WASHINGTON - A Cherokee girl will stay with her biological father after the United States Supreme Court upheld the Indian Child Welfare Act (ICWA). But that could change if a South Carolina court finds that he never established his parental rights.
At the center of the case is a little girl named Veronica. Her father, Dusten Brown, is Cherokee and according to the Cherokee nation, so is his daughter. But he was estranged from the mother and he never had custody of Veronica before the court placed her with Brown.
When the mother put Veronica up for adoption, Brown contested the adoption on the grounds that he was not properly notified in accordance with ICWA and he won his case in trial court and on appeal with the state supreme court. The courts in South Carolina said that Brown's paternity was established and Veronica was taken from the presumptive adoptive parents, Matt and Melanie Capobiancos, and placed in Brown's care.
Both a South Carolina trial court and appeals court ruled that Brown could keep the child before the Capobiancos's adoption was final.
Tribes across the nation were concerned that a sweeping decision against the ICWA because of racial preference could have hurt the ICWA along with all federal laws that hold Native Americans in a different category than others.
Navajo Nation President Ben Shelly said the high court's split 5-4 decision limited, but did not eliminate the Indian Child Welfare Act.
"The Navajo Nation continues to support Dusten Brown and the Cherokee Nation as this important case returns to South Carolina," Shelly said.
In their decision, the Supreme Court said that the heightened standard for proof of termination of parental rights does not apply when a parent has never had prior legal or physical custody. They also found that active efforts to comply with ICWA to not break up an Indian family do not apply when a parent abandons a child before birth and again has never had legal or physical custody of a child.
The U.S. government enacted ICWA in 1978 because of the high number of Indian children public and private agencies removed from their Indian homes. The act gives relatives of the children and the tribes a say in what happens to Indian children. The act was designed to preserve Indian culture and heritage.
"Some who fiercely assert the evils of ICWA contend that all children should be treated equally and therefore ICWA should be dismantled," said Terry Cross, executive director of the National Indian Child Welfare Association. "This argument sounds reasonable to those unfamiliar with the long history that led to ICWA's passage. At that time 25-30 percent of all American Indian children were removed from their homes... 80 percent were placed, often permanently, in white homes."
Jefferson Keel, president of the National Congress of American Indians, said in a statement the decision sends a clear message that there is no question of ICWA's role as the most important law to protect Native children and families.
"The decision also affirms Congressional authority to protect Indian children," he said. "While we are pleased the court has upheld ICWA, we're very disappointed for Dusten, Veronica and the Brown family that the court has ruled to send the case back to the South Carolina courts on a technicality. However, the courts in South Carolina have previously affirmed that Dusten Brown is Veronica's father and that he is a fit parent. We are confident that his parental rights will be upheld and that Veronica will stay with her family..."