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Court case stirs debate over Indian child welfare

June 26, 2013

FLAGSTAFF, Ariz. (AP) — The U.S. Supreme Court's decision to leave the ultimate placement of a 3-year-old girl in an American Indian child welfare case to a state court extends the custody dispute and the anguish for both her biological father and the couple who raised her for the first two years of her life.

The divided court ruled Tuesday that federal law doesn't require that Veronica Brown be given back to her Cherokee father but it also doesn't clear her adoptive parents, Matt and Melanie Capobianco, to immediately regain custody of her. They now must wait for a South Carolina court to determine Veronica's final home.

Some children's advocates said the ruling undermines the role that families and communities play in determining the best interests of children in their care, while the Cherokee Nation said the case should have been fully resolved with Veronica firmly in the hands of her biological father under a law passed in 1978 to reduce the high number of Indian children being removed from their homes and by public and private agencies.

"Everything this family has gone through the past two years just to keep his biological child, his baby girl, is more overwhelming than any of us can imagine," said Cherokee Principal Chief Bill John Baker.

The nation's highest court has twice taken up cases regarding the Indian Child Welfare Act, once in 1989 and again on Tuesday. The latest decision doesn't have broad implications, experts say, but reignited discussion over the law meant to keep American Indian children with Native families.

Terry Cross, executive director of the National Indian Child Welfare Association, said the case would apply only in circumstances where an American Indian father does not become involved before the child is born. He said most Indian custody cases aren't contested. Even when they are, the two sides generally come together with a negotiated settlement that benefits the child, he said.

"I think the implementation of the law has been growing stronger over the years because people have learned more about it," he said. "Problem cases have diminished over the years."

Justice Samuel Alito, writing for the court's majority, said the ICWA didn't apply in this case because the biological father never had custody of Veronica and abandoned her before birth. He also said the law doesn't stop non-Native Americans from adopting the child when no other eligible candidates stepped forward but could discourage them.

"A biological Indian father could abandon his child in utero and refuse any support for the birth mother — perhaps contributing to the mother's decision to put the child up for adoption — and then could play his ICWA trump card at the eleventh hour to override the mother's decision and the child's best interest," he wrote. "If this were possible, many prospective adoptive parents would surely pause before adopting any child who might possibly qualify as an Indian under the ICWA."

Justice Sonia Sotomayor wrote in her dissent that "the anguish this case has caused will only be compounded" by the court's ruling if another change is made in the girl's living arrangements.

The key author of the 1978 law, former U.S. Senator James Abourezk of South Dakota, said Tuesday that he was pleased the court's decision in Veronica's case seemed to be fairly narrow but felt the justices are trying to undermine tribe's rights to govern themselves.

The 1989 U.S. Supreme Court case that affirmed the jurisdiction of tribal courts over adoptions has been applied to hundreds of American Indian custody cases. A member of the Mississippi Band of Choctaw Indians had given birth to twins then signed documents allowing a non-Indian couple to adopt the children. The high court found that despite giving birth about 200 miles away from the reservation, the Indian Child Welfare Act still gave tribal courts jurisdiction over the adoption proceeding.

In December, the court denied review of a ruling that allowed a Navajo boy to remain with a non-American Indian family. The lower courts said the boy would have suffered severe distress if removed from his setting. The Navajo Nation had argued that tribal culture must be learned in a Navajo home through ceremonies and being surrounded by the language.

Utah attorney Wesley Hutchins defended a Salt Lake City couple who adopted two half-Navajo children in 2008 after the Navajo Nation challenged it. The tribe argued that the state failed to find an American Indian home for the children or transfer the case to tribal authorities. The Utah Supreme Court ruled in favor of the couple who had vowed to provide a culturally sensitive environment, Hutchins said.

Of Veronica's case, Hutchins said Dusten Brown should have made his wishes to be a parent known earlier and provide financial support to establish interest in raising Veronica.

Baker, the Cherokee principal chief, said the tribe would continue to support Brown through prayers, thoughts and "every available resource."

"Their fight is our fight and we will be there every step of the way," he said.

The National Indian Child Welfare Association has asked communities to join together in prayer Wednesday to support the Brown family and the Indian Child Welfare Act, saying it has resonated personally among families in Indian Country.

Brown invoked the federal law to stop the adoption arranged by Veronica's non-Indian mother when she was pregnant. The Capobianco's were present at Veronica's birth in Oklahoma. Brown had never met his daughter and, after the mother rebuffed his marriage proposal, played no role during the pregnancy and paid no child support after Veronica was born.

But when Brown found out Veronica was going to be adopted, he objected and said the law favored the girl living with him and growing up learning tribal traditions.

South Carolina courts agreed and Brown took Veronica back to Oklahoma at the end of 2011, even though she had lived with the Capobiancos for more than 2 years of her life.

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Associated Press writers Jesse J. Holland in Washington, D.C., and Kristi Eaton in Sioux Falls, S.D., contributed to this report.

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