The U.S. Supreme Court sided with a South Carolina couple in a child custody battle over a girl of Native American descent known as “Baby Veronica.” In the next-to-last day of its term, the court decided 5-4 that the federal law her Cherokee biological father had used to gain custody did not apply. The decision sends the case back to lower courts, where Veronica’s prospective adoptive parents will continue to battle to get back the girl they raised for the first 27 months of her life.
In January, 2010, Veronica’s birth mother, Christina Maldonado, learned she was pregnant. She was engaged to the father, Dusten Brown, but later called off the marriage. In a text message, Brown told Maldonado he would not pay child support and would rather give up his parental rights. Maldonado decided she would put the baby up for adoption.
Melanie and Matt Capobianco, a married South Carolina couple, were unable to conceive a child. They met Maldonado through an adoption agency while she was still pregnant. They helped her with medical expenses and were present during her delivery. They named the baby Veronica and brought her to their Charleston home while the legalities of the adoption proceeded.
When Brown heard that his daughter had been placed for adoption, he immediately filed suit to halt the adoption, citing the Indian Child Welfare Act. The ICWA is a 1978 federal law that places tough restrictions on ending an Indian’s parental rights in order to discourage those not in the tribe from adopting Indian children. It was created to end what lawmakers saw as a practice of improper removal of Indian children from their families.
The South Carolina Supreme Court granted Brown custody of Veronica, and on New Year’s Eve, 2011, the Capobianco’s handed her over, aged 27 months. Since then, she has lived with Brown and his new wife in Oklahoma.
Writing for the majority, Justice Samuel Alito said the ICWA does not require granting Brown custody. Concurring, Justice Clarence Thomas questioned the constitutionality of the law, although the ruling does not strike it down.
“Nothing in the Indian Commerce Clause permits Congress to enact special laws applicable to [Brown] merely because of his status as an Indian,” Thomas wrote. “Because adoption proceedings like this one involve neither ‘commerce’ nor ‘Indian tribes,’ there is simply no constitutional basis for Congress’ assertion of authority over such proceedings.”
Dissenting, Justice Sonia Sotomayor said the majority ignored the intent of the ICWA, which was to discourage adoptions outside tribes.
“The majority may consider this scheme unwise,” Sotomayor wrote. “But no principle of construction licenses a court to interpret a statute with a view to averting the very consequences Congress expressly stated it was trying to bring about.”
Now, South Carolina judges will continue to decide the fate of a little girl who has already left one home and will likely soon leave another.