. Here is the abstract:

The well-being of indigenous children is a subject of major concern for indigenous peoples and human rights advocates alike. In 2013, the U.S. Supreme Court decided in Adoptive Couple v. Baby Girl that the Indian Child Welfare Act did not prevent the adoption of a Cherokee child by a non-Indian couple. This occurred over the objections of her Cherokee biological father, extended family, and Tribal Nation. After the decision, Baby Girl’s father and the adoptive couple contested the matter in a number of proceedings, none of which considered the child’s best interests as an Indian child. The tribally-appointed attorney for Baby Girl, as well as the National Indian Child Welfare Association and National Congress for American Indians, began examining additional venues for advocacy. Believing that the human rights of Baby Girl, much like those of other similarly situated indigenous children, were being violated in contravention of the United Nations Declaration on Indigenous Peoples Rights, and other instruments of international law, they asked us to bring the matter to the attention of the United Nations Special Rapporteur for Indigenous Peoples Rights (“UNSR”). We prepared a “statement of information” to alert the UNSR of the human rights violations occurring in the case. With the permission of the attorneys and organizations involved, this chapter introduces the Baby Girl case, contextualizes the claims in international human rights law, and then reproduces the statement of information, and portions of the UNSR’s subsequent public statement. It concludes with an update on the Baby Girl case and broader discussion about the potential for using international law and legal forums to protect the human rights of indigenous children. [2]

[1] http://www.scotusblog.com/case-files/cases/adoptive-couple-v-baby-girl/

[2] http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2401886


Called Home: The Roadmap Copyright © (c) 2016 Second Edition by Trace L. Hentz (co-editor). All Rights Reserved.

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