, Muskogee, OK

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July 23, 2013

Tribal advocates join custody fight

Groups plan to sue to stop girl’s adoption

— Three national advocacy groups for tribal rights have jumped into the fray of a custody battle involving the attempted adoption of a girl of Cherokee descent.

The groups mapped out legal strategies Monday during a teleconference to protect the civil rights of the girl, known as Baby Veronica. Representatives of the three organizations said an opinion published Wednesday by the South Carolina Supreme Court ignores the child’s due process rights.

The order, which came on the heels of a U.S. Supreme Court opinion that the Indian Child Welfare Act did not apply to the South Carolina adoption case, ignited a firestorm of controversy. In a 3-2 decision, South Carolina’s high court remanded the Baby Veronica case to the family court with instructions to grant the adoption and ordered the return of the child to the couple seeking to adopt her.

Leaders of the Native American Rights Fund, National Congress of American Indians and the National Indian Child Welfare Association said the court ignored the child’s due process rights. They said denying her of a hearing to determine her best interests undermines fundamental rights guaranteed by the U.S. Constitution.

“The South Carolina court’s order represents a perilous prospect for not only Veronica, but any child involved in a custody proceeding in this country,” NCAI Executive Director Jacqueline Pata said. “The decision contributes to the long and sordid history of Native American children being removed from their families without any consideration of their best interests.”

Terry Cross, NICWA’s executive director, said the South Carolina court’s decision is contrary to its earlier ruling that eventually landed before the U.S. Supreme Court. That ruling, which upheld the findings of the state’s family court, found “it was in Veronica’s best interest to be with her father,” Dusten Brown, “and that he was (a) fit parent.”

“It is unconscionable that no best interest hearing has been held in conjunction with the latest transfer order,” Cross said. “Every child deserves to have his or her best interests considered — that is a fundamental right, and one that should not be denied any child.”

In order to enforce that right, the three national advocacy groups plan to file a federal lawsuit to block the anticipated adoption. NARF Executive Director John Echohawk said the groups are prepared to file the suit as soon as the South Carolina Supreme Court’s decision becomes final.

If that court denies petitions filed Monday by Brown and the Cherokee Nation to reconsider its most recent opinion, Echohawk said the family could “summarily terminate Dusten’s rights as a father.” This could be done, Echohawk said, “without any regard for due process of law to protect” Baby Veronica’s civil rights.

“The courts of the state of South Carolina ... can remove Baby Veronica from her Indian father, her Indian family and her Indian tribe with whom she has been living with for the past 18 months,” Echohawk said. “In this case, we strongly believe that federal civil rights laws are being violated, that other applicable provisions of the Indian Child Welfare Act are being ignored by the state courts, and that the principles underlying treaty and international law protecting the rights of indigenous peoples are being undermined.”

Richard Guest, a staff lawyer for NARF, said the organizations’ efforts will focus on the South Carolina proceedings.

Although Brown has initiated custody proceedings in Cherokee Nation District Court and an Oklahoma district court, Guest said he does not anticipate the three organizations that made the announcement Monday will intervene in those proceedings.

The case of Adoptive Couple v. Baby Girl began late in 2009, when Brown’s fiancé decided to give up their baby for adoption. After the couple became estranged, Baby Veronica’s mother arranged the proposed adoption through an agency.

Brown, who believed he had agreed only to relinquish custody of Baby Veronica to the biological mother, learned about the adoption just before leaving for Iraq to serve in the military. Brown contacted a lawyer the next day and filed an objection to the adoption proceedings and sought custody of his daughter.

A South Carolina family court judge in September 2011 concluded the adoptive couple failed to carry “the heightened burden ... of proving” Baby Veronica “would suffer serious emotional or physical damage” if her father were granted custody. The South Carolina Supreme Court affirmed the family court judge’s decision, basing its ruling on ICWA provisions.

The U.S. Supreme Court, in a 5-4 decision issued in June, reversed the South Carolina courts’ rulings that granted Brown custody of his daughter. Justice Samuel Alito, writing for the majority, opined that an ICWA provision that prevents the “involuntary termination of a parent’s rights” without proving “continued custody” is inapplicable when “the relevant parent never had custody of the child.”

Cherokee Nation officials described as false early reports about Brown being an absent parent during his daughter’s infancy. They said Brown’s initial efforts to be a part of Veronica’s life were rebuffed by the child’s mother and her family.

The Cherokee Nation, in its petition asking the South Carolina Supreme Court to rehear the adoption case, alleges the court was unaware of facts informing is determination of jurisdiction and overlooked the child’s best interests. Principal Chief Bill John Baker described the court’s most recent opinion as “very troubling.”

“It is very troubling that the South Carolina Supreme Court would move to terminate the parental rights of a man who has proven to be nothing but a fit and loving father, without even holding a hearing to determine what is in his own child’s best interests,” Baker said in a media statement released Monday. “What is best for Veronica has not even been considered by the court. We pray the South Carolina Supreme Court grants our request for a due process hearing to determine what is in this child’s best interests.”

In an attempt to keep Brown from having to relinquish custody of his daughter to the adoptive parents, the Cherokee Nation District Court entered a temporary guardianship order. The order grants joint legal custody of the child to her stepmother and paternal grandparents.

The tribal court said temporary guardianship was necessary to allow Brown to attend mandatory National Guard training.

Chrissi Ross-Nimmo, an assistant attorney general for the Cherokee Nation, said Brown described the order as “another step Dusten has taken to ensure his daughter is always well cared for should something happen to him as he is serving his country during this mandatory military training assignment.”

“Dusten Brown is an Iraq combat veteran who has fought as tirelessly for his child as he did for our country,” Ross-Nimmo said. “That fight began the day he learned of the birth mother’s plans to place his child for adoption and continues today. Since regaining custody, he has created a loving, safe and nurturing environment for Veronica.”

Reach D.E. Smoot at (918) 684-2901 or

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