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Supreme Court History in 'More Perfect': Baby Veronica

This week's 'More Perfect' recap, our summer look at the interesting historical tidbits from NPR's new Supreme Court-themed podcast, focuses on the case that inspired the podcast in the first place: Adoptive Couple v. Baby Girl, or, as it's more often known, "the Baby Veronica case."

The case "puts one little girl at the center of a storm of legal intricacies, Native American tribal culture, and heart-wrenching personal stakes," according to the podcast. And while this episode is short on Supreme Court details (there are no suicidal justices or last minute death-sentence stays, for example), it does provide a detailed look into one of the Supreme Court cases that dominated the news just a few years ago. Let's dive in.

The Fight Over Baby Veronica

Baby Veronica began making headlines not too long after an Oklahoman woman decided to give her child, (that's the Baby Girl in Adoptive Couple v. Baby Girl) up for adoption to the Capobianco family (that's the Adoptive Couple), who name her Veronica. When Veronica was two, her biological father, who had never seen her before, sought custody of the child.

In most cases, a similar father would be out of luck. Veronica's biological father, after all, had signed away his parental rights. But the biological father in this case, Dusten Brown, is also a Native American, a member of the Cherokee Nation. Dusten sought under the Indian Child Welfare Act, a law that sought to keep Native American children with Native families, and to counteract the generations-long practice of removing American Indian children from their homes and placing them with non-Indian families.

Brown's battle with the Capobiancos eventually makes it to the Supreme Court, and to the front of pretty much every newspaper in America. It was one of the most famous custody dispute since King Solomon ordered a child to be cut in half and shared between its to purported mothers.

Historical Highlights From Episode Three:

American Indian Kids and the Law:

  • Though the Supreme Court decided Adoptive Couple v. Baby Girl in 2013, the conflict really stretches back at least to the 1960's, if not longer. In 1967, the Association on American Indian Affairs began fighting the practice of social services agencies taking Native American children from their families, often because those native families were not typical nuclear couples.
  • Children growing up on reservations would be warned that social services workers would "steal" them from their families. Some children were even taken without notice.
  • Bert Hirsch, then an attorney with the AAIA, eventually began researching how many American Indian children were in foster care or institutional placement and found that one-third of American Indian children were in out-of-home placement.
  • Hirsch's research led to years of lobbying, and eventually the Indian Child Welfare Act, or ICWA (pronounced ick-wuh.) ICWA establishes a placement preference for native children removed from their homes; immediate family come first, then another member of the tribe, then to any other American Indian. None-natives come last.

ICWA and Baby Veronica:

  • For many American Indian rights activists viewed ICWA as "the best federal Indian law every past," but what became known as the "Baby Veronica Case" threatened to upend that altogether.
  • At stake was not just Veronica's custody, not just the future of ICWA, but all of Indian Law. Should a court rule that ICWA was an unconstitutional, race-based law, almost all laws specific to Native American tribes could fall as well.
  • In fact, the Capobiancos weren't strongly opposed to ICWA. Melanie Capobianco, Veronica's adoptive mother, describes it as "a beautiful law that was put in to place to protect the breakup of families -- Indian families," but simply thought it shouldn't be applied to their particular situation. In their view, ICWA wasn't protecting a family, but breaking theirs up in order to create a new one.
  • One of their attorneys, who did oppose ICWA, Mark Fiddler, was himself a Native American. His opposition to ICWA was inspired, in part, after he opposed the adoption of a native girl out of her tribe -- and won. That girl ten "bounced in and out" of more than 20 foster homes.
  • Here's the kicker. Dusten, though a member of the Cherokee Nation, is only 2 percent native. To the Cherokee Nation, however, that's plenty; like U.S. citizenship, membership in the Cherokee Nation was a birthright, more or less, and not dependent on the percentage of native genes in your blood.

Veronica's Custody Battle

  • Veronica's father, Dusten, in fact, had waived his rights to the child, in order to avoid child support, even signing a form agreeing to the adoption. But Dusten claims that, after Veronica's biological mother, Christy, was pregnant, she cut off contact and refused support.
  • Though Veronica's adoption had been in the works for months, Dusten was informed of it only six days before he deployed. His attorneys argue that this was an attempt to sidestep ICWA, by informing Dusten but giving him no time to contest the adoption.
  • "More Perfect" spends little time on the actual Supreme Court case, but the outcome was a fairly limited ruling. In a 5-4 decision, the Supreme Court found in favor of the adoptive couple, the Capobiancos. It ruled that Dusten could not invoke ICWA because he lacked "continuing custody" of Veronica and had waived his rights in utero.
  • Eventually the Capobiancos were awarded custody. At that point, Veronica had lived with both families for almost the same amount of time.

Veronica became an encouraging little girl, but she would have been a pretty bad lifeguard. When NPR's Tim Howard tells her that he's a bad swimmer, she insists, twice, "No you're not. You're a good swimmer."

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