Challenge to Indian Child Welfare Act

     CHARLESTON, S.C. (CN) – The mother of “Baby Veronica,” the 3-year-old at the center of a complicated adoption battle in South Carolina, wants part of the Indian Child Welfare Act declared unconstitutional.
     In a federal lawsuit, Christinna Maldonado and other women who have given their children up for adoption say the Act violates their right to choose adoptive parents who will provide their children with a loving and stable environment.
     The Act specifies that Native American children be adopted by other members of the tribe if possible. It is a vestige of the 1970s, when there were concerns about removal of Native American children from their birth families through abusive child welfare practices.
     In June this year, a divided U.S. Supreme Court ruled that the federal law does not automatically give Baby Veronica’s biological father custody of her.
     The defendants in the new case are the federal government and the Cherokee Nation. In addition to Maldonado, Samantha Lancaster and Jane Does 1 through 10 are also plaintiffs.
     Writing for the 5-4 majority in June, Justice Samuel Alito said the federal law, invoked by the girl’s biological father, “does not apply when, as here, the relevant parent never had custody of the child.”
     The biological mother and the father of the Cherokee girl, Dusten Brown, were engaged when the mother discovered she was pregnant. The father pressured the expectant mother to move up the wedding, and when she refused he refused to provide any financial support until after they had married. The birth mother broke off the engagement in May 2009 and soon found herself in financial straits.
     After an exchange of text messages in which the father allegedly said he’d rather give up his parental rights than pay child support, the mother put the baby girl up for adoption, ultimately choosing to place her with a South Carolina couple because of their marital stability. She remained with them for a little over two years.
     When the birth mother’s attorneys notified the biological father about the pending adoption, by Charleston couple Matt and Melanie Capobianco, he refused to consent and sought custody of the child.
     As a member of the Cherokee Nation, Brown claims the Indian Child Welfare Act gave him preference in the custody dispute.
     State courts agreed, awarding custody of Baby Veronica to Brown in December 2011, concluding that he was a “parent” under the Indian Child Welfare Act, or ICWA, because his daughter was 1.2 percent (3/256) Cherokee.
     Since the U.S. Supreme Court overturned and remanded the case back to South Carolina last month, the state Supreme Court of South Carolina has awarded custody back to the Capobiancos.
     In their complaint, Maldonado and her fellow plaintiffs concede “Congress enacted ICWA with good intentions, in response to a real problem. More than 30 years ago, Congress observed what it perceived to be a pattern of unjustified removal of Native children from their families by biased state welfare agencies.
     “ICWA was also intended to protect ‘the relationship between Indian tribes and Indian children domiciled on the reservation,'” they continue. “But the statute by its terms unfortunately was written with a much thicker pen, sweeping within it children who do not have, and would not have – but for ICWA – any connection whatsoever to any Tribe other than biology, no matter their predominant ethnic or racial background, no matter their domicile, and irrespective of whether their sole custodial birth mothers – their only legal parents – have even a trace of Indian blood.”
     In sum, they say, “ICWA tells a single unmarried woman who wishes to choose adoptive parents for her unborn child – a choice that would be respected under her state’s laws – that she must either terminate her pregnancy, raise the child herself, or surrender her child to a Tribe that is a total stranger to her and to the unborn child.
     “Even if Congress is empowered to enact legislation respecting child custody matters involving children who parents are domiciled on tribal lands, Congress may not override a woman’s deeply personal decision to place her child with a loving and fit adoptive family, and impose special disabilities on that child, in the name of tribal sovereignty.”
     The women claim this provision of the Act violates the Equal Protection Clause, the Due Process Clause, and the 10th Amendment.
     However, according to the Tulsa World newspaper, officials of the Cherokee Nation are considering their own lawsuit challenging the reversal, and Baby Veronica remains with her father in Oklahoma.
     Maldonado is represented by Thomas Tisdale of Hellman, Yates & Tisdale, of Charleston.

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