Wednesday, August 7, 2013

Then and Now: Greed v. Sovereignty

In 1832, a white man named William Beard went to the home of Cherokee Nakey Brown. He claimed her possessions, saying the state of Georgia gave them to him when he won the lot in the land lottery. He threatened to use force against her if she didn't quietly surrender what was rightfully hers.

In 2013, a white couple, Matt and Melanie Capobianco, want to go to the home of Cherokee Dusten Brown. They claim his daughter, saying the state of South Carolina gave her to them when they won the child in a court case. They are threatening to use force against him if he doesn't quietly surrender what is rightfully his. 


In 1832, Georgia was trying to give away something it had no right to give away - Cherokee land. The Cherokee Nation had not given up their right to the land. They had not surrendered it in any way. 

In 2013, South Carolina is trying to give away something it has no right to give away - a Cherokee child. The Cherokee Nation has not given up their right to the child. They have not surrendered her in any way.


In 1832, in Worcester v. Georgia, the US Supreme Court Chief Justice John Marshall said the Cherokee Nation remained a separate, sovereign nation, independent of Georgia. He came down hard on the state of Georgia and said the Cherokee Nation had the right to live free from the state's trespasses.

Georgia ignored that U.S. Supreme Court ruling. Nakey Brown's rights as a Cherokee citizen were ignored by the state of Georgia, not because Georgia didn't realize the Cherokee Nation was a sovereign nation, but instead because the Cherokees had something they (and William Beard) they were going to do anything they had to do to get it.

In 2013, in Adoptive Couple v. Baby Girl, the Supreme Court held that Veronica Brown was an Indian child and that the Indian Child Welfare Act's adoption placement preferences could come into play. That meant that if the state of South Carolina did not allow her to stay with her father, then Veronica's placement should follow the hierarchy of preferred placement for Indian children.

South Carolina ignored that U.S. Supreme Court ruling. Veronica Brown's rights as a Cherokee citizen are being ignored by the state of South Carolina, not because South Carolina doesn't realize the Cherokee Nation is a sovereign nation, but instead because the Cherokees have something they (and Matt and Melanie Capobianco) want...a child...and they will do anything they have to do to get it. 


Two historical events, 181 years apart, but eerily similar. In 1832, white Americans trespassed into  the Cherokee Nation; wrongfully dispossessed many Cherokees of everything they owned; and the legal system allowed them to do it. Now in 2013, it would be illegal for them to come into our homes, force us out, and steal our possessions, but as appalling as it is, white Americans can now sneak around; wrongfully dispossess us Cherokees of our children; and the legal system is allowing them to do it. 

The more things change, the more they stay the same.

Those are my thoughts for today.
Thanks for reading.

copyright 2013, Polly's Granddaughter - TCB


  1. Not powerful. And an incredible distortion of the facts, which are painted to make Brown look like a saint and the Capobiancos as criminals, at that.

    Let's get something clear: Brown never had legal custody over Veronica because he did not show interest in her life in the relevant period of time under state law (tribal law doesn't define his rights as Veronica wasn't born within or ever domiciled on the CN reservation). Thus, whether he understood the formal signing over of his parental rights for adoption via the Capobiancos is irrelevant (this was a step taken to ensure complaince with under ICWA, which the Supreme Court has subsequently said does not apply to Brown).

    But, apart from the above, Brown made his intent crystal clear from the jump that he was giving up his rights over Veronica to the birth mother. Once this is done, it isn't up to Brown how the birth mother raises (or doesn't) their child in common. Once this is done, the birth mother is free to do what she wants in determing what is best for Veronica (without regard to Brown's concerns), including putting Veronica up for adoption.

    But if you want to look at some comparisons, why not look at this case:

    -Brown, after learning the birth mother no longer wanted to marry him and faced with the prospect of paying child support, "terminated" his parental rights over Veronica to the mother

    Enter the Capibiancos, who showed interest in Veronica from day one and were a part of her life from day one!

    -Brown did not provide financial or other support for Veronica pre-birth and during the first four months of her life, despite knowing that she was born and that her mother was a single parent.

    Contrast this to the Capibiancos, who provided financial assistance to the birth mother to help her through the pregnancy.

    The contrasts (and the law) could not be clearer. Veronica belongs with the Capibiancos.

    Not to mention, even if a court somehow rules that the Capibiancos cannot raise Veronica, this doesn't change the fact that Brown has no legal rights to her (his rights were legally terminated). On the contrary, he will not be raising Veronica regardless of the adoption outcome. To the extent that the ICWA does apply, only the birth mother (as outlined by the Supreme Court) may revoke consent to the adoption before it is finalized/transfer of custody complete. The birth mother has made crystal clear that she will reclaim custody of Veronica in the event that the Capibiancos cannot adopt Veronica. Brown's attorneys have not disputed the birth mother's rights under ICWA, even when the issue was brought up in state court. Knowing this, is it even more outrageous that Brown is carrying on this way when doing so will only further harm the transition for Veronica as she continues to grow.

    I understand that Brown has been taking good care of Veronica over the last two years, but he gave up his right to be a father to her when he showed no interest in her birth/well-being initially and left her mother to fend for herself.


    Disclaimer: While I disagree with some of your postings, I am extremely appreciative of your blog! Please keep on posting about issues you are passionate about.

  2. It seems it takes only two phrases to understand the mindset of this "concerned person" , continuation of manifest destiny and white privilege .

  3. DYahola: of course you fail to attack the substance of anything that I wrote, instead choosing to engage in semi-personal attacks. I will support American Indian rights, as I will support the rights of any others, where it is right to do so, both morally and/or legally. In this instance, I have explained why I believe, outside of the law, that it is appropriate for Veronica to be returned to the Capobiancos (we are free to disagree on this point). As to the law, however, things could not be clearer. The law favors the Capobiancos rights to care for Veronica.

  4. Not to mention that the Supreme Court in Adoptive Couple v. Baby Girl ruled exactly the opposite from what you wrote. Writing for the majority, including Justice Breyer who joined the opinion in full despite his concurrence asking about the effect of ICWA on a similar, but distinct situation, Justice Alito wrote that Section 1915(a)'s preference placements DO NOT apply here as neither the CN nor members of Veronica's biological family/other Indian families came forward to file for adoption of Veronica within the relevant time frame (i.e. after being notified of the South Carolina proceedings and shortly thereafter). Brown's lawyers have been trying to make the case that the preference placements still apply, but South Carolina family court rightfully applied the Supreme Court's Adoptive Couple holding and held that they do not.

    For informational purposes, I have posted the relevant part of the Supreme Court's opinion addressing the applicability of Section 1915(a)'s preference placements:

    "In this case, Adoptive Couple was the only party that sought to adopt Baby Girl in the Family Court or the South Carolina Supreme Court. See Brief for Petitioners 19, 55; Brief for Respondent Birth Father 48; Reply Brief for Petitioners 13. Biological Father is not covered by § 1915(a) because he did not seek to adopt Baby Girl; instead, he argued that his parental rights should not be terminated in the first place.11 Moreover, Baby Girl's paternal grandparents never sought custody of Baby Girl. See Brief for Petitioners 55; Reply Brief for Petitioners 13; 398 S.C., at 699, 731 S.E.2d, at 590 (Kittredge, J., dissenting) (noting that the “paternal grandparents are not parties to this action”). Nor did other members of the Cherokee Nation or “other Indian families” seek to adopt Baby Girl, even though the Cherokee Nation had notice of—and intervened in—the adoption proceedings. See Brief *2565 for Respondent Cherokee Nation 21–22; Reply Brief for Petitioners 13–14.12

    The Indian Child Welfare Act was enacted to help preserve the cultural identity and heritage of Indian tribes, but under the State Supreme Court's reading, the Act would put certain vulnerable children at a great disadvantage solely because an ancestor—even a remote one—was an Indian. As the State Supreme Court read §§ 1912(d) and (f), a biological Indian father could abandon his child in utero and refuse any support for the birth mother—perhaps contributing to the mother's decision to put the child up for adoption—and then could play his ICWA trump card at the eleventh hour to override the mother's decision and the child's best interests. If this were possible, many prospective adoptive parents would surely pause before adopting any child who might possibly qualify as an Indian under the ICWA. Such an interpretation would raise equal protection concerns, but the plain text of §§ 1912(f) and (d) makes clear that neither provision applies in the present context. Nor do § 1915(a)'s rebuttable adoption preferences apply when no alternative party has formally sought to adopt the child. We therefore reverse the judgment of the South Carolina Supreme Court and remand the case for further proceedings not inconsistent with this opinion."

    Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2564-65 (U.S.S.C. 2013)

  5. Concerned,
    Your comments sound as follows:
    They said, he said, I said. And then they said and then they said differently the he and she said because they said so he said they said you said.

    I could care less what voices have created this trajedy.
    The only voice that I want to hear is Veronicas.
    This little girl has rights and protections. Whether you like it or not, her voice matters.

  6. tuff stuff: I can respect your opinion (although I do find it convenient that many of the people making this claim now had no problem with Veronica being taken from the only parents she knew (i.e. the Capobiancos) and handed over to Brown initially, who was a complete stranger to her at the time. Where were the concerns for Veronica's rights and protections then?), but profoundly disagree. A child has the right to live with her parents. A parent by blood doesn't make one a parent. A parent loves his child enough to care for her from day one, and before. A parent does not leave his significant other to fend for herself because he is hurt that the significant other would not marry him. A parent is not willing to sign away his legal rights and responsibilities over his child. A parent does not come in at the last minute and try to rip his biological child away from a couple that has cared for the child from day one. Veronica had and has rights and protections as they pertain to being raised by the Capobiancos, her parents under the law and in love.

    While Veronica's voice certainly matters, we still need to be cognizant of the role that parents have over their children, particularly at a young age when the child isn't fully able to articulate her opinion. Still, let me pose this hypothetical to you: A man kidnaps a child at birth and then goes on to raise that child for years and, by all accounts, is actually a good parent/caretaker to that child, notwithstanding the evil nature of the initial kidnapping. In such an instance, should the law give much weight to the fact that the child might be happy with the kidnapper and wants to stay with him as a part of his family? Of course not, as the law does not reward unlawful actions and does not give rights to unlawful parents over lawful parents as a general matter. While not as extreme as my hypothetical, it is important to note that, as would be the case with the kidnapper and the child, Brown has no legal right to care for his daughter. The law is best utilized in ensuring, in both cases, that the child is returned to her lawful parents.

  7. The entire adoption procedure should be invalidated because of the conspiracy of deceit and manipulations that was entered into by the birth mother, adoption agency, adoption attorneys, and the prospective adoptive parents.
    There should be no bar allowed to interfere with Dusten Brown, his family and the Cherokee Nation in regards to Veronica Rose Brown.


Your comments are welcome!