Short answer, YES.
However using the word 'property' is no more appropriate in the tribal context than it would be in speaking about a state's interest in a child who is put up for adoption. Referring to them as a '2%' blood recalls the precise type of paternalism and antiquated notions of tribal existence that laws like ICWA were designed to erase.
Here is why:
As a matter of their inherent sovereignty, tribes have the ability to define their own membership. If your 2%er was the child of a member of the tribe, and the tribe's criteria states that all children of members are presumed members at birth, then that child has as much protectable interest from the tribe's perspective under ICWA as a child that was born of two "full bloods" as you might say. As tribes differ widely in their membership and descendancy criteria (matrilineal, patrilineal, through marraige or not), it is a case by case situation. Even your 2%er would only be 5 generations removed from whatever you consider your "full blood" prototype of what is a true "Indian." In 2012, that is not such an outrageous proposition given how the last 150 years has played out for tribes. If a tribe considers children in such a situation to be worthy of inclusion in their tribal community, that is their sovereign choice and one that is protected under laws like ICWA.
This case is the most unfortunate example of what happens when the law, in this case ICWA, was not followed from the start. Read the opinions and pleadings from the SC Supreme and lower courts. ICWA's purpose was that tribes would have primacy in making adoption placement determinations for its children as opposed to state adoption agencies or individual parents. The law's provisions in this case should have been triggered before the State of Oklahoma adoption services ever set in motion the process for the child to arrive in SC in the first place. If you do not believe in the concept that Native American tribes should still exist or that they should be able to exercise what little sovereignty they have left over their lands and people, then read no further. Laws like ICWA or the last 40 years of federal Indian policy will do little to make you understand the big picture here.
Because of either miscommunication or deliberate misinformation on the part of the biological mother towards the State of Oklahoma, the Cherokee Nation did not get the opportunity to have that first say. Perhaps they may have eventually found
that the Capobianco's would have been an appropriate fit after exploring potential placement in the tribe. The point is they have the first say and that did not happen here. As soon as they were made aware of the situation, the Cherokee Nation intervened to protect that interest. Focusing on what the father may or may not have thought about what he was signing or giving up before he was deployed for military service ignores the overarching interests of the tribe. Just as any state has the authority to step in and make decisions on behalf of children when actions of their parents warrant state involvement, so has the law recognized the same interest of Native American tribes. Yes, the judicial process is painfully slow and it is sad that emotional bonds were formed as this litigation dragged on.
To the Capobianco family, my heart goes out to you. No law maker in Washington or tribal leader ever intended for these types of situations to unfold. I hope that you one day find peace.
You are all missing the real story here: the return of Mezzane upstairs! With Quinten Baxter at the helm, no less! For anyone who has been around Charleston long enough, they may recall it as the best downtown spot. Ever. I was sad to see it close years back, but this is sweet music to my ears. Youngsters: there was once a band called Gradual Lean and if you're lucky, you might get to see them perform again one day.
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