Radiolab - Adoptive Couple v. Baby Girl

Starting point is 00:00:00 Hey, Radio Lab. This is Lulu. 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 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 used 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.

Starting point is 00:00:51 So here we go. Adoptive couple v. Baby Girl. Wait, wait, you're listening. Okay. All right. Okay. You're listening to Radio Lab Radio Lab.

Starting point is 00:01:05 From W-N-Y-S-E-C. Rewind. Rewind. Hey, I'm Chad. I'm Umb-R-M-Rod. I'm Robert Quilwitch. This is Radio Lab. The podcast.

Starting point is 00:01:17 And today on the podcast, we are going to venture into new territory for us. We have the story of a little girl who became a very, very big deal. How big a deal did this little girl become? A very big deal to about 500-something nations. There aren't 500. No, there are. Look, I've seen the front of the U.N. No, there are.

Starting point is 00:01:38 Just look, okay, it's going to make sense in about 30 seconds. Okay. That's a tease. 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 this 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.

Starting point is 00:02:01 Well, the name of the case is Baby Girl v. Adoptive couple. 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. It's hard to picture. Yeah. So this is Marcia Zugg. Associate Professor of Law at the University of South Carolina.

Starting point is 00:02:17 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. Right. But when you dig in. There's a lot going on here. Crusades, text messages, state law, errors, children, Supreme Court, Christopher Columbus. Christopher Columbus. And it is not straightforward at all.

Starting point is 00:02:42 Apparently not. So let me walk you through it the way that I learned about it. The story begins with a couple. Matt and Melanie Capo Bianco, they are a couple who live down here in South Carolina. He's a technician at Boeing. She's a developmental psychologist. Nice middle class, white couple. They're in their late 30s. They really wanted to have a kid. They had gone through, you know, infertility problems. It wasn't working out. So...

Starting point is 00:03:08 Eventually? They decided to adopt. Enter a woman named Chrissy Maldonado. She lives about 1,000 miles away. I believe she's in Oklahoma. She's in her 20s. Already has a couple kids. She's pregnant and decides that she wants to give the baby up for adoption.

Starting point is 00:03:23 And she picks the Capo Biancos. And everyone seems happy. The Capo Biancos get the baby, and they name her Veronica. We used to call her boss lady. Not a lot, most of the time it was... Our family called her that. Yeah. Bosses everybody around.

Starting point is 00:03:37 This is Matt and Melanie Capo Bianco. 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. Rock in session on the docket today, a young child. child ripped from the arms of the only parents she's ever known. And turned over to the Native American biological father she has never met.

Starting point is 00:04:08 A man Veronica had never even met. 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 he gets it. And the court is making them stand by and just let it happen. Wait, why?

Starting point is 00:04:28 Well, it's mainly because of this law. Welfare Act. The 1978 Indian Child Welfare Act. Dustin, the dad, he's Cherokee. He's a part of the Cherokee nation. So that makes his daughter, Veronica, eligible to be Cherokee. And the law is designed to keep Indian families together. It gives preference to Indian kids staying with Indian parents.

Starting point is 00:04:48 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 Cherokeeness to reverse the rights he signed away? Just hang on. This is all going to make sense. Okay. But he takes the kid, is what you're saying.

Starting point is 00:05:07 Yeah. New Year's Eve, 2011, with cameras rolling, Dustin Brown drives his pickup truck into Charleston. Matt and Melody Capo Bianco clutched to two-year-old Veronica. This could possibly be the last time they hold their baby as her mom and dad. In that evening, Veronica is transferred to Dustin. I didn't feel like we had enough time for her to be not afraid when she's... We're not to have strangers.

Starting point is 00:05:35 Yeah, when she's... I mean, to her, they're complete strangers, and I can't imagine that she's not going to be terrified. 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. I don't think so. We need to give her a chance again. Have you ever seen the child before?

Starting point is 00:05:59 They declined any further comment on camera. 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? The day after, the day after the... Transfer. A phone call? Yeah, we spoke to her for about two minutes. And we told her we loved her, and she said, I love you, mommy, and I love you daddy.

Starting point is 00:06:35 And I don't know, just a few minutes. 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? About two years. Oh, man, that's hard. Yeah.

Starting point is 00:06:53 And, you know, when I first heard about this case, that's basically the, the only way I thought of it, you know, is just, that's a crazy injustice. That's basically all I saw in it. I mean, if you're someone who has no background in this, then you see a case like the baby Veronica case and you're like, whoa, where's this coming from? How can this possibly be okay? That's Marsha Zug again. And her article for Slate kind of caught me off guard because the title was doing what's

Starting point is 00:07:22 best for the tribe. Two-year-old Veronica was ripped from the only home she's ever known. the court made the right decision. Yeah. So I called up to ask her. Like, what do you mean by that? So one of the things that's, I think, important to realize is that the problems that Equa was intended to address didn't stop happening that long ago. And this is where the story turned into the biggest rabbit hole I've ever fallen into one.

Starting point is 00:07:54 What did she tell you? I mean, Marsha 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. Bert, how are you, Tim? Great to meet you. And to this guy. Bert Hirsch. I'm a lawyer. He lives in Long Island now, which is where I visited him.

Starting point is 00:08:14 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 Devils Lake Sioux Tribe in North Dakota. And this guy says, I really need your help.

Starting point is 00:08:38 He said there was a child. A devil's late kid, one of ours, that was just abruptly taken away by social workers. The Benson County, North Dakota, Social Services Agency came in, and they took little Ivan Brown away from his grandmother. He was six. Or was there stated reason for taking Ivan away? Neglect. Because what?

Starting point is 00:09:01 Because grandma wasn't around? 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. And they took him away. The tribal council was extremely upset by this. they wanted to fight a battle about this.

Starting point is 00:09:26 Burt took the case, fought it in court. We won that case, by the way. Mrs. Alex Fornia, she got Ivan back after a somewhat protracted battle. But he began to wonder, how widespread is this? So from 67 to the end to 68 into 69. He visited tribe after tribe after tribe. Doing interviews. And he says that everywhere he went, he would hear these stories.

Starting point is 00:09:49 I remember it's dead. This is Deb Wells. She's a member of the Rosebud Sioux tribe, and when she was 10 years old, a car pulled into her driveway. They come driving in, social workers, and they got out of the car, and I told my brothers and sisters, I said, go hide. And they had to drag us out from underneath the bed because we got around and got in the house. But then they took us to Scott's Bluff and put us in a foster home. It was horrible. This was just part of every native family's history.

Starting point is 00:10:20 This is Marla Jean Big Boy. She grew up on the Pine Ridge Reservation in South Dakota. I remember when I was young, we'd go to one of the border towns, and my grandma would say, stay in the car, lock yourself in, don't get out of the car, I'm going into the trading post, because they're going to steal you. Really? Yeah.

Starting point is 00:10:39 What we found is that on every reservation... Name is Michael Evan Nohart. I'm a full-blood's punked papa from Standing Rock's Reservation. You couldn't not find a family that, didn't know of a child in placement. Social services came and took me and my sister and told my mother, Ned, that they were taking us into Bowbridge for physical checkup.

Starting point is 00:11:04 And they never brought us back. Wow. Michael says that his dad spent the next 30 years looking for him. In any case, Bert 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.

Starting point is 00:11:23 Overcrowding. Maybe they don't have adequate ventilation in the house. No indoor plumbing. 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. Some families... If they could, they tried to fight it.

Starting point is 00:11:39 But they usually couldn't afford to. Look, the tribal people are poor. So we began to do a statistical collection of data, state by state. Asking, how many Indian kids are in foster care? Frosted 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. About one-third of Indian children were in out-of-home placements in non-Indian settings.

Starting point is 00:12:08 One-third? 25 to 35 percent of Indian children nationwide were in out-of-home placement. That's a real number? That is a real number. That's the number you see cited again and again. Nobody connected the dots. Everybody thought that it was their own personal tragedy. Nobody realized that this was a pattern and a practice that was decimating these tribes.

Starting point is 00:12:34 Wait a second. How would this happen on this scale? I mean, like, is this just a bunch of social workers making the same decision independently? Or is it like a policy? 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

Starting point is 00:13:03 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. I remember this.

Starting point is 00:13:23 This was like out of e pluribus unum, like to integrate them into the whole. They will melt into the wider culture. That's what will save them. 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 very much.

Starting point is 00:13:54 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. That's Terry Cross. He's the executive director of the National Indian Child Welfare Association. In Minnesota, there were communities where there were no children. In Alaska, there were communities where there were no children. I mean, what is a culture except, you know, the ideas and traditions that you pass on to your kids? That's Marcia Zugg again.

Starting point is 00:14:23 If you are hemorrhaging your children, then you're going to disappear. So what do you do? Well, it's too massive a problem if you're trying to fight all these removals of kids on a case-by-case basis. Forget about it. A national laws needed. So Burt spent years. Walking the halls of Congress, literally. Endless lobbying congressional hearings.

Starting point is 00:14:44 Until finally. The Indian Child Welfare Act is passed by Congress in 1978. So it does a lot, but basically when it comes to adoptions... ICWA has placement preferences. So the first preference would be with the immediate family. So you're removed from mom, you're placed with dad, or maybe with grandmother. If they say no... Second preference would be someone else in the tribe.

Starting point is 00:15:06 And the third is any other American Indian. Wow. Any other? Yeah. And then after that, then the child could be placed with... you know, another family. Well, so if you're white and you're trying to adopt an Indian kid, you have a lot of roadblocks. Yes.

Starting point is 00:15:23 But by and large, most of us think that Iqa was probably the best federal Indian law ever passed. It did the most to help Indian tribes, respect tribal sovereignty, and really fulfill the United States' trust relationship with American Indian people. But now, because of this case, that law may be in jeopardy. We'll continue in a moment. I'm Chad Aboumrod. I'm Robert Quilwitch. This is Radio Lab today. a look at a Supreme Court case that may determine the future of a law

Starting point is 00:16:16 called the Indian Child Welfare Act, or ICWA. The story comes from producer Tim Howard, back to him. So in April, I went to this conference in Tulsa. The board of directors, council of elders. 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,

Starting point is 00:16:38 there were films, workshops, and all anybody could talk about was this case. But there is no issue bigger now in how the baby Veronica case may affect the Indian Child Welfare Act. So please, please do keep baby Veronica and her family in your prayers. Everybody was on edge. Well, I'm really worried in this situation. This is Terry Cross again.

Starting point is 00:17:04 He's one of the organizers. And he told me that, look, the Capo Bianco's... 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. Well, I mean, it's hard for us to say that because, you know, that's not what motivated us. Our daughters, what's motivating us.

Starting point is 00:17:35 How we feel, we just feel that in this case, It was a beautiful law that was put into place to prevent the breakup of families, Indian families. And I just think it wasn't really supposed to be applied to a situation like ours. 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.

Starting point is 00:18:04 You know, 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. Absolutely. And in the process, you're breaking up a loving home. I don't think that was the intent of the law ever. My personal opinion is that ICWA has outlived its usefulness and causes more problems than it solves. This is Mark Fiddler. I'm one of the attorneys for Matt and Melanie Capo Bianco.

Starting point is 00:18:39 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. 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

Starting point is 00:19:06 by being raised outside of the culture. But then... I had a case in, I think it was 94. Which gave him pause. Ah, boy. That's a good word. It was a case in which this young American Indian girl... Sierra... ...wanted to be adopted by this white couple, and Mark opposed it.

Starting point is 00:19:25 Even though in my heart of hurts, I knew it was probably not the right thing for the child. He won the case. 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. And it always nagged me. Mark says, even though the tribes have suffered,

Starting point is 00:19:54 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 said they did everything you could ask. They're just amazing people. They met the birth mother, Christy Maldonado, when she was pregnant. They got to know her.

Starting point is 00:20:15 She felt a connection to them. That's Lori McGill. She's represented Christy since last year. And they were also willing to have an open adoption. Yeah, we still have a relationship with Christy. We love it a death. And Christy gave birth to Veronica. They were there with her in the delivery room.

Starting point is 00:20:32 Yeah, I mean, the day she was born, I cut the cord. Matt, Capabianco, cut the... umbilical cord so that's such a degree of intimacy that i i know i mean having given birth twice myself the idea that anyone other than my husband would be uh in the room is kind of scary but that it gives you some idea how she felt about the cup of biancos now as for dustin brown Veronica's biological dad a couple months before she was born christie 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.

Starting point is 00:21:09 Rather than pay a dime in child support. Well, there's a contrast. So in the beginning, it sounds like he did not want to be a dad. Yeah, and then actually a few months later, he seems to make it even more official by signing a form agreeing to the adoption. And then he changes his mind? Yeah, you know, and obviously I was wondering

Starting point is 00:21:29 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. Yeah. 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.

Starting point is 00:21:45 And they were basically like, he doesn't want to do interviews. He doesn't want to talk. Yeah, so you didn't get him. Yeah, I got him. Good. So shortly before we were going to wrap this story, I get an email saying, come to Oklahoma. So I went.

Starting point is 00:22:07 He lives in this one-story house on this tree-line block in a small town north of Tulsa. Hey, how's it going? How we're doing? Doing good. Okay. What does he look like? He's just a very normal-looking guy.

Starting point is 00:22:24 A little bit of an army haircut. He had a stash that night when he got Veronica, but he's clean-shaven now. Big smile. So anyway, we go inside, and the first thing he tells me is that Veronica, is not there. Excited to me.

Starting point is 00:22:40 She was out with his wife, Robin. Turns out he's remarried. In any case, test, test, test, all right? We sat down at the kitchen table and started talking. Do you mind introducing yourself and telling me where we are? I'm Dustin Brown. We're in No-Wat, Oklahoma.

Starting point is 00:22:56 This is my house. I'm part of the Wolf Klan. Wolf Klan is one of the seven Cherokee clans. And my name, Dustin, means brave warrior. in Cherokee, and actually, you know, join the army up and go over to Iraq. I'm like, wow, I'm here for the Cherokees. I'm the brave warrior out in, you know, desert. 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

Starting point is 00:23:29 he lives. It's a big deal to me. So anyway, we started talking about the case, and, you know, it gets complicated. There's a lot of detail. I'm not going to go into all of it. Basically, he and Christy Maldonado, the birth mom. We've known each other since we were 16. We've dated off and on. 2008, he joins the Army. Basic training. He lives on a base.

Starting point is 00:23:47 It's four hours away. And Christmas time that year, he basically says, let's get serious. Got down on one knee and proposed to her and said, hey, I want to bring you to my life. She said, okay, that's just great. And almost a month later, she'd send me a message saying that she was pregnant. I was excited. I mean, to have children at her was one of the things I wanted at that time. Told her, I can move you and your kids up to the base. Housing was going to be free on base. There was schools for her kids. She could get a job right there on base, you know.

Starting point is 00:24:25 Everything was taken care of. 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 Chrissy says that Dustin just simply didn't offer any support. He says that he did, he tried to at least, but shortly after she got pregnant, she basically just shut him out, 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.

Starting point is 00:24:53 Texting her up, trying to call her. Still no answer. There's a couple times that I've went back to the Barzzo and went to her house. Drove those four hours from the base. Knocked on her door. I could hear her. You know, voices in the house, it sounded like her and the kids. They wouldn't answer the door for me.

Starting point is 00:25:10 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. His parental rights. 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. What did you think it meant?

Starting point is 00:25:34 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. And he starts to wonder, what's the right thing to do here? You know, if there was one of the chances I wasn't going to come back, I wanted to make the right choice and let the mother be that sole parent.

Starting point is 00:25:59 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 their mind. Finally, I just told her, I was like, all right, I'll sign my rights over. Months go by. Christy has the baby. 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.

Starting point is 00:26:24 A process server. He 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. Went there and, signed the paper and what did you think it meant uh the whole time i thought i was just you know the paperwork for me signed custody rights to her but when i got done signed the guy said you just signed your rights away and so did the biological mother the baby's been up for adoption she's been living in south carolina for four months dustin says this is the first moment that he realized

Starting point is 00:26:57 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. I should have had a lawyer there with me. At that point in time, I grabbed the paper. 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. That he could be arrested. And I said, what do I got to do?

Starting point is 00:27:20 He said, you need to get a lawyer. Which he immediately did. 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. I mean, I never, never once did I want to give up on my daughter. Never once that I want to give her up. I mean, everybody says that I gave her up.

Starting point is 00:27:42 Never wanted to. 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. It's too late. He wouldn't have any rights at all. Under every state's laws, too late. Under the federal constitution, too late.

Starting point is 00:27:58 He rejected that opportunity to become a father. But he has one thing in his favor, says Lori. He happens to be Cherokee. And because of that fact, not only can this sort of man object, but he gets an automatic transfer of custody to him. And Mark and Lori see that as basically the worst kind of preferential treatment. And that is unbelievable.

Starting point is 00:28:22 This is John. John Nichols. This is Shannon. They're two of Dustin's lawyers. And John says, okay, there's preferential treatment. Fine. But think about why. while the protections of ICWA are there.

Starting point is 00:28:33 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... Now, fast forward to 2010... He says the same thing is happening in this case. And 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.

Starting point is 00:29:00 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. I believe it was absolutely intentional. And Shannon suggests that they knew about ICWA, they knew it would apply, and they were trying to sidestep it. There were so many errors. You just did a little air quotes on errors.

Starting point is 00:29:23 Yeah, I did. 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 America. Because it would be detrimental to the adoption. That's just, it's a preposterous argument. You know, the form... Mark and lawyers say the reason that nobody put Cherokee in big, bright, flaming letters is simple.

Starting point is 00:29:46 Christy herself is predominantly Hispanic. Dustin is predominantly Caucasian and is approximately 2% Cherokee. What? Did she say 2%? Yeah, Veronica herself would be a little bit over one version. Wait, this whole thing is happening because he's only 2%. Well, I feel like that changes things somehow. Well, yeah, but you have to keep in mind that Cherokee Nation doesn't care about the percentage of Cherokee in your blood.

Starting point is 00:30:12 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. You know, if your parents are a U.S. citizen, you're automatically a citizen. That's Chrissy Nemo, Assistant Attorney General for Cherokee Nation. If your parents are Cherokee citizen, you're not automatically a citizen. 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.

Starting point is 00:30:42 Both Chrissy Nemo and Marcia Zug told me that if the Supreme Court ends up deciding that... ICWA is unconstitutional because it really is race-based. Unconstitutional because it's a race-based preference. It calls into question every single federal Indian law. Now, there goes Indian law. 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. Every single federal Indian law is premised on giving some sort of special treatment to Indians.

Starting point is 00:31:23 What would that mean concretely if Indian law were to go away? It means that they're 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 Iqua, which would make it a lot easier for people like the Capo Biancos to adopt. So they could rule any number of ways.

Starting point is 00:32:12 Yeah. And the thing is that it's all strangely connected to this three-year-old girl. The whole time through this, I'm thinking I'm just going to sign custody rights over. So when she finally showed up, halfway through my interview with Dustin, Hello. Hi. It was kind of surreal. This is my daughter Veronica, though.

Starting point is 00:32:35 Daddy. Hey, Veronica, I'm Tim. She's got dark, curly hair. She's this ball of energy. She's definitely bullheaded. Hi, Daddy! And within a minute, she's giving me a tour of every single object in her room. And this.

Starting point is 00:32:53 I mean, everything. Who's that? Army bear. Army bear? You got one of daddy's dog tags on it? Yeah. She was a very, very proud host. A few minutes later, she wanted to show me her geese.

Starting point is 00:33:09 I don't think I've seen geese in a long time. About to. I'm about to. Those are real geese? Yeah. Hey babies. She feeds them out of her hands. No, nope, nope, no, don't miss without water.

Starting point is 00:33:28 Come here, babies. Thomas. Thomas, the train. Thomas, the train? Yes. Yeah. So, what could happen to her? Are they eating?

Starting point is 00:33:41 Well, if the Supreme Court said Dustin Brown shouldn't have qualified as father under ICWA, what they 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. You know, and honestly, hanging out with her and Dustin in the backyard is really easy to forget.

Starting point is 00:34:19 all these people whose lives are just completely tangled up in this scene. But who aren't there? Christia Maldonado, the birth mom. She did not intend to give Veronica up. She intended to give Veronica a life. Matt and Melanie Capo Bianco. I mean, this has been going on for so long.

Starting point is 00:34:40 We've kind of been in a holding pattern for like, well, forever. We're just waiting and waiting and waiting. And, of course, the hundreds of tribes who are just worried about their own kids. Pretty cool. Are you a good swimmer? Yes. I'm a good swimmer. I'm a bad swimmer. You're not. You're a good swimmer.

Starting point is 00:35:04 No. I'm a pretty bad swimmer. No, you're not. You're good swimmer. How do you know I'm a good swimmer? I know you're a good swimmer. You're a good swimmer. Well, I appreciate that. So the Supreme Court came to a decision on this ruling about a month after we first aired this podcast, and here's what they said. Okay, so the Supreme Court ruled 5-4 in favor of the adoptive couple, which is to say, against the birth father. To Dustin Brown, the dad lost.

Starting point is 00:35:42 It was like a 60-page ruling and not being totally confident what all the room were, I just made some calls. Hi, how are you? I'm doing great. How are you? 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? Well, in terms of Veronica's placement, had it come out the other way, then it would be over.

Starting point is 00:36:16 She would stay with Dustin Brown, her biological father, end of story. What we have now is the court upholding the termination of his parental rights. 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. Continuing custody. Right. 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.

Starting point is 00:36:48 Right. 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. Yeah. But I'm not quite as well, 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 Capo Bianco's custody. And that's what this guy said. So this is going back to South Carolina and to the state Supreme Court.

Starting point is 00:37:14 This is to Jinder Singh. He's a contributor at SCOTIS blog. And a counsel at the law firm, Goldstein and Russell, which practices before the Supreme Court. So the case goes to the South Carolina Supreme Court. And then they'll probably push the case down to their lower courts to make further decisions about whether the father has standing to object to adoption. And assuming he doesn't after this decision, you know, whether the adoption can just become finalized. So it sounds like the Capo Biancos will ultimately get Veronica back. Possibly, yeah.

Starting point is 00:37:44 But Marcia says that there's a chance that it might not go that way. So now she's up for adoption, right? This is where it gets complicated. So because the Supreme Court said that ICWA still stands, it's still law. Okay. And they said that Veronica is an Indian child. She's Cherokee. Okay.

Starting point is 00:38:03 That means that the South Carolina Supreme Court could decide that she is still covered by the Indian Child Welfare Act. My understanding of the case, they're not saying that ICWA doesn't apply. with the placement preferences. You remember the placement preferences? If the court decides that this is still an Iqa case, then those preferences would kick in. So if you recall, according to Iqa... When an Indian child is placed for adoption,

Starting point is 00:38:30 her extended family members would be given first preference, right? This is Salangelo. Salangelo, Joseph M. Lynch, Professor of Law, Seton Hall University School of Law. So in an Iqal case, the first preference is extended family. Second preference. Other members of the Cherokee tribe would be next in line. Third preference.

Starting point is 00:38:49 Other Indian families. This means an Indian family from any of the 562 federally recognized tribes. And then finally, any other family, such as the Capo Biancos. 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, they are at the very top of the and the Tory placement preferences, and the capo viancos are at the very bottom. Wow.

Starting point is 00:39:19 So it's possible the capo biancos might not get custody. 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,

Starting point is 00:39:40 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 may ultimately become the adoptive father. That's insane. Yes. Damn, this is complicated. I thought that they were supposed to get less complicated. 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. What's the timetable on this?

Starting point is 00:40:12 John said that they expect to hear something from the South Carolina Supreme Court on Monday, July 8th, just laying out like what the next steps are. So Tim, let me ask you, we spent a fair amount of time in the story examining the worst case scenario from the tribes 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. Right. I'm gathering from what you just said that that did not come to pass. No, that didn't happen. 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

Starting point is 00:41:00 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. Exactly, which to me was kind of baffling because why would you start off with this, you know, massive footprint and then leave a very small one? You know, is it to send a message?

Starting point is 00:41:28 So, anyway, I asked Marcia what she thought about it. Why do you think they started it off that way? I've been thinking about that. it clearly sat wrong with at least some members of the court. I mean, when listening to the oral arguments, you could tell that. You know, Roberts harped on it as well. It might have been that that was too big an issue to address in this case, that they weren't ready to. But I think it's an indication that at least some members of the court have serious reservations about Indian law.

Starting point is 00:42:04 because they just don't see Veronica as an Indian child. To them, Indian is a race, and she doesn't have enough blood to be of that race. And it's a possible indication of where future Indian law cases are going to go. producer tim howard thanks tim okay it's lulu again back in 2025 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

Starting point is 00:43:04 which found that without the application of Iqua, 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 to the courts. She's now 16 years old. As for the Indian Child Welfare Act, ICWA, it's faced repeated challenges in the past 12 years. The biggest one was in 2003. but at that time the Supreme Court upheld ICWA 7 to 2.

Starting point is 00:43:37 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. That case has not been decided. Thanks so much for listening. We'll be back next week. Hi, I'm Sarah Michael calling from Madison, New Jersey, and here are the staff credits. Radio Lab was created by Jad Abhamrod and is edited by Soren Wheeler. Lulu Miller and Luteth Nasser are our co-hosts.

Starting point is 00:44:29 Dylan Keefe is our director of sound design. Our staff includes Simon Adler, Jeremy Bloom, W. Harry Fortuna, David Gable, Maria Paz Gutierrez, Zindun Yana Sambandum, Matt Kielty, Annie McEwan, Alex Neeson, Sarah Sandbach, Anisa Vipsa, Ariane Wack, Pat Walters, Molly Webster, and Jessica Young, with help from Rebecca Rand. Our fact checkers are Diane Kelly, Emily Krieger, Anna Pujol Manzini, and Navajo Emily Middleton. Hi, I'm Maddie, and I'm from Frederick Maryland. Leadership support for Radio Lab's science programming is provided by the Simmons Foundation and the John Templeton Foundation. Foundational support for Radio Lab was provided by the Alfred P. Sloan Foundation.

Radiolab - Adoptive Couple v. Baby Girl

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