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Native Sun News: Group seeks Indian Child Welfare Act changes

The following story was written and reported by Jesse Abernathy, Native Sun News Editor. All content © Native Sun News.

Indian Child Welfare Act challenged
By Jesse Abernathy
Native Sun News Editor

CHARLESTON, S.C. — A mostly non-Native American organization is vociferously calling for a major overhaul of the Indian Child Welfare Act.

Calling itself the “Coalition for the Protection of Indian Children & Families,” the organization evolved two months ago out of Charleston in the wake of the “Save Veronica” campaign. The campaign is a grassroots effort to bring national and political attention to the plight of a 2-year-old girl who is of Cherokee heritage and her non-Native American adoptive parents – who ultimately lost custody of the girl Dec. 31, 2011, after the Cherokee Nation of Oklahoma intervened under authority of ICWA on the biological father’s behalf.

“Save Veronica” has even garnered international attention via an online petition on

Veronica had been with her adoptive parents, Matt and Melanie Capobianco of James Island, S.C., a suburb of Charleston, for more than two years when authorities placed her with her birth father, Dusten Brown, a member of the Cherokee Nation. The couple say, however, the toddler is more Hispanic and Caucasian than any other ethnicity, having only a “small percentage” of Cherokee ancestry.

Brown, who resides in Nowata, Okla., originally sued for custody of his daughter Veronica under the federal Indian Child Welfare Act when she was four months old, although initially he had signed a waiver saying he would not contest the adoption. Brown reportedly had “changed his mind” and later claimed he didn’t know what he signed.

According to the Capobiancos, who are taking legal measures to regain custody, the child’s non-Native American birth mother, who is from Oklahoma, personally selected them through an adoption attorney to raise her daughter.

The case – which underscores the complexity of the Indian Child Welfare Act – is currently under review by the South Carolina Supreme Court.

In a July 4 press release, the Coalition for the Protection of Indian Children & Families, which is seeking fundamental amendments to ICWA, said it “represents a collective group of individuals and organizations dedicated to the constitutional rights of Indian children and their families as American citizens in order to ensure their lives are free from unnecessary pain and suffering.”

Specifically, the group wants to limit the time for a biological parent to revoke consent for an adoption. The group also says Native American birth parents should be able to choose where their children are placed – even if parental choices go against a tribe’s wishes. Instead of the full year currently allowed under the act for natural parents to revoke their adoption consent, the Coalition for the Protection of Indian Children & Families says 30 days is sufficient.

Paradoxically, the coalition is looking to make it easier for non-Native families – such as the Capobiancos – to adopt Native children by way of the Indian Child Welfare Act.

“This defeats the entire purpose” of the federal legislation, Chrissi Ross Nimmo, assistant attorney general for the Cherokee Nation, told the Tulsa World in Oklahoma in a recent interview.

Enacted by Congress in 1978 following over a century of oftentimes unnecessary removal of Native American children from their traditional tribal homes and communities by federal, state and even local authorities, the Indian Child Welfare Act gives tribal governments a strong voice concerning the custody proceedings of Native children. The law grants tribes exclusive jurisdiction over custody cases involving children residing on-reservation and children who are wards of the tribe, as well as concurrent – but presumptive – jurisdiction with states over off-reservation children’s foster care placement proceedings, as in the case of the Capobianco family.

In delayed recognition of the unique relationship that exists between the federal government and the country’s original inhabitants as sovereign nations whose lands were unceremoniously usurped in relentless pursuit of “Manifest Destiny,” ICWA was a conscious, as well as conspicuous, attempt by the federal government to preserve and protect Native families and – ultimately –cultures, many of which are historically based in an extended family system.

Prior to the enactment of ICWA, as many as 25 to 35 percent of all Native children were being removed from their homes and placed in non-Native homes, according to various research reports from the late 1970s. In some cases, the Bureau of Indian Affairs paid states to remove Native children and place them with non-Native families and religious groups.

Under the law, tribes and Native parents or other custodians of Native children have an unqualified right to intervene in cases involving foster care placement or the termination of parental rights.

Additionally, active efforts to place Native children removed from their homes with extended tribal relatives, other nonrelated tribal members or even other nonrelated Natives must be made under the law. The provision was designed to serve as a safeguard against a child’s loss of true familial and cultural connections.

“The public rarely hears about the thousands of cases a year that either reunite Indian children with their biological parents or the cases where Indian children find permanent, loving adoptive homes with members of their family,” said Nimmo. “The problems you hear about in high-profile cases are not caused by the law itself. The problems are caused when attorneys, adoption agencies and courts do not follow the federal law,” she said.

A recent case in South Dakota might exemplify Nimmo’s contention: In ruling in custody proceedings involving the child of a Native American mother who formerly resided in South Dakota and Native American father residing in California, the state’s Supreme Court last month said – for the first time since the Indian Child Welfare Act was created in 1978 – that the federal law’s requirement of an active effort to keep an American Indian family together imposes a higher standard than the reasonable effort required in state law for non-Indian families, as reported by The Associated Press.

In what could be seen as an anti-ICWA move, the precedent-setting decision more narrowly defined the extent of efforts that the state must make to prevent the breakup of an American Indian family.

Some Native American families have argued that South Dakota does not do enough to comply with federal laws dealing with removing Indian children from their families, the AP reported, but the Supreme Court said state officials complied with those laws in this instance. In one of its first official moves, the Coalition for the Protection of Indian Children & Families held a meeting in Washington, D.C., July 11 in an effort to draw congressional attention to its cause célèbre.

According to the organization’s July 4 press release, its members – comprised of individual non-Native Americans and Native Americans, businesses, nonprofits, religious groups and advocacy organizations – are lobbying for “what they feel are reasonable amendments that will help strengthen how the (Indian Child Welfare Act) is being used. Federal and state tax dollars fund the implementation of the law – a law that the Coalition feels denies Indian children the same rights as other children.”

Of the group’s four founding members, one is Native American.

Though no tribes are members of the coalition, they are welcome to join, said Jessica Munday, a non-Native co-founder of and spokeswoman for the organization, and a few individuals have joined from South Dakota.

“The (proposed) amendments would help strengthen the law in a lot of ways and will help ensure that these negative cases (such as the Capobiancos’) don’t happen as often,” Munday told Native Sun News July 20. “But we haven’t reached that point, and we certainly put the invitation out there to begin that dialogue.”

Native American critics of the organization, however, say it is looking to dismantle ICWA and call its actions a threat to the protection of Native children and preservation of their respective cultures.

Munday says the coalition is merely speaking on behalf of those individuals who have been negatively impacted by the Indian Child Welfare Act since its inception over three decades ago, including Native American birth and foster parents. “Hundreds, if not thousands, of people have reached out to us for help,” she noted.

“I’ve heard of many cases where a (Native) child has an opportunity to have a permanent, loving, healthy home, but because that home is non-Native they’re taken from that home and put into the foster care system,” she said. “And I just don’t see how that’s in the best interest of a child when they have a chance to have a permanent home.”

Representatives from the Cherokee Nation as well as congressional aides were in attendance at the Washington meeting, according to Munday, and a “good dialogue” was started.

Munday added that the group is seeking a compromise with Congress regarding ICWA that doesn’t disrespect Native heritage, repeal the law, or spell the end of Native cultures.

However, ICWA as it stands “gives special treatment” to Native American children, she says, and “I’ve always been of the mindset that … to be fair it should be the same for everyone. … To me, it doesn’t seem fair to do that for one population and not all the other children as well.”

(Contact Jesse Abernathy at

Copyright permission by Native Sun News

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