Fight of the Century

by Michael Chabon

  The Indian Child Welfare Act

  The boarding school period and plunder of reservation land ended in the late 1930s under the Roosevelt administration. Indigenous studies scholars and social workers refer to the 1940s as the beginning of the “adoption era” for American Indian children. Reservation hardships, primarily due to dispossession and the destruction of Indigenous economies, and urban poverty for those American Indians who had moved or been “relocated” to cities following World War II had placed a large burden on families. The largely European American employees of social service agencies sought solutions to complex problems, including mental illness, alcoholism, and family violence, by removing children not only from the troubled parents but from the Indian community itself—permanently. For one reservation in Minnesota, it has been estimated that 25 percent of White Earth children left the reservation for foster and adoptive homes in the postwar years. At the height of the crisis in Minnesota, the “ratio of Indian to non-Indian children in placement was five to one,” while in Wisconsin, “Indian children were placed in either foster care or adoptive homes at a rate of 15 to 17 times higher than other children.” Alarmingly high rates of child removal existed in South Dakota and other states with significant Indian populations as well.

  In one extraordinarily successful political movement, women active in the urban community of Minneapolis–St. Paul paved the way for groundbreaking legislation in the continuing struggle against family separation in the form of the Indian Child Welfare Act (ICWA) of 1978. They systematically gathered testimony used to develop the legislation, though Senator James Abourezk of South Dakota introduced the act to the Senate Committee on Indian Affairs and is often given credit for the bill. The legislation was groundbreaking in the history of US and Indian relations. It gave some restitution to a troubled history of child removal and separation that Indians charged had been taking place for more than a century.

  Rose Robinson was working on the Leech Lake Reservation at the time of the passage of the ICWA. She reminds people that it was an “unfunded mandate” that left administrators with few means to achieve its goals. She went to local counties in Minnesota to request financial support and entered into negotiations with the state to meet the requirements of the new law. With a growing résumé of child welfare experience, Robinson became director of a reservation-based child welfare program but acknowledged that the work of a child welfare agency is hard. Still, Robinson regards her long career in child welfare as “my life’s work,” and she passes on the skills to stand up against the state and county bureaucracies, in a configuration where “the system works against the tribes”:

  We had a staff meeting today and I said, “You’re all doing a great job. This is what we’re here for. This is the tribe taking over this work. It’s not the county saying to the community you’ve got to do it this way. It’s the tribe. We’re involved. It’s about self-determination.”

  The ICWA recognized Indian political sovereignty in the self-determination era and protected the interests of Indian families and tribal nations “to establish standards for placement of Indian children in foster or adoptive homes, to prevent the break-up of Indian families,” while promoting tribal jurisdiction over child custody proceedings. For the first time since the boarding school era and in a turning point for US-Indian relations, tribes regained sovereignty over their own families and children.

  This federal law, which gives preference to American Indian families in foster care and adoption proceedings, had a profoundly stabilizing effect on Indian families. Rather than having children lost to the foster care system or being adopted out of the community, with the attendant loss of culture that entailed, children would be placed within the extended family or community. Foster care and adoption, with tribes in control, would allow Indian children to maintain their identity, as well as their religious practices and social life. Leaders and legal activists from tribal nations regard ICWA as one of the most significant pieces of legislation to come out of the self-determination era. In a unified message to the Supreme Court, 333 Indian tribes joined the coalition and filed amicus briefs in support of Dusten Brown, the Cherokee father who faced losing his daughter in Adoptive Couple v. Baby Girl.

  Even with the legal support of ICWA for over forty years, American Indian tribal nations and their citizens still face struggles for authority over their own children, and the devastation wrought by policies of family separation has not abated. Local and state courts have at times disregarded the terms of the Indian Child Welfare Act, whether through ignorance of the federal law or in an effort to assert their own power and authority. An important case about modern child removal eventually landed at the US Supreme Court with Adoptive Couple v. Baby Girl.

  To Prevent the Break-up of Indian Families

  It would be difficult to argue that the plight of unwed fathers in Indian Country is generally a burning social issue for most Americans, and yet, in 2013, an ordinary case involving a Cherokee father became the source of tremendous public and media attention. Like most other stories involving young couples, babies, and adoption, there is a certain amount of heartbreak and anguish in the case. Dusten Brown, a citizen of the Cherokee Nation of Oklahoma and a soldier in the US Army, was a few days away from being deployed to Iraq when he was informed that his infant daughter, Veronica, was being adopted. Brown was estranged from his former non-Indian fiancée, Veronica’s birth mother, and she was the one who decided to put their baby up for adoption while she was pregnant. She never informed Brown of her plans. Soon after she was born, Veronica went to live with a white couple from South Carolina, who subsequently filed a petition for adoption. Brown, awaiting his deployment, was served with adoption papers when his daughter was four months old and already living in South Carolina. He previously believed that his daughter was with her mother and was unaware that the baby had been taken out of state.

  A series of bureaucratic mishandlings and mishaps ensued. The birth mother had arranged for the private adoption, though she was aware that Veronica’s father was a Cherokee citizen. Her attorney contacted the Cherokee Nation of Oklahoma to inquire if Brown’s daughter was eligible for citizenship too, but misspelled Brown’s name and gave an incorrect date of birth. These errors failed to produce the correct information about Brown’s citizenship, who is one of the Cherokee Nation of Oklahoma’s 355,000 citizens, and thus about his own children’s eligibility for Cherokee citizenship. A second problem emerged when the Interstate Compact of Children form, processed because Veronica was born in Oklahoma, did not state that the child was an American Indian. If it had been filed correctly, the Cherokee Nation of Oklahoma would have been notified of the adoption proceedings and intervened, and Veronica would never have been illegally taken from Oklahoma. Furthermore, when Dusten Brown signed the papers prior to his deployment to Iraq, he believed he was relinquishing his parental rights to his daughter’s mother, not to a couple from South Carolina who did not share his Cherokee identity.

  Once Brown realized that Veronica’s mother’s plan was to have their daughter adopted by a non-Indian family in another state, he was faced with losing his child. The day after signing the papers, Brown realized his error and immediately consulted an attorney. As an active member of the military, he had no choice but to leave for Iraq, where he served in the US Army for the following year. In what must have been an agonizing departure, he left for Iraq without knowing his daughter’s future.

  As deeply troubling as this case was from the beginning, it got worse as it made its way to the US Supreme Court. When the non-Indian family took the baby to live permanently in South Carolina without informing Dusten Brown or the Cherokee Nation, there was a double sense of loss. Brown lost a fundamental right all parents possess, and the case also resonated for tribal people and their nations across the United States, who had struggled since the boarding school era against the removal of their children. Tribal nations had found support for their struggle within the legal grounds of the ICWA, bu
t even that legislation was not sufficient to protect tribal jurisdiction over all of their relatives and kin, including the youngest and most vulnerable of their citizens.

  What makes Adoptive Couple v. Baby Girl more than a custody dispute is the issue of sovereignty of tribal nations over their citizens. Indigenous sovereignty predates the formation of the United States but was virtually unrecognized and dismissed by US law until the self-determination era of the 1970s and laws such as the ICWA. Brown, supported by his tribal nation, went to court in South Carolina to assert his parental rights and explain that he and the Cherokee Nation were left out of the private adoption plans and to object to his daughter’s removal from Oklahoma. The ACLU and the ACLU of South Carolina became early allies for Brown and the Cherokee Nation in this case, and stepped in to concur that the South Carolina Supreme Court properly applied ICWA when it ruled in favor of Dusten Brown.

  The lower courts in South Carolina upheld the terms of the ICWA. They recognized that the law applied in this case to “children who are members of a federally-recognized tribe or eligible for membership and the biological child of a tribal member.” They also recognized that Dusten Brown had not received proper notification according to the ICWA procedures, and there was no basis to terminate the Cherokee father’s rights. It was clear that it was the mother, not the father, who had decided to put the child up for adoption. In addition, the Cherokee Tribe of Oklahoma was never notified of the potential adoption of a Cherokee descendent, one eligible for tribal enrollment, an ICWA requirement.

  The case was complicated in ways that involved both race and gender. South Carolina, where Veronica resided with the white family who planned to adopt her, puts limits on the rights of unwed fathers. The petitioners argued that ICWA did not apply because the baby girl had never lived with an Indian family because her biological mother was non-Indian and “Hispanic.” It bears reiterating that the biological father was deployed to Iraq for a year shortly after Veronica’s birth, and under such circumstances knew that he could not be a full-time custodial parent until he returned to the United States. The courts ruled in favor of Brown and the Cherokee Nation, and in 2011, he assumed custody of his daughter, by then a two-year-old toddler. Veronica returned to her family and tribal nation in Oklahoma, where she remained for the next two years. But the case was not over.

  When the adoptive couple, Matt and Melanie Capobianco, petitioned the case further, a disturbing decision emerged from the US Supreme Court regarding Adoptive Couple v. Baby Girl. In a stunning 5–4 decision, issued in June 2013 and at odds with the decades of federal legislation of the Indian Child Welfare Act, the Court held that a noncustodial father did not hold rights under ICWA, and the case returned to South Carolina because the adoption process was not fully complete. Once there, the courts reversed their earlier decision and eventually endorsed a determination that ICWA did not apply to the South Carolina case. Though Brown went to extraordinary lengths to keep his daughter, he had deployed to Iraq in the US military for over a year, and thus was not always present for the earliest parts of his child’s life. From many angles, the decision to uphold the white South Carolina family’s interests was shocking and distressing, especially to the Cherokee Nation of Oklahoma.

  This ruling was a nightmare for Dusten Brown, an involved father and military veteran who demonstrated tremendous love and concern for his daughter. Furthermore, Veronica had been living with her father in Oklahoma for two years before the Supreme Court decision shattered their family life. Despite the legal intervention of his tribe, the courts finalized the adoption in South Carolina. The Oklahoma Supreme Court almost immediately prohibited the decision because the child was residing with her father in Oklahoma. Nonetheless, in 2013, Matt and Melanie Capobianco assumed custody of the girl. Soon after her fourth birthday, they legally adopted her, despite her father’s heart-rending objections and the deep legal opposition of the Cherokee Nation of Oklahoma. Later that year, the Capobiancos filed a lawsuit in Oklahoma against the military veteran father and his tribal nation totaling $1 million, as compensation for the expenses and legal fees they had accrued in their custody battle for Veronica. The Cherokee Nation responded appropriately, and their motion to dismiss the case, citing their sovereign immunity from suits without their consent, was granted.

  * * *

  As noted, the Indian Child Welfare Act was a landmark decision in the long quest of American Indian people and their tribal nations to protect their youngest citizens from being removed from their communities and cultures. It was also an important recognition of tribal sovereignty within tribes, as tribal courts and family service programs evolved to make the best decisions for the health and well-being of children in their communities. Off-reservation counties, courts, and adoption agencies were mandated to inform and collaborate with American Indian tribal nations in the work of Indian child welfare. This is critical considering that Indian children are more likely to be in the foster care system than the rest of the US population. Even for urban Indian children, tribal courts and programs back home on the reservation were increasingly involved in placement decisions regarding their youngest citizens.

  ICWA has been a remarkably successful law and has been demonstrably good for tribal nations, children, and families and for the health and future of Indigenous community life. American Indian children were no longer set up to disappear completely into the child welfare system. In spite of the success of ICWA in placing children with Indian families and in culturally appropriate homes, its legal future has never been secure. Most troubling, at times the law has been dismissed by authorities at the state and local levels. Problems arise when county and state social workers, judges, and authorities violate the terms of ICWA and continue anachronistic and failed practices, which frequently result in placing American Indian children in non-Indian homes. States including South Dakota, the site of the Standing Rock resistance movement to oil pipelines (2016–2017), can be especially recalcitrant. South Dakota has nine tribal nations and governments within the state, and over half of the children in foster care in South Dakota are American Indians, though Indians comprise less than 9 percent of the state’s population. Tribal nations have been forced to continuously defend the practice of maintaining sovereignty over their own citizens.

  The ACLU has been a consistent ally to Indian Country, helping to ensure the proper implementation of the Indian Child Welfare Act. In a lawsuit filed in 2013 on behalf of the Oglala Sioux Tribe, the Rosebud Sioux Tribe, and three residents of Pennington County, the national American Civil Liberties Union, the ACLU of South Dakota, and a law firm in Rapid City, South Dakota, claimed that Indian children had been removed from their homes and families given only brief, inadequate hearings to determine whether they could get their children back. These hearings were fundamentally unfair. As the federal court noted, parents weren’t given a copy of the charges against them, they were not allowed to offer any evidence on their behalf, they were not allowed to ask any questions of the social worker (who submitted a secret affidavit to the judge in all of these cases), they were denied counsel, and the judge made the decision based on the evidence submitted secretly.

  In the aftermath, South Dakota made changes that allow for greater due process and rights under the terms of the Indian Child Welfare Act. For instance, parents now receive a copy of the petition and the affidavit filed against them by the ICWA worker and have the right to cross-examine the state’s witnesses. They also have a right to counsel and the right to a decision by an impartial magistrate.

  American Indian people, their tribal nations, and allies understand the necessity of the ICWA. The law is for the protection of Indian children and their families, so that Indian cultural and political formations persist in this country, even in the face of settler colonialism. The case of Adoptive Couple v. Baby Girl illustrates that tribal nations must continue to struggle for sovereignty over their youngest citizens. In a contemporary story of Indian child removal, Dusten Brown knows wha
t it is like to have a child permanently removed. He largely tried to avoid media attention as he pursued custody of his daughter under the terms of ICWA. Two years after the Supreme Court decision, he made just one short statement, and it came after the Cherokee Nation and the Bureau of Indian Affairs proposed new federal regulations to enforce the ICWA. Brown said simply, “Hopefully, these regulations keep other Indian children, families and tribes from suffering the heartbreak that we experienced over the last 5 ½ years.”

  UNITED STATES V. WINDSOR (2013)

  United States v. Windsor is among the landmark legal cases in the recent history of the LGBT rights movement. At the heart of the contest was the constitutionality of the Defense of Marriage Act (DOMA), a 1996 law that had previously defined marriage for the purposes of the federal protections and benefits as the union of a man and a woman.

  In conjunction with Paul, Weiss, Rifkind, Wharton and Garrison LLP, the ACLU represented widower Edith Windsor, who was forced to pay thousands of dollars in estate taxes upon the death of Thea Spyer, her wife and partner of forty years. Had Windsor been married to a man, she would have been exempt from these taxes under federal law. The couple had been married in Canada, and their union was recognized by New York State law; however, federal law, in accordance with DOMA, failed to recognize Windsor and Spyer as a married couple.