JUSTICE SCALIA: Your — your argument assumes that the phrase in the statute "to prevent the breakup of the Indian family" only applies where -where the father has custody. I don't — I don't know why that should be true. If — if that's what Congress meant, they could have put it much more narrowly. They had a very broad phrase, "to prevent the break up of an Indian family." And this guy is — is the father of the child –
MS. BLATT: So he –
JUSTICE SCALIA: — and they're taking the child away from him even though he wants it.
MS. BLATT: Okay. But when you –
JUSTICE SCALIA: And that — that is not the breakup of — of an Indian family?
On a day that began with prayer vigils and ceremonies on the Supreme Court steps by American Indian organizations in a show of support for the Indian Child Welfare Act, the nation's highest Court today heard arguments in Adoptive Couple v. Baby Girl. The bitter dispute over custody of “Baby Veronica,” between Dusten Brown, her biological father of Native descent, and an a pre-adoptive couple from South Carolina came to a head today as legal teams for both sides made their cases before the justices in what has become perhaps the most contentious and important Indian law case in decades.
At issue before the Court: First, whether a non-custodial parent can invoke the Indian Child Welfare Act of 1978 (ICWA), to block an adoption; and second, whether ICWA defines “parent” to include an unwed biological father who has not complied with state law rules to attain legal status as a parent.
By now, the story is well-known: Brown and the girl's birth mother, Christie Maldanado, were engaged at the time of Veronica's conception, but Maldanado broke off the engagement and cut off all contact with Brown in the final months of her pregnancy. Subsequently, Maldanado waived her parental rights and put Veronica in pre-adoptive placement in South Carolina with Matt and Melanie Capobianco three days after her birth.
Brown, who was never notified of the child's birth, was served notice of the birth mother's intent to place the child for adoption four months later by a process server in a Wal-Mart parking lot. Immediately, Brown went to court to request a stay of adoption until he returned from deployment in Iraq.
Thus began one of the most contentious, litigious and expensive custody battles in U.S. History.
“It's a case that's going to interpret ICWA, and it's going to impact everyone involved in the Act,” said John Echohawk, Executive Director of the Native American Rights Fund. “That's one part of it, but also possibly how it implicates all laws that involve Indians.”
A point of fact: Veronica was never adopted by the Capobiancos. The hearing before the Court today is a final attempt by the couple to reverse an adoption denial by both the South Carolina Family Court and a later ruling affirming the parental rights of Dusten Brown by the South Carolina Supreme Court. Veronica has since that time been under the custody of her father, who has since married, for over a year.
“We're optimistic,” said Chrissi Nimmo, Assistant Attorney General of the Cherokee Nation, who attended the hearing with Dusten Brown and his legal team. “The court was obviously familiar with the case and very engaged, I don't think anyone heard a question that was not expected and that we didn't prepare for. The court was equally hard on both sides but they also understood what was at stake on both sides. We were concerned about the extremely negative and untruthful media reports about this case and how this may affect members of the Court. But it was clear that it did not. They were applying the law to the facts.”
John Nichols, one of the South Carolina attorneys representing Brown, said that this is the first case he's been involved with that reached oral arguments.
“It was apparent to me, with the exception of Thomas, who never speaks, that they were all informed and they were thinking about the issues,” said Nichols. “It was a hot bench. They were interrupting the lawyers on both sides to the point where justice Roberts had to stop them.”
For Nichols and the legal team representing Brown, this case was more than just another custody dispute.
“Since early on, the legal team working for Mr. Brown have all been working pro bono on this case,” said Nichols, who argued the case before the South Carolina Supreme Court. “We are all dedicated to the right side of the law and there's no doubt in our minds that we are on the right side of this case. I always say that I never want a client of mine to lose because they have been outspent. The volunteer efforts by the entire team have been very gracious.”
And although only one hour was allotted for both sides to make their argument, Nimmo said there were also unanswered questions that still sit before the Court.
“There were parts of the case that weren't addressed that we know will be addressed in the opinion,” said Nimmo. “That's the nature of oral argument. But we are confident that this will turn out in our favor.”