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Mother of Baby Veronica sues to declare parts of American Indian Child Welfare Act unconstitutional

July 25, 2013 - Andrea Johnson
What rights does a non-Indian parent have under the Indian Child Welfare Act? That's a question that could be decided by a lawsuit related to the ongoing Baby Veronica case.

On Wednesday, Veronica's birth mother, Christy Maldonado, and 10 other women filed a lawsuit in federal court in South Carolina, asking U.S. Attorney General Eric Holder to declare parts of the American Indian Child Welfare Act unconstitutional because it violates the equal protection clause of the Fourteenth Amendment to the U.S. Constitution.

Veronica, who will turn 4 in September, is the child at the center of an ongoing custody battle between her biological father, Dusten Brown, a member of the Cherokee nation in Oklahoma, and her would-be adoptive parents, Matt and Melanie Capobianco of Charleston, South Carolina. The Capobiancos raised Veronica for the first 27 months of her life in Charleston, but the Supreme Court of South Carolina ordered her returned to Brown in December 2011 due to its interpretation of the American Indian Child Welfare Act, which protects Indian families from being broken up.

The federal law was enacted in 1978 in response to many American Indian children being removed from their biological families and placed for adoption or foster care with non-Indian families. The law dictates that efforts be made to preserve existing Indian families. If that is not possible, a child is supposed to be placed first with extended Indian family, then with unrelated members of the tribe, then to members of other Indian tribes, and then to non-Indian adoptive parents.

Last month, the U.S. Supreme Court ruled that the federal law was incorrectly applied in Veronica's adoption because, as the child of unmarried parents, she was never part of an existing Indian family and should not have been taken from her pre-adoptive parents.

Citing the U.S. Supreme Court decision, the South Carolina Supreme Court ordered earlier this month that the girl should be returned to the Capobiancos and their adoption of her should be finalized. Brown and the Cherokee Nation are considering a federal lawsuit to try to prevent the girl from being turned over to the Capobiancos. Maldonado has sided with the Capobiancos in the custody case and wants them to adopt her daughter.

Maldonado's case likely won't affect who gets custody of Veronica, but the issues raised certainly could have a far-reaching effect on other such cases. Maldonado, who is Hispanic-American, is arguing that the American Indian Child Welfare Act violates the equal protection clause because it uses race to determine with whom a child should live and ignores the wishes of non-Indian mothers who have sole legal custody of their children, as she did under South Carolina law when she placed Veronica for adoption.

Veronica, who is less than 2 percent Cherokee, is a tribal member because her father is a member of the Cherokee nation, which determines citizenship based on descent rather than blood quantum. One of the other plaintiffs in the federal lawsuit is Samantha Lancaster, a Minnesota woman who wants to place her baby daughter for adoption with a non-Indian couple, according to a story today in The Post and Courier. According to the story, Lancaster considers herself white but fears that the Cherokee tribe will intervene to stop the adoption under the Indian Child Welfare Act because Lancaster could be 1/64th Cherokee. The father of the baby, who was born in June, is also non-Indian. Lancaster and the baby's father chose the adoptive couple together and agree on placing her for adoption.

I tend to agree with the non-Indian parents in cases like these, where the children involved have little connection to a tribe. Why should the wishes of a child's non-Indian parent be ignored in these cases? But it's going to be interesting to see how the courts rule on this one and what happens with the Indian Child Welfare Act in general.

 
 

Article Comments

(6)
Aug-19-13 10:18 AM

Veronica's Cherokee heritage is 1%.. She's actually about 3/4 Caucasian and about 1/4 Latina. To say her 1% Cherokee trumps her 24% Latina is ridiculous in my mind. If you do a google search you can find the letters and such her biological mom has written about this situation. She has every much a right in my mind to have a say in this and she did way back. ICWA was enacted for very good and valid reasons but even the author of ICWA, retired US Senator James Abourezk, D-SD, said ICWA was being misapplied in Veronica's case.

AndreaJohnson

Jul-29-13 11:16 AM

== Continued ==

The U.S. Supreme Court has ruled that the Indian Child Welfare Act didn't apply in Veronica's case because her parents were not married and her father did not offer financial support, so there was no "existing Indian family" to be broken up. South Carolina state law took precedence.

AndreaJohnson

Jul-29-13 11:12 AM

In this context, blood quantum wasn't considered relevant. Under the law, each tribe is a "sovereign nation" and is able to set its own laws regarding who is a citizen/member. The Cherokee nation apparently grants citizenship by descent from someone who was listed on the Dawes Rolls. Other tribes require that a member have a certain percentage of tribal ancestry -- usually at least 1/4. Tribal law is complex and differs from tribe to tribe, but American Indians are essentially dual citizens, of their tribe and of the United States. In practice, the federal law can and does take precedent over tribal law and state law might be applied instead if the people involved live off the reservation and don't have significant ties to a reservation.

JackAaah

Jul-29-13 9:32 AM

The melting pot works..... even at 2% Native bloodline, our People still need to segregate ourselves, and refer to ourselves as Native American Indian. Even when we individually get to 1/2048 of Native American heritage, we will still call ourselves Native American. And the government will recognize it.

That is the melting pot...I think.....

AndreaJohnson

Jul-26-13 8:00 PM

I agree, but I also think it's inappropriate to switch custody without having a hearing to determine her best interest. This is a child who has formed relationships and she deserves to have her rights -- not just those of the adults involved -- taken into account.

TXMomof3

Jul-26-13 3:18 PM

The couple who raised that child for the first two years should have retained custody. Instead of basing it on race, it should be based on the best interest of the child.

 
 

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