Native American Legal Update

Supreme Court To Decide ICWA Adoption Case

The U.S. Supreme Court will hear arguments in a custody battle involving the adoption of a 3-year-old Cherokee girl, in a case involving the Indian Child Welfare act and the rights of non-Native adoptive parents. The justices announced they will hear an appeal from Matt and Melanie Capobianco, who legally adopted baby Veronica in 2009, shortly after the birth mother agreed to an adoption. The biological father Dusten Brown, who had sought custody shortly after the child's birth, is a registered member of the Cherokee Nation in Oklahoma. Mr. Brown had earlier signed a legal document agreeing to put the girl up for adoption, but his attorneys assert he did not understand the extent of the waiver, and that the birth mother misrepresented the child's Native American heritage to social service workers when the adoption was finalized.

The Indian Child Welfare Act (ICWA) of 1978 was designed to "promote the stability and security of Indian tribes and Indian families by the establishment of minimum federal standards to prevent the arbitrary removal of Indian children from their families and tribes and to ensure that measures which prevent the breakup of Indian families are followed in child custody proceedings." Brown's membership within the "federally recognized government" of the Cherokee Nation means Veronica is also a member of the Nation. "It's not anyone's intent ever to rip a child away from a loving home," said Todd Hembree, the Tahlequah, Oklahoma-based tribe's attorney general. "But we want to make sure those loving homes have the opportunity to be Indian homes first."

The Capobiancos argue that Veronica's proper home is with them. "Veronica was always a part of our home from birth and we just felt like she was in a happy place and that those kinds of needs could have been met through us," Melanie Capobianco said. "I just don't think that was what Congress was thinking about when that Act was passed."

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