This is the first part in a three-part series I will be writing on Adoptive Couple v. Baby Girl, or “The Baby Veronica Case.” Part 1 presents the actual case that was heard before the Supreme Court as well as the responses of the Supreme Court Justices. Part 2 will review the history leading up to the case, as well as provide an overview of common misconceptions presented in the media and how that has impacted the case. Part 3 will provide input and perspectives from stakeholders and individuals with child welfare experience.
Credit must be given to Addie Smith of NICWA for her helpful overview of this case at the 2013 NICWA conference.
On Tuesday, April 16, at 10 AM the U.S. Supreme Court heard oral arguments in the case Adoptive Couple v. Baby Girl, more commonly known as the Baby Veronica case. The oral arguments surrounded these two questions:

  1. Whether ICWA defines “parent” in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent.
    • From ICWA, 25 U.S.C. § 1903(9): “
      [P]arent” means any biological parent or parents of an Indian child…It does not include the unwed father where paternity has not been acknowledged or established.
  2. Whether a non-custodial parent can invoke ICWA to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law.
    • From ICWA, 25 U.S.C. 1903(4): “Indian child” means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.
    • From ICWA, 25 U.S.C. 1912(f): No termination of parental rights may be ordered…absence of a determination, supported by evidence beyond a reasonable doubt…that the continued custody of the child by the parent…is likely to result in serious emotional or physical damage to the child.

Petitioners’ Argument
Pre-adoptive parents (the Capobiancos) and the guardian ad litem for Baby Girl
Question 1: In order to have rights under ICWA, unwed fathers must establish paternity according to state laws. Because this is an adoption case, paternity must be established under the state’s adoption law rather than general paternity establishment laws, which differ from one another in South Carolina. Under South Carolina adoption consent laws, Mr. Brown’s consent was not required and therefore he was not protected under ICWA.
Question 2: ICWA was meant to prevent the break-up of Indian families. In order to terminate parental rights under ICWA, there must have been “continued custody.” Since Mr. Brown never lived with Veronica, there is no Indian family to break up. The Existing Indian Family Exception is at the heart of this argument, which is an exemption to ICWA that was created by a judge in Kansas in the 1980s to accommodate voluntary adoptions initiated by a non-Indian mother with sole custody. The exception “limit[s] ICWA’s application to Indian children whose family units lack ties to reservations or tribal culture” (source).
Additional arguments: The petitioners and their supporters have also questioned the constitutionality of ICWA, saying that because this law is based on race, it runs counter to the equal protection clauses of the U.S. Constitution.
Respondents’ Arguments
Father (Dusten Brown) and the Cherokee Nation
Question 1: ICWA does not have any stated requirements that fathers must follow individual state laws regarding paternity establishment. However, if ICWA referenced state law, the state law(s) applicable in this case would be paternity laws, not adoption consent laws. If we follow this line of thought, Mr. Brown did establish and acknowledge paternity in accordance with South Carolina state laws; therefore, Mr. Brown is in fact protected under ICWA.
Question 2: ICWA is applicable to all “Indian children” as defined under ICWA. Additionally, ICWA was meant to prevent break-up of all Indian families, including those not yet formed. The EIF Exception is not applicable as it is not actually found in ICWA and it has been rejected by courts in 19 out of the 26 states that had considered it. Moreover, the EIF Exception essentially requires the courts to determine whether the parent and child are “Indian enough,” and only tribes have the right to define “Indian.”
Additional arguments: The respondents and their supporters state that ICWA is not actually applied based on race; rather, it is based on citizenship in a federally recognized tribe. ICWA may only be applied in cases involving Indian children, and ICWA clearly defines Indian children as those who are members of or eligible for membership in a tribe.
Supreme Court responses
Source: Amy Howe, Argument recap: No easy answers in Indian adoption case, SCOTUSblog (Apr. 16, 2013, 1:21 PM), http://www.scotusblog.com/2013/04/argument-recap-no-easy-answers-in-indian-adoption-case/
Chief Justice Roberts and Justices Breyer and Alito expressed doubts regarding Veronica’s actual ties to the Cherokee Nation and therefore the applicability of ICWA. In particular, Chief Justice Roberts wondered how “one drop of blood” could “trigger all these rights” (source). Chief Justice Roberts was also concerned about Mr. Brown’s lack of financial support to Veronica and her mother prior to his knowledge about the adoption action.
The petitioners’ arguments surrounding question 2 appeared to have been unsuccessful with Justices Scalia, Ginsburg, and Sotomayor. Justice Kagan may have also been unswayed by their argument, as she asked what the point was of labeling Mr. Brown as a “parent” as defined by ICWA if he doesn’t have any rights as a parent? She also expressed concerns that the petitioners’ line of argument would “create two classes parents under the statute—those with the protections…and those without” (source).
According to the SCOTUS blog, Justice Kennedy may have the decisive vote. At one point he commented that custody based on “not result[ing] in serious emotional or physical damage” is not the same as child’s best interests. He also expressed concern that adhering to the South Carolina Supreme Court’s interpretation of ICWA “would…create constitutional problems by treating Baby Girl (among others) differently on account of her race” (source).
Justice Thomas did not ask questions at the oral arguments.
Further resources
The National Indian Child Welfare Association has some great resources for understanding the events that led up to this case. Due to the high media coverage of this case, it is somewhat difficult to locate articles and websites that are completely neutral and balanced in their viewpoint of the case. Here are some that I came across that I thought were pretty helpful: