A Hard Blow to Tribal Sovereignty

The high court focused on race--rather than tribal sovereignty--in a landmark adoption case.

By Aura Bogado Jun 25, 2013

Update: June 25, 2012, 2pm ET

The ruling does not necessarily mean that Baby Veronica will be placed back with the Copabianocos. The case is being bounced back to the lower South Carolina court. If it rules to terminate Dusten Brown’s parental rights, the grandparents and the Cherokee Nation may still have a say in the child’s placement. 

In a 5 to 4 decision today, the Supreme Court ruled that the Indian Child Welfare Act (ICWA) does not block termination of a Native father’s parental rights. The court appears to have ruled as if it was deciding the issue based on race–when a better lens to understand the case, called Adoptive Couple v. Baby Girl, is through tribal sovereignty.

First, some quick background on the case and on ICWA itself (fuller background here). Christy Maldonado gave birth to a baby in 2009 whose father, Dusten Brown, is a citizen of the Cherokee Nation. Because of self-determination, the Cherokee Nation decides who its citizens are–and because Dusten Brown is Cherokee, his baby, named Veronica, is Cherokee as well. Maldonado and Brown lost touch by the time the baby was born, and Brown was never informed of the baby’s birth. Maldonado decided to put the baby up for adoption, and a white couple named Melanie and Matt Capobianco took Veronica into pre-adoptive care.

Just to be clear, although the case is called Adoptive Couple v. Baby Girl, the Copabiancos never adopted Veronica. When Brown was served with Maldonado’s intention to place the baby up for adoption, he immediately fought the decision. A South Carolina court agreed that a non-custodial Native father was, indeed a father for the purpose of the case, under ICWA.

So what does ICWA do? The act was created because of incredibly high rates of white parents adopting Native children; in states like Minnesota, that have large Native populations, non-Natives raised 90 percent of Native babies and children put up for adoption. Those adoptions sever ties to Native tribes and communities, endangering the very existence of these tribes and nations. In short, if enough Native babies are adopted out, there will literally not be enough citizens to compose a nation. ICWA sought to stem that practice by creating a policy that keeps Native adoptees with their extended families, or within their tribes and nations. The policy speaks to the core point of tribal sovereignty: Native tribes and nations use it to determine their future, especially the right to keep their tribes and nations together. 

But leave it to the Supreme Court to miss the point altogether this morning. The prevailing justices failed to honor tribal sovereignty in today’s ruling. In writing for the court’s majority, Justice Samuel Alito opened his delivery on the ruling with these words:

This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee.

What Alito (along with Justices Roberts, Kennedy, Thomas and Breyer) is perhaps willfully missing is that the Cherokee Nation does not classify its citizens in that way. Baby Veronica is not a certain percentage Cherokee–she is Cherokee, as determined by her nation. The high court’s first sentence, based in the colonial practice of blood quantum instead of the way that citizenship is determined by the Cherokee Nation, illustrates that the justices made this case about race–in their mind–and not about tribal sovereignty in the law. By this flawed logic, the high court ruled that Baby Veronica is somehow not Native enough to be protected by ICWA.

Justice Sonia Sotomayor wrote the dissenting opinion, and was joined by Justices Ginsburg and Kagan–and, in part, by Justice Scalia. In honoring the spirit in which ICWA was created, Sotomayor wrote:

Unlike the majority, I cannot adopt a reading of ICWA that is contrary to both its text and its stated purpose.

Baby Veronica has been in her father’s care, and will now be ripped apart from her nation in Oklahoma, and taken to South Carolina, where she will be adopted by a white couple–continuing a practice that tears Native tribes and nations apart. And while this is very much a heartbreaking day for Dusten Brown, the Cherokee Nation, and all Native tribes and nations whose right to a future has been put in peril through adoptions, it’s also a sad day for tribal sovereignty, which is clearly under attack in the high court in the land.