Media Failures Lead to Flawed Understandings in Cherokee Adoption Case

By Michael Corcoran

The mainstream media has utterly failed to provide perspective or balance in coverage of the adoption of the 3-year-old Cherokee child, now known as "Baby Veronica."

The case of a 3-year-old Cherokee child, now known as "Baby Veronica," who was ordered by a South Carolina court to be given to her birth father almost two years after she had been in the custody of a South Carolina couple, is a complicated one, which the US Supreme Court has decided to hear.

Late last year, a family court judge ruled that the child's birth father, Dusten Brown, a member of the Cherokee tribe, was entitled to custody of the child due to the language in the Indian Child Welfare Act (ICWA). Brown received custody of the child on Dec 31, 2011, and in July, 2012, the South Carolina Supreme Court affirmed the original ruling. When Veronica, was taken from her adoptive parents, Melanie and Matt Capobianco, a flood of media coverage from local, regional and national media outlets - almost all of it expressing outrage over the case - soon followed.

The law in question was passed in 1978 to help keep Native American families and tribes intact, after years of forced removal, by governing jurisdiction over the adoptions of Native American children. The major reason this scenario occurred was because the ICWA was ignored during the adoption process. Brown said he was not originally aware that when he signed an "Acceptance of Service" form, he was approving an adoption and not merely relinquishing the rights of custody to the child's mother. He was able to regain custody because, according to the South Carolina Supreme Court, the prospective adoptive parents "did not follow the clear procedural directives of [the ICWA] in obtaining Father's consent," and that "even if this 'consent' was valid under the statute, then [the birth father's] subsequent legal campaign to obtain custody of [Veronica] has rendered any such consent withdrawn." In other words, Brown, who said he was unaware - until the infant was 4 months old - of efforts by the birth mother to give up the baby, never approved of the adoption – and, by this federal law, was well within his rights to obtain custody of the child.

It is a complicated and heartbreaking case. The Capobianco family, who by all accounts loved and cared for Veronica deeply, were understandably hurt and angry when they had to relinquish custody and are making legal efforts to regain the child. In fact, they appealed to the United State Supreme Court to take up the case. But, as complicated as the story is, in the vast majority of media articles that have discussed the case, the issue is portrayed, falsely, as a simple and unambiguous miscarriage of justice. First, the issue has been told almost entirely from the point of view of Melanie and Matt Capobianco. This is not surprising; the sheer drama of prospective parents losing a child is compelling material. But the media's coverage has been so one-sided that the outrage over the case is to be expected. Secondly, numerous inaccuracies about the facts of the case are prevalent in much of the coverage. Finally, the media coverage minimizes the importance and/or misunderstands the function of the ICWA, the history that created the necessity for it and its importance to Native American communities. As a result, much of the public is woefully misinformed about the case and its implications.

"The problem with coverage such as this is that it influences the public's opinion not only regarding this case, but also its perception of the Indian Child Welfare Act's true impact on families," said Terry Cross, executive director of the National Indian Child Welfare Association, in a statement to Truthout. "Over the years, I have seen the media repeatedly use a tiny fraction of ICWA cases, such as this one, to portray the law as flawed and in need of amending. To do so is to ignore the thousands and thousands of children that the law has allowed to remain in loving, thriving Indian homes. That is the real story of ICWA."

He added, "It's been disappointing to see so many media outlets take only one side's account of this very complex case, make no discernible attempts to do basic fact-checking on this information and report it as the truth. Frankly, that is not journalism to me."

The media's one-sided coverage generally conveys the heartache of the adoptive parents, with little regard for opposing perspectives. Andrea Poe, writing in The Washington Times, called the case "every parent's worst nightmare." Poe also wrote a similar article for the Huffington Post, in which she declared that "[t]his is not an illegal abduction, although it certainly sounds that way" and that the "adoption community has been devastated by this news." Anderson Cooper and Dr. Phil both dedicated large portions of their widely watched television shows to portray the alleged cruelty of the court's decision. "Veronica was ripped from [the adoptive parents'] arms because she was a Cherokee," Dr. Phil said in an October broadcast dedicated to the case. When Chrissi Nimmo, the assistant attorney general of the Cherokee Nation, was brought onto the show to offer the other side, the adoptive parents left the room because they could "not bear to be in the same room with this person." She was attacked by one of Dr. Phil's guests, who said, "It sounds as if what you are saying is that a bad Indian family is better than a good non-Indian family."

This kind of hostility toward the Cherokee side of the argument has been the norm in most of the media coverage surrounding the case. In virtually all of the reports, the heartache of the parents is the primary focus. To be fair, Brown has not been responsive to requests for comments, but media outlets still have the responsibility to explain the legal reasons for the court's decision, as well as the importance of the ICWA.

Much of the one-sided coverage is a result of inaccuracies that are repeated in many of the media reports on the case. For instance, in a Fox News segment from January, Melanie Capobianco claimed that "We were told she was not an Indian child, so we didn't think it was going to make a difference." Yet, according to the South Carolina Supreme Court, this was not true. The decision states that "[the birth mother] testified that she knew 'from the beginning' that [the birth father] was a registered member of the Cherokee Nation, and that she deemed this information 'important' throughout the adoption process." Accordingly, the prospective parents were informed of his native status, as was "every agency involved in the adoption."

Another common misconception was that the father had intentionally waived his parental rights. In Poe's aforementioned Huffington Post article, she claimed that the child was put up for adoption and "[f]our months later, Brown changed his mind and decided that he wanted custody despite the fact that he had never met the baby." The report on Anderson Cooper 360 echoes the same misinformation, arguing that the "biological father did waive his rights, apparently, early on, and then two weeks later changed his mind. But these reports ignore the reality that, according to the SCSC decision, the father "did not realize he consented to [Veronica's] adoption by another family until after he signed the papers." As soon as Brown realized the mother's intent to give up the child, he attempted to rip up the papers. When that failed, within days he "contacted a civilian lawyer" and "requested a stay of the adoption proceedings."

These types of inaccuracies are commonplace within the many articles published about this issue for local and national outlets. In fact, at www.SaveVeronica.org, a site that is fighting for the return of the child to the Capobianco family, writers approvingly cite scores of articles and broadcasts from all sorts of media outlets. The one prominent article that supported the enforcement of ICWA, an article on Slate by Marcia Zug, an associate professor of law at the University of South Carolina, was omitted.

ABC News 4 in Charleston went as far as to use the headline "Veronica May Not be Saved," when reporting on the July 26 court ruling. Clearly, such a headline implies that the decision was a grotesque affront to justice and that Veronica will only be in a healthy and loving environment, i.e. "saved," if Brown loses custody. NBC News 2 in Charleston was guilty of the same biased headline writing, when staffers wrote of a restaurant that "raises money to save Veronica." The inclinations toward the side of the Capobianco family seem to come naturally to media outlets. If Veronica will be "saved" by having her removed from Brown's custody, as so many media reports alleged without question, then how can a consumer of news not be inclined to see things that way as well?

This sentiment, notes David Simmons, governmental director of NICWA, portrays Brown as a bad father - a claim he says is flatly unwarranted. "Dusten is a decorated Iraq war veteran who immediately acted to oppose the adoption once he became aware of it," he said in an e-mail to Truthout. "Dusten set up a fund for child support soon after he learned of the proposed adoption."

Another fundamental problem with most media coverage of the case is that the purpose and impact of the ICWA is misunderstood and grossly understated. The media, broadly speaking, portrays the law as dated and cruel. "The Indian Child Welfare Act is just destroying families," said Matt Capobianco on Anderson Cooper 360 show. Others have decried the law as "racist."

Such meanderings do not do justice to the law, which "many Native American law scholars and advocates believe . . . is the most important American Indian law ever enacted," as Zug describes it.

Indeed, when Congress passed the law in 1978, it declared its purpose: "[to] protect the best interests of Indian children and to promote the stability and security of Indian tribes and families." Such a law designed to keep Indian families together was absolutely vital to Native survival. Congress enacted the Indian Child Welfare Act, wrote Matt L.M. Fletcher, an associate law professor at Michigan State, in a 2009 article for the Indigenous Law and Policy Center, "in order to alleviate a terrible crisis of national proportions" - which was the "wholesale separation of Indian children from their families." This practice had existed since 1869. A four-year study done in the 1970s concluded that "[s]tate governmental actors following this pattern and practice removed between 25 and 35 percent of all Indian children nationwide from their families, placing about 90 percent of those removed children in non-Indian homes." This "forced adoption by white courts is a matter of great bitterness among the Indian community," according to testimony from Dr. James Clifton, a tribal expert during a 1970s court case in Michigan. The law, Fletcher writes, serves the "specific cultural needs of Indian people," which are considerable in a country known for mass genocide, isolation and removal of almost the entire Native population.

Yet, the systematic desecration of Indian families in the United States is an angle virtually ignored in the sphere of public debate over Baby Veronica. The fact that the prospective adoptive parents, and numerous agencies involved in the process, ignored a crucial law aimed at protecting one of the most underserved populations in the nation seems to be totally absent from the discussion, as is the importance of the law itself.

"Veronica's case is deeply troubling, and our hearts should go out to all involved, but the problems it highlights are not problems with ICWA. Rather, her case reveals the problems with ignoring ICWA," Zug said, adding, ". . . the ongoing court battle demonstrates that ICWA is a pivotal piece of American Indian legislation that cannot be ignored without traumatic consequences."

Former US Sen. Jim Abourezk of North Dakota, who authored the law, agrees with Zug. When asked to intervene on behalf of the adoptive parents, he politely declined, telling a Columbia, S.C., newspaper, "The reason the law was passed was to prevent an adoption unless the tribe OK'd it, and I really don't see a reason to change that." He added, "There are times when the outcome might be heartbreaking for white families, but, overall, to change the law to prevent someone's heartbreak might cause more heartbreak for Indian families. . . . I wish there were a way to prevent heartbreak for everyone."

If the US Supreme Court effectively alters this crucial piece of legislation, it would eliminate a protection that helped thwart one of the most invidious policies in US history and has helped maintain Indian families and culture for decades. The public ought to at least be aware of this. But due to the many fallacious media accounts, this complicated and important debate has been reduced to an oversimplified story about one heartbroken couple and often adopts the racist view that we need to "save" this child from her Cherokee father.