Doing What’s Best for the Tribe
Two-year-old “Baby Veronica” was ripped from the only home she’s known. The court made the right decision.
Although it has been decades since these policies of forced assimilation ended, the effects continue to be felt. A century of removing American Indian children wreaked havoc on Native American families and tribes. Even after the passage of ICWA, the percentage of American Indian children in foster care and placed for adoption remains astonishingly high. American Indian families and tribes are struggling to recover from the devastating history of forced removal, but such recovery is impossible if they continue to lose their children. Congress recognized this struggle and intentionally drafted ICWA to cover both the involuntary removal of American Indian children from American Indian families and the voluntary placement of American Indian children outside of American Indian families. Congress understood that in order to ensure a tribe’s control over its children and its future, ICWA must also apply to voluntary placements.
Under ICWA, Veronica is a Native American child, and her Native American heritage was neither a secret nor a surprise. Everyone involved in Veronica’s adoption was aware she was American Indian and that this could complicate the adoption, even though it was voluntary. The U.S. Supreme Court affirmed this understanding of ICWA in 1989 in Mississippi Band of Choctaw v. Holyfield, its first and only ICWA decision. Holyfield involved a pregnant Choctaw mother who wished to place her unborn twins with a non-Native American couple. Although the mother lived on the Choctaw reservation, she specifically left the reservation to give birth in the hope that this move would make ICWA inapplicable to her children’s adoption. Despite the mother’s significant efforts to avoid tribal jurisdiction and control her children’s adoptive placement, the court held that the placement decision remained the tribe’s. The decision further explained that the tribe’s right to its children and an American Indian child’s right to grow up American Indian outweighed individual tribal members’ rights to place their children for adoption outside the tribe. The court understood that permitting voluntary adoptions to bypass ICWA’s requirements could defeat the entire purpose of the act.
As the Holyfield decision made clear, even in voluntary placements, the child’s tribe must be notified and ICWA’s placement preferences followed. Thus, when an American Indian child is available for adoption, preference is first given to a member of the child’s extended family, second to other members of the child’s tribe, and third to other Native American families. Only after such placement preferences have been exhausted may nonnative adoption be considered. This process did not happen in Veronica’s case, so her adoption was a clear violation of ICWA. It should never have happened, but the situation is heart-wrenching because despite the inappropriateness of her adoption, placement did occur and lasted for two years. Nonetheless, if the passage of time were enough to defeat ICWA, then the requirements of the act could simply be avoided by delay and obfuscation.
The Capobiancos are now hoping to petition the U.S. Supreme Court and Congress to amend ICWA, and as parents, their actions are understandable. However, the remedy they seek would be disastrous for American Indian tribes. Through congressional amendment or Supreme Court decision, the Capobiancos hope to reduce tribal control over American Indian child adoptions and revive the “existing Indian family exception” to ICWA. This doctrine is a judicially created exception that courts have used to avoid the application of ICWA in cases where the court determines the child is not part of a sufficiently American Indian family. The idea behind the exception is that in cases involving American Indian children who have never been part of an American Indian home, such as children placed for adoption at birth, ICWA should not apply because there is no “Indian family” being destroyed by the adoption. The problem with this exception is that it ignores the fact that ICWA was passed not simply to preserve specific American Indian families but to protect the tribe’s interest in the adoption of American Indian children as well. As the court held in Holyfield, ICWA is “a means of protecting not only individual Indian children and their families, but also of the tribes themselves.” Although this exception, first introduced in 1982, was initially embraced by many states, the doctrine has now been almost universally rejected. Courts rejecting the exception understand that without ICWA, the future of American Indian tribes is imperiled.
Veronica’s case is deeply troubling, and our hearts should go out to all involved, but the problems it highlights are not problems with ICWA. Rather, her case reveals the problems with ignoring ICWA. This case agonizingly demonstrates the importance of observing ICWA’s placement and termination procedures in order to prevent impermissible adoptions from occurring and then being invalidated later. Everyone involved in Veronica’s adoption knew she was an American Indian child, and if the ICWA requirements had been followed, Veronica would not have been placed with the Capobiancos in the first place. It was because of this mistake that Veronica was 2 years old rather than an infant when she was reunited with her father. The lesson from Veronica’s case is not that ICWA is some obscure loophole that should be closed. Rather, the ongoing court battle demonstrates that ICWA is a pivotal piece of American Indian legislation that cannot be ignored without traumatic consequences.
Marcia Zug is an associate professor of law at the University of South Carolina School of Law, where she specializes in family and American Indian law.