Decades-old federal act removes 2-year-old girl from only family she's known, but was that the law's intent?
Matt and Melanie Capobianco have spoken to their 2-year-old daughter only once in the week since a stranger put her in a pickup truck and drove 1,100 miles away.
BY THE NUMBERS:
0.9 Percentage of U.S. population classified as American Indian or Alaska Native
2.9 million People in the U.S. classified as American Indian or Alaska Native
$10.9 million 2012 federal budget request for the Indian Child Welfare Act
29 Number of distinct groups of Native Americans that once lived in South Carolina
19,524 People in South Carolina classified as American Indian or Alaska Native
0.4 Percentage of S.C. population classified as American Indian or Alaska Native
The James Island couple, unable to conceive after seven attempts at in-vitro fertilization, developed a close relationship with Veronica's biological mother and adopted the girl at birth. Veronica's biological father, a 30-year-old Oklahoma man named Dusten Brown, filed for paternity and custody after learning of the adoption four months later.
An adoption that began so simply immediately became complicated under a federal law applying to Native American children. It rarely comes into question in South Carolina but involves thousands of children and parents across the country.
Originally intended to preserve Native American culture and families, the law can tear apart adoptive families.
Brown is a registered member of the Cherokee Nation, and -- largely because of the Indian Child Welfare Act -- he won the custody case. After spending two years in court, Brown met his daughter for the first time in a Charleston law office on New Year's Eve.
The Capobiancos walked into that meeting with three bags of toddler-sized clothes and Veronica's most treasured toys. They walked out of it childless.
Brown's attoney, Shannon Jones, requested a court order to release the facts of the case which, she said, show "that the family court followed both state and federal law" in giving her client custody of Veronica.
"It is important to understand that the Indian Child Welfare Act was not used as a loophole in this action," Jones said.
She added that neither she nor Brown could discuss the case further because of confidentiality laws.
In a state with a distinct history of Native Americans and as many as 29 different groups, South Carolina now counts fewer than 20,000 Native American and Alaska natives among its more than 4.6 million people, according to federal data.
Here, the Indian Child Welfare Act rarely becomes relevant, yet the federal government pours millions of dollars into enforcing it each year.
The Bureau of Indian Affairs, an office of the U.S. Interior Department, requested nearly $11 million for the Indian Child Welfare Act for 2012.
Open to interpretation
Jim Abourezk, a former U.S. senator from South Dakota, authored the law. Reached by phone in Sioux Falls, S.D., Abourezk said the Indian Child Welfare Act began as a safety measure to keep outsiders from legally stealing children from their tribes.
In the 1970s, Abourezk said, social service agencies placed Native American children in foster homes and then adoptive homes without making a concerted effort to preserve their families first.
In the most common cases, he said, a Native American parent suffered from alcoholism. State governments often tore apart those families rather than working to rehabilitate the parents. The Indian Child Welfare Act required that a tribal court approve of the adoption before a non-tribe member took custody.
After reviewing Veronica's story, Abourezk called the law's interpretation in this case "something totally different than what we intended at the time."
"That's a tragedy," he said. "They obviously were attached to the child and, I would assume, the child was attached to them."
Representatives from the Cherokee Nation disagree with Abourezk. Chrissi Nimmo, assistant attorney general for the tribe in Tahlequah, Okla., declined to discuss specific cases but said the law seems tailor-made for a scenario of adoption without a parent's consent.
"I would argue that situation is exactly what the (law) envisioned," she said.
Nimmo added that to terminate the parental rights of an "Indian child," either by an adoptive parent or by a state agency, the person seeking custody must prove beyond a reasonable doubt that the child would suffer serious physical or emotional damage if returned to the biological parent.
The Cherokee Nation alone is tied up in about 1,100 active Indian Child Welfare cases involving some 1,500 children, Nimmo said. She said the law aims to place a child first with blood relatives and, in their absence, with a tribe member.
"We have Cherokee adoptive homes that are ready to take children who are ready for placement," she said, adding that those homes receive state certifications and also meet a cultural requirement.
The Cherokee homes trump outside adoptive homes, even adoptive homes selected by a birth parent and -- unlike Veronica's case -- even when the other parent doesn't fight the adoption.
Brandi Peterson, a woman from a small town in south-central Kansas, met her daughter's biological mother through a friend. The birth mother, a white woman with red hair, had become pregnant after a one-night stand with a man she met in a bar.
Just as Veronica's birth mother chose the Capobiancos, this woman chose Peterson and her husband, Gary, as adoptive parents for Journey.
To everyone's surprise, after Journey's birth in 2010, the Petersons learned that the Cherokee Nation planned to contest the adoption because of the biological mother's registration with the tribe.
The Petersons, with help from church friends, sifted through registries to try to find some Native American relatives in their extended families. They wound up in court.
"It was outrageous, because the birth mom chose us," Brandi Peterson said in a phone interview. "She didn't live on a reservation, and she has nothing to do with Indian culture."
The woman driving the case on behalf of the Cherokee Nation, adoption specialist Tiffany Dunaway, also testified in Veronica's case. She declined to comment for this story.
Brandi Peterson said her son, 11 years old at the time, faltered under the stress placed on his parents. His grades fell during the months that the case dragged on.
Each time the Petersons appeared before a judge, they brought their daughter's biological mother to speak on their behalf. The woman held firm on her decision, and the Cherokee Nation eventually consented to the adoption.
As part of the agreement, the Petersons registered their daughter with the tribe.
"She has an Indian card," Brandi Peterson said. "I'm sure, when she gets older, she'll realize what we went through."
A full-blooded Chippewa and his wife started the group that most publicly fights perceived injustices from the Indian Child Welfare Act.
Roland Morris, who died in 2004, grew up drawing maple sap from trees and speaking only Ojibwe until age 5. He separated from the tribe as an adult, married a woman named Lisa and became a Christian.
The couple first became involved politically in the mid-1990s, when the law removed a 5-year-old Idaho boy from an adoptive home and placed him with a Native American relative.
"What really struck me in my heart, at that time, is I was a non-tribal mother," Lisa Morris said in a phone interview from her home in North Dakota. "My children were 50 percent Indian. I thought, 'What if something happened to me and Roland? Would my wishes matter?' "
Around the same time, she and her husband received custody of his four grandchildren under the Indian Child Welfare Act. Living in a trailer with their own five children already, the couple put two kids to a bed and even converted a small closet into sleeping quarters.
"I knew it wasn't adequate, but I also knew the other options because of (the law)," Morris remembered. "So we struggled through it."
The couple launched a website for their Christian Alliance for Indian Child Welfare, and Roland traveled to Washington to meet with lawmakers. Desperate parents searching online found the couple and sought their advice.
Now, alone in her battle but for the assistance of some board members around the country, Morris said she helps people caught in Indian Child Welfare cases with prayer, emotional support and, when she can, connections to legal experts.
"It's the most racist type of language, and everyone is pretending it's OK," Morris said. "So many people are worried about being politically incorrect that they don't want to come out and say anything."
Here and now
Quiet and stillness nag Matt and Melanie Capobianco.
They wonder, with each day, what Veronica's doing and how she's feeling in a new home so far away. After that first rushed phone call, the couple mailed their daughter a letter with stickers and family photos.
"Her toys and clothes and pictures that are everywhere in our home are painful reminders that she's not here," Melanie said. "But we're not moving anything, because we know she is coming home."
The Capobiancos plan to take their daughter's case to the state Supreme Court where, yet again, a judge would weigh the merits of the Indian Child Welfare Act with Veronica in the balance.
Reach Allyson Bird at 937-5594 or Twitter.com/allysonjbird.