High court takes case of Indian adoption
By The Washington Post
Published: Saturday, Jan. 5, 2013, 8:20 p.m.
WASHINGTON — The Supreme Court added an emotional case to its docket on Friday, agreeing to review a lower court's decision that federal law requires a couple to return the child they cared for since birth to her Native American father.
The South Carolina Supreme Court, saying it acted with a “heavy heart,” ruled Matt and Melanie Capobianco had to return Veronica, now 3, to her father, Dusten Brown, a registered member of the Cherokee Nation in Oklahoma.
The court voted 3-2 that the 1978 Indian Child Welfare Act — passed to make it harder to remove children from Indian parents — trumped state law.
The Capobiancos “are ideal parents who have exhibited the ability to provide a loving family environment” for the little girl, Chief Justice Jean Hoefer Toal wrote. But “because this case involves an Indian child, the ICWA applies and confers conclusive custodial preference to the Indian parent.”
Veronica has been living with Brown and his parents in Oklahoma since January 2012.
The case is called Adoptive Couple v. Baby Girl, and no names are used in the court documents.
The battle over Veronica has attracted national attention, with the Capobiancos pleading their case on the syndicated talk show “Dr. Phil” and Native Indian activists defending the law as a necessary measure to protect tribal heritage and an answer to generations of abuse in removing children from their Indian parents.
The Supreme Court has experience in the emotional toll of such cases.
Justice Antonin Scalia for years has said a previous case involving the ICWA was one of the toughest of his career.
In the 1989 case, Mississippi Band of Choctaw Indians v. Holyfield, Scalia was in the majority. He said the federal law required tribal courts to make decisions about Indian adoptions, even though it meant toddler twins might have to be removed from their adoptive parents. The tribal court upheld the adoption.
The facts of the current case are no less wrenching.
Veronica is the product of what appears to be a stormy relationship between Brown and Veronica's mother. The two became engaged in December 2008, and she informed him a month later that she was pregnant. Brown at the time was serving in the Army in Oklahoma.
Brown advocated for moving up the wedding; Veronica's mother resisted, and the relationship soured. She broke it off in a text message in April.
In June, she asked Brown if he wanted to support the child or give up his parental rights. He replied, in another text message, that he would give up his rights. He said later he meant to pressure his former fiancee to reconsider marriage.
The mother, who has two other children by another father, later decided to give up Veronica. The Capobiancos were eager to adopt.
Brown said he was shocked when, just before leaving for Iraq, he learned that Veronica was up for adoption. He called a lawyer and started the legal process that has arrived in the Supreme Court. The justices will hear the case in April.
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