Dusten Brown with his daughter, Veronica.

Suzette Brewer

Dusten Brown with his daughter, Veronica.

Baby Veronica and the Future of ICWA: What’s Next

At a recent symposium, Joel West Williams, Cherokee, staff attorney for the Native American Rights Fund, announced, “Raise your hand if you consider yourself one percent American, or 4/56 percent a citizen of Connecticut.”

His request referenced the first sentence in the United States Supreme Court’s decision in the Baby Veronica case, which stated that Veronica is 3/256th Cherokee. Williams said, “Right off the bat, it is a preposterous sentence.”

The symposium “Deconstructing the Baby Veronica Case: Implications for the Future of the Indian Child Welfare Act” took place February 21 at Yale Law School in New Haven, Connecticut. Williams and Jacqueline Pata, Tlingit, executive director of the National Congress of American Indians, joined Yale law student Claire Chung in the panel discussion.

Jacqueline Pata, executive director of the National Congress of American Indians, said the American public’s misperceptions of Native Americans played a major part in the failure of the Baby Veronica case. (Christina Rose)

Christina Rose

Jacqueline Pata, executive director of the National Congress of American Indians, said the American public’s misperceptions of Native Americans played a major part in the failure of the Baby Veronica case.

The Supreme Court case was decided 5-4 on June 25, 2013 in favor of the white adoptive parents versus enrolled Cherokee citizen Dusten Brown, who lost custody of his daughter, Veronica Brown. In Williams’ opinion, the decision “was written by someone who does not grasp the foundational principles of Indian law and doesn’t understand tribal people and tribal communities.”

While Brown lost his daughter, the Supreme Court ruling did not challenge the Indian Child Welfare Act. “There are very few instances where the decision could be applied to other ICWA cases,” Williams said.

However, Williams noted that in the last nine Supreme Court cases, only one had been decided in favor of the tribes. “There is an effect of something larger in the continued trends in the U.S. Supreme Court. I am very disturbed by that. It is a scary thought,” Williams said.

To begin the Supreme Court opinion with a statement of blood quantum, Williams feels, “is a harbinger of things to come, of what we may see in future Supreme Court decisions. It may come down to, ‘Who is an Indian?’ ‘What is an Indian tribe?’ and ‘Who gets to decide that?’”

Pata said she and others have approached the Department of Justice to provide oversight to the states where the Indian child adoption rate is high. Williams believes the ultimate solution is for the DOJ to take some action.

A team composed of members of the National Congress of American Indians and the Native American Rights Fund met daily before the decision, and are still meeting regularly. Pata said that a Children’s Agenda that goes beyond ICWA and involves several other agencies is working “to see what we can do to affect Indian children across the country. People are now paying attention to issues with Indian children.”

Looking back at the Baby Veronica case, Pata said, “Everyone believed the case was strong, not just on the ICWA side, but this was a military man who had certain protections, but it wasn’t. This child was being removed from a white religious family and was going back to an Indian family, which no one was so sure about, and that was the underlying message that was going out.”

Students from Yale attended the symposium and listened to experts explain the merits of the Baby Veronica case as well as the pitfalls that caused the case to fail in the United States Supreme Court. (Christina Rose)

Christina Rose

Students from Yale attended the symposium and listened to experts explain the merits of the Baby Veronica case as well as the pitfalls that caused the case to fail in the United States Supreme Court.

Pata said the NCAI/NARF team admitted their own media efforts came too late, after the adoptive family had already been on the Dr. Phil show. “We are not good about going out into the public to talk about ourselves,” she said, and this was at least partly because, “we not only don’t win in courts, we don’t win in public opinion.”

Some saw the ICWA case as an obsolete race issue. “The other side was saying this was an antiquated law and it was time to get rid of it,” Pata said.

According to Chung, who worked on the case as part of her Yale Law Clinic work, the lawyers based their arguments on two factors: could parental rights be terminated without expert testimony showing the child was in a harmful situation, and what was the meaning of “continued custody.”

Chung stated that the case turned on the meaning of the ICWA phrase “continued custody,” which presumed pre-existing custody of the child. “We argued that the language is not very clear,” Chung said.

The legal team researched the intent of Congress, while the adoptive couple’s argument was based in plain meaning. “We wanted to put this phrase in context,” Chung said.

Because Dusten Brown did not have custody of Baby Veronica at the time of adoption, the legal team looked at the law’s legislative history, and the bill that mapped it into law, which Chung said had gone through several revisions before it was passed in Congress.

“Congress had used the term ‘parent-child relationship,’ and only relatively late in the process did Congress exchange parent-child relationship with custody. What Congress meant by ‘continued custody’ was a continuation of the parent-child relationship,” Chung said.

Regarding the word “continued,” Chung said, “We consulted several dictionaries and found the word ‘continued’ had a prospective element to it.” She also noted that social service agencies were likely to regard Native extended family relationships as neglectful parenting.

“If the adoption had been followed to the letter of the law, the child never would have been put up for adoption.  Someone chose not to follow the law… and it happens time and time again,” Pata said. “And it makes Indian country look bad when this is put before the American public.”

Pata also noted that not all adoption agencies fit the same mold. “There are really a lot of outstanding adoption agencies that came forward during the Baby Veronica case and said, ‘Let’s not have these situations anymore, let’s do what’s right.’”

According to Pata, “The tribes are saying we can do better with our ICWA services than the state can and they are asserting their rights. We are going to make sure that these cases go through our tribal courts.

“I am from Alaska and when I went home a couple of years ago, they gave me a necklace of strung beads, and each bead represented our kids who are in the system, so we don’t forget them,” she said.

As the symposium came to a close, Pata said, “I have a vision that Indian country will have a philosophical shift; that every one of us will have a responsibility to reach out and touch every young person’s life, no matter who we are. Our job is to help nurture that next generation and if we change how we communicate, engage and listen, we will have a better chance.”

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