Ethics Bowl - Indian child welfare act

Hello. I'm Ira Singer. And I'm Amy Baehr. We teach philosophy at Hofstra University. Hofstra is host for this year's Long Island regional Ethics Bowl. We're going to discuss the Ethics Bowl case that involves the Indian Child Welfare Act. We're not going to be aiming at giving an exhaustive or definitive account of the issues in that case. We're trying to a sketch some of the considerations as an example of how you can start thinking about complex ethical issues. The case is a custody dispute. Two-year-old Veronica had been raised by her adoptive parents Matt and Melanie Capobianco. At that point her father, her biological father Dusten Brown who is a member of the Cherokee Nation, won custody of Veronica in a lawsuit that hinged on the Indian Child Welfare Act The question for us here is who should raise Veronica, her adoptive parents or her biological father? To think clearly about this question we need to understand the many interests and values that are at stake in this question. We can think about at least four broad kinds of considerations in this case. First, Veronica's interests. Second, the interests of her biological and adoptive parents. Third, we can think about the general value of preserving the practice of adoption. And fourth, we can think about the value of sustaining Native American communities and cultures. Let's begin with Veronica's interests. Normally a person's preferences are an important guide to what is in that person's best interest, but Veronica is too young to say clearly and with any certainty what her interests are, so we're going to have to think about what her interests are without input from her. Like everyone else, Veronica has interests in physical safety, in a stable family life, in love and emotional security, and in educational and economic opportunities. In this particular case, we also have reason to think about Veronica's interest in being raised in a community of people who share her heritage. You might think about whether any of Veronica's interests might be so important that they absolutely must be protected. Consider Veronica's physical safety. If her biological father or her adoptive parents couldn't provide her with physical safety, that would count against them. But we have reason to believe that both her biological father and her adoptive parents can provide her with this kind of physical safety. So we want to wonder are any Veronica's other interests important in this fundamental way? What about Veronica's interests in educational and economic opportunities? Does it make sense to think of this kind of interest as overriding or decisive? Well here we need to make a distinction between decent opportunities and the best opportunities possible. Veronica does have a crucial interest in decent opportunities, but we can assume that both her biological father and her adoptive parents can provide that much. Veronica has an interest, but not a crucial interest, in the best educational and economic opportunities possible. Now we usually don't think that maximizing these opportunities is by itself decisive in a custody dispute. In a particular case, other factors like love, stability or preserving heritage might count for more. Okay, then what about Veronica's interest in growing up in a community that shares her heritage? Is it like physical safety or basic educational and economic opportunities, so that whatever family fails to provide it should not get custody? Veronica's biological father can provide her with an upbringing within her ethnic community. Her adoptive parents can't. But perhaps growing up in a culture to which one has biological ties is a desirable factor, but not necessarily a decisive factor. Stability of family life is also important, but here this factor is complex. The more time Veronica spends with one family, the more that family can satisfy her interest in a stable family life. Now when the Capobiancos had custody for two years, that was a reason for them to retain custody. But once Veronica's biological father had custody of her for an extended period, then that was a reason for him to retain custody. Let's look now at the biological father's interests. Dusten Brown wants to raise Veronica, but we don't usually think that simply wanting something creates an entitlement to it. And in any case, both Brown and the Capobiancos want custody of Veronica. But Brown wants custody of Veronica because he wants something else that Veronica herself has an interest in. He wants for Veronica to grow up in an ethnic community that she's biologically connected with. And Veronica's biological father is uniquely able to preserve and promote this interest of hers. It's also true that Brown has an interest in his culture's survival, and for his culture to survive, it has to be passed along to the next generation, that is, to his daughter. What about the adoptive parents? Veronica's biological father stated in a text message that he was giving up rights to Veronica. The adoptive parents depended on this statement that Brown made. His statement created in the Capobiancos an expectation that Veronica was available for adoption. Did his text message amount to a promise that he wouldn't later tried to get custody of her? And the circumstances of this text message are also important. Did Dusten Brown believe that he was consenting to adoption or did he believe that Veronica would be raised by her mother? Was he rushed or pressured into making this decision? Perhaps consent given without fully accurate information, or under duress, doesn't count as true consent. Let's return to the Capobiancos and to their expectations. Now it's natural for us to focus on the four people who are directly involved in this case - Veronica, the Capobiancos and Brown. But we should also think about whether the case has more general implications. For example, if biological parents often change their minds about adoptions and the authorities that often return babies to their biological families, could that result in fewer babies being adopted? Would that do a great deal of harm? Maybe few other adoptions would be reversed, and maybe very little harm would actually be done if Veronica's adoption were to be reversed. But we still might think it not fair to reverse Veronica's adoption, while leaving other similar adoptions undisturbed. Another general implication of the case needs to be thought about, and that is the value of and the need for supporting Native American cultures. The point of the Indian Child Welfare Act was that until recently, authorities frequently removed children from Native American households without adequate justification. This was, and it still might be, a threat to the continuity of Native American cultures. The ICWA is an attempt to redress a great wrong. Denying Brown's claim to raise Veronica might then mean failing to meet a national obligation to Native Americans generally. But is Veronica really a Native American? Newspaper accounts say Veronica is 1.2 percent Cherokee. Is 1.2 percent too little too count as Cherokee? How should ethnic identity be determined anyway? Native American tribes did not use biological heritage to determine tribal membership before Europeans arrived. For many tribes, self-description is what matters. The US government has insisted that those claiming native status must show a certain percentage of biological Native American ancestry, but because of widespread intermarriage, this standard has functioned to deny native status too many children of people who consider themselves Native Americans. If Veronica's father considers himself Cherokee, and the Cherokee Nation considers himself Cherokee, shouldn't Veronica also be considered Cherokee? So who should raise Veronica - her adoptive parents or her biological father? We've tried to show how very difficult it is to give decisive support to either answer, given the conflicting interests and values that are at stake in this case. Now in thinking further about this case in preparation for the Ethics Bowl, you should weigh these different interests and values against each other. They all count. They all matter. The case summary notes that a Supreme Court justice described this case as heartbreaking. It's heartbreaking because it presents us with such stark choices. Veronica can stay connected to her biological parent, her biological father or to her adoptive parents, but not to both. She can lose her Cherokee heritage or she can retain it. There seems to be no middle ground. But is it true that there's no middle ground? In some custody disputes, the parent who doesn't gain custody retains the right to spend time with the child. In open adoptions, a biological parent can be a part up the child's life. And in some international adoptions, the adoptive parents actively promote a connection with the child's birth culture. So thinking about these kinds of examples, can you come up with a creative solution in baby Veronica's case? A solution that would serve a variety of important interests and preserve a variety of important values. Still even if there is a creative solution that satisfies many of the interests and values we've discussed here, perhaps we should recognize that the case might end up just being tragic. To say that the case is tragic would be to say that there is no solution that does full justice to everything that is important. We hope that this discussion will help you to think sensitively and creatively about this difficult case and about others like it in the Ethics Bowl. More importantly, we hope that it will in a small way help you to think more sensitively and creatively about complex choices in your own lives. Thank you for watching.