Adoptive Couple v. Baby Girl

Radiolab is supported by ATT.

Few things feel better than knowing someone is in your corner, like when your friend saves you a seat when you're running late.

That's why ATT has connectivity you can depend on, or they'll proactively make it right.

That's the ATT guarantee.

Terms and conditions apply.

Visit ATT.com/slash guarantee for details.

ATT, connecting, changes everything.

Radiolab is brought to you by Progressive Insurance.

Do you ever find yourself playing the budgeting game?

Well, with the Name Your Price tool from Progressive, Progressive, you can find options that fit your budget and potentially lower your bills.

Try it at progressive.com.

Progressive casualty insurance company and affiliates.

Price and coverage match limited by state law, not available in all states.

Hey, Radiolab, 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 3 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.

So, here we go: adoptive couple v baby girl.

Wait, you're listening.

You're listening

to Radio Lab

from

WNYC.

Hey, I'm Jadab Umran.

I'm Robert Quilwich.

This is Radio Lab.

The podcast.

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 in there.

No, there are.

Look, I've seen the front of the U.S.

No, there are.

Just look, okay.

It's going to make sense in about 30 seconds.

Okay.

That was just a, that's a tease.

It isn't ultimately even that important to the story.

So just, 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.

Well, the name of the case is Baby Girl versus Adoptive Couple.

Actually, in strict legal parlance, it's called Adoptive Couple v.

Baby Girl.

So it's not a particularly catchy name.

I got to say, it's a weird name, though.

It's hard to picture.

Yeah.

So this is Marcia Zug, Associate Professor of Law at the University of South Carolina.

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.

Heirs.

Children.

Supreme Court.

Christopher Columbus.

Christopher Columbus.

And it is not straightforward at all.

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 Capobianco.

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.

And they really wanted to have a kid.

They had gone through, you know, infertility problems.

It wasn't working out.

So eventually they decided to adopt.

Enter a woman named Christy Maldonado.

She lives about a thousand 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.

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, I was

called her that.

Yeah.

Boss Lady.

Bosses everybody around.

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.

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.

Why?

Well, it's mainly because of this law.

The Indian Child 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.

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?

Just hang on.

This is all going to make sense.

Okay, but he takes the kid, is what you're saying.

Yeah.

New Year's Eve, 2011, with cameras rolling, Dustin Brown drives his pickup truck into Charleston.

Matt and Melody Capo Bianco clutch to two-year-old Veronica.

This could possibly be the last time they hold their baby as her mom and dad.

And 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 love her with strangers.

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 kiss.

Have you ever seen the child before?

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, um

the day after the uh

transfer.

Transfer.

Oh, 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?

About two years.

Oh, man, that's hard.

Yeah.

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.

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 is this coming from?

How can this possibly be okay?

That's Marcia Zug again.

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.

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 ICWA 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.

What did she tell you?

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.

Burt, how are you doing?

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.

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.

And

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.

He said, there's a child.

A Devil's Lake 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.

What was their stated reason for taking Ivan away?

Neglect.

Because what?

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.

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 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.

I remember it vividly.

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 hike.

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.

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.

What we found is that on every reservation...

My name is Michael Evan Nohart.

I'm a full-blooded punk pop out of Lakota from Standing Rock Reservation.

You couldn't not find a family that didn't know of a child in placement.

The social services came and

took me and my sister and told my mother and dad that they were taking us into Mowbridge for physical checkup, and they never brought us back.

Wow.

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 answers that he got ran the gamut.

Conditions of poverty, alcoholism, 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.

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.

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.

About one-third of Indian children were in out-of-home placements in non-Indian settings.

One-third?

25 to 35% of Indian children nationwide were in out-of-home placements.

That's a real number?

That is the 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.

Wait a second.

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 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.

This was like out of i pluribus unum, like

to to 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.

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

the ideas and traditions that you pass on to your kids?

That's Marcia Zug again.

If you are hemorrhaging your children, then you're going to disappear.

So what do you do?

Well, it's too massive of a problem if you're trying to fight all these removals of kids on a case-by-case basis.

Forget about it.

A national law is needed.

So Burt spent years walking the halls of Congress, literally.

Endless lobbying congressional hearings.

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.

The 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.

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.

But by and large, most of us think that ICWA 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.

Radiolab is supported by AT ⁇ T.

Few things feel better than knowing someone's in your corner.

Whether you're celebrating a win or trying to work through a loss, staying connected matters.

Check-ins, no matter how casual or quick they may seem, are moments that matter.

AT ⁇ T wants to ensure these moments are always in reach with their guarantee that covers both wireless and fiber internet service that is all about having your back.

Staying connected matters.

That's why in the rare event of a network outage, AT ⁇ T will proactively credit you for a full day of service.

That's the AT ⁇ T guarantee.

That's a wrap for now, but if you're thinking of reaching out to someone who has been on your mind, go for it.

Credit for fiber downtime lasting 20 minutes or more or for wireless downtime lasting 60 minutes or more caused by a single incident impacting 10 or more towers.

Must be connected to impacted tower at onset of outage, restrictions and exclusions apply.

See ATT.com/slash guarantee for full details.

ATT, connecting changes everything.

Hey, I'm Lulu and this is an ad by BetterHelp.

BetterHelp therapists have helped over 5 million people worldwide on their mental health journeys.

That's millions of stories, millions of journeys, and behind everyone is a therapist who showed up, listened, and helped someone take a step forward.

Moments in therapy, like the right question, a safe space to cry or celebrate a small win, can change lives.

October 10th is World Mental Health Day.

Woo-hoo!

And BetterHelp is honoring those connections and therapists who make them possible.

I happen to be married to a therapist.

So in honor of World Mental Health Day, I am going to go home tonight and give her a kiss and thank her for all the people she has helped.

The right therapist can make all the difference.

And with over 30,000 therapists, BetterHelp is the world's largest online therapy platform.

And BetterHelp does the initial matchmaking work for you so you can focus on working with the perfect therapist to meet your specific therapy goals.

And if for some reason you aren't happy with your match, switch to a different therapist at any time whenever you want.

This World Mental Health Day, BetterHelp is celebrating the therapists who've helped millions of people take a step forward.

If you're ready to find the right therapist for you, BetterHelp can help.

Radiolab listeners will get 10% off their first month at betterhelp.com/slash Radiolab.

That's better H-E-L-P.com/slash Radiolab.

Radiolab is supported by Capital One.

Banking with Capital One helps you keep more money in your wallet with no fees or minimums on checking accounts and no overdraft fees.

Just ask the Capital One Bank Guy.

It's pretty much all he talks about in a good way.

He'd also tell you that Radio Lab is his favorite podcast, too.

Aw, really?

Thanks, Capital One Bank Guy.

What's in your wallet?

Terms apply.

See capital1.com slash bank, capital One NA, member, FDIC.

Radiolab is supported by Gobble, the meal kit delivery service created by busy professionals for busy professionals.

Their team of award-winning chefs handles the peeling, simmering, marinating, so you can serve up a delicious meal in as little as 15 minutes.

Each week, choose from over 30 meal options, including lean and clean, vegetarian, classic, and more recipes, and they'll deliver them right to your doorstep.

You'll experience global flavors and gourmet chef-prepared ingredients that make you feel like a pro without a single trip to the store.

Give Gobble a try today.

Visit gobble.com/slash radiolab to get started with $120 off across your first four boxes.

That's gobble.com/slash Radiolab.

I'm Jad Abum Radh.

I'm Robert Quilwich.

This is Radio Lab.

Today,

I'll look at a Supreme Court case that may determine the future of a law 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 are about 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.

But there is no issue, big or 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.

He's one of the organizers.

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.

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?

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.

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 outlived its usefulness and causes more problems than it solves.

This is Mark Fidler.

I'm one of the attorneys for Matt and Melanie Capo Bianco.

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 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.

Even though in my heart of hearts 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, 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're just amazing people.

They met the birth mother, Christie Maldonado, when she was pregnant.

They got to know her.

She felt a connection to them.

That's Lori McGill's.

She's represented Christie since last year.

And they were also willing to have an open adoption.

Yeah, we still have a relationship with Christie.

We love her to death.

When Christie gave birth to Veronica, they were there there with her in the delivery room.

Yeah, I mean, the day she was born, I cut the cord.

Matt Capapianco cut the umbilical cord.

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 in the room is kind of scary, but it gives you some idea of how she felt about the Capabianco's.

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.

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 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.

And they were basically like,

he doesn't want to do interviews.

He doesn't want to talk.

Yeah, 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.

He lives in this one-story house on this tree-lined block in a small town north of Tulsa.

Hey, how's it going?

How are we doing?

Doing good.

Okay.

What does he look like?

He's just a very normal-looking guy.

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.

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 Nowhat, Oklahoma.

This is my house.

I'm part of the Wolf Clan.

Wolf Clan 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 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.

But basically, he and Christy Maldonado, the birth mom.

We've known each other since we were 16.

We've dated off and on throughout.

In 2008, he joins the Army.

Basic training.

He lives on a base.

It's four hours away.

Four hours south.

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.

She said, okay that's just great and almost a month later she sent me a message saying that she was pregnant and i was excited i mean

to have children with her was 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.

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 Rather Blue, and I'm just like, well, what's going on?

And he says that he tried to get in touch with her.

Texting her up, trying to call her.

Still no answer.

There's a couple times that I've went back to the Barbsville and went to her house.

Drove those four hours from the base knocked on her door i could hear you know voices in the house 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

His parental rights.

Would you sign your rights over?

You guys are text saying this?

Are you talking?

Oh, the whole time we're text messaging this because she wouldn't talk to me.

And what did you think it meant?

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.

But 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 them chances I wasn't going to come back, I wanted to make the right choice and let the mother be that sole parent.

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

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.

A process server.

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 office right near the base.

He went there and signed the paper and what did you think it meant?

The whole time I thought it was just, you know, the paperwork for me signing custody rights to her.

But when I got done signing, 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 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?

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 did I want to give her up.

I mean, everybody says that I gave her up.

Never wanted to.

Now, Mark and Laurie 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.

He rejected that opportunity to become a father.

But he has one thing in his favor, says Laurie.

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 Laurie see that as basically the worst kind of preferential treatment.

And that is unbelievable.

This is John.

John Nichols.

This is Shannon.

Shannon Jones.

They're two of Dustin's lawyers.

And John says, okay, there's preferential treatment.

Fine.

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.

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 months and then spring it 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, didn't you?

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 American.

Because it would be detrimental to the adoption.

That's just

a preposterous argument.

You know, the form.

Mark and Laurie say the reason that nobody put Cherokee in big, bright, flaming letters is simple.

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 1%.

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.

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 a 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.

Both Chrissy Nemo and Marsha 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.

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.

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.

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 Piancos to adopt.

So they could rule any number of ways.

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 assign custody rights over her.

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.

Daddy.

Hey, Veronica, I'm Tim.

She's got dark, curly hair.

She's this ball of energy.

She's definitely bullheaded.

And within a minute,

she's giving me a tour of every single object in her room.

And this.

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

proud

host.

A few minutes later, she wanted to show me her geese.

I don't think I've seen geese in a long time.

We're about to.

Those are real geese?

Yeah.

She feeds them out of her hand.

No, no, no.

Don't mess with that water.

Come here, babies.

Come here, babies.

Thomas.

Thomas Tring.

Thomas the Train.

Thomas.

Yep.

So,

what could happen to her?

Are they eating?

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.

You know, and

honestly, hanging out with her and Dustin in the backyard,

it's really easy to forget

all these people whose lives are just

completely tangled up in this scene.

But who aren't there?

Christy Maldonado, the birth mom.

She did not intend to give Veronica up, she intended to give Veronica a life.

Matt and Melanie Cabo Bianco.

I mean, this has been going on for so long.

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 dude swimmer.

No, I'm a pretty bad swimmer.

No, you're not.

You dead swimmer.

How do you know I'm a good swimmer?

I know you do swimmer.

You dude swimmer.

Well, I appreciate that.

Yeah.

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.

So Dustin Brown the dad lost.

Right.

It was like a 60-page ruling, and

not being totally confident what all the ramifications were, I just made some calls.

Hi, how are you?

I'm doing great.

How are you?

For example, I Skyped with Marcia 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.

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.

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 mean, I'm curious, 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.

This is to Jinder Singh.

He's a contributor at SCODISBLOG.

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 the 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.

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,

and they said that Veronica is an an indian child she's cherokee okay 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 iqa doesn't apply with the placement preferences you remember the placement preferences yeah if the court decides that this is still an iqua case then those preferences would kick in So if you recall, according to ICWA.

When an Indian child is placed for adoption, her aesthetic family members would be given first preference, right?

This is Selangel.

Selangel Maldonado, Joseph N.

Lynch, Professor of Law, Seton Hall University School of Law.

So in an ICA case, the first preference is extended family.

Second preference.

Other members of the Cherokee tribe would be next in line.

Third preference.

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 ECU case, and if the paternal grandparents file a petition to adopt, they are at the very top of the mandatory placement preferences, and the Capo Biancos are at the very bottom.

Wow.

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

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

may ultimately become the adoptive father.

That's insane.

Yes.

Damn, this is complicated.

I thought that it was 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.

Aaron Powell, what's the timetable on this?

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.

Aaron Powell, Tim, let me ask you.

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.

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 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 massive footprint and then leave a very small one?

Is it to send a message?

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 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.

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, 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.

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 2023, but at that time, the Supreme Court upheld ICWA seven to two.

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.

Hi.

I'm Sarah Michael calling from Madison, New Jersey, and here are the staff credits.

Radio Lab was created by Jad Abumrod and is edited by Soren Wheeler.

Lulu Miller and Lattiff Nasser are our co-hosts.

Dylan Keefe is our Director of Sound Design.

Our staff includes Simon Adler, Jeremy Bloom, W.

Harry Fortuna, David Gable, Maria Paz Gutieres, Sindhu Nyana Sambandam, Matt Kielty, Annie McEwen, Alex Neeson, Sara Kari, Sarah Sandback, Anissa Vipsa, Arianne Wack, Pat Walters, Molly Webster, and Jessica Young.

With help from Rebecca Rand, our fact-checkers are Diane Kelly, Emily Krieger, Ana Pujol-Manzini, and Natalie Middleton.

Hi, I'm Maddie, and I'm from Frederick, Maryland.

Leadership support for Radio Lab 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 is supported by Capital One.

Banking with Capital One helps you keep more money in your wallet with no fees or minimums on checking accounts and no overdraft fees.

Just ask the Capital One bank guy.

It's pretty much all he talks about in a good way.

He'd also tell you that Radio Lab is his favorite podcast, too.

Aw, really?

Thanks, Capital One Bank Guy.

What's in your wallet?

Terms apply.

See capital1.com/slash bank, capital One N-A, member FDIC.

I'm Ira Flato, host of Science Friday.

For over 30 years, our team has been reporting high-quality news about science, technology, and medicine.

News you won't get anywhere else.

And now that political news is 24-7,

our audience is turning to us to know about the really important stuff in their lives: cancer, climate change, genetic engineering, childhood diseases.

Our sponsors know the value of science and health news.

For more sponsorship information, visit sponsorship.wnyc.org.