The case even made a brief trip back to the Supreme Court, where it divided the justices once again.
The late justice Robert H. Jackson famously wrote of his colleagues on the high court: “We are not final because we are infallible, but we are infallible only because we are final.”
But sometimes the court is final only in the narrow question of law before it. That question decided, it sends the case back to lower courts, where sometimes the whole process starts anew.
Such is the fate of Veronica’s case. If anything, the Supreme Court’s decision has only heightened the stakes surrounding the rights of birth parents, the legal standing of adoptive parents and the sovereignty of Native American tribes.
A brief history is necessary:
Veronica’s unwed birth mother decided to put her up for adoption before she was born and selected Matt and Melanie Capobianco of Charleston, S.C., to raise her daughter. They were at her birth in Oklahoma four years ago.
Dusten Brown, a member of the Cherokee Nation and Veronica’s father, was not. He and his former fiancee had split despite his offer of marriage. Replying to her text message about whether he’d rather pay child support or give up rights to the child, he chose the latter.
But later, Brown, a soldier about to be deployed to Iraq, discovered that the girl born four months earlier was to be adopted, rather than raised by his former fiancee. He enlisted an attorney to stop the proceedings and invoked the Indian Child Welfare Act (ICWA).
Congress enacted the law in 1978 to discourage adoptions outside tribes — combatting what it found to be a shameful practice of removing Indian children from their tribes and placing them with non-Indian families — and erected high hurdles for ending Indians’ parental rights.
The South Carolina Supreme Court in 2011 found that the ICWA required Veronica to be taken from the Capobiancos, who had raised her for the first 27 months of her life, and given to Brown, with whom she has lived since.
But on June 25, the U.S. Supreme Court ruled for the Capobiancos. Justice Samuel A. Alito Jr., writing for a five-member majority, said that the ICWA does not apply when “the parent abandoned the Indian child before birth and never had custody of the child.”
Justice Sonia Sotomayor, writing for the dissenting justices, said the majority had twisted the clear language of the law to reach an intended result, and she predicted that “the anguish this case has caused will only be compounded by today’s decision.”
There have been a series of legal victories for the Capobiancos since then.