The Story of Baby O—and the Case That Could Gut Native Sovereignty

Baby O’s case is at the center of a lawsuit to bring down the Indian Child Welfare Act. But far from proving ICWA should be overturned, it shows why the law is necessary.

Illustration by Hanna Barczyk

In March of 2016, a newborn baby was left at a hospital in Nevada. In court documents, the child is called “Baby O,” but we will call her “Octavia.” When she was 3 days old, Octavia went to live with a couple named Heather and Nick Libretti in the small city of Sparks, Nev., just outside of Reno. At the time, Heather did PR for a classic cars festival, while Nick worked as a mechanic. The couple, now in their early 40s, had fostered and adopted two boys—and taken in a third—but Heather had always wanted a girl.

Octavia had been left at the hospital under Nevada’s Safe Haven law, which allows a parent to give up their child at a hospital, a firehouse, or a police station without fear of being arrested or prosecuted. In line with the statute, Octavia’s mother voluntarily relinquished her parental rights. When she was asked by hospital staff to share the father’s name, she refused. And so, when Octavia went home with the Librettis, there was no biological family to claim her. Given the circumstances, the Librettis felt certain they would be able to adopt her.

Then, three weeks after Octavia was born, her father’s name was found, though it’s not entirely clear how. He was contacted, as required by law, and, after a DNA test confirmed his paternity, said he wanted to raise the child. Since Octavia’s father was homeless and struggling with substance use, however, the Washoe County Human Services Agency (HSA) determined that Octavia could be reunited with him only after he achieved sobriety.

And there was something else: Octavia’s paternal grandmother was a citizen of the Ysleta del Sur Pueblo, a federally recognized tribe in El Paso, Tex. This meant Octavia was eligible for citizenship in the tribe and that her case would likely fall under a 1978 federal law known as the Indian Child Welfare Act (ICWA), which was created to prevent family separation in Native communities. Among other things, the law gave Octavia’s tribe the right to intervene in her case and required social workers to prioritize placing Octavia with extended family or another member of her tribe. Social workers from the Ysleta del Sur Pueblo told the Washoe County HSA that they would intervene only if the child wasn’t placed with relatives. Her placement with the Librettis would be temporary.

The Librettis, however, did not accept the news that they might not be allowed to adopt Octavia. Instead, they decided to fight. Over the next year, they would contact Octavia’s family members and talk them out of raising the child; ask her grandmother to renounce her tribal membership so ICWA wouldn’t apply; and hire lawyers to fight for custody. Eventually, the Librettis would prevail: They would adopt Octavia.

But the Librettis didn’t stop there. In 2017, they joined a federal lawsuit seeking to strike down the Indian Child Welfare Act. That case, Haaland v. Brackeen, has now wound its way to the Supreme Court and brought the Librettis to the paradoxical place where they find themselves today: They have won custody of Octavia—over the child’s blood relatives—but claim that ICWA harmed them so seriously that it violated their co