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The Jurisprudence of Domestic Dependence

Alyosha Goldstein | Journal: Issues | Reflections on Dispossession: Critical Feminisms [14] | May 2016

Colonial Possession and Adoptive Couple v. Baby Girl

Settler colonialism in the United States today is an assemblage of claims to place, possession, and permanence. Yet the dynamics of these claims are not simply the culmination of unchallenged and uninterrupted indigenous dispossession under US empire and settler-colonial governance. Rather, such claims pointedly seek to undo the contemporary particularity of indigenous sovereignty through an affirmation of privatisation, domestication, and heteronormativity. During the 1970s, United States policymakers responded to escalating Native American juridical and social movement demands with legislation that shifted the emphasis of federal Indian law, the distinct legal doctrine partially based on historical treaties and encompassing federally-recognised tribes in the United States.  These demands gained international media attention with the tribal fishing rights protests in Washington State beginning in 1964, the occupation of Alcatraz Island by the Indians of All Tribes in 1969, the return of Blue Lake to the Taos Pueblo won in 1970, the Trail of Broken Treaties cross-country march in 1972, and the bloody counterinsurgency waged against the American Indian Movement at Wounded Knee on the Pine Ridge Indian Reservation in South Dakota in 1973. In this context, legislation such as the Indian Self-Determination and Education Assistance Act of 1975 and the Indian Child Welfare Act (ICWA) of 1978 reasserted forms of tribal authority and jurisdiction, even if neither fundamentally unsettled the plenary power of the US Congress.

Present efforts to reinvigorate settler entitlement focus on reversing such gains, much like neoliberal projects strive to dismantle remnants of the palliative mechanisms of Keynesian economic policy and Fordist compromise. Thus, the 2013 US Supreme Court in Adoptive Couple v. Baby Girl (the “Baby Veronica” case) cast its ruling in post-civil rights terms condemning racial preference and alleged “special rights” of tribal nations in order to substantively undermine the defensive measures instituted by ICWA. The Supreme Court opinion overturned a lower court decision and effectively transferred custody of a young Cherokee girl to adoptive white parents over the opposition of her birth father and the Cherokee Nation.[1] In this context the prevailing normative focus on nuclear family relations, marriage, and private life galvanises the affective claims of neoliberal economies and settler-colonial aporia.

This essay considers how Adoptive Couple v. Baby Girl, and the custody and jurisdictional struggles that followed, work across and through unevenly configured racialisations and the intimate logics of “colour-blind” possession in the United States. As Judith Butler argues, contending with being “implicated in the desires and the anxieties of presence and propriation” requires thinking “about dispossession not only beyond the log(ist)ics of the self-owning individual but also beyond the humanitarian log(ist)ics of taking possession of the other (whereby ‘the other’ is a misnomer for those with no proper name).”[2] Propriation, in this sense, is a particular iteration of “to make one’s own”, a making ones’ self proper to or properly ones’ self, which Jacques Derrida theorises by way of the question of sexual difference in the co-constitutive relation between proper and property.[3] As a colonial relation, propriation is also a violently acquisitive and normative relation to being in place. Regarding Derrida’s notion of propriation as an “economy of the subject,” Étienne Balibar observes that under capitalism “every subject represents the anticipation of an accumulation or capitalization of properties.”[4] But this economy of expectation is likewise predicated upon the abstraction, consumption, and disposal of other people and places. Dispossession is a predatory form of relationality which entails an insatiable and covetous world-making that is at once based on and generative of a dialectic of biopolitical-necropolitical sorting, a division of what Denise Ferreira da Silva describes as transparency versus affectability.[5]

Unsettling the hold of normative possession requires foregrounding the social and historical dimensions through which subjects are differentially constituted in relation to claims to proper being, property, proprietary rights, appropriation, and expropriation—that is, through which propriation is at once an act of making one’s own and the attribution of ownership itself. Crucial in this regard is the question Aileen Moreton-Robinson poses in the Australian context regarding what the denial of indigenous sovereignty, and the casting of indigenous people as devoid of both will and the capacity to properly possess, does to convey the “constitution, currency and circulation of white possession.”[6] This essay seeks to analyse how such “desires and the anxieties of presence and propriation” shape contemporary formations of US colonialism in ways that appear to offer normatively configured possession as the only viable counter to dispossession.

Adoptive Couple stages this desire for and anxiety over the capacity to possess. Especially telling in this regard is the shifting constellation of claims and conflicts articulated by the adoptive couple, the child’s birth mother and father, the Cherokee Nation, and federal Indian law and US jurisprudence more generally. Adoptive Couple is partially over-determined by the consequences of nineteenth-century US Indian removal policy and the Cherokee cases collectively known as the Marshall Trilogy—the Supreme Court cases where Chief Justice John Marshall’s opinions served as justifications for circumventing indigenous title to land and conferring the “domestic dependent nation” status upon indigenous nations—as well as by developments such as the privileging of adoption over the rights of birth parents and the rise of neoliberal welfare reform narratives that blame failed conjugal domesticity for poverty.

With these considerations in mind, this essay proceeds in the following manner. In the first section I provide a brief overview of the context and key elements of Adoptive Couple and the significance of heteronormative and “postracial” alibis for their analysis.  In the second section, I discuss the historical entwining of US Indian removal policy—the forced relocation of South-Eastern tribes from their traditional homelands to territories west of the Mississippi—and the ideological and material construction of domesticity during the early to mid-nineteenth century—in terms both of the heightened gendered division of public and private life, and of efforts to domesticate and diminish indigenous sovereignty.  In the third section of the essay, I focus on the specific ways in which the imperial compulsion toward the removal and domestication of American Indians targeted children through boarding schools and adoption practices as a means to annihilate and pre-empt the futurity of Native peoples; I also discuss the latter as the immediate context in which the passage of the Indian Child Welfare Act represented an effort to defend Indian families and tribes against anti-Indian adoption policies. In the fourth section, I return to Adoptive Couple and subsequent lawsuits by the birth mother and the prospective adoptive couple in order to consider the affective claims for white entitlement and what Lisa Marie Cacho calls the “differential devaluation of racialized groups.”[7] In conclusion, I discuss some of the implications of the case for understanding the present-day dynamics of settler colonial possessive investment.

Taking possession
The national, international, and transracial political economy of adoption has historically relied on a markedly inequitable distribution of resources, vulnerability, and immiseration that is partially a consequence of but is not reducible to relations of colonial dispossession.  Laura Briggs points out that within this economic trajectory, it is principally “the children of impoverished or otherwise disenfranchised mothers [who] are transferred to middle-class, wealthy mothers (and fathers).”[8] The racial context of adoption in the United States has changed significantly during the past forty years, as white women began to have access to birth control and legal abortion and the women’s movement created new options for the feasibility of single-motherhood. In the US, “adoptable babies and children became disproportionately black, Latino, and Native, or came from overseas.”[9] At the same time, measures such as ICWA and the 1972 statement by the National Association of Black Social Workers (NABSW) responded to the deeply-entrenched bias of adoption policies that favoured placement with heteronormative white families. The NABSW resolution affirmed the “inviolable position of black children in black families where they belong.”  A NABSW representative explained that, rather than being a separatist anti-white position – as it had been depicted by those hostile to considering the issues raised by the resolution – their address was “directed at the child welfare system that has systematically separated Black children from their birth families.”[10]

Such defensive measures have become the target of a “colour-blind” neoliberal backlash. Inasmuch as they have come to be conflated with the supposed problem of welfare fraud and dependency by poor people of colour, they have also been sutured to the prevailing narratives of failed conjugal domesticity promulgated by neoliberal welfare reform advocates.[11] In terms of Native people specifically, the aspersion of “welfare dependency” serves to obfuscate what are largely forms of material support guaranteed by treaty obligations negotiated by the US—legally-binding historical agreements signed by the federal government ostensibly to compensate for land or resources seized and other forms of displacement. It also occludes the fact that “dependency” was a category imposed by US jurisprudence on indigenous peoples. Briggs notes that during the 1990s a unique feature of the emergent defense of placing children of colour with white families was that it is:

done in the name of antiracism: in the context of a reinvigorated argument that black and Native children were the subject of racism, “languishing” in foster care because of race-matching policies that preferred placement in black or Native homes, when so many white families were anxious to adopt.[12]

From this perspective, white adoptive families epitomise post-racial liberal tolerance for their willingness to take children of colour into their homes, while those who might challenge such practices as inattentive to the significance of racial and colonial difference are portrayed as racists or otherwise regressive. A rapidly-growing private adoption industry working to maximize profits was likewise invested in cultivating support for this supposedly colour-blind outlook.

The dispute adjudicated in Adoptive Couple v. Baby Girl (often referred to as the “Baby Veronica” case) began before the child’s birth in September 2009 in Oklahoma.  Veronica’s parents, Christina (Christy) Maldonado and Dusten Brown, an enrolled member of the Cherokee Nation, were engaged to be married, but had separated during the pregnancy.  After Maldonado called off the engagement, she sought to have Veronica adopted without Brown’s knowledge and selected Matt and Melanie Capobianco as adoptive parents through Nightlight Christian Adoptions. The Capobiancos financially supported Maldonado during her pregnancy. Their legal counsel subsequently contrasted this expenditure to Brown’s lack of financial contribution and presented this as evidence of the Capobiancos’ investment in the child, with money equated to love, responsibility, and the capacity to care. The couple took Veronica home with them to South Carolina immediately following her birth—after the adoption agency may have deliberately sought to evade ICWA by obstructing the process of confirming that Brown was a Cherokee citizen and also listing Veronica as “Hispanic” (her mother being “predominantly Hispanic”) so as to allow for interstate travel. When Veronica was four months old, and just days before Brown’s deployment with the US Army National Guard to Iraq, he was presented paperwork for the pending adoption and learned for the first time that Maldonado had not kept the child. Although he signed the form relinquishing parental rights, he later testified that he misunderstood the terms to which he was consenting.

The Charleston County Family Court in South Carolina heard the case in September 2011.  Brown was joined by the Cherokee Nation in contesting the adoption under the provisions of the Indian Child Welfare Act.  The family court found in their favour and transferred custody of Veronica to Brown.  The Capobiancos filed a request for South Carolina Supreme Court to hear their appeal. In its 3-to-2 ruling in July 2012 the state court reluctantly concluded:

we are constrained by the law and convinced by the facts that the transfer of custody to Father was required under the law. Adoptive Couple are ideal parents who have exhibited the ability to provide a loving family environment for Baby Girl. Thus, it is with a heavy heart that we affirm the family court order.[13]

On further appeal the following summer, the Supreme Court of the United States overturned the lower court’s ruling and held that ICWA’s protections against the “breakup of the Indian family” were abrogated when Brown, as Justice Samuel Alito wrote in the Court’s majority opinion, “abandoned the Indian child before birth and never had custody of the child.”[14]

Media coverage of the case, the adoptive couple’s legal counsel, and Alito’s majority opinion consistently emphasized that Brown is “only 3/128ths Cherokee” and Veronica is “only 3/256ths Cherokee” despite the fact that the child’s status as a tribal member was never in question and the Cherokee Nation’s membership is not based on blood quantum.[15] This deliberate use of blood quantum as a means of racialising the terms of dispute convey the operation—as Jodi Byrd has described—of racialisation and colonisation “as concomitant global systems that secure white dominance through time, property, and notions of self.”[16] Yet, as Byrd argues, and as compounded in the Adoptive Couple opinion, these two historical processes are now so thoroughly enmeshed that in the United States today, such racialisation “often evokes colonialism as a metonym” in ways that “obfuscate the distinctions between the two systems of dominance and the coerced complicities amid both.”[17] The use of racialisation as a means to eclipse the juridical terms of colonisation is also evident in allegations, such as those made by the adoptive couple’s lawyers, that Veronica’s equal protection rights and “best interest” have been violated because ICWA is legislation unconstitutionally based on race.  Disregarding the widely acknowledged and longstanding history of the removal of indigenous children from their families that ICWA was intended to counteract, Chief Justice John Roberts asked during the oral arguments of the case: “Is it one drop of blood that triggers all these extraordinary rights?”[18] The Supreme Court remanded the case back to South Carolina, where the lower court denied a rehearing, terminated Brown’s parental rights, and ordered the child to be removed to the custody of the Capobiancos with an expedited process for adoption.[19] Brown appealed the decision but—after a highly publicised jurisdictional battle, contempt of court charges, and arrest—eventually relented and gave up custody of Veronica in September 2013.

In the analysis that follows, I examine Adoptive Couple v. Baby Girl as indicative of the ways in which heteronormativity enacts colonial and racialised dispossession today. The significance of family, reproduction, and private life in this regard continues longstanding settler state investments in domestication as well as conveying the intensified neoliberal demands for privatisation and personal responsibility during an era of tactical austerity and upward redistribution.  Furthermore, the alignment of Maldonado and the Capobiancos against Brown and the Cherokee Nation played an important role in providing a “post-racial” alibi for the stakes of white privilege, innocence, and injury.  In most non-Indigenous media Maldonado was portrayed as a loving but forsaken mother who put her child up for adoption in order to ensure a better life for the daughter she could not afford to raise. This narrative cast her in a stereotypical role as a single-mother of colour whose dire predicament is compounded by an absent father and answered by the beneficence of white people. In such news coverage, the separation and custody battle between Maldonado and Brown appeared as a conflict as between a woman of colour and a “deadbeat dad” with suspect racial identity, since Brown’s Cherokee citizenship was often depicted as an unwarranted racial claim (3/128ths). By contrast, the class privilege and wealth of the Capobiancos apparently proved their capacity to care and the value of heteronormativity.

As an ensemble of racialised disciplinary conventions and practices, heteronormativity changes over time and in relation to particular circumstances. Settler colonialism and heteronormativity have been mutually constitutive within and in relation to the United States.  “Heteronormativity,” argues Mark Rifkin, “helps cohere and legitimize the settler state by casting indigenous nonidentity with respect to its jurisdictional logics as basically a series of category mistakes, perverse confusions of the familial and governmental that illustrate the fact that Indians must be trained how to have real home, family, and government.”[20] As Rifkin further notes, the racialisation of Native peoples serves to consolidate “a familial norm that elides native kinship structures which challenged the jurisdictional imaginary” of the settler state.[21] Colonial familial norms render indigenous kinship relations inconceivable as models of governance and self-determination, and instead assert heteropatriarchy as the affective private counterpart to the settler nation-state by imagining Native kinship to be incommensurate with political life and the authority of indigenous government.  Racialisation as a practice of subjection bound up with normative conceptions of sexuality and gender likewise disclaims the political organisation of kinship in indigenous societies in such a way as to reduce these relations to a catalogue of race, family, and tribal authenticity amenable to colonial recognition.

Domesticity and removal
The coerced relocation of Native peoples in North America proceeded historically in tandem with the lethal campaigns of the US military, vigilante settlers, and land speculators which steadily escalated throughout the nineteenth century reaching a genocidal frenzy in the years following the Civil War and on through the 1920s.  In the case of the Cherokee Nation specifically, the US signed the Treaty of Hopewell in South Carolina in 1785, which established a western boundary for American settlement and affirmed the tribe’s right to expel trespassers and squatters.  The failure of the US to restrain the ongoing encroachment and warfare by such settlers against the Cherokee merely led to another treaty in 1791, this time predicating US support upon a program to “civilise” the Cherokee so as to maintain peace while leveraging further land cessions.  In a 1796 letter addressed to “Beloved Cherokees,” President George Washington promised to allocate resources for the development of new crops, including cotton, and suggested that if the “civilisation” programme for the Cherokees was successful “the United States will be encouraged to give the same assistance to all the Indian tribes within their boundaries.”[22] As Theda Purdue and Michael D. Green observe, “The ‘civilization’ program rested on an image of Indians as hunters who derived their livelihood from vast game preserves and ignored the fact that Cherokee women had been farming for hundreds of years.”[23] The focus on farming thus served primarily as a premise for seizing what would ostensibly become unnecessary hunting grounds, as well as promoting agricultural commerce and the norms of private property and real estate.

The violent displacement of indigenous nations and the calculated expansion of the US imperial nation-state remained likewise perpetually entangled with more intimate forms of possession and extermination. Amy Kaplan’s analysis of “manifest domesticity” tracks the normatively gendered geopolitical inflections of domestication, domestic policy, and the ideology of separate spheres that convey domesticity as a “mobile and often unstable discourse that can expand or contract the boundaries of home and nation”, whose interdependency “relies on racialized conceptions of the foreign.”[24] The distance between domestic and foreign, as well as private and public, remained fraught in the particular forms of racialisation, colonisation, and gendered relations at stake in the US imperial project. As Mishuana Goeman argues: “In domestic worker categories, Native women were placed into this false private/public split or colonial map comprising exterior gender and racial norms.  Federal Indian policy attempted to create domestic laborers and exploit labor as well as restructure male/female relations through its promotion of the public/private divide.”[25] Furthermore, Rifkin notes how “The ‘thematics of blood’ at play in the late-eighteenth and early-nineteenth-century depictions of Indianness functions as a discourse of sexuality, centralizing and naturalizing the metonymic linkage of reproduction, marital union, and conjugal homemaking.” Across the nineteenth century, he argues that “the ideal of the nuclear, sentimental family” emerged partially as a consequence of the consolidation of US imperial authority and partially as a means to further assert settler control over Native peoples and land.[26]

This distribution of sentiment and authority proceeded with the ascendance of the racialised “cult of domesticity” during the 1820s—a heteronormative ideal organised around the rigid separation of public and private spheres and the insistence that a woman’s proper place is in the home. Women racialised as not-white continued to occupy a distinct place with regard to such norms—their own homes being never quite properly domestic and their labour on behalf of the domesticity of others forever disqualifying them from the protections of “true womanhood.” Concurrently, the development, reach, and integration of capitalist markets across the US occupied territories accelerated between 1815 and 1840.

During this same time, Chief Justice John Marshall’s Supreme Court decisions made litigation involving the Cherokee Nation foundational for settler jurisprudence and the legal basis for Indian removal. Johnson v. M’Intosh (1823) expanded the “doctrine of discovery” as an inherited prerogative of the United States that undermined indigenous sovereignty and divested American Indians of legal title to their land. Cherokee Nation v. Georgia (1831) sought to further erode indigenous sovereignty by defining tribes as “domestic dependent nations” and “in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.”[27] The case also established the doctrine of federal trust, which maintains that, as with the relationship of a ward to its guardian, the federal government must oversee the affairs of Native nations for their own good, as they are not yet capable of doing so.

This juridical insistence on domestication, dependency, and supervision remains in force even as it has been qualified by subsequent legislation providing limited forms of Indian self-determination.  As Goeman contends, “the extension of home to nation and the need for the nation-state to control all within its boundaries is made clear through the familial metaphors of ‘great white father’ or ‘childlike Native.’”[28] However, even in this regard a slippage persists between domestic and foreign, public and private, properly male and female, when it comes to the projection of the settler nation as family. This projection attempts to domesticate but also to racially differentiate wards and citizens, while also extending inclusion as a disciplinary and obliterating convention that disavows the ongoing relations of colonial dispossession and the incommensurability of indigenous sovereignty. The now extensive literature on the intimate and gendered dynamics of colonial rule is invaluable for understanding the various ways in which such dynamics were and are constitutive for multiple forms of colonialism.[29]

Legal precedent and the force of domestication were articulated with colonising projects that vacillated between mass murder and self-serving humanitarian measures. As is often noted, Andrew Jackson’s leading role as a general in US military campaigns during the War of 1812—especially in the merciless defeat of the Creek Nation which compelled the tribe cede 23 million acres in what is now Alabama and Georgia—served as a foundation for his presidential victory in 1828.  Turning against many of the tribes with whom he allied during the War of 1812, Jackson continued to play a prominent role in the escalation of the “Indian Wars”—such as when, in 1818, he invaded Spanish Florida to capture fugitive slaves and started the First Seminole War.  His legislative endeavours toward Indian removal thus worked in concert with his record of military conquest.

In 1829, because the US government deemed the relentless white encroachment on Cherokee, Chickasaw, Choctaw, Creek, and Seminole land to be unavoidable, the governor of the Michigan Territory and future Secretary of War under President Jackson Lewis Cass declared: “the best interests of the Indians require their removal beyond the Mississippi.”[30] Cass cautioned that “when the time of severance has approached, we owe it to them, to ourselves, to the opinion of the world, that the process should be conducted with kindness, with liberality, and above all, with patience.”[31] To this end, the Southern judiciary played a prominent role in providing the legal rationale for removal.[32] The Indian Removal Act of 1830 precipitated the “Trail of Tears” that commenced with the expulsion of the Choctaw Nation in 1831 and continued through the forced march westward that killed nearly a third of the Cherokee in 1838.  It was under these conditions that the United States established “Indian Territory” in 1834 and devised the reservation system with the Indian Appropriations Act of 1851.[33] By the late nineteenth century, an official emphasis on programs for Indian assimilation gradually replaced overt military conquest.  Thus, in 1892, Captain Richard H. Pratt, a veteran of the Indian wars and the founder of the Carlisle Indian Industrial School, recommended that the most effective policy was to “transfer the savage-born infant to the surroundings of civilization, and he will grow to possess a civilized language and habit.”[34]

Filiation and filius nullius
For the colonial imaginary of possession and emplacement the notion of filius nullius (“nobody’s son/child”) would thus seem an indispensable complement to terra nullius and its rationalisation of the “doctrine of discovery.” These disavowals together appear as alibis for dispossession and reimagine the brutality of removal as discovery and rescue, but never in fact extricate themselves from the desires and the anxieties evoked by Butler in conversation with Athena Athanasiou.[35] Even amidst the bloody advance of campaigns for outright extermination, the traffic in indigenous children removed from their families and tribes enhanced colonisation as an endeavour to pre-empt the futurity of indigenous peoples and to precipitate the becoming-Native to which colonial settlement aspires.  To this end, US colonial policy developed an emphasis on boarding schools for indigenous children in the late nineteenth century and then shifted to promoting the adoption of Native children into non-Indian families during the mid-twentieth century.  Such assimilative and pedagogical endeavours served as a direct corollary to federal policy for Indian removal, allotment, termination, and relocation.  Following a brief discussion of how and why the colonial making of filius nullius matters today, I argue that this genealogy of violence and trauma is not only resolutely disavowed or foreclosed in the present, but that it is likewise a substantial feature of the genealogy of neoliberal multiculturalism and the ethos of the contemporary insistence on “colour-blindness.”  Claims made by the adoptive couple in the name of the symbolic innocence and best interests of the child serve to affirm the justness of their cause and, more broadly, to deflect culpability for the continued racialised violence of colonial dispossession.

If colonial policy was quick to target children in its efforts to eradicate or subsume Native peoples in North America, Native peoples likewise responded to such initiatives in myriad ways.  For instance, when in 1744 the British offered to fund the education of a select group of Haudenosaunee young men at a school in Williamsburg, Virginia, representatives of the tribal confederacy declined, noting “that different Nations have different Conceptions of things; and…  our ideas of this kind of Education happen not to be the same with yours.” However, replied the Haudenosaunee, “We are not the less oblig’d by your kind Offer… and, to show our Sense of it, if the Gentlemen of Virginia will Send a Dozen of their sons, we will take great care of their Education, instruct them in all we know, and make Men of them.”[36] The Spanish first experimented with the boarding school as a technique for the colonisation of indigenous peoples in 1568 in Cuba, while religious mission schools served as the direct precursors for the boarding school system for American Indians established in the United States during the 1870s. Although missionaries played a complex and sometimes contradictory part in colonisation, the role of Christianisation historically was an assimilative mechanism not entirely unlike today’s evangelical adoption movement.[37]

US boarding school policy as an undertaking to destroy tribal cultures and ways of life intensified in parallel with federal allotment legislation aimed at individuating and privatising tribal lands between the 1880s and the 1930s.  Sarah Deer points out that,

although assimilation or indoctrination was the primary goal of the boarding schools, commercialization and profit was a by-product of these boarding school efforts; the local communities often benefited from cheap or free labor as a result of the process. In Phoenix, for example, girls and young women were required to provide domestic services for white families—often with substandard (or no) pay.[38]

The schools were designed to inculcate “proper” gender roles, with curriculum for boys focusing on vocational and manual labour and an emphasis for girls on domestic education to teach them, as K. Tsianina Lomawaima argues, “subservience and submission to authority.”[39] Indeed, as Lomawaima contends, “The practices of military regimentation, uniform dress, and domesticity training flowed from the federal vision of the boarding school as a complete transformative experience, training Indians for their place as a detribalized social and economic underclass.”[40] Ironically, these conditions also contributed to the pan-Indian consciousness that propelled the emergence of the American Indian Movement and the resurgence of Native American anticolonial activism during the 1960s and 1970s. The number of Native American children in boarding schools continued to grow—as well as the forms of physical, psychological, and sexual abuse endemic to those institutions—until reaching an estimated peak enrolment of sixty thousand in 1973.

Although the Indian Child Welfare Act can be understood as a response to the ongoing predatory deracination of Native children under colonialism, it was conceived in direct response to the exponential increase in adoption that began during the termination and relocation era of the 1950s and 1960s.[41] Termination became official federal policy in 1953 with the passage of House Concurrent Resolution 108, which closed tribal rolls and began to formally end recognition of tribal nations and the federal supervision through which tribal land was held in protected trust status, and Public Law 280, which extended state criminal jurisdiction over tribal reservation in six states. Tribal assets would be liquidated and distributed among each tribe’s members, who would then be encouraged by relocation initiatives to disperse and move to urban centres for work and adaptation to post-tribal life. Placement of Indian children for adoption and foster care by non-Indian families worked in tandem with these policies.  The Indian Adoption Project (IAP), a collaborative endeavour between the Bureau of Indian Affairs and the Child Welfare League of America, began in 1958.  According to Margaret Jacobs, IAP supporters encouraged the removal of Indian children by disseminating “mutually reinforcing images of unwed Indian mothers, deviant extended families, and hopelessly impoverished and alcoholic parents.”[42] By the 1970s, with such state-supported projects as the IAP-spin-off Adoption Resource Exchange of North America underway, as many as 35 percent of all Indian children in the United States were being taken from their families and placed in foster care or adoptive homes of almost exclusively non-Indian families.[43]

To counter these increasingly dire circumstances, the Association on American Indian Affairs, the National Congress of American Indians, and a broad coalition of tribal nations successfully pressured the US Congress to convene a series of hearings during the mid-1970s, which served as the basis for passing the Indian Child Welfare Act in 1978. ICWA established specific criteria and minimum standards for states to follow with regard to Indian child custody proceedings, including adoption, voluntary and involuntary termination of parental rights, and removal and foster care placement of Indian children. The law created a juridical and governance structure for tribes to exercise sovereignty over matters of child and family welfare both on and off tribal lands.  It also stipulated the parameters within which public and private child welfare agencies and state courts perform their work with tribal children and families.[44] Section 1915 of the law requires that State Departments of Social Services pursue all available means to keep Indian children with their parents before removing them from their homes. In the event that this is not possible, the state must provide for the “preferential placement” of children with “a member of the child’s extended family, other members of the Indian child’s tribe, or other Indian families.”[45]

For proponents of colour-blind policy wilfully inattentive to federal Indian law, ICWA’s provision for “preferential placement” quickly became a target. The first case to challenge the constitutionality of the act was the 1982 Kansas Supreme Court case In re the Adoption of Baby Boy L.  From this case emerged what became known as the “existing Indian family exception,” which declared that ICWA did not apply in cases when the Indian child had never been a member of an Indian home.[46] Although Justice Alito’s majority opinion in Adoptive Couple declined to rule on ICWA itself and did not invoke the dubious “existing Indian family” doctrine, its reliance on “continuous custody” would seem to have the capacity for precedent nonetheless.  According to the majority opinion, the decision rested on whether or not three specific clauses of ICWA applied and held that its protections against the “breakup of the Indian family” were abrogated when, as he put it, the father “abandoned the Indian child before birth and never had custody of the child.”[47] Furthermore, ICWA’s requirement that preference for placement of an Indian child be given to members of the child’s extended family, other members of the child’s tribe, or other Indian families was irrelevant because “there simply is no ‘preference’ to apply if no alternative party that is eligible to be preferred under [ICWA] §1915(a) has come forward.” But there would be no such possibility to “come forward” since the custody litigation was already underway.  This possibility was effectively pre-empted by the disregard for ICWA provisions in the initial adoption proceedings and the likely intentional measures taken to conceal the child’s tribal affiliation.[48]

In her dissenting opinion on Adoptive Couple v. Baby Girl, Supreme Court Justice Sonia Sotomayor argues that the majority adopts “a reading of ICWA that is contrary to both its text and its stated purpose.” Indeed, according to Sotomayor,

When it excludes noncustodial biological fathers from the Act’s substantive protections, this textually backward reading misapprehends ICWA’s structure and scope. Moreover, notwithstanding the majority’s focus on the perceived parental shortcomings of Birth Father, its reasoning necessarily extends to all Indian parents who have never had custody of their children, no matter how fully those parents have embraced the financial and emotional responsibilities of parenting.[49]

Sotomayor points to the tortuous reading of a single phrase in the majority opinion—“continued custody”—as a means to conclude “that the entirety of the subsection is inapplicable to any parent, however committed, who has not previously had physical or legal custody of his child”[50]; she uses this conclusion to dismiss the applicability of all three clauses under consideration. As such, observes Sotomayor, “in the majority’s view, a family bond that does not take custodial form is not a family bond worth preserving from ‘breakup.’”[51] Much like in the “doctrine of discovery” or Lockean property rights, without possession there can be no dispossession.

Custody, continuity and impunity
Adoptive Couple v. Baby Girl is symptomatic of the current conjuncture not only for the ways in which it circumvents and disclaims the provisions of the Indian Child Welfare Act, but for how it positions white heteronormativity and settler innocence as an altruistic remedy to conflicts supposedly between indigenous peoples and impoverished people of colour. It is crucial to ask how and why options in this case are limited by the racialised devaluation and economic disadvantage experienced by both birth parents, which are in turn disassociated from the social relations that secure the affluence and racial privilege of the prospective adoptive couple – all of which are overshadowed by the adoptive couple’s potentially thwarted longing for custody of the child. Indeed, claims to white victimisation and the disavowal of the persistence of white racial violence and expropriation have become pervasive since the de jure victories of the long civil rights movement.  This reversal of injury today requires both the outright denial of complicity with the longue durée of colonial and racial dispossession and the ostensibly “colour-blind” justification of whiteness as a capacity to possess and take possession.  This reversal relies in part on the view of racial claims as merely a spurious demand made by those who are racialised as not white, and in part on the individualisation, privatisation, and decontextualisation of conflict.  In the first case, US examples include the terms used to rationalise the recent legislative evisceration of the Voting Rights Act of 1965 and the Supreme Court’s upholding of state-specific measures banning Affirmative Action in higher education admissions. In the second case, whiteness or forms of white entitlement are articulated in a post-racial register through a particular manner of privileging of conjugal domesticity, affect and private life.  Although categories such as settler and white clearly remain artificial and uncertain, each achieves an apparent degree of “post-racial” and “post-colonial” unmarked solidity through such displaced relations.

Especially revealing in this regard is a Washington Post op-ed written by Veronica’s biological mother Christina Maldonado shortly after the Supreme Court ruling but prior to the South Carolina court’s decision to expedite the adoption by the Capobiancos.[52] At the most rudimentary level, Maldonado’s assertion that she was a “Latina and not a member of any tribe” and her alliance with the Capobiancos—“I handpicked this couple to raise my baby”—served to deny any accusation that an assertion of white privilege or an unseemly racial subtext might be at stake in the claims of the adoptive couple. Maldonado insisted that she “fought all the way to the Supreme Court for Veronica’s right to be treated like a human being—not property owned by a Native American tribe.” Her contrast between humanness and property echoed “Veronica’s story” as told on the website of “Save Veronica,” a social media campaign conducted on behalf of the Capobiancos.  Perhaps referencing the history of Cherokees as slaveholders and the tribe’s ongoing legal battles with Cherokee Freedmen over citizenship claims, the website text insinuated that ICWA provisions were comparable to slavery: “At the root of all of this is the issue of fundamental fairness and recognition of basic human rights of all people. Children are not chattels nor are they the personal property of an Indian tribe, their birth parents or their adoptive parents.” Against what the website implied could only be a tyrannical race-based collective ownership over Indian children, the conjugal nuclear family and the United States – as purveyors of individual freedom and universal “colour-blind” human rights – would guarantee such children “the right to permanency and a loving, nurturing family environment providing them stability and security. They should have all these rights irrespective of their race as do all other American children.”[53] From this perspective, the Cherokee appeared as racial separatists and callous despots whose illiberal version of membership was equivalent to slavery.

In her op-ed, Maldonado similarly depicted Brown as a calculating and possibly dangerous interloper.  She asked rhetorically: “If my baby had been kidnapped by a stranger, no one would suggest that she should be left with the kidnapper just because time had passed, even if she seemed to be doing all right in her new home.” Against what she suggested were the merely impassive proprietary interests of Brown and the Cherokee Nation, Maldonado emphasised the compassion and sincerity of the Capobiancos.  She recollected that she “immediately felt a connection” with them, in part because “they were people of strong faith, like me.”  Moreover, explained Maldonado, “from our first conversation, Melanie treated me with such warmth, respect and kindness.” She described Veronica’s birth by noting: “Matt and Melanie were with me in the delivery room, where I otherwise would have been alone. Matt cut the umbilical cord and was the first to hold Veronica.”  Whereas, according to Maldonado, the Capobiancos were “wonderful parents,” Dusten Brown “abruptly cut [Veronica] off from the only family she had ever known. It pains me to think of how many times she must have cried out for her Mama and Daddy—Melanie and Matt.”[54] The guardian ad litem appointed to represent Veronica added to Maldonado’s assessment of the prospective adoptive couple as ideal parents.  Underscoring their class status, she described the Capobiancos as “a well-educated couple with a beautiful home, [who] could afford to send Baby Girl to any private school that they chose and, when she was older, to any college she wanted; and that there was nothing that Baby Girl needed that [they] could not buy for her.”[55] To deny Veronica such material comforts would appear to be an act of heartless self-centredness.

Vilifying Maldonado, however, only contributes to exonerating the Capobiancos and mistakenly centering the conflict between Maldonado and Brown as the most salient aspect of the adoption dispute. In an article entitled “Some Disturbing Facts About Baby Veronica’s Birth Mother,” Indian Country Today reported that

in 2009, friends noticed that the old Honda Civic that Maldonado had been driving courtesy of a family member who was making her car payments for her, was suddenly traded in for a large SUV… Additionally, she had mysteriously regained her financial equilibrium and was able to get caught up on her mortgage.[56]

Yet rather than simply convey the ulterior motives that may have led Maldonado so tirelessly to champion the Capobiancos, as the article asserts, her financial troubles could be considered as the very conditions of possibility that frame the adoptive couple as would-be rescuers.  Instead of merely disparaging Maldonado—and, in a sense, further marginalising her by leaving the underlying circumstances of inequality and racialised devaluation unaddressed—highlighting her apparent financial desperation could be taken as an indictment of the Capobiancos and the relations of despair upon which the entire network of exchange at stake in the adoption was predicated.

Legal action by Maldonado and the Capobiancos followed the Supreme Court ruling. One month after Alito delivered the majority opinion, Maldonado’s attorney filed a class action lawsuit against US Attorney General Eric Holder and the Cherokee Nation, with Maldonado as the lead plaintiff, requesting that parts of ICWA be declared unconstitutional under the Tenth Amendment’s equal protection and due process clauses.  The lawsuit contended that ICWA did not respect a birth mother’s right to choose who would be most suitable to raise her child if the father were absent, and charged that the law was

sweeping within it children who do not have, and would not have—but for ICWA—any connection whatsoever to any Tribe other than biology, no matter their predominant ethnic or racial background, no matter their domicile, and irrespective of whether their sole custodial birth mothers—their only legal parents—have even a trace of Indian blood.[57]

These “many children” were unfairly and “specially disabled from finding stable, permanent, adoptive homes that are in their best interests—on account of an accident of ancestry.” And, ICWA “in fact causes great harm to Indian children… solely on the basis of their race and ancestry.”  Although Maldonado filed a voluntary dismissal of the suit in April 2014, her attorney said “it is likely a court will see another lawsuit challenging the constitutionality of ICWA ‘in the not-too-distant-future,’ as it involves ‘serious and recurring’ issues.”[58]

The focus on the equal protection clause appears particularly salient to neoliberal ideology.  Writing on transnational and transracial adoption in another context, David Eng argues that “colour-blindness” and “the promulgation of abstract equality displaces the language of race into the register of privacy and intimacy, family and kinship.”[59] De jure equality serves not only to displace the material significance of race that Eng discusses, but also has particular efficacy in working to deny and foreclose colonial dispossession.[60] In Adoptive Couple and Maldonado’s subsequent suit, the apparently private life of racial difference is made to manifest as a conflict between racialised or otherwise struggling birth parents in such a way that exempts presumably white adoptive parents from complicity. That Maldonado dropped the subsequent suit might suggest her actions had more to do with the hostility she felt towards Brown, rather than a deeply held animosity towards ICWA.

For their part, however, the Capobiancos sued the Cherokee Nation in September 2013 for attorney’s fees accrued during the course of litigation.  Despite the fact that – whether as a ploy for sympathy or to bolster the perception that theirs was a just cause – the Capobiancos’ attorneys publicised the “pro bono” nature of their work, the couple still filed one suit demanding fees totalling more than one million dollars in Nowata County Court in Oklahoma and another suit, dropped soon thereafter, for approximately $500,000 for fees in South Carolina.  Dusten Brown’s South Carolina attorney Shannon Jones concluded,

The message here is “Don’t mess with the all-powerful adoption industry, and don’t even think about trying to enforce the Indian Child Welfare Act”… The message is clear that they are trying to threaten and intimidate tribes from attempting to enforce their rights under the law.[61]

This is not a matter of adoption or adoptive parenting in any general sense. The Capobiancos’ mission to be adoptive parents obstinately refused any and all understanding of the longstanding colonial conditions of possibility in which they sought custody of and parental rights to Veronica. Once again, assertions of white injury and innocence act to shore up the terms of impunity.

Anxieties of presence and propriation
The consequences of Adoptive Couple for Indian children facing custody proceedings and for the defensive capacity of the Indian Child Welfare Act have taken different forms.  On the one hand, the Lakota People’s Law Project’s ICWA Amendment Initiative seeks to reinforce the provisions of the law, while the Cherokee Nation has taken steps to regulate adoption proceedings more strictly.  On the other, the State of Alaska and a group of non-Native foster parents have argued that under Adoptive Couple ICWA’s “most substantive requirement” is inapplicable in adoption cases and state-initiated Child In Need of Aid proceedings unless a Native couple have filed a competing adoption petition.[62] Moreover, as threatened by Maldonado’s attorney, Justice Clarence Thomas’s conclusion that Adoptive Couple presented “significant constitutional problems” and Justice Samuel Alito’s suggestion that a comparable case could potentially serve to overturn ICWA have subsequently inspired federal class action litigation filed by the right-wing Goldwater Institute in July 2015 challenging the constitutionality of ICWA.[63] Alleging that ICWA is racist and claiming to rescue Native children from the supposed tyranny of tribes and indigenous savagery, the Goldwater Institute insists: “We want federal and state laws to be changed to give abused and neglected Native American children the same protections that are given to all other American children: the right to be placed in a safe home based on their best interests, not based on their race.”[64] As is evident with its work to annul anti-discrimination laws, the Goldwater Institute suit aims to make the repeal of ICWA precedent for extinguishing tribal sovereignty and securing the jurispathic diminution of indigeneity from a political relation to a minoritised racial difference in the name of “equality” and the defense of individual private property rights.

In the case of Adoptive Couple v. Baby Girl and the broader circumstances I have been discussing, privatisation, domestication, and heteronormativity provide the relations through which colonial disavowal and white affect are mobilized on behalf of taking-possession. The “white subject” strives to confirm this always precarious capacity by imposing its will-to-be on those it construes as without will and therefore available for taking.[65] Settler colonialism as a forever failing or unfinished process in the United States is not so much a fully manifest or absolute taking-possession, as it is the ongoing and ever-elusive desire for possession and dominion.[66] Settler colonialism is in this sense a relation to lack that radiates death and dispossession. Considering Adoptive Couple as indicative of certain affective claims that instantiate settler-colonial prerogative in the United States during the current moment helps to explain the contemporary colonial making of “domestic dependence” as a means for reinvigorating processes of indigenous dispossession. Yet, as is evident in this case and the broader colonial and racialised dynamics in which it participates, the fabulations of filius nullius and the attempts to domesticate Native nations through attributions of dependence and interventions ostensibly justified by their failed conformity to proper familial norms amplify the economies of settler “anxieties of presence and propriation” rather than confirm settler prerogatives of place, possession, and permanence.


1. Addie Rolnick and Kim Pearson, “Adoptive Couple v. Baby Girl,” (Parts 1-5), 30 June – 2 July, 2013.  http://prawfsblawg.blogs.com/prawfsblawg/; Matthew L. M. Fletcher and Wenona T. Singel, “Indian Children and the Federal-Tribal Trust Relationship,” Michigan State University College of Law (28 April 2016) http://ssrn.com/abstract=2772139 [↑]

2. Judith Butler and Athena Athanasiou, Dispossession: The Performative in the Political (Cambridge: Polity, 2013). [↑]

3. Jacques Derrida, Spurs: Nietzsche’s Styles, trans. Barbara Harlow (Chicago: University of Chicago Press, 1979), 115. [↑]

4. Étienne Balibar, “The Reversal of Possessive Individualism,” in Equaliberty: Political Essays, trans. James Ingram (Durham, NC: Duke University Press, 2014), 88-89. [↑]

5. Denise Ferreira da Silva, Toward a Global Idea of Race (Minneapolis: University of Minnesota Press, 2007). [↑]

6. Aileen M. Moreton-Robinson, The White Possessive: Property, Power, and Indigenous Sovereignty (Minneapolis: University of Minnesota Press, 2015), 110. [↑]

7. Lisa Marie Cacho, Social Death: Racialized Rightlessness and the Criminalization of the Unprotected (New York: NYU Press, 2012), 17. [↑]

8. Laura Briggs, Somebody’s Children: The Politics of Transracial and Transnational Adoption (Durham, NC: Duke University Press 2012), 4. [↑]

9. Briggs, 6. Also see Laura Briggs, “The Feminist Defense for Baby Veronica’s Dad and ICWA,” Indian Country Today, 6 September 2013, http://indiancountrytodaymedianetwork.com/2013/09/06/feminist-defense-baby-veronicas-dad-and-icwa-151175 [↑]

10. Quoted in Briggs, 28. [↑]

11. Kaaryn S. Gustafson, Cheating Welfare: Public Assistance and the Criminalization of Poverty (New York: NYU Press, 2011). [↑]

12. Briggs, 10. [↑]

13. South Carolina Supreme Court, Adoptive Couple v. Baby Girl, Case No. 2009-DR-10-3803, Opinion No. 27148, 26 July 2012, 29. [↑]

14. Supreme Court of the United States, “Opinion of the Court,” Adoptive Couple v. Baby Girl, 570 US, No. 12-399. 25 June 2013, 2. [↑]

15. For more on the specific capacities of racialisation in the service of colonial dispossession see Joanne Barker, “Self-Determination,” Critical Ethnic Studies 1, no. 1 (2015): 11-26; Alyosha Goldstein, “Possessive Investment: Indian Removals and the Affective Entitlements of Whiteness,” American Quarterly 66, no. 4 (December 2014): 1077-84. [↑]

16. Jodi A. Byrd, The Transit of Empire: Indigenous Critiques of Colonialism (Minneapolis: University of Minnesota Press, 2011), xxiii. [↑]

17. Byrd, xxiii. [↑]

18. Supreme Court of the United States, “Oral Arguments,” Adoptive Couple v. Baby Girl, 16 April 2013, 42-43. [↑]

19. “CN Files Petition for Adoptive v. Baby Girl Rehearing,” Cherokee Phoenix, 23 July 2013. http://www.cherokeephoenix.org/Article/Index/7440 [↑]

20. Mark Rifkin, When Did Indians Become Straight?: Kinship, the History of Sexuality, and Native Sovereignty (New York: Oxford University Press, 2011), 313. [↑]

21. Rifkin, 48. [↑]

22. Quoted in Theda Purdue and Michael D. Green, The Cherokee Removal: A Brief History with Documents, 2nd ed. (New York: Bedford/St. Martin’s, 2005), 25. [↑]

23.  Purdue and Green, 26. [↑]

24. Amy Kaplan, The Anarchy of Empire in the Making of US Culture (Cambridge, MA: Harvard University Press, 2002), 26. [↑]

25. Mishuana Goeman, Mark My Words: Native Women Mapping Our Nations (Minneapolis: University of Minnesota Press, 2013), 98. [↑]

26. Rifkin, 47. [↑]

27. 30 US (5 Pet.) 1, 17; also see Walter R. Echo-Hawk, In the Courts of the Conqueror: The Ten Worst Indian Law Cases Ever Decided (Golden, CO: Fulcrum, 2010); Lindsay G. Robertson, Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands (New York: Oxford University Press, 2005); Manu Vimalassery, “Counter-sovereignty,” J19: The Journal of Nineteenth-Century Americanists 2, no. 1 (2014): 142-8. [↑]

28. Goeman, 98. [↑]

29. See, for example, Sarah Deer, Bonnie Clairmont, Carrie A. Martell, and Maureen L. White Eagle, eds. Sharing Our Stories of Survival: Native Women Surviving Violence (Lanham, MD: AltaMira Press, 2007); Anne McClintock, Imperial Leather: Race, Gender, and Sexuality in the Colonial Contest (New York: Routledge, 1995); Emmanuelle Saada, Empire’s Children: Race, Filiation, and Citizenship in the French Colonies (Chicago: University of Chicago Press, 2012); Nayan Shah, Stranger Intimacy: Contesting Race, Sexuality and the Law in the North American West (Berkeley: University of California Press, 2012); Ann Laura Stoler, Carnal Knowledge and Imperial Power: Race and the Intimate in Colonial Rule (Berkeley: University of California Press, 2010); Lisa Lowe, The Intimacies of Four Continents (Durham, NC: Duke University Press, 2015). [↑]

30. Lewis Cass, “Removal of the Indians,” North American Review 30 (January 1830), 91. [↑]

31. Cass, 120. [↑]

32. Tim Alan Garrison, The Legal Ideology of Removal: The Southern Judiciary and the Sovereignty of Native American Nations (Athens, GA: University of Georgia Press, 2002). [↑]

33. James P. Ronda, “‘We Have a Country’: Race, Geography, and the Invention of Indian Territory,” Journal of the Early Republic 19, no. 4 (1999): 739-55; Robert A. Trennert, Jr., Alternative to Extinction: Federal Indian Policy and the Beginnings of the Reservation System, 1846–51 (Philadelphia: Temple University Press, 1975). [↑]

34. Captain R. H. Pratt, “The Advantages of Mingling Indians with Whites,” Proceedings of the National Conference of Charities and Correction at the Nineteenth Annual Convention, Denver, CO, June 23-29, 1892 (Boston, MA: Press of G. H. Ellis, 1892), 56. [↑]

35. See especially Athanasiou and Butler, 23-28. [↑]

36. Quoted in Lorie M. Graham, “Reparations, Self-Determination, and the Seventh Generation,” in Facing the Future: The Indian Child Welfare Act at 30, ed. Matthew L. M. Fletcher, Wenona T. Singel, and Kathryn E. Fort (East Lansing: Michigan States University Press, 2009), 52. [↑]

37. Kathryn Joyce, “The Adoption Crunch, the Christian Right, and the Challenge to Indian Sovereignty,” Public Eye 78 (2014): 2–8, 17–18; Also see Kathryn Joyce, The Child Catchers: Rescue, Trafficking, and the New Gospel of Adoption (New York: PublicAffairs, 2013). [↑]

38. Sarah Deer, “Relocation Revisited: The Sex Trafficking of Native Women,” in The Beginning and End of Rape: Confronting Sexual Violence in Native America (Minneapolis: University of Minnesota Press, 2015), 71. [↑]

39. K. Tsianina Lomawaima, “Domesticity in the Federal Indian Schools: The Power of Authority over Mind and Body,” American Ethnologist 20, no. 2 (1993), 229. [↑]

40. Lomawaima, 228. [↑]

41. United States Congress, House of Representatives, Establishing Standards for the Placement of Indian Children in Foster or Adoptive Homes, to Prevent the Breakup of Indian Families, and for Other Purposes: Report together with Dissenting Views [To accompany H.R. 12533], Report No. 1386, 95th Congress, 2nd session, 24 July 1978. [↑]

42. Margaret D. Jacobs, “Remembering the ‘Forgotten Child’: The American Indian Child Welfare Crisis of the 1960s and 1970s,” American Indian Quarterly 37, nos. 1-2 (2013), 144. [↑]

43. Claire Palmiste, “From the Indian Adoption Project to the Indian Child Welfare Act: The Resistance of Native American Communities,” Indigenous Policy Journal 22, no. 1 (2011): 1-10; Jacobs, “Remembering the ‘Forgotten Child.’” [↑]

44. Matthew L. M. Fletcher, Wenona T. Singel, and Kathryn E. Fort, eds., Facing the Future: The Indian Child Welfare Act at 30. East Lansing: Michigan States University Press, 2009); Barbara Ann Atwood, Children, Tribes, and States: Adoption and Custody Conflicts over American Indian Children (Durham, NC: Carolina Academic Press, 2010). [↑]

45. 25 US Code § 1915. [↑]

46. Aliza G. Organick, “Holding Back the Tide: The Existing Indian Family Doctrine and the Continued Denial of the Right to Culture for Indigenous Children,” in Facing the Future[↑]

47. Supreme Court of the United States, “Opinion of the Court,” 2. [↑]

48. Supreme Court of the United States, “Opinion of the Court,” 15. [↑]

49. Justice Sonia Sotomayor, Dissenting, Adoptive Couple v. Baby Girl. 570 US (2013), No. 12-399, 25 June 2013, 2-3. [↑]

50. Sotomayor, 2. [↑]

51. Sotomayor, 2. [↑]

53. http://www.saveveronica.org/veronicas-story/ [↑]

54. Maldonado, “Baby Veronica belongs with her adoptive parents.” [↑]

55. Supreme Court of the United States, “Opinion of the Court,” 4. [↑]

56. Suzette Brewer, “Some Disturbing Facts About Baby Veronica’s Birth Mother,” Indian Country Today, 12 August 2013. http://indiancountrytodaymedianetwork.com/2013/08/12/selling-christy-maldonado-150831[↑]

57. United States District Court for the District of South Carolina, Charleston Division, Christina Maldonado et al. v. Holder and Cherokee Nation, Case No. 2:13-cv-02042-DCN, 24 July 2013, 1-2. [↑]

58. Andrew Knapp, “Attorneys drop lawsuit sparked by Veronica adoption, but say more ICWA challenges could follow,” Post and Courier (Charleston, SC), 9 April 2014. http://www.postandcourier.com/article/20140409/PC16/140409311 [↑]

59. David L. Eng, The Feeling of Kinship: Queer Liberalism and the Racialization of Intimacy (Durham, NC: Duke University Press 2010), 49. Also see Anne L. Alstott, “Neoliberalism in US Family Law: Negative Liberty and Laissez-Faire Markets in the Minimal State,” Law and Contemporary Problems 77, no. 4 (2014): 25-42. [↑]

60. J. Kēhaulani Kauanui, “Colonialism in Equality: Hawaiian Sovereignty and the Question of US Civil Rights,” South Atlantic Quarterly 107, no. 4 (2008): 635-50. [↑]

61. Suzette Brewer, “Capobiancos Sue Dusten Brown for Nearly Half a Million in Fees,” Indian Country Today, 25 September 2013. http://indiancountrytodaymedianetwork.com/2013/09/25/capobiancos-sue-dusten-brown-nearly-half-million-fees-151444. [↑]

62. Supreme Court of the State of Alaska, “Brief of Amicus Curiae, Native Village of Kotzebue,” Native Village of Tununak v. State of Alaska, Case No. S-14670, 22 November 2013, 2. [↑]

63. Kate Fort, “Goldwater Institute to File a Class Action Lawsuit Against ICWA,” Turtle Talk: Indigenous Law and Policy Centre Blog, 6 July 2015. https://turtletalk.wordpress.com/2015/07/06/goldwater-institute-to-file-a-class-action-lawsuit-against-icwa/ [↑]

64. Josh Israel, “Why a Conservative Legal Organization is Desperately Trying to Kill the Indian Child Welfare Act,” ThinkProgress, 8 April 2016. http://thinkprogress.org/justice/2016/04/08/3754462/indian-child-welfare-act-case-goldwater/  [↑]

65. Moreton-Robinson, The White Possessive; also see Ferreira da Silva, Toward a Global Idea of Race[↑]

66. Audra Simpson, Mohawk Interruptus: Political Life Across the Borders of Settler States (Durham, NC: Duke University Press 2014); Alyosha Goldstein, “Finance and Foreclosure in the Colonial Present,” Radical History Review 118 (2014): 42-63. [↑]

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