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April 16, 2013 

Tribal Supreme Court Project Update
Adoptive Couple v. Baby Girl 

Prayer gathering held this morning before oral arguments at the Supreme Court of the United States by the National Congress of American Indians (NCAI), Native American Rights Fund (NARF) and the National Indian Child Welfare Association (NICWA). View the photos here.

Oral Arguments at the Supreme Court of the United States

 
Today the Supreme Court of the United States heard oral arguments in the case Adoptive Couple v. Baby Girl. Transcripts from the hour and a half arguments can be downloaded here. The Associated Press provides a recap of the day here.
 
"NCAI is optimistic as a result of today's oral arguments and we believe the U.S. Supreme Court will rule to keep the Brown family together and uphold the Indian Child Welfare Act (ICWA), just as the South Carolina Supreme Court did," said Jefferson Keel, President of NCAI. 
 
"We will remain vigilant and ensure that the general public, the media, and Indian Country is provided with the accurate facts in this case," continued Keel. "Dusten Brown is a loving father who has at all times done whatever he could to fight for the right to raise his daughter. The attempted adoption was based on misleading information provided by adoption attorneys and was for that reason rejected by multiple South Carolina courts. And the Indian Child Welfare Act -- which was supported in briefs filed by the United States government and 19 states, among many others -- must be upheld and enforced."

In the days leading up to the oral arguments the Tribal Supreme Court Project - NCAI and the Native American Rights Fund (NARF) - in partnership with  the National Indian Child Welfare Association (NICWA) and the Cherokee Nation, hosted a number of events. This included a National Teleconference Briefing on Monday and an Indian Country Prayer Gathering on the steps of the Supreme Court on Tuesday (view photos). 
 
Prior to the oral arguments today the Tribal Supreme Court Project partners - NARF and NCAI - along with NICWA, organized a legal response to the appeal which has resulted in overwhelming response in support of the family, ICWA, and federal Indian law. In total, 24 amicus briefs were submitted in support of the Brown family - Veronica the Daughter and Dusten the father - and the Indian Child Welfare Act (ICWA). Read more about the amicus briefs submitted.

RESPONSE IN THE MEDIA
In the weeks leading up to the oral arguments NCAI and our partners have been actively engaging media in the issues related to the case - with feature coverage of the Brown family story in the Washington PostThe AtlanticTulsa World, and other local media
 
Exclusive Video: The Brown Family
Exclusive Video: The Brown Family
Over the last 24 hours NCAI has 
quickly responded to inaccurate media reporting about the case, and is actively engaging the media to ensure fact based reporting. Today, on Indian Country Today's website NCAI's Executive Director Jacqueline Pata offered an op-ed titled Baby Veronica and Native American Family Values (see below), outlining the facts of the case and where the media has made problematic missteps. 
 
 
NCAI and our partners will continue to engage the media in the days and months ahead, while this case is considered and reported on. 
 

Baby Veronica and Native American Family Values
Indian Country Today
by Jacqueline Pata, Executive Director NCAI | 4/16/13 
 
The mainstream media has continued to make repeated factual errors when reporting on the high profile Supreme Court custody case involving a Native American father and his daughter. The latest are today's Washington Post and New York Times editorial board opinions of Adoptive Couple v. Baby Girl, being heard today by the Supreme Court. The misrepresentations are significant, one sided, and a direct affront to Native American family values.

  

The facts of the case are straightforward: Dusten Brown is an Iraq war veteran and a member of the Cherokee Nation. He understands service and commitment and nothing could be clearer than his commitment to his daughter Veronica.

  

Veronica is Brown's now 3 1/2-year-old daughter; Veronica and Dusten now are a family together in Oklahoma. Veronica's father and mother were engaged when she was conceived. When Dusten Brown first learned of the pregnancy, he begged his fiancé to marry him right away, to move into military housing on base with him, and even suggested she quit her job so that she could focus on their unborn child. He pledged to financially support her, their child and even her children from another relationship.

  

The father was heartbroken and confused when his pregnant fiancé broke off their engagement and stopped answering his phone calls and text messages. He called and sent text messages, repeatedly and without response. Finally, he got permission to leave the base and traveled to her home, some four hours away. Her car was there and he heard voices inside her home, but she would not come to the door.

  

Court testimony shows that the birth mother kept her plans to adopt the baby a secret from the father - because she knew that the father would never consent to give his child up for adoption. The father did not learn of the mother's plans to give up the baby until the child was four months old and the father was on the verge of shipping out to Iraq. Once learning this news, the father immediately took all the legal steps he could consistent with the pressures of his deployment into hostile territory and subsequent combat.

  

Although adoption lawyers for the South Carolina couple filed an adoption action just days after her birth, they waited four months to serve the father with the legal papers - finally serving him just before he deployed for his mission in Iraq.

  

In short, from his first knowledge of the pregnancy, the father expressed nothing but a sincere desire to love, support and care for his child.

  

Throughout the two-year long court proceedings, the father sent child support payments to the South Carolina couple, which deposited them into their attorney's trust account. The father also purchased stuffed animals and other toys for his daughter during this period - all of which were returned, along with the 20 pairs of socks hand-knitted by the child's grandmother.

  

The case was eventually taken up by three separate courts in South Carolina, and all of them ruled in favor of Dusten Brown. After a full, four-day trial, the Family Court judge noted that Brown "is the father of another daughter" and that "[t]he undisputed testimony is that he is a loving and devoted father. Even [Birth Mother] herself testified that [Brown] was a good father. There is no evidence to suggest that he would be anything other than an excellent parent to this child." The Family Court judge concluded "the birth father is a fit and proper person to have custody of his child"; he "has demonstrated that he has the ability to parent effectively" and "has convinced me of his unwavering love for this child."

 

Despite this factual record developed in tremendous detail by three separate courts over the last two years, members of the mainstream media have continued to misreport key aspects of the case.

  

Most damning of all are the media reports have created the mistaken impression that South Carolina family adopted the child and Dusten Brown is seeking to undo the adoption. The facts are exactly the opposite: Veronica was never adopted, and the attorneys for the South Carolina couple knew from the start that the father was going to fight for the right to raise his child and that the Indian Child Welfare Act (ICWA) was going to be a key legal issue.

  

Despite the knowledge that the father wanted to raise the child and the fact that ICWA could apply, the South Carolina couple's adoption lawyers made the decision to fight to keep the child -- against the will of her family and against the will of her Cherokee Nation.

In contrast, Dusten Brown and his representatives have always shown respect for the legal process and for the South Carolina couple - even though the process kept him apart from his daughter for two years.

  

Likewise, the mainstream media has failed to explore the misconduct that led to Veronica being removed from Oklahoma and taken away to South Carolina when she was barely a week old. The court proceedings in this case revealed that the lawyers were at fault, in particular, according to the brief Dusten Brown's attorneys filed with the Supreme Court, "[a]lthough Mother's attorney provided the Cherokee Nation with father's name while inquiring whether the child would be an 'Indian child' subject to ICWA, the attorney misspelled Father's first name and provided both the wrong day and wrong year for Father's date of birth; based on these misstatements, the Cherokee Nation responded that the child appeared not to be an Indian child, adding that any misinformation would invalidate that determination. Mother testified at trial that she knew the Cherokee Nation's determination could not be correct-and that she informed her attorney of that fact-but no further efforts were made to determine whether Baby Girl was an Indian child."

 

Had the Oklahoma Interstate Compact Commission been provided accurate information about this child's Native American heritage, the South Carolina adoption attorneys would never received permission to take her out of Oklahoma and all of this heartache for Dusten Brown and for the South Carolina family could have been avoided.

  

Yet almost no attention has been paid to the conduct of these adoption attorneys, and that is truly unfortunate. Because, in many ways, the story of the case of Adoptive Couple v. Baby Girl is about two increasingly common trends in the adoption services industry: First, attempts to purposefully circumvent ICWA through legal evasion, and second, attempts by adoption lawyers to take advantage of active duty service members in the process of being deployed to combat, or in active deployments.

  

That's why the National Congress of American Indians (NCAI), with the permission of the Brown family, has released a new video about the Brown family, and specifically about Dusten Brown, because up until recently the media has failed in their job in telling a balanced and full story about this case and the Brown family.

  

At its very heart, this case is about a father's deep desire to raise his daughter Veronica. Dusten Brown is an Iraq war veteran, a family man, a man of conviction, and most importantly, a father. He is also a member of his tribal nation, the Cherokee Nation.

Let the world and the United States not forget that Native men and women are caring fathers and mothers, parents and grandparents Our family and community values are what have carried us through our most difficult times - we are all a family and we stand together. Our young people are our future and we will not give up on protecting them and their rights.

  

It's long past time for the mainstream media to get the story right and to dig deeper and explore the endemic misconduct that is threatening to break up the families of both Native Americans and members of the military.

  

Jacqueline Pata is the Executive Director of the National Congress of American Indians (NCAI). The Tribal Supreme Court Project, an initiative of NCAI and the Native American Rights Fund (NARF) - organized a legal response to the Adoptive Couple v. Baby Girl appeal along with the National Indian Child Welfare Association (NICWA). The effort resulted in an overwhelming response in support of the family, ICWA, and federal Indian law. In total, 24 amicus briefs were submitted in support of the Brown family - Veronica the Daughter and Dusten the father - and the Indian Child Welfare Act (ICWA).

  

http://indiancountrytodaymedianetwork.com/2013/04/16/baby-veronica-and-native-american-family-values 

 
The adoption industry's ugly side | Politico.com
By JOHN ECHOHAWK, JACQUELINE PATA and TERRY CROSS | 4/16/13 
 
On Tuesday the Supreme Court will hear arguments in the case of Adoptive Couple v. Baby Girl. The facts of the case are straightforward: A South Carolina couple is seeking to force Dusten Brown, an Iraq war veteran and member of the Cherokee Tribe, to give his daughter Veronica up for adoption. Brown, who is now raising Veronica at his home in Oklahoma, has prevailed so far in every court that has considered this matter, including after a full, four-day trial by the South Carolina Family Court and in a decision by the South Carolina Supreme Court.

 

Poke beneath the basic facts, though, and you will find the ugly underbelly of the American adoption business. All across this country - but especially in states that are home to multiple Native American Tribes - unethical adoption attorneys are purposely circumventing the federal law that is meant to protect Native American children. Even worse are the continuing attempts by some adoption lawyers to take advantage of active duty service members in the process of being deployed to combat, or in active deployments.

 

Brown's case is a sad example of both of these disturbing trends. At its very heart, this case is about a father's deep desire to raise his daughter, named Veronica. Veronica's mother and Brown were engaged when she was conceived, but her mother broke off the engagement while Brown was serving in the Army and stationed at Fort Sill, Okla. Unbeknownst to Brown, his fiancé began the process of placing her child up for adoption.

 

In the final months of pregnancy, the mother cut off all communication with Brown and worked closely with an agency and attorney to place the child with a non-Indian couple from South Carolina, the Capobiancos. Brown was not informed of Veronica's birth on September 15, 2009. Instead, Veronica was placed with the Capobiancos three days after her birth in Oklahoma, and they relocated her to South Carolina shortly thereafter.

 

Four months later, the day before Brown's scheduled deployment to Iraq, the couple's lawyer (who was also the lawyer for the adoption agency) finally served Brown with notice of their intent to adopt Veronica. The notice was served to Brown in the parking lot of a mall.

 

Immediately, Brown went to court to request a stay of the adoption until after his deployment (which, because of his military status, is provided for by federal law). He also began the legal steps to establish paternity and gain custody. He was then deployed to Iraq. Because the Capobiancos waited until just days before Brown was deployed, the adoption hearing was not completed until he returned home.

 

At this hearing, the South Carolina Family Court denied the Capobiancos' petition to adopt and ordered Veronica's transfer to her father. The court found that federal Indian Child Welfare Act (ICWA) applied in this case, that Brown had acknowledged and established paternity, and that an exception to ICWA called the "Existing Indian Family Exception" (EIFE) was inapplicable. Most decisively, it found that Brown had not voluntarily consented to the termination of his parental rights or the adoption.

 

The Capobiancos appealed to the South Carolina Court of Appeals to stay the transfer of custody, where they lost. They then appealed to the South Carolina Supreme Court, which upheld the family court's decision. Last October, they asked the U.S. Supreme Court to review the case. In early January, the U.S. Supreme Court accepted review.

 

The tragedy of this case is the failure of some of the adoption lawyers involved in that process - failures that have caused great heartache for all of the families involved. Had the adoption lawyers done their jobs from the start, the child would never have left Oklahoma.

 

The adoption lawyers knew from the outset that the father was Native American and that, once he learned of their plans, he intended to fight them to be able to raise his daughter. The adoption lawyers also knew from the start that ICWA would protect the rights of the father and the child.

 

Nonetheless, the lawyers forged ahead, ignoring the law, providing inaccurate information to Oklahoma authorities, and removing the child from the Cherokee Nation prematurely.

Brown's cause is supported in briefs filed with the Supreme Court by U.S. Solicitor General Donald Verrilli on behalf of the United States of America, 19 state attorneys general, current and former members of Congress, and a wide array of other groups. Many of the briefs highlight the findings of the South Carolina Family Court, which found that "the birth father is a fit and proper person to have custody of his child" who "has convinced [the Court] of his unwavering love for this child," - findings upheld by the South Carolina Supreme Court.

 

Unfortunately, though, Brown's case is not unique, and other fathers in his position - particularly those serving in the military - are not able to battle the adoption system in the way he has. It is time for the Congress to hold hearings and expose for all to see the tactics of lawyers who are continuing to evade the federal law designed to protect Native American families.

 

John Echohawk, Executive Director, Native American Rights Fund; Jacqueline Pata, Executive Director, National Congress of American Indians; and Terry Cross, Executive Director, National Indian Child Welfare Association.






Founded in 1944, the National Congress of American Indians is the oldest, largest and most representative American Indian and Alaska Native organization in the country. NCAI advocates on behalf of tribal governments, promoting strong tribal-federal government-to-government policies, and promoting a better understanding among the general public regarding American Indian and Alaska Native governments, people and rights.


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