Ruling leads to adoption wrangling

Robert Barnes / The Washington Post /


Baby Veronica turned 4 on Sunday, so perhaps it is time to retire the label that always precedes her name. But it is still not possible to definitively predict her future.

Since a deeply divided Supreme Court ruled in Veronica’s case in June, here’s who else has had a say: two South Carolina courts, three Oklahoma courts, the Supreme Court of the Cherokee Nation, a battalion of lawyers, two governors and someone from the United Nations. The case even made a brief trip back to the Supreme Court, where it divided the justices again.

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

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.

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.

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 law 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 Alito, writing for a five-member majority, said the law 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, 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 law 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. 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 governors of the two states have gotten involved, wanting Brown extradited to her state for not cooperating with the court’s orders.

Amanda Clinton, communications director for the Cherokee Nation, said, “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.”

It seems likely that another trip through the federal courts is in the future. Meanwhile, an Oklahoma court has ruled 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 Indian Child Welfare Act has been invoked.

The girl is being referred to as Baby Desaray.