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The Cherokee Nation’s Baby Girl Goes on Trial - COLORLINES
Everyone knew that the Supreme Courts 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 doesnt 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 girls birth. Brown had once wanted to marry Maldonado, but the two separated and lost touch. Brown wasnt even told of the birth of his daughter. Maldonado then decided she didnt 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 Maldonados intent to place Veronica up for adoption. Brown immediately went to court to stop the adoptionjust 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 Browns 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 doesnt have custody can invoke rights under ICWA.
Congress signed off on ICWA in 1978but 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 childrens 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 Browns parental rights in this case could signal the start of the historic laws 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 laws core. Americans tend to think about movements for equity and racial justice through a civil rights lens. But in order to fully appreciate ICWAs 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.
Whats 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 nationsand 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 Veronicas 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 Radios 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 Maldonados 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. Its not about self-recognition in an ethnic group. Its about citizenship that was bestowed by a tribal governmentin this case, by the Cherokee Nation. If Brown were not a citizen of a tribal nation, ICWA wouldnt apply to his case. Totenburgs ambivalence about Browns citizenship doesnt help her audience understand that Browns case pivots on his position as a Cherokee.
Some of the Supreme Courts justices seemed to also be confused about Cherokee Nation citizenship. Justice Stephen Breyer, the high courts 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 Washingtons father, Breyer remarked.
The Cherokee Nation determines citizenship based not on racial ancestry, but on the Dawes Rollsa 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 Browns standing in the caseif 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? Its at best an unfortunate and insensitive hypothetical, but again, for clarity, this case is not about rapeits about whether Brown can retain custody of his daughter.
The most shocking arguments came towards the close of the hearing, when the Capobiancos 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 Veronicas father, Dusten Brown has used it to make his custody claim. The plaintiff attorneys argument attempts to subvert ICWAs reasoning and, instead, re-center white adoptive couples as victims. The plaintiffs have atttempted to put tribal soveriegnty itself on trial.
Its not surprising that Native news outlets like Indian Country Today have had superb coverage of the case, but its 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 Courtwhich has a mixed history when it comes to these kinds of caseswill remember the history ICWA was written to correct.
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