Jad Abumrad (host) / main Radiolab host voice
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Today we're bringing you a story that begins with a very personal heartbreak.
One that when you examine it, pull it up, you see is attached to this web of complex laws and decisions.
It's this one very personal story with the potential to affect three million people.
Just a note that we originally reported this back in 2013.
And in it, people use the word Indian to refer to indigenous Americans.
That, of course, is a term that some folks who are indigenous use to describe themselves, but not all.
So we want to acknowledge that one term is being used here to describe a huge culturally diverse group of people.
I'm very excited for you to hear this piece, which, as you'll see, is still just as relevant today.
And today on the podcast, we are going to venture into new territory for us.
Look, I've seen the front of the UN.
It's going to make sense in about 30 seconds.
It isn't ultimately even that important to the story.
So just you and I are going to sit right here and behave ourselves.
And Tim Howard, our intrepid producer, is going to tell us the story.
So I first heard about this story.
I saw it listed on the Supreme Court docket for cases that they were going to be hearing this spring.
Actually, in strict legal parlance, it's called Adoptive Couple v. Baby Girl.
So it's not a particularly catchy name.
I've got to say, it's a weird name, though.
And she wrote about this case in Slate.
And it stood out to me because, you know, it just seemed odd at first that this would even be a Supreme Court case.
It seemed more like a straightforward custody case.
And it is not straightforward at all.
So let me walk you through it the way that I learned about it.
She's a developmental psychologist.
And... They really wanted to have a kid.
They had gone through, you know, infertility problems.
So... Eventually... They decided to adopt.
Enter a woman named Christy Maldonado.
She lives about a thousand miles away.
She's in her 20s, already has a couple kids.
The Capo Biancos get the baby and they name her Veronica.
This is Matt and Melanie Capobianco.
But you were happy to do whatever she told you to do because she's just the poster child for a proud father, you know?
But it's just gone as wrong as it could have possibly gone.
This is basically how it unfolded on TV news.
What happened is when Veronica was two, her biological dad turned up seemingly out of nowhere.
And according to these clips, hadn't been around for two years, had abandoned the child, and now he's asking for custody.
And the court is making them stand by and just let it happen.
Well, it's mainly because of this law.
So that makes his daughter, Veronica, eligible to be Cherokee.
to keep Indian families together.
It gives preference to Indian kids staying with Indian parents.
So even though he'd actually signed papers agreeing to the adoption, he was able to invoke this law and get custody of Veronica.
He signed his custody away and he was able to then use his Cherokee-ness to reverse the rights he signed away?
This is all going to make sense.
But he takes the kid is what you're saying?
With cameras rolling, Dustin Brown drives his pickup truck into Charleston.
And that evening, Veronica is transferred to Dustin.
And as Dustin gets into the truck, holding his two-year-old daughter for the first time, a reporter asks him... Do you think this is in her best interest?
And this is all you hear from him.
He gets into the truck with Veronica, and they drive away, back to Oklahoma.
Can I ask you, when was the last time that you spoke with Veronica?
a phone call yeah we spoke to her for about two minutes and we uh told her we loved her and she said i love you mommy and i love you daddy and i don't know just a few minutes and but that was it that was the last time we were able to be in touch and that was 16 months ago and how long was veronica with them again before this happened
And you know, when I first heard about this case, that's basically the only way I thought of it, you know, is just, that's a crazy injustice.
That's basically all I saw in it.
And her article for Slate kind of caught me off guard because the title was Doing What's Best for the Tribe.
Two-year-old Veronica was ripped from the only home she's ever known.
The court made the right decision.
So I called up to ask her, like, what do you mean by that?
And this is where the story turned into the biggest rabbit hole I've ever fallen into.
I mean, Marcia basically said the only way you can begin to wrap your mind around what's right and what's wrong in this story is to go back to the 60s.
He lives in Long Island now, which is where I visited him.
But in 1967... The fall of 67, I was on the staff of the Association on American Indian Affairs.
sort of a legal advocacy group for American Indians.
And he traveled all over, working with different tribes.
One day, he gets a phone call from this guy, Lewis Goodhouse.
The tribal chair of the Devil's Lake Sioux tribe in North Dakota.
And this guy says, I really need your help.
A devil's late kid, one of ours, that was just abruptly taken away by social workers.
What was their stated reason for taking Ivan away?
No, actually, Bird says that the social workers were looking for that classic nuclear family.
Biological mother, biological father, children.
So when they saw him with an older relative, but no mom or dad, they thought, uh-oh.
The tribal council was extremely upset by this.
They wanted to fight a battle about this.
Burt took the case, fought it in court.
But he began to wonder, how widespread is this?
So from 67 to the end of 68 into 69...
He visited tribe after tribe after tribe doing interviews.
And he says that everywhere he went, he would hear these stories.
She's a member of the Rosebud Sioux tribe.
And when she was 10 years old, a car pulled into her driveway.
She grew up on the Pine Ridge Reservation in South Dakota.
Michael says that his dad spent the next 30 years looking for him.
In any case, Burt would ask these people that he was interviewing, what reason did the social workers give you for taking the child?
And the answer is that he got ran the gamut.
Conditions of poverty, alcoholism.
Maybe they don't have adequate food.
But in most cases, he says, the reasons wouldn't have stood up in court.
They would put papers in front of them and they would sign.
They didn't know what they were signing.
If they could, they tried to fight it.
But they usually couldn't afford to.
Look, the tribal people are poor.
asking how many Indian kids are in foster care.
Foster care and adoptive placement and institutional placement, juvenile facilities.
And what he arrived at at the end of that analysis is a pretty shocking number.
25 to 35 percent of Indian children nationwide were in out-of-home placements.
That's the number you see cited again and again.
Well, this is basically social workers very much acting in the spirit of the day.
Because you have to keep in mind that in the 50s and 60s,
You have all these government policies that are put in place whose entire purpose is basically to try to once and for all solve this Indian problem that's gone on and on.
You've got this guy in 1953 who's a senator from Utah who starts basically trying to terminate the tribes.
You mean like take away their sovereignty?
Yeah, he goes tribe to tribe trying to convince them or force them, tell them they have no, there's no way out of it.
He argues that this will be best for all of them.
This was like out of e pluribus unum, like to integrate them into the whole.
They will melt into the wider culture.
Part of this was part of the social workers that were working in this period
They were working under the auspices of this thing called the Indian Adoption Project, which was very much about that idea of, like, you take these kids from their poor conditions and you connect them directly to white families that are looking to adopt.
So part of this was definitely top-down.
In any case, the end result of this is that a third of these kids are being taken away.
There were literally communities where there were no children.
He's the executive director of the National Indian Child Welfare Association.
Well, it's too massive a problem if you're trying to fight all these removals of kids on a case-by-case basis.
So Burt spent years— Walking the halls of Congress, literally.
So it does a lot, but basically when it comes to adoptions... ICWA has placement preferences.
Well, so if you're white and you're trying to adopt an Indian kid, you have a lot of roadblocks.
But now, because of this case...
The story comes from producer Tim Howard.
So in April, I went to this conference in Tulsa.
Big room, there were 700 people there.
Most of them work in child welfare organizations in Indian communities around the country.
There was some traditional Cherokee drumming, there were films, workshops, and all anybody could talk about was this case.
Well, I'm really worried in this situation.
And he told me that, look, the Capo Biancos... I feel for them.
But in what world is it okay for one family...
who feels they were damaged by a law to put thousands of other children at jeopardy for their own hurt.
I can't imagine a world where that's okay.
They say, we get that there's a huge historical wrong here, but what does that have to do with us?
It reminds me of arguments that happen over affirmative action, weirdly.
Definitely, but here the details are so different.
They say, this is a law that was created to protect Indian families, right?
But here you've got a Hispanic birth mom, you've got a white couple, and then you've got a dad who's out of the picture, so you're not actually protecting an Indian family, you're forcibly creating a new one.
And in the process, you're breaking up a loving home.
My personal opinion is that ICWA has outlived its usefulness and causes more problems than it solves.
I'm one of the attorneys for Matt and Melanie Capobianco.
He also happens to be Native American himself.
I'm an enrolled member of the Turtle Mountain Band of Chippewa Indians.
That's a reservation up in North Dakota, right on the border with Canada.
You know, so I kind of had a foot in two cultures, so to speak.
I'd go back to the res in the summer and
Mark actually used to argue the other side, that the most important thing was to keep Indian families together, and that Indian kids who were placed in non-Indian homes would experience emotional, psychological harm by being raised outside of the culture.
But then... I had a case in, I think it was 94.
It was a case in which this young American Indian girl, Sierra, wanted to be adopted by this white couple, and Mark opposed it.
Even though in my heart of hearts I knew it was probably not the right thing for the child.
She was removed from the couple's home.
And as Sierra would tell you herself, she had a really rough life.
She bounced in and out of more than 20 foster homes, ran away many, many times, and got into serious trouble with the law.
Mark says even though the tribes have suffered, that doesn't change the fact that if you take a kid out of a loving home, you're going to cause her real harm.
And he says that's why he took this case.
Because the Capo Biancos, you know, they are...
Among the most loving people I know.
He says they did everything you could ask.
They met the birth mother, Christy Maldonado, when she was pregnant.
She's represented Christy since last year.
Yeah, we still have a relationship with Christy.
Yeah, I mean, the day she was born, I cut the cord.
That's such a degree of intimacy that I find.
Now, as for Dustin Brown, Veronica's biological dad, a couple months before she was born, Christy, the birth mom, sent him a text message asking him if he wants to pay child support or he wants to waive his rights.
And he replied, I'll waive my rights.
Yeah, and then actually a few months later, he seems to make it even more official by signing a form agreeing to the adoption.
Yeah, you know, and obviously I was wondering, what was he thinking?
Because you can't avoid the fact that how you feel about this guy is going to influence how you feel about this law.
And so I was trying to get in touch with him.
I was pestering his lawyers, you know, will he do an interview?
This went on for weeks and they were basically like, he doesn't want to do interviews.
So shortly before we were going to wrap this story, I get an email saying, come to Oklahoma.
He lives in this one-story house on this tree-lined block in a small town north of Tulsa.
He's just a very normal looking guy.
He had a stache that night when he got Veronica, but he's clean shaven now.
So anyway, we go inside and the first thing he tells me...
She was out with his wife, Robin.
In any case, we sat down at the kitchen table and started talking.
Do you mind introducing yourself and telling me where we are?
Wolf Clan is one of the seven Cherokee clans.
He's been a registered member since he was a little kid.
His parents were members and their parents.
And he said he's proud to be Cherokee basically because it means that he's from where he lives.
So anyway, we started talking about the case.
And, you know, it gets complicated.
I'm not going to go into all of it.
But basically, he and Christy Maldonado, the birth mom.
We've known each other since we were 16.
And Christmas time that year, he basically says, let's get serious.
Got down on one knee and proposed to her, said, hey, I want to bring you into my life.
I mean, everything was going great, you know.
And then pretty quickly, the whole thing just soured.
It's impossible to know exactly what happened, but Christy says that Dustin just simply didn't offer any support.
He says that he did, or he tried to at least, but shortly after she got pregnant, she basically just shut him out and stopped taking his calls.
I didn't get no phone calls, no text messages, nothing from her out of the blue.
And I'm just like, well, what's going on?
And he says that he tried to get in touch with her.
Drove those four hours from the base.
It sounded like her and the kids, they wouldn't answer the door for me.
And then one day he says, She sent me a message saying, I don't want to be with you no more.
And three weeks after that, She's like, well, I want you to sign your rights over.
Would you sign your rights over?
You guys are texting this or are you talking?
The whole time we're text messaging this because she wouldn't talk to me.
To me, I just thought she wanted me to sign my rights over to her and I'm like, this is something I really don't want to do.
He says she kept texting him that question
And looming in his mind was the fact that he just learned.
We were going to be going to Iraq to do a radar mission, so... And he starts to wonder, what's the right thing to do here?
And he says that he's holding out hope that if he does make it back... We'll get back together and she'll just change her mind.
Finally, I just told her, I was like, all right, I'll sign my rights over.
He says he doesn't know exactly when because they weren't speaking.
But then... Six days before I had to go deploy to Iraq, I get a phone call from some guy in Washington County.
Said, hey, we need you to sign some papers so you can sign your custody rights over.
And the guy directed him to an office right near the base.
signed the paper, and... What did you think it meant?
Dustin says this is the first moment that he realized what was actually happening, that the baby was up for adoption, and he says that he had no idea he had just legally consented to it.
And the guy looked at me and said, if you're going to rip that up, he said it's not good to do that.
And I said, what do I got to do?
He said, you need to get a lawyer.
And that's why the courts have ruled in his favor.
Because they say that from that moment, he's clearly demonstrated that he wants to be her dad.
Now, Mark and Lori say that if this were any other guy... Any other man of any other race... The story would be over right about here.
He wouldn't have any rights at all.
He rejected that opportunity to become a father.
But he has one thing in his favor, says Lori.
And Mark and Lori see that as basically the worst kind of preferential treatment.
They're two of Dustin's lawyers.
And John says, OK, there's preferential treatment.
But think about why all the protections of ICWA are there.
These roadblocks are there for a reason.
We went over this earlier, but, you know, basically people are being manipulated out of their kids.
And while you might like to think that that's ancient history.
He says the same thing is happening in this case.
We have a registered member of the Cherokee Nation.
We have his child being given up for adoption without his knowledge and without his consent.
And they kept this adoption from him for months, and then springing on him six days before he leaves the country?
It looks to us like it was engineered to make sure he got served, but not in enough time to where he could put up a fight.
And Shannon suggests that they knew about ICWA, they knew it would apply, and they were trying to sidestep it.
You just did a little air quotes on errors, didn't you?
Like, for example, there's this one important form where Shannon says that they went out of their way to make it look like Veronica is not Native American.
That's just, it's a preposterous argument.
Mark and Laurie say the reason that nobody put Cherokee in big, bright, flaming letters is simple.
Yeah, Veronica herself would be a little bit over 1%.
Wait, this whole thing is happening because he's only 2%?
Well, yeah, but you have to keep in mind that Cherokee Nation doesn't care about the percentage of Cherokee in your blood.
That's not how they determine their members.
Being a member of the Cherokee Nation is like being a member of the United States.
You are a citizen of the nation.
That's Chrissy Nemo, Assistant Attorney General for Cherokee Nation.
But you can automatically apply.
So it's based on direct lineage.
But still, you're right, because this is the argument that is most troubling to the tribes.
Both Chrissy Nemo and Marsha Zugg told me that if the Supreme Court ends up deciding that ICWA is unconstitutional because it really is race-based.
This is a case that they could use to do that.
If ICWA falls because it's unconstitutional, it could have a crazy domino effect.
What would that mean concretely if Indian law were to go away?
It means that their policing, their court system, their education, anything they do as a sovereign nation, all of that just evaporates.
A tribe would just become another group of people on some land.
That said, this is not the likely outcome.
Now, the Supreme Court will probably rule as narrowly as they possibly can.
And as far as the tribes are concerned, they can do a lot of damage to the law without calling it unconstitutional.
You know, they could allow for this certain kind of exception to ICWA, which would make it a lot easier for people like the Capo Biancos to adopt.
So they could rule any number of ways.
And the thing is that it's all strangely connected to this...
So when she finally showed up halfway through my interview with Dustin... Hello.
And within a minute, she's giving me a tour of every single object in her room.
A few minutes later, she wanted to show me her geese.
I don't think I've seen geese in a long time.
She feeds them out of her hand.
Well, if the Supreme Court said Dustin Brown shouldn't have qualified as father under ICWA, what they'd do is they would send it back down to a South Carolina court, and then they would have this new best interest evaluation.
Basically, like, what's the best thing for her at this point?
She's been with him now for about a year and a half, and so that actually might really change the calculation.
Honestly, hanging out with her and Dustin in the backyard is really easy to forget.
All these people whose lives are just completely tangled up in this scene.
Christy Maldonado, the birth mom.
She did not intend to give Veronica up.
We're just waiting and waiting and waiting.
And, of course, the hundreds of tribes who...
are just worried about their own kids.
How do you know I'm a good swimmer?
Okay, so the Supreme Court ruled 5-4 in favor of the adoptive couple, which is to say against the birth father.
It was like a 60-page ruling, and not being totally confident what all the ramifications were, I just made some calls.
For example, I Skyped with Marsha Zug, who you remember from the piece.
She's a law professor at the University of South Carolina.
Can you walk me through what this opinion means?
So basically the Supreme Court ruled that Dustin Brown shouldn't have been allowed to invoke the Indian Child Welfare Act because he didn't have what's called continuing custody of Veronica.
They argue that this law is about preventing the breakup of Indian families and there was no Indian family here because they didn't live together.
The dad and the daughter didn't live together.
So they don't scrap the Indian Child Welfare Act.
They just say that it shouldn't apply in a case like this.
So that's as narrow as you can get, probably.
But I mean, what happens now when the case, where does the case go from here?
Well, the Supreme Court kicked it back down to a lower court where you'd expect that they'd just award the Capobiancos custody.
He's a contributor at SCOTUSblog.
So the case goes to the South Carolina Supreme Court.
But Marcia says that there's a chance that it might not go that way.
This is where it gets complicated.
So because the Supreme Court said that ICWA still stands, it's still law, and they said that Veronica is an Indian child, she's Cherokee,
That means that the South Carolina Supreme Court could decide that she is still covered by the Indian Child Welfare Act.
You remember the placement preferences?
If the court decides that this is still an ICWA case, then those preferences would kick in.
So in an equal case, the first preference is extended family.
And then finally, any other family, such as the Capobiancos.
So if the South Carolina Supreme Court decides that this is still an equal case, and if... The paternal grandparents file a petition to adopt,
Yeah, and Marcia even says that there's a chance that Dustin Brown himself... My guess is that Dustin Brown...
will come forward to adopt veronica his rights were terminated because he failed to support but now we've got basically two years worth of evidence of him loving and supporting and taking care of her and the court's not going to ignore that it's just so crazy to think though that this guy who's the biological father uh may ultimately become the adoptive father
You know, John Nichols, Dustin Brown's lawyer, he said to me that this is totally uncharted waters, that he's never seen a case of this magnitude get decided by the Supreme Court and still be so open-ended.
John said that they expect to hear something from the South Carolina Supreme Court
on Monday, July 8th, just laying out what the next steps are.
We spent a fair amount of time in the story examining the worst-case scenario from the tribe's perspective, that this case could be used as a kind of Trojan horse to say that all of Indian law is an unfair race-based preference and therefore should be negated.
I'm gathering from what you just said that that did not come to pass.
But there is this sense that they kind of planted a seed.
For example, Justice Alito, who wrote the ruling, he starts it off with mention of Veronica being 1.2% Cherokee.
Which is interesting because it sounds like he's about to make an argument for why this is a race-based preference and why it's a violation of equal protection.
Like he's about to go nuclear if that's how he starts.
Which to me was kind of baffling because why would you start off with this massive footprint and then leave a very small one?
So anyway, I asked Marcia what she thought about it.
Why do you think they started it off that way?
And as you just heard, there were sort of two categories of lingering questions, one about what would happen to Veronica and the other about the Indian Child Welfare Act.
So ultimately, Veronica's case wound up in family court, which found that without the application of ICWA, Dustin could not intervene.
One week after her fourth birthday, Veronica was returned to the Capo Biancos in South Carolina.
And a few months after that, Dustin and the Cherokee Nation announced that they would not continue pursuing the case.
And Veronica's life became much more private after that, away from all the attention of the courts.
As for the Indian Child Welfare Act, ICWA, it's faced repeated challenges in the past 12 years.
But at that time, the Supreme Court upheld ICWA 7 to 2.
So for now, it is alive and affirmed at the national level.
But not without continued challenges, including a case brought before the Minnesota Supreme Court just this year challenging ICWA again.