Whose Kid is She? Adoption, Culture, and the Indian Child Welfare Act

 In 2013 the politics of adoption were front and center. Melissa Harris-Perry’s “What’s So Funny About 2013?” segment that poked fun at Mitt Romney’s Black adopted grandson and the launch of Land of a Gazillion Adoptees magazine exploded the myth that adoption is a private individual or family issue. But it was the Baby Veronica case that grabbed headlines and riveted the nation with a familiar storyline pitting wealthy suburban adoptive parents against a deadbeat dad who used an “outdated law” to rip a child from the only home she knew. Sadly, the Baby Veronica case also poignantly illustrates a national amnesia surrounding the sovereignty status of American Indian communities and the almost routine and forced removal of a large number of Native children from their tribes before the passing of federal Indian Child Welfare Act (ICWA) of 1978.

The ICWA not only sought to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families” (25 U.S.C. § 1902) but to ensure the possibility of the continuation of nations, languages and communities. The ICWA is not just about individual children but the continuation of the tribal culture. In the aftermath of colonization, Indian Boarding Schools and assimilation campaigns—the right to raise one’s children is a crucial part of maintaining cultural identity, and to prevent cultural genocide.

In September 2013, Dusten Brown, an enrolled member of the Cherokee Nation, lost custody of his young daughter to Melanie Duncan and Matthew Capobianco of South Carolina. The lengthy court battle started in the Supreme Court of South Carolina, where the Adoptive Couple v Baby Girl ruling awarded parental rights to Brown. The Caponiancos appealed this decision in South Carolina, where they lost again. In June 2013, the Federal Supreme Court overturned the ruling giving custody of Baby Veronica to the Capobiancos. The Supreme Court’s disregard of the ICWA based on the fact that the father never had custodial rights of his daughter, illustrates how the Court, intentionally or not, missed the point of the creation of the ICWA. The larger public stakes of the case became a political battle over tribal rights and Capobiancos desire to “bring their child home again.”

The mainstream media has consistently woefully misrepresented the ICWA.  Far from Matt Capobianco’s statement on Dr. Phil in June 2013 that “the Child Welfare Act is destroying families,” Native American news outlets and communities clearly argued that the struggle over Baby Veronica was a part of a longer historical fight for Native children’s rights to their cultural identity and the continuation of a tribal identity. The ICWA was instituted in response to a long history of Native children removed from their homes by private and public agencies—not only destroying families but also the continuation of Native ways of life.

As this debate shows, kids are not just loose actors—they are persistently tied to community and nationhood. The legal battle over Baby Veronica, poised only as a father using the system to destroy the Capobianco family, disregards a child’s right to her cultural practices and ignores the larger legacy of who can and can not raise their own children.