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Birth mother of 'Baby Veronica' contests constitutionality of Indian Child Welfare Act

July 25, 2013

Tulsa World - July 25, 2013

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Filing a federal lawsuit with several other women who have given up children for adoption, Baby Veronica’s birth mother wants part of the Indian Child Welfare Act declared unconstitutional.

The U.S. Supreme Court decided last month that the federal law didn’t automatically give Veronica’s biological father custody of her.

But the court didn’t strike down the ICWA itself, which generally gives tribal members preference in taking custody of Indian children.

“These women have filed this lawsuit in order to protect their rights, otherwise respected under state law, to choose fit and stable adoptive placements for their birth children,” said Lori Alvino McGill, their attorney in Washington, D.C. “And to protect the constitutional rights of their children to be treated like all other children, irrespective of an accident of heritage,” she continued.

Although it wasn’t made public until Thursday, the lawsuit was filed Wednesday in South Carolina, naming both the U.S. government and the Cherokee Nation as defendants.

“ICWA is tied to tribal citizenship, not race,” said Chrissi Nimmo, the tribe’s assistant attorney general.

“Just like all 50 states are able to have a say in the adoptions of their ‘citizen’ children, ICWA allows tribes, as governments, to have a say in the adoption of their ‘citizen’ children.”

While motivated partly by Baby Veronica’s custody battle, this lawsuit is an entirely separate case and won’t have any impact on it, McGill said.

Christy Maldonado agreed to join the lawsuit before the state Supreme Court of South Carolina decided last week to take custody of her daughter away from her ex-fiance.

Maldonado broke off her engagement with Dusten Brown after the pregnancy began.

Brown accuses her of rebuffing his efforts to see the baby and refusing his offers to help financially.

She arranged a private adoption with Matt and Melanie Capobianco and invited them to Oklahoma for the birth.

Veronica was 4 months old and already living with the Capobiancos in South Carolina when Brown says he found out about the adoption.

He had agreed to give custody to the birth mother, but he never intended to give up his daughter for adoption, Brown says.

“I am not a deadbeat dad. I did not abandon my daughter,” Brown wrote in an op-ed article for the Tulsa World this week.

“I have loved her and wanted her since the moment I knew she was to be my daughter.”

As a member of the Cherokee Nation, Brown argued that the ICWA gave him preference in the custody dispute.

And South Carolina courts originally agreed with him, taking Veronica away from the adoptive couple and giving custody to him in December 2011.

The U.S. Supreme Court overturned that decision last month, sending the case back to South Carolina to be reconsidered.

Now that the state Supreme Court of South Carolina has awarded custody back to the Capobiancos, Brown and the Cherokee Nation have threatened to take the case back to federal court.

Nearly 4 years old now, Veronica remains in Nowata, an hour north of Tulsa, with the Brown family.

In the lawsuit against the ICWA, other plaintiffs include Samantha Lancaster, described as “a young birth mother who identified herself as Caucasian but believes she may be 1/64th Cherokee.”

Her daughter was born June 19, and Lancaster arranged an adoption with parents who agreed to give her visitation rights.

“The Cherokee Nation has taken the position that it may deem her child a member of the nation solely on account of a trace of Indian blood,” said McGill, the attorney, “even though no parent has ever had any tie to any tribe, nor wishes to.”

The tribe, however, denies having any interest in Lancaster’s adoption.

The adoption agency made an inquiry to the Cherokee Nation, officials said. But Lancaster is not a member of the tribe.

In a letter dated Feb. 6 and sent to the adoption agency, tribal officials say they didn’t have enough information to verify her Cherokee heritage.

“The Cherokee Nation is not seeking to place this child with a Cherokee family or any other Native American family,” according to a statement from the tribe. “Therefore her allegations are without merit.”

Cherokee Nation citizenship doesn’t require a minimum blood quantum.

Citizenship is open to direct descendants of Cherokees listed on the Dawes Rolls, a federal census taken between 1899 and 1906.



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