Baby Veronica and Indian Sovereignty 50 Years After the March on Washington

Veronica with her Cherokee father Dusten Brown

My latest Op/Ed on the Baby Veronica case came out today in Native News Network:

By Jacqueline Keeler

On August 12th, some 50 years after Martin Luther King, Jr. gave his "I Have A Dream" speech during the March On Washington, a Cherokee father, Dusten Brown, gave himself up to authorities after a warrant was put out for his arrest. His crime? Wishing to be a father and raise his daughter Veronica with her Cherokee family in Oklahoma.
I wrote about the Baby Veronica case after the Supreme Court decision in June overturned a South Carolina Supreme Court decision, the majority finding that Veronica's family did not meet the requirements for being an "intact Native American family" protected under the Indian Child Welfare Act of 1978. The court did not overturn ICWA to the great relief of Native American families across the United States, but it sent the custody decision back to the South Carolina courts.

Prior to the case, Adoptive Couple v. Baby Girl, I believed the reasons for the passage of the Indian Child Welfare Act of 1978 would be reasonable and compelling to most people in this country. The wholesale removal of children from a tribe is a story that every Indian family is familiar with, either through personal experience or from seeing it take place in our communities. But the response from the American public from such media standards like Dr. Phil and the Today Show and in the online comments made by ordinary white Americans has been striking because it makes clear that most Americans take a historical view of the situation.

The argument posited by the Capobiancos – the white, South Carolina couple who wish to adopt Veronica – and their support team of PR professionals and lawyers is that ICWA sacrifices the needs of the Indian child to promote those of the tribe, often exposing the child to great harm by leaving them in the care of dangerous and violent Indian relatives. It is in this way, by pitting the helpless child against a vainglorious and ineptly-run tribal system, they have been extremely successful in persuading even moderate commentators like Anderson Cooper and Nina Totenberg of NPR to portray the Capobiancos as the wronged party, Dusten Brown as a deadbeat dad and ICWA as failed policy.

To be clear, the Supreme Court did NOT overturn ICWA, but in the court of public opinion ICWA and Indian Tribes lost a battle and that is something that we, as Indian people should take very seriously.

I have taken a closer look at two organizations that have been funneling substantial funds to the Capobiancos,  These two organizations are the Christian Alliance for Indian Children and Citizens Equal Rights Alliance (CERA).  I was surprised to learn that each organization had been led by Native Americans at certain points in their history.  Roland Morris, a full-blood Chippewa of the Leech Lake Chippewa Tribe in Minnesota, an Upholsterer by trade with Christian Alliance, and Scott Kayla Morrison, a Choctaw attorney who once led CERA (both are now deceased: Morris from cancer and Morrison, tragically, from suicide.)  They both advocated greater oversight of Indian tribal governments by the Federal government and opposed tribal transfer of lands into trust, federal dollars spent in Indian country,  and ICWA.  They were driven by the troubles they had seen in their communities and in their families (in Roland’s case) and had drawn the conclusion that through alliances with both Christian and Republican party members, they could help bring about the end of the suffering on reservations. 

The Christian adoption groups' websites and articles are filled with stories about the poverty and abuse of Indian children in Indian Country.  The Christian Alliance posted this report on its site about the Spirit Lake Nation: “Thomas Sullivan, Regional Administrator of the Administration of Children and Families in Denver, stated in his 12th Mandated Report to the ACF office in DC, February 2013: 'In these 8 months I have filed detailed reports concerning all of the following: The almost 40 children returned to on-reservation placements in abusive homes, many headed by known sex offenders… These children remain in the full time care and custody of sexual predators available to be raped on a daily basis. Since I filed my first report noting this situation, nothing has been done by any of you to remove these children to safe placements.’”  

But the Brown family (I include the grandparents in this as they were granted guardianship by the Cherokee Nation) seems to have none of these problems.  It seems odd that with so many children living in need in Indian country, they chose this case to challenge ICWA and Tribal sovereignty.  And it begs the question, are all Indian families being painted with the same brush?  

The Bureau of Indian Affairs has since taken over the administration of social services at Spirit Lake. And the tribal members themselves have taken action.  The elders' council voted to remove the leadership, and the tribe voted out Roger Yankton, the tribal chairman, and resisted his efforts to reinstate himself back into power.  This may have been partially due to the national spotlight put on the community by a PBS documentary, Kind-Hearted Woman, about a Spirit Lake tribal member Robin Poor Bear’s attempts to protect her daughter from abuse.

Veronica with her father Dusten Brown

Certainly, many of the concerns of Christian Alliance and CERA—Tribal corruption, self-dealing, nepotism, poverty, and child abuse—are familiar to anyone who has worked in Indian Country, from the large to the very small, wealthy Casino-operating tribes.  These groups have been organized in different iterations since the 1990s.

They present themselves as fighting for equal protection under the law of all American citizens and motivated by a desire to free Indians from tribal tyranny. “Sovereign Immunity,” says the late Morrison in a YouTube video of her speaking to a primarily white audience in New York State, “is total oppression.”  Roland Morris of the Christian Alliance supported the former Republican Senator Slade Gorton’s (WA) bill S. 1691, which would have eliminated Sovereign Immunity for Tribes, and in his Congressional testimony, he said, “The plight of the average Native American is what keeps money flowing into the coffers of those in charge of Tribal government. Thus, tribal government needs to keep in control of its members, even to the extent of demanding from this Congress that the ‘tribe shall retain exclusive jurisdiction over any ...Indian child…’, as is written in the Indian Child Welfare Act of 1978, which states further that tribal interests are ‘independent of the interests of the birth parents.’”  He makes this statement in 1998, putting forward the Capobiancos' argument against ICWA 15 years before the Baby Veronica case.

Gorton’s bill was successfully opposed and defeated.  It also unified all the tribes in Washington state and helped lead to the election of his opponent, present Senator Maria Cantwell (D).  Gorton himself denied that he wanted to do away with tribal governments.  His spokeswoman Cynthia Bergman explained, "Tribes have the right to govern their own members, but Gorton doesn't think tribes can govern non-tribal members living on reservations."  This a point often repeated by the members of the Christian Alliance and CERA that has led them to oppose any oversight by tribal governments of things as varied as water rights and the National Bison Range.  

The organization’s failure to stop the Confederated Salish and Kootenai Tribes (CSKT) from managing the National Bison Range led to a break between these groups and Senator Conrad Burns (R-MT) a once close ally.  Initially, their relationship was quite warm.  The Morrises supported Conrad’s bill to remove non-tribal members living on fee land from tribal civil jurisdiction in Montana.  Conrad explained his bill this way, “The concept of tribal members enacting legislation that will affect all residents of a reservation without allowing all living on the reservation an equal voice goes against the very words which our founding fathers wrote to establish this great country.”   

Time after time, the solution to the problems in Indian country proposed by the Christian Alliance and CERA is to reduce the space for Tribes to be actors in national politics or even local politics.  

Yet another question regarding Tribal sovereignty was posed in a Youtube video of CERA’s former director, the late Scott Kayla Morrison, an attorney trained in Federal Indian Law speaking to a primarily white audience, “How can a ward be a sovereign nation as federal land is held in trust for a tribe?”  Of course, there is an answer to be found in the Supreme Court’s decision in the Johnson v M’Intosh case of 1823.  Chief Justice Marshall cites the Doctrine of Discovery, a papal bull issued in 1455 by Pope Nicholas V, giving title to the land to only Christian, “Discovering” nations.  In this doctrine, the heathens they discover only possess the right of occupancy of the land (like the beasts) not true fee simple title.

The shaky form of sovereignty Tribes derived from this doctrine was given the name “Domestic Dependent Nations” by Marshall.  Our respective Indigenous nations are only as sovereign as the Discovering nation wishes us to be.  558 years later, we are still waiting for the United States, a country based on the equal rights of all decides to repudiate this religious edict.  The citizens who were denied their rights were the citizens of Indigenous nations who had the title of the land taken from them without their consent.  Tribes are pre-existing Nation-states that exist to this day.  The United States should live up to its ideals and do the moral thing and recognize finally that even Heathens have a right to the land they live on.  Not just to say it but do it.  Strike down the Doctrine of Discovery once and for all.

Once Tribes are understood as sovereign, it becomes obvious that their jurisdiction does not violate the rights of non-citizens any more than it does when an Oregonian like me visits Montana and must obey Montana laws, pay its park fees, be judged in its courts—even though I, a  non-resident do not qualify to vote there.  It is the same when an American citizen enters the territory of a foreign nation. They must obey their laws even if they cannot vote there.  It is the very nature of being sovereign.  

Lisa Morris of the Christian Alliance

And it must be seen that underlying the efforts of the Christian Alliance, like that in so much of America’s dealing with our people, is a deep commitment to the Christianization of the Indian people.  As Lisa Morris writes on her website: “The reservation, a socialistic experiment at best, pushes people to depend on tribal and federal government rather than God, and to blame all of life’s ills on others.  The results have been disastrous.”  

When I was researching the Christian Alliance, I found out that the Morrises had sued the Montana Human Rights Network (MHRN) for defamation because they had been described as “Anti-Indian” and the efforts of their organization called racist in a publication, “Drumming Up Resentment: That Anti-Indian Movement in Montana” put out by the organization in 2000.  The organization had given the Morrises a chance to review it before it was published and correct any factual errors, but the couple refused to respond and then sued after it came out.   

In the letter, Morris’ lawyer Jon Metropoulos wrote, “The foundation of [SCOTUS’] decisions, and of Roland and [Beth]'s opposition to tribal jurisdiction over nonmembers, is the factual deprivation of basic rights that nonmembers suffer when they are subject to a tribe's governmental power.  First, you should know that opponents of such power, at least those I defend, do not deny there is a proper role for tribal governmental power, and it is precisely to exercise self-government.

“But when such power extends to nonmembers, violations of civil rights occur automatically that we would not tolerate anywhere in the country.  People are excluded from participating in government simply because they are not members of the tribe, i.e., they are excluded based on their race, ancestry or ethnicity.  Non members are denied the right to vote, hold office, sit on juries. If subject to a tribe's criminal authority, a nonmember Indian could be imprisoned in a tribal jail for years, depending on how the charges were stacked.  Simply put, because they are not Indians or are not Indians who qualify to be members of a tribe, nonmembers cannot give the ‘consent of the governed.’”

As I noted before, this argument is weak because citizens of the United States do this every time they cross a state line or a border.  Why not when they enter an Indigenous nation?  

I then read the offending MHRN publication and found the author had already summarized the situation very well:

"The struggle for civil rights in Indian country is different. It rests more on sovereignty and autonomy than on inclusion and integration. The legal framework created by the civil rights activists of the 1950s and 1960s sought to secure equal treatment within existing institutions and law. Indian rights activists, by and large, seek recognition of their right to develop their own law. Basically, they seek recognition of a right to self-determination. This difference is confusing and gives the anti-Indian movement an advantage in the rhetorical arena."

And so it is that 50 years after the March on Washington, the Christian Alliance, CERA, the Capobiancos, and even Supreme Court Justices in the Baby Veronica case are asking the question: “Are Tribes racist?”  “Equal Rights” groups that arose as part of an anti-Affirmative Action backlash are actually using the words of Martin Luther King, Jr. against Tribes.  "I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character,” is used as a preamble to dismantle Affirmative Action programs and Tribal Sovereignty.  

We must face that the issue of race is one that we cannot win.  We must do away with blood quantum as a requirement for citizenship if we are to be taken seriously as Nations.  It taints Tribal Sovereignty and citizenship in the public consciousness. Those who want to reduce or eliminate tribal power are finding it a handy tool for turning public opinion against us. Even Supreme Court Justice Alito began his majority opinion by saying, “this case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee.” This despite the fact that the Cherokee Nation does not even use blood quantum as a requirement for membership.  Justice Sotomayer, in her dissent, corrected this presumption that blood and, thus, race were in any way relevant to the case. The writing is on the wall and in the Justices' questions; blood quantum will be political death for all the Tribes, and we must let it go if we are to survive.  We didn’t start the American obsession with race, and it is not part of our traditions, nor is it a part and parcel of the modern nation-states we wish to join.

Other nations do use some form of jus sanguinis to determine citizenship.  Since 2004, Ireland, for instance, requires at least one grandparent to be a citizen, but the Irish “blood” of the grandparent is not taken into consideration, just their citizenship.  If Tribes fear that potential citizens with weak ties would dilute the cultural base of their identity as a people, tests for citizenship can be administered.  In Denmark, at 18 years of age, a non-citizen can take a test called Indfodsret to qualify for citizenship.

The truth is nothing tribes do as Sovereign Nations will make any sense to the American people and even tribal members if they do not understand that tribes are pre-existing nation-states that continue to exist.  In fact, to help make that clear, I would rewrite the previous sentence to say “Nations” instead of “tribes” and “Citizens” instead of “tribal members.”  The language we use must reflect the Political nature of our existence because the rights we are demanding are political ones.

I end with a quote from Vine Deloria, Jr., from his classic 1969 book Custer Died for Your Sins: An Indian Manifesto.  He was my grandmother’s cousin, so perhaps this is yet more Indian nepotism, but I choose to call it listening to my elders.  "So it is vitally important that the Indian people pick the intellectual arena as the one in which to wage war. Past events have shown that the Indian people have always been fooled about the intentions of the white man. Always we have discussed irrelevant issues while he has taken the land. Never have we taken the time to examine the premises upon which he operates so that we could manipulate him as he has us."