I mentioned before that while I agree with Walter Olson that specific cases can be distracting, they’re also valuable to illustrate how ICWA’s bland and abstract phrases really work in practice. That’s why we’ve mentioned cases like the Lexie, case, the Veronica case, the T.A.W. case, and others. These stories are important, and Professors Fletcher and Carpenter have given us their versions of the Lexi and Veronica cases, so I want to look at them with an eye to the principles they dramatize.
But first let’s consider another case: that of Kiyo Sato. Sato was born in the same state where I was born, California, and she grew up in my former hometown, Sacramento. She even went to my alma mater, Hillsdale College. Like me, she’s an American citizen, whose rights are guaranteed by the Constitution. But in 1942, the federal government decided to subject her to a different set of rules—rules that didn’t apply to my family—solely because she had Japanese ancestry. She was sent to live at the Poston Internment Camp.
Biology was the only difference between her and me. And the government decided that it was the difference that mattered. She still remembers the shock her family felt. “Doesn’t [FDR] understand that we are loyal American citizens? Doesn’t he know what he is doing to…all of us with more than 1/16 Japanese blood[?]… How can he do this to his own citizens?”
But the federal government decided that political affiliation followed a person’s biological ancestry, and it imposed a blanket presumption on people of that ancestry, depriving them of the due process right to be regarded as an individual. Sato recalls lying in bed “feeling stripped like a non-person, like a dandelion puff at the mercy of every waft of air. We go wherever we are sent. We do whatever we are told to do.”
When the Supreme Court considered Japanese-American internment, it remarked that “[d]istinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality,” and that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect.” This was the origin of the “strict scrutiny” test that today applies when government imposes different rules on people based on race (although, sadly, the Court upheld the discrimination in that case).
What Korematsu teaches us—and what the awful history of American Indian policy teaches us—is that it’s wrong for Washington, D.C., to dictate its vision of what’s best for people based on race.
ICWA equates biological ancestry with political status, and apportions rights and restrictions accordingly. Its separate and substandard rules are based on the theory that children are tribal “resources” because of their genes. That’s the word it uses: “resources,” like trees, coal—or dandelions.
I do not deny the validity of tribal sovereignty. Tribal governments deserve as much respect and responsibility as any other government. But when tribal sovereignty conflicts with the rights of individuals, individual rights must prevail. What James Madison said of state sovereignty is equally true of tribal sovereignty: “Was, then, the American Revolution effected…not that the people of America should enjoy peace, liberty, and safety, but that the government…might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty?” he asked. “[T]he public good, the real welfare of the great body of the people, is the supreme object to be pursued; and…no form of government whatever has any other value than as it may be fitted for the attainment of this object…. [A]s far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter.” Nothing should take priority over a child’s individual best interests. And American Indian kids are citizens of the United States; federal and state governments owe them a duty of protection that must trump any show of “respect” to another sovereign.
Now let’s look at the Lexi case. Born in 2009 to a drug-addicted mother and a father with an extensive criminal history, Lexi’s only connection to the Mississippi Choctaw tribe is biological. Her father wasn’t even aware that he was a tribal member until after Lexi was placed in foster care. She thrived with her foster family, came to call them “mommy” and “daddy,” and to regard their other children as her siblings.
Were her ancestry Japanese like Sato’s, it would have been possible for her foster parents to seek adoption. But because her great-great-great-great grandfather was Choctaw, she was subject to ICWA. That made her a dandelion. It meant the state had to engage in “active efforts” to reunify her with her father, which failed in 2012 when the father, released from prison, decided he was no longer interested. At that point, the tribe was given power to order her placed with her step-grandfather—a non-blood relative with no Indian heritage, who lives in Utah—which the tribal government deemed “extended family.” (It’s not true that placement with the Utah family was the plan all along, as many have claimed.)
Lexi’s foster parents then asked the court not to apply ICWA—which is allowed if a court finds “good cause.” But ICWA doesn’t define “good cause.” Nobody claims the Utah family was unfit, but the trauma of separating Lexi from the family she’d lived with for two thirds of her life, and called her “mommy” and “daddy,” should certainly have counted. Yet the court-appointed lawyer for Lexi argued that the judges should not consider her individual best interests, and refused to tell the court whether she wanted to be sent to Utah. And thanks to her racial ancestry, the court ordered that Lexi be removed in compliance with the wishes of the Choctaw tribal government. The separation would be traumatic, the court said, but the evidence “did not reach to the level of certainty that [she] would suffer extreme detriment.”
In other words, she’ll get over it.
The foster parents appealed, but that court affirmed—and its wording illustrates the callous racism by which ICWA treats children like dandelions, rather than people: It declared that courts “should take an Indian child’s best interests into account as one of the constellation of factors.” For kids of other races, of course, the child’s best interest is the overriding consideration. “When the best interests of an Indian child are being considered,” the court continued, “the importance of preserving the child’s…cultural connections often cannot be separated from other factors.”
Cultural connections? Lexi has no cultural connection to the tribe. Her only connection is genetic. As the Chippewa author David Treuer writes, “you can’t measure culture by percentages of blood.” Once again, we see the implicit equation of genetics with loyalty—and a separate legal system based on biology—one that treats children as non-persons.
There are many misconceptions about the Lexi case, but the point here isn’t to decide who should have custody. Maybe it really is in her best interest to move to Utah. But if so, why not use the same best interests test that applies to all other kids? And what could ever justify including race as one of the “constellation of factors” that applies to a child welfare case?
Finally, Veronica. A reader could be forgiven for coming away from Prof. Carpenter’s version of the story thinking she’d been kidnapped from loving parents and whisked off to oblivion by heartless Supreme Court vultures. The facts are quite otherwise.
Veronica was born to an unmarried couple in 2009. Her mother, Christy Maldonado, chose to break off the relationship with the birth father, Dusten Brown, who was Cherokee, before Veronica was born. Veronica wasn’t Brown’s first child; he had a 6-year-old from a previous relationship, and he paid child support for that child, but only after he’d fallen $11,000 in arrears and a court ordered him to pay. And he refused to provide financial assistance to Christy, or accompany her to doctor visits, or even return her calls. As Justice John Kittredge of the South Carolina Supreme Court wrote, “[t]he reality is Father purposely abandoned this child and no amount of revisionist history can change that truth.” Brown even testified that he was happy to give up his parental rights as long as Christy agreed to raise the child on her own.
That was something she couldn’t do. Already a single mother of two, she made what she called the hardest decision of her life: to put Veronica up for adoption. She asked Brown if he would give up his parental rights and he said yes. After that, he had no contact with Christy and contributed nothing to Veronica’s care.
Nobody disputed that Veronica’s adoptive parents would take good care of her. Melanie Capobianco had a Ph.D. in psychology, and Matt was mechanic at Boeing. They became close with Christy, helped her financially, and were present at Veronica’s birth. Fearful that ICWA would block the adoption, Christy was reluctant to mention Brown’ Cherokee citizenship, and due to a paperwork error and a mistake by Brown’s lawyer, it was initially thought that Veronica lacked Native American blood. When Brown received the adoption paperwork, he signed a statement that he was not contesting the adoption.
Only in March of 2010, months after Veronica’s birth, did the tribe confirm Brown’s membership and intervene in the case. The trial court then applied ICWA and ruled that the Capobiancos hadn’t met the separate standard ICWA imposes. That standard required them to take “active efforts” to “reunite” Brown and Veronica—even though the Brown and his daughter had never been “united” to begin with. In fact, the South Carolina Supreme Court, ruling for Brown, declared that it the Capobianco had to “attempt to stimulate [Brown’s] desire to be a parent” before they could adopt Veronica.
This halted the adoption. Decisions about Veronica’s future would not be made by her mother, Christy, or by her caring adoptive family, the Capobiancos, as would have been the case if Veronica were white, or black, or Hispanic, or Asian. Instead, her fate would be decided by an Indian tribal government, because of her genetics. “I could not believe that, after disappearing on us, [Brown] was trying to derail the family I had worked hard to give to my daughter,” said Christy. “Why should a man who said he wanted no responsibility for his baby have more rights than I did just because he belonged to a tribe?”
When the case was appealed to the Supreme Court, the justices didn’t address the constitutional questions directly—although they expressed concern that ICWA could allow “a biological Indian father [to] abandon his child in utero and refuse any support for the birth mother…and then…play his ICWA trump card at the eleventh hour to override the mother’s decision and the child’s best interests.” Such a possibility would likely cause prospective adoptive parents to “pause before adopting any child who might possibly qualify as an Indian.” This race-based handicap, the Court noted, “would raise equal protection concerns.”
The Court ruled that ICWA didn’t apply in the first place because it only applies to prevent “the breakup” of an Indian family—and no “Indian family” existed when Veronica was born, since Brown had already abandoned her. That meant there was no Indian family to be broken up. ICWA’s “active efforts” requirement is “sensible…when applied to state social workers who might otherwise be too quick to remove Indian children from their Indian families,” the Court noted, but it would be odd to apply it
in the context of an Indian parent who abandoned a child prior to birth and who never had custody of the child. The decision below illustrates this point. The South Carolina Supreme Court held that [ICWA] mandated measures such as “attempting to stimulate [Brown’s] desire to be a parent.” But if prospective adoptive parents were required to engage in the bizarre undertaking of “stimulat[ing]” a biological father’s “desire to be a parent,” it would surely dissuade some of them from seeking to adopt Indian children. And this would, in turn, unnecessarily place vulnerable Indian children at a unique disadvantage in finding a permanent and loving home, even in cases where neither an Indian parent nor the relevant tribe objects to the adoption.
The ruling meant the Capobiancos could adopt Veronica. She didn’t vanish off the earth—she wasn’t blown away like a piece of fluff. She was placed with a family that loves her and takes good care of her—just as her mother wanted, and as her father once agreed.
It’s not an ideal situation—these cases never are. But it’s an outcome that promises the best for Veronica as an individual—as she deserved to be treated; as Kiyo Sato and Lexi and you and I deserve to be treated—instead of as a fungible member of a racial group, as a mere “tribal resource,” or as a dandelion seed, to be blown wherever she’s sent.