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The Feminist Defense for Baby Veronica's Dad and ICWA

When I began writing about the Baby Veronica case last May, I argued that feminists should care about the (then-pending) Supreme Court case because losing your biological kids is something that mostly happens to women, especially poor women, immigrant women, and Native women. That this particular case was about a father, I argued, should not distract us from the central importance of the Indian Child Welfare Act (ICWA) as a women’s rights issue alongside its role as a keystone of sovereignty politics and Indian law. As I point out in my book, Somebody's Children: The Politics of Transracial and Transnational Adoption, it was Native women’s testimony about losing children in Indian country that turned the tide in the decade-long fight for ICWA, and made Congress take notice of what was happening.

Courtesy Laura Briggs

Laura Briggs, chair and professor of Women, Gender, Sexuality Studies at the University of Massachusetts Amherst

RELATED: Why Feminists Should Care About the Baby Veronica Case

Since then, I have heard from many feminists on both sides of the issue, including birth mothers, adoptees (particularly Indian adoptees), and family law attorneys who agreed that feminists need to stand up and be counted in defending ICWA. Others, though, have argued that it is a feminist position to defend Matt and Melanie Capobianco’s right to adopt Veronica, arguing that the birth mothers preference should be determinative.

I think the significant points of disagreement between me and those who have argued that the Baby Veronica case is a a “birthmother’s rights” issue are the following: What are the conditions under which a biological parent should lose rights to their children, and how much should marriage matter in determining that? Does it make a difference whether the child is eligible for enrollment in a Native nation or not? And, finally, should the court consider the best interests of the child in determining placement?

I disagree with those who have suggested that treating fathers as parents was an “unintended” consequence of ICWA. Suffice to say that 35 years after ICWA passed, the rate of Native kids being placed in adoptions and foster care is still higher than that of kids from other groups, and is much higher in states with significant Indian populations. That should raise political questions about whether the courts should be placing any limitations on the scope of ICWA.

RELATED: Trafficking Native Children: The Seamy Underbelly of U.S. Adoption Industry

Several things have happened since I wrote the original piece that should be updated. First, of course, the Supreme Court found that ICWA did not apply in this case. Previously, I argued that I thought it should. That point is now mooted, as the law is whatever the Supreme Court says it is, unless Congress changes it. A South Carolina court claimed that the biological father, Dusten Brown’s parental rights were terminated by the finding that ICWA did not apply, and the fact that the would-be adoptive parents live in South Carolina, a state that for purposes of adoption does not recognize men as fathers unless they are married to the mother or meet other stringent criteria (although if an unmarried mother seeks TANF—welfare—in order to keep her child, the state will recognize him as a father, force him to pay child support, and deduct his presumed contribution from her eligibility for benefits. But I digress. The state is not required to treat families trying to keep their children fairly.)

Many legal experts and Native advocacy groups expected that when the Supreme Court remanded the case to South Carolina this summer, there would be a hearing on Veronica’s best interest. The South Carolina court had previously applied a “best interest” standard when it denied the Capobianco’s petition to adopt her and ruled that ICWA applied. There was, however, no new hearing on best interest. Instead, a divided court ruled 3-2 that since Christina Maldonado had relinquished her rights to her daughter, and since Dusten Brown was not legally related to Veronica since, allegedly, he did not materially support her birth mother during pregnancy, there was no impediment to issuing a decree granting an adoption to the Capobiancos.

Read more Indian Country Today Media Network coverage of the Baby Veronica Case about how Brown repeatedly tried to support Maldonado:

The Fight for Baby Veronica: Part 1, Part 2, Part 3, Part 4, Part 5 and all Baby Veronica coverage

Baby Veronica Case: Capobianco Expert Recants Damning Report on Father

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Regardless, it makes no sense socially or morally to treat the Capobiancos as having a standing in this case that Brown is not entitled to. Before the Supreme Court case, they were legal strangers to her. Veronica’s biological father has been caring for her for the last two years, and taking her from a biological parent who wants her, who seemingly and presumptively has, as the South Carolina Court predicted when granting him custody two years ago, kept her “safe, loved, and cared for,” in favor of the Capobiancos seems to be only about their wealth and privilege. The court’s failure to consider Brown a parent, to simply act as if he had no standing at all in the debate over whether she should be adopted by a couple in South Carolina, precisely exemplifies why I think this case is alarming, and why ICWA was passed in the first place.

It was one thing to make that argument when she was living with the Capobiancos and had never met Dusten Brown. But it seems quite another two years later, when she has been living with him all this time. He is, quite meaningfully, a parent to Veronica.

Supporters of the Capobiancos continue to argue about what happened during Maldonado’s pregnancy, but at this point, that’s a little disingenuous. Maldonado’s lawyer, weirdly, harangued Brown’s supporters after midnight on Facebook a few weeks ago, painting him as your basic deadbeat ex- who abandoned his pregnant girlfriend and turned up again later like a bad penny. Others have described Christine Maldonado as a bad mother who had lost her other two kids, someone with significant financial problems who had refused financial help from Brown, gotten a lot of money from the Capobiancos, and bought a fancy new SUV.

RELATED: Some Disturbing Facts About Baby Veronica's Birth Mother

Yuck. I’m more than willing to stipulate that for neither of them was this their finest hour. Nor is anyone asking whether you or I or anyone has to admire them or like them. The only question is whether they ought to be granted the same wide benefit of the doubt that all parents who do not beat or extensively neglect their children are given.

As an adoptive parent myself, I feel for the Capobiancos, who grieve a child that they held as a newborn.

However, they were put on notice that they were possibly not going to be able to adopt her when they notified Dusten Brown about a potential adoption when she was four months old and Brown began vigorously to contest it. They lost custody of that baby when they took her to court at 2. It happens sometimes, and it’s hard. But as someone, too, who mourned with my daughter her sense of loss over her birth parents, I wonder what they think is going to happen when Veronica turns 12 and Googles herself. Or even 7, much less 18, 21, 35.

For most adoptees, especially older ones like my daughter or Veronica, who will be four in September, adoption is about loss as well as gain. To some extent, that’s because of how we in the U.S. structure it: you can have only one set of legal parents. If the adoption goes through, Veronica will get a new birth certificate; it will be as if Dusten Brown had never existed.

My daughter was taken from her birth family at 2, and again at 4, following a finding of abuse. Today, at 25, she remembers that vividly, and her sense of abandonment—even though she was literally taken away in the middle of the night and ripped from her mother’s arms. It still haunts her, although she and I have a close and loving relationship, and, if pressed, she would say that her “real” parents are the ones who raised her. I don’t know what I would’ve said to her in the face of her longing for her birth family if the facts were different—if she had been safe and well-loved, but I took her because I wanted a child to raise as my own. If that were the case, I sincerely hope and believe I would’ve stepped aside. Every adoption begins with a tragedy, a crisis, someone’s grief, including, often, the child’s. Why would we socially engineer that for no reason except that the Capobiancos want to raise her?

In addition to the speculative question of how Veronica will feel as she grows, there is the broader context of adoption, which this case seems to reinforce the worst aspects of. People who lose children to adoption are almost always poor, Black, brown, or Asian (or the teenage daughters, sometimes, of white evangelicals, who have treated adoption sometimes as a position in a culture war, as the Nightlife Christian Adoption agency and lawyer Paul Clement seem to have in this case).

People who adopt are generally wealthy, from the U.S., Western Europe, Australia, or Israel, and usually but not exclusively white. In short, adoption follows gradients of power, wealth, and privilege. In the 1950s and 60s, those who relinquished children for adoption were generally young, dependent white girls (other groups’ children were generally considered un-adoptable). In the early 1970s, as soon as white girls started to be able to make enough with their own wages to minimally (even miserably) support their children as single parents, they stopped placing their infants for adoption. Since then, the faces of those placing children for adoption has gotten darker and poorer, are more often from the global South, and those adopting have gotten wealthier. As international human rights treaties have demanded more transparency in where those Guatemalan and other overseas children have come from, or given their birth parents more rights to contest those adoptions, the “supply” of these children, too, has begun to dry up (and as political events make adoption an issue). The whole edifice of adoption as a massive, rather than occasional, practice has relied on finding more and more powerless people to provide adoptable babies and children.

It is a mistake, I think, for feminists to look to a dispute between a working-class father in the military and an impoverished and desperate mother, and think, let’s take up this woman’s particular cause and call it a women’s rights question. Because, overwhelmingly, the people who suffer when it is easy for wealthy strangers to adopt and difficult for birth parents to mount an effective legal challenge are women. Just as it was Native mothers who had lost their children who provided testimony to Congress in the 70s for ICWA, it has been birth mothers—and adoptees—who have campaigned for greater legal protection from would-be adopters. This is not an anti-feminist “father’s rights” case. This is a case about whether poor people of color—in Native communities in particular—are going to have meaningful protection of their rights as parents.

Laura Briggs is chair and professor of Women, Gender, Sexuality Studies at the University of Massachusetts Amherst. She is the author of several books on race, questions of empire, and reproductive politics—including indigenous politics—in the U.S. and Latin America, most recently Somebody's Children: The Politics of Transracial and Transnational Adoption. She blogs at