AP Photo/Tulsa World, Mike Simons, File
In this Wednesday, Aug. 14, 2013 file photo, Matt and Melanie Capobianco leave a news conference promoting their rights to raise Veronica Brown, a member of the Cherokee Nation.

Cherokee Nation Files Forceful Response to Capobiancos' $1 Million Attorneys' Fees Suit

Suzette Brewer

On Friday the Cherokee Nation came out swinging in their response to the motion filed weeks ago in Nowata, Oklahoma county court in Adoptive Couple v. Baby Girl, in which Matt and Melanie Capobianco are seeking approximately $1 million in attorneys' fees and costs. Their recent filing in Oklahoma is the second jurisdiction in which they have sought compensation in the four-year custody battle that ended in September when Dusten Brown relinquished his biological daughter to the Capobiancos after losing at the United States Supreme Court in June. Immediately following the child's transfer in September, the couple filed similar litigation in South Carolina seeking roughly $500,000 in that state.

RELATED: Capobiancos Sue Dusten Brown for Nearly Half a Million in Fees

Cherokee Nation Mourns as Veronica Is Returned to Adoptive Family

In its 50-page response, the tribe bluntly told Nowata County Judge Curtis DeLapp that it is not responsible for paying the fees and costs for the Capobiancos because of its Eleventh Amendment sovereign immunity from suits without its express consent. Additionally, the tribe said that the statute under which the couple is seeking compensation, the Uniform Child Custody and Jurisdiction Enforcement Act, is not applicable to the tribe.

"Clearly, these people are trying to throw spaghetti at the wall in whatever court they can find to see what's going to stick," said an Oklahoma lawyer who declined to be identified because of the sensitivity of the case. "But, several things immediately come to mind. First, the tribe is a sovereign nation and cannot be sued without its express consent - and to my knowledge the Cherokee Nation is not in the habit of waiving their immunity. Second, this is a domestic case, one in which both the Capobiancos and Dusten Brown were represented pro bono, which was widely understood by everyone on both sides. To come after the fact asking for fees that the adoptive couple would not have had to pay had they lost, it then becomes a 'contingency' case. Contingency fees are never awarded in domestic relations, so that's a null.
Finally, you cannot sue in Oklahoma for 'work' performed in other courts and jurisdictions, whether it's another county, state or even the Supreme Court. That is just ludicrous and would open the door to chaos in parties going all over the United States seeking compensation and awards in multiple jurisdictions. They can only ask for fees relevant to the case that was before that specific court. The case in Nowata County only had two hearings and a few filings. But what is concerning is that they are claiming some 2,000 hours and fees in both states totaling some $1 million, which will not fly with any judge."
In their filing, the tribe also makes clear that its intervention into the case does not imply or denote any type of waiver of immunity or responsibility to the adoptive couple whatsoever.
"The Indian Child Welfare Act, which was intended to set minimum federal standards and limit the authority of states, cannot arguably authorize suit against a tribe. The ICWA provisions put responsibilities on states. In fact, nothing in ICWA requires anything of the tribe and only provides rights to the tribe including the right to intervene in state court proceedings," they wrote. "Without express language by Congress that such intervention would authorize suit against the tribe or permit the award of attorneys fees, this court cannot award fees."
The response goes on to reiterate that in over "1,000 Indian Child Welfare cases...not one single court has ever held that intervention into a state proceeding pursuant to ICWA allows for the award of attorneys fees against the tribe. This court should not... be the first."
But most tellingly, the tribe's response goes into great detail outlining the behavior and comments of the Capobiancos, their legal team and public relations firm during the course of litigation in Adoptive Couple in weighing the "Finger Factor" test in regards consideration for the "best interest" of the child. The pleading makes clear the tribe's displeasure with the Capobianco's very public media appearances, interviews and various fundraising schemes during the same time in which all the parties were under statutory gag order in South Carolina, presumably because such behavior is not considered in the child's best interest.
"Since New Year's Eve 2011, the Adoptive Couple have promoted their 'self interest' over the best interest of Veronica," said the pleading. "When Veronica was originally transferred into the custody of her father, the Adoptive Couple recruited news media and protestors. Minutes after Veronica was taken from her father and turned over to the Adoptive Couple, they began taking 'staged' photographs of the transfer of custody and followed up on that by scheduling an appearance on the Dr. Phil Show. In between there were countless personal appearances in the media, fundraising events including silent and online auctions, and even using Veronica's name and likeness to sell perfume, bracelets and bumper stickers to fund their campaign to remove her from her father."
The tribe also raised other issues regarding the Capobianco's behavior, including their recruitment of television personality "Troy the Locator" to stalk Veronica's school, as well as, their press conferences, website and use of a "pro bono" public relations firm to seek attention for their cause.

RELATED: Capobiancos Send 'The Locator' TV Star to Take Veronica From School

"All of this," said the tribe, "despite statutes and court orders regarding the confidentiality of adoption proceedings... There is no question which party put a 'priority on self interest over the best interest of the child,' and it was not the Cherokee Nation or Dusten Brown."

Next, the tribe pointedly declared that the hefty fees which the Capobiancos are seeking are "inappropriate and unreasonable."

"Specifically, the attorneys for the Adoptive Couple have repeatedly stated that they represented the Adoptive Couple pro bono," the tribe argued. "even going so far as to advertise this pro bono representation on their website."

In their response, the tribe pointed to ethical standards in which lawyers who seek compensation for their time are not representing their clients pro bono. This, according to legal experts, is where the Capobianco's legal team swerves into "contingency" representation.

"There is no grey area here: contingency fees are not awarded in custody disputes," said the Oklahoma lawyer. "Then you have a situation where lawyers are not motivated to settle because they potentially have more to gain. That is completely unethical."

Reminding the court that because no settlement between the Capobiancos and Brown had been reached during that ill-fated week in August, the tribe makes it clear that perhaps there was a reason the Adoptive Couple was not inclined to reach an agreement.

"By rewarding the attorneys of the 'prevailing party,' the court limits the likelihood of settlement, which was sought in this matter through a weeklong mediation, but if reached, would have left counsel for the Adoptive Couple without any chance of recovering any of the one million dollars in fees and expenses they now claim.

Did the chance of recovering one million dollars in attorneys fees prevent a possible settlement in this case?"

Finally, the Cherokee Nation pointed out that at least two of the attorneys seeking compensation, including Lori Alvino McGill, initially appeared as "pro bono counsel for the birth mother," Christy Maldonado, who was not a party in the case. Additionally, they argue that Maldonado is neither a "prevailing party," nor is she entitled to any fees, as such.

RELATED: Some Disturbing Facts About Baby Veronica's Birth Mother

Several of the other attorneys for the Capobiancos are "not members of the Oklahoma Bar and never properly filed to appear before [the court in Nowata County]. For these reasons, the fees requested are unreasonable."

Ultimately, the tribe asserts that the Capobiancos and their legal team are seeking to "punish" the tribe for asserting its right to intervene on behalf of a child in court, and to send a warning to other tribes that the "same fate awaits them if they seek to exercise their rights under the Indian Child Welfare Act."

Judge DeLapp is expected to rule on the matter within the next few weeks.

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Troy Hendrickson
Troy Hendrickson
Submitted by Troy Hendrickson on
The first obvious problem is that the suit proves the Capobiancos are dishonest in representing themselves as Christians, Christians are not to take their grievances to the courts of men, Christ was very clear on that. Then again, Christ told us to honor our treaties, and we spit on them with impunity.

Thomas Yahnozha's picture
Thomas Yahnozha
Submitted by Thomas Yahnozha on
I still stand by with the father, even though she is taken from you she is still in your heart and still a Cherokee Maiden, That so called family dont understand that the are suppose to filed in Tribal COurt because our court system is as high as the Supreme Court and will fight for what for Native Ameircans only

Ruth DJ's picture
Ruth DJ
Submitted by Ruth DJ on
The child never should've been taken from her father and the Cherokee Nation. For these two so-called parents to parade the child in front of the media and go on Dr. Phil after an illegal court decision is a slap in the face to the father and the Nation. To try to collect lawyers fees? Ayyy....

Andrea Dillon's picture
Andrea Dillon
Submitted by Andrea Dillon on
My heart continues to break over Dustin and Veronica. This is so sad and outrageous. How many more generations of children does Indian country need to loose to a "American" government we don't even identify with. MY TRUE QUESTION IS TO THE CHEROKEE NATION AND ALL NATIVE NATIONS. Why do we not bring our children into our borders and place our warriors around them and not let anyone come in and take our children. If it means getting physical then we do it. How much more damage needs to be done to our children before we do all that is necessary to stop this from happening. Our children are our greatest wealth and we must stop them from being stolen. Its time we say no more and fight if we must. No more children stolen.

ldp's picture
Submitted by ldp on
It is time to remove protection on the tribes....... as they claim their independence they demand monies. let us remind them that they are alive and have an opportunity to survive. The modern indian tribes did not treat the prior residents of america with the same compassion. the old ones were slaughtered, moved and ultimately made extinct. Do they want the new immigrants to treat them with the same tactics?

NativeGrl's picture
Submitted by NativeGrl on
Monsters. The Capo-biancos are dirty monsters. Creator protect us from such beasts

NDN CHEF's picture
Submitted by NDN CHEF on
This is ridiculous! The Capobiancos have already taken this poor girl away from her biological father and every family member and friend she has ever known. The effects of such have torn a community a part and sent shock waves throughout the Cherokee Nation. Is that not enough for them? Is uprooting a child and taking her thousands of miles from her home and family not enough? They need money for that too? The Cherokee Nation should be suing THEM! I have been following this case from the beginning and as a Native American citizen, I am truly disgusted by these people. I cried for Veronica and Dusten Brown when he decided to stop fighting.

Amy's picture
Submitted by Amy on
It saddens me that the Capobianco's Not only have won the custody of this child, and she will thus not be able to grow up with her full tribal identity. But are proving themselves to be self agrandizing and greedy people. I do not believe that being with them is in Verinica's best interest. I wish she would be taken from their care once and for all and given to her father. With legal orders for the Capobianco's to both directly and indirectly stay 100% away from and out of her life.

Anonymous's picture
Submitted by Anonymous on
Proves these people are not fit to have the care of Veronica in their control

nancy sumpter's picture
nancy sumpter
Submitted by nancy sumpter on

Bridget Morgan's picture
Bridget Morgan
Submitted by Bridget Morgan on
The long ago Los Angeles founders of Latham and Watkins, if they were alive today, would hang their heads in shame as to what their dearly beloved firm has become. And, you heard it here first, so says someone who knew the two and their prevailing morality way back when, Lori Alvino McGill is not their kind. Nor, IMHO, is Ms. McGill cut from the same cloth that her Pittsburg, PA maternal grandmother was. The three of them are roiling in their graves at her attempts to inshrine their names, antecedent to hers, just a shade below General Custer's on the all time Haters of Native Americans and Fathers Wall.

Anonymous's picture
Submitted by Anonymous on
can the Cherokee nations go after veronica under the indian child welfare act citing abuse? isn't exploiting her and making a profit off her considered abuse?isnt using having custody of her to gain financially or to pay their depts. abusive? and being native American don't they have to allow her access to her tribe and teachings of the native American ways?if she is a registered federally reconized native American ,does she get federal allowance? if so don't they have control of her finances till shes 21? if so once again they gain financially from her and is that abuse? can her money go into a trust fund till she comes of age?did the judicial system break their own federal law by giving them custody? jf so what can be done about that? just asking.

Submitted by BELITA MORROW on
This is so wrong, these people are out to make money off the Cherokee Nation. What is going on with people now a days .This is a scam, Y can't they get a judge to stop this . I feel sorry for the baby , look what she was born in to a bunch money greedy thieves and couldn't tell the truth if the Holy Spirit was standing in front of them . I will have this baby on my mine until this is over. I'm also Cherokee

Kevol's picture
Submitted by Kevol on
Thanks to Jessica Munday at Trio Solutions in Mt Pleasant, SC, Veronica's case was surrounded by media flurry. Munday and her crew of Jennifer Cherock and Brad Caricofe launched a vicious campaign to smear the name of Veronica's biological father. Then Munday's team paraded the Baby Veronica case all over national television and Dr Phil. It's terribly ironic that Munday's clients include the Medical University of South Carolina Children's Hospital and MST Services in SC, which Veronica's adoptive mother Melanie Capobianco (known as Melanie Duncan) works with violent juvenile offenders. If Munday and Trio Solutions and Melanie Capobianco are so concerned about Veronica's welfare and claim to be supportive of children's services, then they have placed this young child at the center of a media circus.

Dot Knightly's picture
Dot Knightly
Submitted by Dot Knightly on
Since when does Pro Bono mean getting paid for your legal services? It doesn't! This frivolous, idiotic lawsuit should never have been accepted in the first place, let alone Veronica being returned!

Arthur Medicine Eagle's picture
Arthur Medicine...
Submitted by Arthur Medicine... on
The Copabiancos are nothing more than attention seeking leeches looking for a free ride in life! People like that are nothing more than scum.

Sheila Path McMahon's picture
Sheila Path McMahon
Submitted by Sheila Path McMahon on
Thank you for the clear coverage of this case.

nitrat's picture
Submitted by nitrat on
Ultimately, the tribe asserts that the Capobiancos and their legal team are seeking to "punish" the tribe for asserting its right to intervene on behalf of a child in court, and to send a warning to other tribes that the "same fate awaits them if they seek to exercise their rights under the Indian Child Welfare Act." That is exactly what is going on here and has been going on since Scalia decided to take this, another of his do-overs, case. He means to make it clear that no minority in this country deserves any special accommodation to ameliorate past discrimination. This was just another case to further that goal. To him and his ilk on the court, the ICWA is just another form of the hated affirmative action. The professional radical right wing Washington attorneys who appeared before the US supreme court only take these cases to further the radical right wing agenda of the Kochs and the TEAvangelicals.

Al E.'s picture
Al E.
Submitted by Al E. on
here I am again as this hits too close to home to be ignored. Being the adoptive parent of two now adult native American children I am ashamed reading of the actions of these so called adoptive parents and wished that they didn't live so close to my new adoptive state. Its too bad that they were even given the opertunity to have the blessings of parenthood of such a wonderful experience as to be able to raise a native child.

Anonymous's picture
Submitted by Anonymous on
Very proud of the Cherokee Nation and their legal team! What a breath of fresh air! Let the Capobiancos go back wherever it is that they came from and send Veronica back to Dusten and her true family. With a few solid legal blasts directed at the C'biancos, it will happen. There is a light at the end of the tunnel. Please continue, legal eagles! The key to unraveling this is hidden in plain sight, but it is there. The C'biancos so-called "victory" is really the seed for their defeat. Unless the judge is deaf, dumb and blind, the C'biancos case should be thrown out of court!And that will the beginning of a new day.

Anonymous's picture
Submitted by Anonymous on
Just a thought--what ails the Capobiancos that they had to snatch a child from the Cherokee Nation in Oklahoma? Were there no children in South Carolina whose families they could "persecute?" "Something in the milk ain't milk."

Black Hawk's picture
Black Hawk
Submitted by Black Hawk on
If a responsible member of the judicial system can not see what a mockery this whole affair is and the media insults the intelligence of its' viewers, God help us all.

Two Bears Growling's picture
Two Bears Growling
Submitted by Two Bears Growling on
These evil ones just make me ill to even see their faces. If evil has a face, theirs is it! May the Creator curse them for the rest of their days with one sadness after another. May Man Above break them in mind, body & spirit, assets, finances & careers. May these wicked ones come to know the hurt they have caused so many innocent people & an innocent child paraded like some prize at a county fair. There is a price to pay when you become as these evil people have: Putting your desires above what is right. It is no wonder the Creator will never bless their union with a child! They selfish beyond belief! Just the look on their faces shows it all! The Creator told you people "NO!", yet you STILL would not accept His will. You two despicable human beings decided to ignore Wankantanka's will. Rest assured, your crimes will not be forgotten among we First Nations people. Always remember we know what those like you folks are: Evil!

Wayne Beaver's picture
Wayne Beaver
Submitted by Wayne Beaver on
Money can buy a lot of things in this country of ours. Unjust judges, lawyers, just to name a couple. Some things money can't buy. Enough said about that. It appears to me that someone has made a large debt and wants someone else to pay for it. It's just wrong. The good news is, the Creator is just, and justice will prevail. It's a matter of time

John's picture
Submitted by John on
This story needs a "nut graph," wrapping up and explaining the story up to now. I can guess what happened, but a couple or sentences explaining who, what, when and why would sure help.

hammertime's picture
Submitted by hammertime on
they are just a bunch of greedy bastards looking for a pay day... they have the child but are not happy with that, now they got to go looking for the big bucks... Maybe they ought to go out to hollywood and attempt to sell their story to make a movie of the week.... they have no honor or dignity... it makes me sick to say that they claim to be christinan too..... they are hyprocrits..just like the rest of them.