, Muskogee, OK

Oklahoma News

August 12, 2013

Brown comes to Oklahoma but no farther

He refuses extradition to South Carolina

OKLAHOMA CITY (AP) — The father of a Cherokee Indian girl at the center of an adoption dispute turned himself in to authorities Monday but refused extradition to South Carolina, further complicating a case that raises questions about jurisdictions and a federal law meant to keep members of Native American tribes together.

Dusten Brown, a member of the Cherokee Nation, was charged over the weekend with custodial interference after failing to appear at a court-ordered meeting in South Carolina, where the adoptive parents live. He turned himself in about 10 a.m. Monday in Sequoyah County  and paid bond, Sheriff Ron Lockhart said.

But Brown refused extradition without a governor’s warrant from South Carolina.

Brown’s lawyer, Robert Nigh, said his client is caught between competing jurisdictions and is “making every effort to do the right thing for himself and his daughter.” Nigh refused to say where Brown is now. He’s due in court again in 30 days.

At the heart of the case is 3-year-old Veronica, who is currently in the care of her paternal grandparents and Dusten Brown’s wife, Robin Brown. They were named the girl’s temporary guardians by a Cherokee Nation court while Dusten Brown was in Iowa attending training for the Oklahoma National Guard.

Melanie and Matt Capobianco of James Island, S.C., have been trying to adopt Veronica since her birth in 2009; they raised the girl for two years. But Brown has had custody of his daughter since 2011, when South Carolina’s Supreme Court ruled that the 1978 federal Indian Child Welfare Act, which favors a Native American child living with his or her extended family or other tribal members over non-Native Americans, gave custodial preference to Brown.

In June, the U.S. Supreme Court ruled the law does not apply in this case because the biological father never had custody of Veronica and abandoned her before birth.

A spokesman for South Carolina Gov. Nikki Haley said she is working closely with law enforcement, the solicitor’s office and Oklahoma Gov. Mary Fallin to issue the warrant.

Earlier Monday, the Capobiancos called on federal law enforcement to help them bring the child to South Carolina, saying they’ll take the matter into their own hands if necessary.

“No more delays and no more excuses,” Matt Capobianco said during a news conference.

Charleston County Sheriff Al Cannon said at a news conference later Monday that authorities are trying to bring Veronica and Dusten Brown to South Carolina.

“This is a continuing felony. ... And any and everything that he does that resists what he’s obligated under the law to do ... builds evidence against him as it relates to the criminal case,” Cannon said.

Veronica’s biological mother is not Native American. Brown had never met his daughter, but when he discovered that Veronica was going to be adopted, he objected and said the ICWA favored the girl living with him and growing up learning tribal traditions.

The Capobiancos appealed the South Carolina Supreme Court’s 2011 decision to the U.S. Supreme Court, and it ruled South Carolina courts decide who gets to adopt Veronica. The state court said Capobiancos should raise the girl.

Last week, South Carolina Family Court Judge Daniel Martin finalized the couple’s adoption, approving a transition plan detailing a gradual process for reintroducing the girl to the Capobiancos.

South Carolina authorities issued a warrant for Brown’s arrest Saturday, charging him with custodial interference for failing to appear with the girl for a court-ordered meeting with the Capobiancos on Aug. 4 — a date the couple has said was set by the judge and to which Brown’s attorneys did not object.

The case could wind up back in the U.S. Supreme Court to determine whether the Cherokee Nation could invoke the federal statute — even if the father can’t, said Taiawagi Helton, a professor who specializes in Indian law at the University of Oklahoma College of Law.

Under the Indian Child Welfare Act, the tribe has a vested interest in the child and, if invoked at the right time, the law allows the Cherokee Nation to take over the adoption proceedings.

“You don’t have just one party over another party,” he said. “You now have two courts — the state of South Carolina and the Cherokee Nation.”

Meanwhile, the Cherokee Nation attorney appointed to represent Veronica’s interests said the little girl is a month shy of her 4th birthday.

“She did not ask that everyone would know her name, but she is here,” Angel Smith said in a statement. “Veronica has her own voice. It is time Veronica is heard because it is, after all, Veronica’s life.”

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