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Mistreating Native American Children

Liberal social policy at work.

Aug 20, 2012, Vol. 17, No. 45 • By ETHAN EPSTEIN
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In 1978, a little-known law called the Indian Child Welfare Act was signed with the intention of keeping families together. Today, it’s being used to tear them apart.

Veronica Capobianco, left, trick-or-treating in October 2011

Veronica Capobianco, left, trick-or-treating in October 2011

Take the case of the Capobianco family of James Island, South Carolina. Matt Capobianco, who works at Boeing, and his wife Melanie, a psychologist, spent years trying to conceive a child, even going so far as to attempt in-vitro fertilization seven times. The couple ultimately decided to adopt, and found a pregnant mother in Oklahoma who was willing to give them her child. So taken with the Capobiancos was the birth mother that she even let Matt cut the umbilical cord when
the little girl, whom the Capobiancos named Veronica, was born in September 2009. The child’s birth father waived his parental rights, declaring that he “would not be responsible in any way for child support or anything else as far as the child’s concerned,” and Matt and Melanie took Veronica back to South Carolina, where they began to raise her as their own.

Four months later, Veronica’s birth father, a soldier in the U.S. Army living in Oklahoma named Dusten Brown, changed his mind and initiated legal proceedings to gain custody of Veronica. Normally, this would have been an easy win for the Capobiancos; not only had Brown signed away his rights, he had also provided no support through the pregnancy. But there was a hitch.

The Indian Child Welfare Act ensures that in custody cases involving adoptions and foster care, preference is always given to keeping Indian children in Indian families. Using this law, Brown—who is reportedly 3 percent Cherokee, roughly in the Elizabeth Warren range—enlisted
the Cherokee tribal council to help him sue for custody. Because Veronica has “a drop of Cherokee blood,” she qualifies for tribal membership and thus is an “Indian child” under the Indian Child Welfare Act. 

The Indian preference rule doomed the Capobiancos. After a two-year battle in family court, Veronica was removed from her home on December 31, 2011, and sent to Oklahoma to live with her biological father. “I’ll always remember her crying when we had to walk out of that office and leave her there,” Melanie told Charleston media. The family appealed the decision, but late last month, they lost in the South Carolina supreme court. The majority affirmed the family court’s order under the Indian Child Welfare Act, though the justices noted that they did so “with a heavy heart.”

To be sure, the Indian Child Welfare Act was ratified, as the law itself states, at a time when “an alarmingly high percentage of Indian families [were] broken up by the removal of their children”—some estimates say that up to 35 percent of Indian children were being removed from their families at the time, ostensibly for reasons of abuse or parental incompetence. But the idea that a nearly 3-year-old child’s alleged ethnic heritage trumps her right to remain with loving parents in the only home she has ever known is reason for pause. And some of the arguments made in support of the law are positively bizarre.

Its advocates claim, for example, that “Indian children don’t experience ‘attachment’ like non-Indian children do because they are more likely to attach to the tribe rather than the primary caretakers.” Thus, the law elevates the supposed rights of the group over the best interests of individual children. As Maurice Portley, an appellate judge in Arizona who has studied the law, explains, “the act revolutionized the ‘best interests of the children’ concept for Indian children. Instead of merely looking at the Indian child’s stability in a placement and bond with a psychological parent, the federal standard requires an examination of ‘the rights of the Indian child as an Indian and the rights of the Indian community and tribe in retaining [its] children in its society.” 

The Capobiancos are hardly the only family to have been torn apart as a result of this law. While there is no definitive national tally (foster care and adoption proceedings are generally kept private), Lisa Morris of the Christian Alliance for Indian Child Welfare, an organization that advocates for children hurt by the law, says that families contact her group seeking assistance fighting it “all the time.” Morris also says that the Cherokee Nation, in particular, has been aggressive about marshaling the act to snatch children from their adoptive parents. She says the Cherokees have more than 100 attorneys targeting 1,500 children nationwide for removal from their families. The Cherokee Nation may be facing some headwinds, though: Another nonprofit, the Coalition for the Protection of Indian Children and Families, is lobbying Congress to amend the law to shorten the window during which an Indian biological parent can revoke his or her consent to an adoption. 

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