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.
The case was returned to the South Carolina high court, which ruled in mid-July that the Supreme Court’s decision about the reach of the ICWA meant that Brown’s parental rights should be severed and the Capobiancos’ adoption of Veronica should be granted.
Brown has made his case in Oklahoma courts, but two lower courts have turned him down. The matter is under review by the Oklahoma Supreme Court, where another proceeding is scheduled for Monday.
In the meantime, the Cherokee Nation court awarded temporary custody of Veronica to Brown’s parents and his wife while he was at National Guard training out of state. Veronica now resides on tribal land in Oklahoma.
The Capobiancos arrived in the state on Aug. 15 and have been there since. They have regular visits with Veronica at a child-care center.
The governors of the two states have gotten involved. South Carolina Gov. Nikki Haley (R) wants Brown extradited to her state to face charges for not cooperating with the court’s orders. Her counterpart in Oklahoma, Gov. Mary Fallin (R), has faced criticism for agreeing. There is an extradition hearing for Brown scheduled for next month.
Amanda Clinton, communications director for the Cherokee Nation, said that Brown is “exhausting his legal remedies, just as the Capobianco family has done for the last two years.”
She added: “Cherokee Nation will continue to support Dusten in his fight to raise his daughter and continue to advocate for Veronica’s right to be raised by a fit, biological parent in her tribal community.”
Lori Alvino McGill, a Washington attorney for the Capobiancos, responded in a statement:
“Brown and the Cherokee Nation have no intention of voluntarily complying with any order of an Oklahoma court either. That is not a lawful pursuit of ‘legal remedies’ — it is abuse of judicial process, and in the interim they are detaining this child from her only lawful parents.”
It seems likely that another trip through the federal courts is in the future.
Meanwhile, the Post and Courier of Charleston last week reported on an Oklahoma court’s ruling that a 4-month-old girl born in the state to an unwed Indian mother be returned from the South Carolina couple who wants to adopt her.
The Absentee Shawnee Tribe is a party to the dispute, and the ICWA has been invoked.
The girl is being referred to as Baby Desaray.