A dozen mothers, including the woman who gave birth to 3-year-old Veronica, want U.S. Attorney General Eric Holder to declare that certain parts of the Indian Child Welfare Act are unconstitutional.
Provisions of the ICWA give preference to an American Indian family in the adoption of an Indian child, even if the two are not related. Filed Wednesday in U.S. District Court in Charleston, the mothers’ complaint alleges that the federal law violates equal protection provisions of the Fifth Amendment by factoring in race.
The lawsuit, which asks Holder and the federal government to make a “declaratory judgment,” likely will not affect the dispute over Veronica. It’s instead designed to allow other mothers to decide their children’s fates.
Government agencies, however, have long defended the ICWA as necessary to ensure Indian cultures’ survival. Courts also have guarded that intent.
“These women have filed this lawsuit in order to protect their rights ... to choose fit and stable adoptive placements for their birth children,” Lori Alvino McGill, the Washington attorney for Veronica’s mother, said, “and to protect the constitutional rights of their children to be treated like all other children.”
Charleston attorney Thomas Tisdale filed the complaint, but he declined to comment.
The suit also names as a defendant the Cherokee Nation, which has battled to keep Veronica with her father, a tribal member in Oklahoma.
Amanda Clinton, a spokeswoman for the tribe, said the ICWA isn’t about race. It was enacted in 1978 to stop the forceful removal of children from their Indian communities.
“It’s about sovereign tribal nations determining the placement of their citizens,” she said. “Just like Oklahoma has jurisdiction over how its children are adopted or placed into foster care, Cherokee Nation and other tribes have the same jurisdiction over their citizens.”
The government must respond to the suit within 60 days. If lower courts strike down the ICWA provisions, Alvino McGill said the case could end up in the U.S. Supreme Court in a few years.
Much of the filing was based on Christy Maldonado, the Oklahoma woman who gave Veronica up for adoption in 2009. The complaint stated that she has the right to decide who her child lives with: Matt and Melanie Capobianco of James Island.
Veronica’s biological father, Dusten Brown, a Cherokee Nation member, used the federal law to halt the Capobiancos’ adoption and get custody of Veronica in late 2011. Veronica’s blood makeup was said to be 3/256th Cherokee Indian.
But the U.S. Supreme Court overturned South Carolina courts’ opinions that Brown could use the ICWA to claim the child even though he had never been in her life.
Loved ones of Brown have since filed petitions to adopt Veronica, claiming that the ICWA should afford them an advantage.
When the U.S. Supreme Court ruled 5-4 on Veronica’s case, only one justice said the ICWA was unconstitutional. Clarence Thomas thought it was “absurd” that Congress could tell states to change their custody laws because a child has Indian blood.
Joining Maldonado in the suit are 10 unnamed women and Samantha Danielle Lancaster of Minnesota, who identified herself as white but thought she might be 1/64th Cherokee.
Her daughter, Abigail Arlene Lancaster, was born June 19. Lancaster and the girl’s non-Indian father found a couple to adopt Abigail, but the Cherokee Nation may block the adoption because of the infant’s suspected Indian heritage, according to the suit.
Chrissi Nimmo, assistant attorney general for the Cherokee Nation, disputed Lancaster’s account. Nimmo said Lancaster told an adoption agency that she is Cherokee, so the agency reached out to the tribe to determine whether the ICWA applied.
But Lancaster isn’t an enrolled member of the tribe, Nimmo said, so the ICWA would not be invoked.
The women’s suit also said the ICWA runs contrary to state laws requiring that custody be determined by a child’s best interest.
“But there is no federal interest,” the mothers stated, in halting a birth mother’s “state-law right to secure a fit and stable adoptive placement for her birth child and delegating that decision to a legal stranger (a tribe), on the basis of the child’s ancestry.”
They based their argument on due process rights of the Fifth Amendment. It was used earlier this year to have the federal Defense of Marriage Act overturned because of its bias involving sexual orientation.
In Veronica’s case, the S.C. Supreme Court again ruled this week that a Charleston County Family Court judge should finalize the Capobiancos’ adoption. It’s not known when that will happen, though it’s likely to play out next week.
Shannon Jones, an attorney representing Brown in Family Court, said the civil suit is critics’ latest attempt to upend the ICWA after the U.S. Supreme Court dealt it a blow last month. She said the adoption industry also has a financial stake in tapping a “pool of babies” to satisfy the demands of families looking to adopt.
“They’re going to launch every attack against ICWA that they can,” Jones said. “But there’s a ... requirement to protect Indian nations and guarantee their survival.”
Reach Andrew Knapp at 937-5414 or twitter.com/offlede.