The Cherokee Nation’s Baby Girl Goes on Trial

The Supreme Court's hearing about the Indian Child Welfare Act last week had everything to do with tribal sovereignty. Here's why.

By Aura Bogado Apr 24, 2013


Everyone knew that the Supreme Court’s hearing last week on the Indian Child Welfare Act would be an emotional one. After all, the case, Adoptive Couple v. Baby Girl, involves the potential adoption of a Native infant by a white couple, and largely hinges on how the law defines a “parent.” But the hearing also revealed a troubling and deeply consequential fact: Americans remain dangerously uninformed about the basics of tribal sovereignty, and what it means for the relationship between the United States and Native tribes and nations.

It doesn’t help that the story behind the Baby Girl case is itself a complex one. In 2009, a Latina woman named Christy Maldonado gave birth to a baby girl whose father, Dusten Brown, is a tribally enrolled citizen of the Cherokee Nation. Although Maldonado and Brown had been engaged, the relationship soured before the girl’s birth. Brown had once wanted to marry Maldonado, but the two separated and lost touch. Brown wasn’t even told of the birth of his daughter. Maldonado then decided she didn’t want to raise the child, and attempted to put the baby up for adoption. Melanie and Matt Capobianco, a white couple in Charleston, S.C., assumed pre-adoptive care of the girl, whom they named Veronica.

Four months later, Brown was served with Maldonado’s intent to place Veronica up for adoption. Brown immediately went to court to stop the adoption—just before leaving for a one-year Army tour of duty in Iraq. South Carolina courts agreed that the Indian Child Welfare Act, or ICWA, protects Brown’s parental rights and granted him custody of Veronica. The U.S. Supreme Court is being asked to consider, among other things, whether a parent who doesn’t have custody can invoke rights under ICWA.

Congress signed off on ICWA in 1978—but only after four years of grueling legislative hearings and reviews. Natives and their allies fought long and hard to convince lawmakers to enact a policy to curb what were disturbingly high adoption rates of Native children to white parents.

At the time, about a third of Native children were fostered and adopted into white families; in states like Minnesota that have large Native populations, 90 percent of Native adopted children were raised in non-Native homes. These adoptions, which severed tribal community ties, fundamentally jeopardized Native nations’ ability to continue to exist. The passage of ICWA was a seminal victory in halting that trend.

The law makes clear a crucial distinction: State courts lack jurisdiction over the adoption of Native children. It recognizes instead that tribal governments hold that jurisdiction, and are best suited to decide Native children’s adoption, regardless of whether the child in question is born on or off reservation land. ICWA has been challenged unsuccessfully in the past 35 years, but a ruling that denies Brown’s parental rights in this case could signal the start of the historic law’s dismantling.

Yet as the high-stakes case has moved through the courts, putting ICWA in a rare media spotlight, people have struggled to discuss it accurately, because many still struggle with the idea at the law’s core. Americans tend to think about movements for equity and racial justice through a civil rights lens. But in order to fully appreciate ICWA’s breadth, a wider frame is required. We need to remember that Natives hold a unique relationship with the federal government, one that is based on tribal sovereignty, not solely on a set of rights.

What’s that mean? In short, Native tribes and nations are governments, which use their tribal sovereignty to guide their own self-determination. Among many other things, tribal sovereignty recognizes that tribal governments, like the Cherokee Nation, are fully capable of determining who holds citizenship in a given Native nation. The U.S. government recognizes nearly 600 tribes and nations—and each of those tribal governments set out the criteria by which they confer citizenship. Sovereignty and citizenship are not actually up for debate as the court considers baby Veronica’s fate, and yet they keep coming up.

News outlets ranging from CNN to local newspapers have so often repeated inaccuracies about the case, that the National Indian Child Welfare Association compiled a fact-check document to dispel troubling myths generated by the media. National Public Radio’s esteemed legal affairs correspondent Nina Totenburg opened her report on the case with two sentences that demonstrate a common ignorance of what it means to be a Cherokee Nation citizen. “Christy Maldonado’s ethnic background is Hispanic,” Totenburg began in her first sentence. “Dusten Brown considers himself Cherokee,” she said in her second, leaving room for doubt as to whether or not Brown is, in fact, Cherokee.

The irony, of course, is that there is no Hispanic nation to which Maldonado officially belongs, yet Brown is an enrolled citizen in the Cherokee Nation. It’s not about self-recognition in an ethnic group. It’s about citizenship that was bestowed by a tribal government—in this case, by the Cherokee Nation. If Brown were not a citizen of a tribal nation, ICWA wouldn’t apply to his case. Totenburg’s ambivalence about Brown’s citizenship doesn’t help her audience understand that Brown’s case pivots on his position as a Cherokee.

Some of the Supreme Court’s justices seemed to also be confused about Cherokee Nation citizenship. Justice Stephen Breyer, the high court’s pragmatist appointed by President Bill Clinton in 1994, questioned the basis under which the father is considered a citizen of the Cherokee Nation. “Because, look, I mean, as it appears [Brown] had three Cherokee ancestors at the time of George Washington’s father,” Breyer remarked.

The Cherokee Nation determines citizenship based not on racial ancestry, but on the Dawes Rolls—a set of documents created 120 years ago that are now used to establish enrollment. By those standards, there is absolutely no question that Brown is, indeed, a citizen of the Cherokee Nation. Yet questioning his citizenship is a way of questioning Brown’s standing in the case—if he were not Cherokee, then his claim under ICWA would be void.

Breyer went on to attempt to make the case about rape, positing in part that “a [non-Native] woman who is a rape victim who has never seen the [Native] father could, would, in fact, be at risk under this statute that the child would be taken and given to the father who has never seen it and probably just got out of prison, all right?” It’s at best an unfortunate and insensitive hypothetical, but again, for clarity, this case is not about rape—it’s about whether Brown can retain custody of his daughter.

The most shocking arguments came towards the close of the hearing, when the Capobianco’s attorney asserted that the courts threatened to tell “adopted parents to go to the back of the bus […] basically relegating the child to a piece of property with a sign that says, ‘Indian, keep off. Do not disturb.’ ”

This argument reveals the true cultural, if not legal dispute at the heart of this case. ICWA was enacted in response to the unsustainable practice of handing off Native children to white parents, who assimilated them out of their Native heritage. The law rightfully placed Native children at the center of the debate, and as Veronica’s father, Dusten Brown has used it to make his custody claim. The plaintiff attorney’s argument attempts to subvert ICWA’s reasoning and, instead, re-center white adoptive couples as victims. The plaintiffs have a empted to put tribal soveriegnty itself on trial.

It’s not surprising that Native news outlets like Indian Country Today have had superb coverage of the case, but it’s time for mass media to catch up with some basic understanding. Although it is called Adoptive Couple v. Baby Girl, the couple has never actually gone through with the adoption. While the white couple has been assigned a potentially misleading adjective, the Baby Girl has been stripped of her identity as a Cherokee citizen. A better name for the case, one that takes into account a minimal understanding of tribal sovereignty, might be White Couple v. Baby Girl (Cherokee). With any hope, the Supreme Court—which has a mixed history when it comes to these kinds of cases—will remember the history ICWA was written to correct.