Dusten Brown with daughter Baby Veronica in their Nowata, Oklahoma home (Cherokee Nation)

Supreme Court Reverses, Remands Baby Veronica Case Back to South Carolina

Suzette Brewer

In a move that ensured the protracted continuance of the four-year custody battle over Veronica Brown, the Supreme Court today reversed and remanded Adoptive Couple v. Baby Girl back to the South Carolina courts for further review. In a narrow 5-4 ruling that revealed the philosophical fracture among the justices, the nation's highest Court held that sections of the Indian Child Welfare Act "did not bar the termination of parental rights" under state law. 

Justice Samuel Alito, writing for the majority, rested the majority argument on the hair-splitting phrase "continued custody," holding that "showing that serious harm to the Indian child is likely to result from the parent's 'continued custody' of the child—does not apply when, as here, the relevant parent never had custody of the child." Further, the majority ruled that existing Indian family placement preference do not apply when "no alternative party has formally sought to adopt the child."

Though the Court did not terminate the parental rights of Dusten Brown or transfer custody of Veronica back to the Capobiancos, the justices left intact the remainder of the Indian Child Welfare Act and remanded the case back to South Carolina. Now, Brown and the Capobiancos will square off yet again in what has become one of the longest, most bitter, contentious and expensive custody fights in U.S. History. In his ominous concurrence with the majority ruling, Justice Clarence Thomas raised the stakes by including a voluminous appraisal of the Indian Commerce Clause and its rhetorical application in the difference between "tribes" and "Indian persons."

In her dissent, Justice Sonia Sotomayor made clear that simply because the majority disagreed with the Congressional policies outlined in ICWA, it was not a valid reason to "distort the provisions of the Act."   

"The majority does not and cannot reasonably dispute that ICWA grants biological fathers, as "parent[s]," the right to be present at a termination of parental rights proceeding and to have their views and claims heard there." wrote Justice Sotomayor.  "But the majority gives with one hand and takes away with the other. Having assumed a uniform federal definition of "parent" that confers certain procedural rights, the majority then illogically concludes that ICWA' substantive protections are available only to a subset of "parent[s]": those who have previously had physical or state-recognized legal custody of his or her child. The statute does not support this departure."

Court watchers in this case have now shifted the focus from the stricken provisions of the Indian Child Welfare Act to the broader, more widely interpreted standard of "best interest analysis" in determining custodial placement of Veronica between Matt and Melanie Capobianco and Dusten and Robin Brown.

"What this Court said is that going forward, unwed birth fathers who do not take the steps required to acquire parental rights will not benefit from the provisions in ICWA," said Martin Guggenheim, Professor of Law at New York University. "By remanding back to the lower courts, 'best interest' is now a new question before the courts, and that she may suffer a second disruption in her life. But Sotomayor did remind the reader in her dissent that the Cherokee Nation could put forward other options in jurisdiction and adoptive preference. Either way, the Supreme Court won't care what South Carolina does with respect to interest, though the length of time [Veronica] spent with the father is now a factor in his favor."

While the Court did strike certain sections of the law, it left intact the rest of the act, which is still applicable under federal mandate.

"We're relieved that the Court upheld Congressional authority to protect Indian children," said Terry Cross, executive director of the National Indian Child Welfare Association. "This decision only applies to unwed fathers, but it remains our job to make sure people know that ICWA is still law, it's still in force and they have to follow it."

At the Cherokee Nation tribal headquarters in Tahlequah, Oklahoma, Principal Chief Bill John Baker pledged the tribe's support in assisting Dusten Brown in the duration of this litigation.

"Certainly we're disappointed with the ruling, namely because Dusten Brown now has a whole litany of legal issues still before him," said Baker. "But we are hopeful that he will prevail because the facts in this case are on his side. As a father and grandfather, it's hard to see any parent be told that they can't raise their own biological child. Regardless of the circumstances, it has been extremely painful to watch."

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Stop the Cherokee Nation's picture
Stop the Cherok...
Submitted by Stop the Cherok... on
Please Cherokee Nation, stop taking on these extreme cases. The warning from Justice Thomas was a clear shot across the bow in his comments. You are screwing things up for all Indians. Stop being so dumb!

Anonymous's picture
Submitted by Anonymous on
I hope this doesn't give the courts permission to sell our Native American children to the highest bidder. Veronica has been with her birth father for the past two years, plenty of time to know her biological family in her own memory. Her life will only, be disrupted if they give her back to the people who paid $25,000.00 to the person who sold her without Dusten Browns permission and consent. They should keep the ICWA family together at all costs. I'm no lawyer but the baby knows who her real father now and it will be detrimental to her development to jerk her away from her real family into the arms of complete strangers. They have not even seen her and only spoke to her on the phone once.

Jules55068's picture
Submitted by Jules55068 on
For those who recklessly make statements about this case without knowing all of the facts, shame on you... 1st point - Dustin did not know that the baby was going to be put up for adoption. 2nd point - The South Carolina couple is referring to as the "adoptive" parents, when in fact Veronica was not formally adopted by them. 3rd point - The only reason that she was with them for two years was because from the age of four months to two years old, they refused to return her to her father. In fact, their lawyer conspired to thwart the system by sending a request to the Cherokee tribe for confirmation of the father's enrollment, but "accidentally" mispelled his name and gave the wrong date of birth for him. This action, among others, prevented a timely return of this child to her rightful father, who was never given due notice or process in order to provide him the chance to oppose the adoption. The hateful comments regarding ICWA are being made by narrow minded people who have no idea of the atrocities that have been committed on the indigenous people of this land. Try reading the history of our treatment of these people - have any other races had their children ripped away continously for two centuries and been sexually, mentally and physically abused, been forced off of their lands, slaughtered by the millions so that white European settlers could "civilize" this continent? Think about your own heritage - I suppose that's not important to your identity but for most people - adopted or otherwise - it is very much so....

KoolMD's picture
Submitted by KoolMD on
To the last 2 commenters: It does not matter if Dustin knew about the adoption or if he did not give his consent. He gave up his right to have a say when he legally gave up his parental rights. This happened twice- in a text before Veronica's birth as well as after, on a sworn document. Someone who later tells the court that they did not plan on raising their child, nor did they plan on paying child support, should not get to determine who does or does not do those things. Also, its been established that Veronica was not "sold". I believe the Capobiancos paid $10,000 ($25,000) for expenses. The hospital cost alone can cost 10,000. Add to that maternity clothes, prenatal check ups and supplements and missed wages and 10k does not go very far.

Two Bears Growling's picture
Two Bears Growling
Submitted by Two Bears Growling on
The biggest simple fact of this case is that deception was used to secret this child away from her father. This man did NOT sign his rights way. The woman was dishonest to this child's father & had her lawyers, paid for by this couple, who tried & used ever dirty trick in the legal maneuvering play book. That alone would disallow this couple from proceeding any further & they, this birth mother of the child & their law team would be charged with improper conduct at the VERY least. If criminal charges could be filed then I would proceed with those as well. This is what happens too many times when folks don't marry & a child is born. The custodial parent can do all kinds of things WITHOUT even giving it a though of informing the birth father. Young men, learn to put the cart before the horse as we said in my day & age. When you don't, remember this SAME thing can happen to you as well. Learn to think for a change instead of getting caught up in a moment of lust & passion. Learn to avoid heart aches & future headaches by thinking with some common sense for a change. Potential adoptive parents who behave like these folks have in SC are the prime example of who does NOT deserve to have a child regardless of their financial status. They have shown they are deceitful, dishonest people who do not like to be told "No" & they do not cope very well when things go against them. They choose to flaunt their finances & try & MAKE things go their way. There is a reason the Creator does not allow some folks to ever have a child. When the Great Spirit says, "NO!" It is NOT going to happen folks. Son of the people, take this time to reflect, regroup & keep your eyes open. Pray always to the Great Spirit to help you each day, guide your decisions & choose the paths you need to travel. Never give up hope & believing ALL things are possible when our Creator is on our side!

Merlene's picture
Submitted by Merlene on
I whole heartedly agree with Jules regarding those here who don't know the facts of this case, and who don't understand the ICWA - don't make uninformed comments.

Merlene's picture
Submitted by Merlene on
I whole heartedly agree with Jules regarding those here who don't know the facts of this case, and who don't understand the ICWA - don't make uninformed comments.

Smart's picture
Submitted by Smart on
I feel that we have laws in place to protect our children regardless whether or not the child has or has not been adopted. The child should be with their biological parent or parents. The way of the people ' WE TAKE CARE OF OUR OWN'.

Shawnee Thunder Horse's picture
Shawnee Thunder...
Submitted by Shawnee Thunder... on
Thank you Cherokee Nation for working so hard for your tribal members. The US Supreme Court has ultimately in my opinion gave adoption agencies a free go ahead on taking of our children. The don't have to follow adoption placement preferences now. So, now they can adopt kids out if they want too. The don't have to help people who are at risk of losing their parental rights. So they can just decide to terminate them when they want. I urge all people to move out of South Carolina. I urge all concerned parents to keep your kids close the US Congress controls your children you do not. Now DSS agencies can come in and start taking them away as they have been doing for the past 120 years. :( Now more than every I am confused about why some people don't have to follow ICWA.

Valerie Goodness
Valerie Goodness
Submitted by Valerie Goodness on
Thank you Jules for trying to inform the willfully ignorant. I blame the media for their purposeful misinformation campaign, Dr Phil, Anderson Cooper etc... And Aho for this excellent article. I have been surfing For accurate reporting oFor the person who calls himself/herself "Stop the Cherok..." Are you out of your ever loving mind? This case is NOT the fault of the Tsalagi Nation. There is plenty of blame to go around but not the Nation. For starters let us look at the Mother who made tens of thousands of dollars attempting to sell her daughter to a Non-Indian, Non-Family couple behind the Father's back. Second this greedy selfish couple who for the sake of not losing will put the Nation, every Indigenous child, the Father, and foremost this beautiful baby, through the worst trauma imaginable which is NOT in the best interest of this little girl. And lastly Third, blame the media, more specifically Dr. Phil McGraw, who's Paula Deen moment surpasses Deen herself, with his scandalous melodramatic misrepresentation of affairs surrounding this family and this case. He has done more damage and fueled more racism towards Native Americans in recent times than anyone else. Your comment is dumb and the fact that you rudely attempt to speak for "all Indians" is inappropriate at best.

snoolhu3's picture
Submitted by snoolhu3 on
I can not believe the Supreme Court!!! Following their logic then- the entire time the baby is in the mothers womb, she would be the only one to be determined a "parent" as she alone has custody. All men out there would not actually be a parent until after the birth and entry of the newborn into the home, so could not object to an abortion or adoption prior to birth. Likewise when a daycare, school, babysitter has physical custody of the child, they alone are the parent, as they alone have physical custody of the child in that moment. This is PARENTAL RIGHTS. By their ruling ALL MEN have now lost parental right to their children. Supreme court disenfranchisement of all men of their rights should piss every man and woman off, regardless of heritage as the effects are very far reaching. They have gotten this VERY WRONG!!! Base ICWA regs demand that the correlating tribe be notified in writing and correctly, prior to outside adoption. The regs DO NOT state "someone has to have had custody prior or else the Regs in the act does not apply". This is TRIBAL RIGHTS Two very different rights are being combined by the Supreme Court and being negated. The issue of circumventing the Regs in ICWA has already been covered not only at the time of creation of the act, but in court cases from the acts implementation. Very specifically - malfeasance and dereliction to adhere to the proper and correct notification of Tribe, remaining parent as well as extended family, is not a defense the governmental regulated agencies and their associates can claim. This item is contained within the ICWA and is crucial to the protect of children. The Supreme Court needs to actually READ before making such an inane conclusion as I am sure if they did read - they would have seen that these issues are already addressed within the act itself and if I am remembering correctly, reversing their previous rulings on ICWA. With this ruling it looks like the Supreme court is seeking to abolish the ICWA itself.

Sam Harris
Sam Harris
Submitted by Sam Harris on
The Capobiancos need to stop and let the little girl go I am not kidding. This child is a pawn and it's ridiculous. Let her be she has already formed a formed a bond with her biological father and she isn't going to remember that much. She is not a ping pong ball to go back and forth. This whole situation is garbage and I am so disgusted with the supreme court for this ridiculousness!

Robin Bushell Pettit
Robin Bushell Pettit
Submitted by Robin Bushell Pettit on
This man has EVERY Right to HIS daughter! This battle started in 2010. The child was less than a year old. Not only that but HE didn't put her up for adoption the mother did! Yes he signed the papers, but he also had to go to Iraq! What was he suppose to do? Those men and women that are sent overseas have to do 1 year tour! Ask your self this, if she was your child and you had to do a years tour for this country and there was no one to keep your daughter for that year what would you do? He started fighting for HIS daughter 3 years ago! The law clearly states that no Native American child can be given to a non Native person! That's the LAW! The mothers lawyer should have checked the laws before this all happened! This man has EVERY right to this child! She is his daughter and is NOT FOR SALE!!! Let these people go find someone else's child! Now to Dustin and Robin, do NOT give her back! She is YOUR daughter! Don't let the United States Supreme Court trample on Native LAWS! Which they do to often! Keep her with you! You have her there, DON'T give up the fight! I am a mother, a grandmother and I also raised someone else's child. So I know both sides of this fence! You keep her and love her and raise her to know her heritage and language! To the Supreme Court, stay out of this fight, it's none of your business! It's NATIVE LAW! The mother and her lawyer should have known better!!! THIS CHILD IS NOT FOR SALE!!!

Elizabeth Phillips SC TSu
Elizabeth Phill...
Submitted by Elizabeth Phill... on
Robin Bushell Pettit, as I understand it, his family volunteered to take care of Veronica while Dusten was deployed.

native4sure17's picture
Submitted by native4sure17 on
Native Americans have "no voice" anymore.Native Americans "helped" the US government "silence" our leaders that werent afraid to pick up a bull horn and take on the Government and organize rallies & protests by constantly criticzing them.The old "Native American press" had a huge hand in this.Now all those "haters", time is here for you to step up and make a difference.I know who you all are!Funny thing you can find these haters spending all their time at your local native american casino.As for ICWA ,this is going to be a good one cause they've been sleeping on the job.Why i know?I've been observing them in courts and they appear disengaged allways on their smart phones(during court proceedings)."If" these people don't want to fight for Native American interests then get out of the way. just get out of the way

Robin Bushell Pettit
Robin Bushell Pettit
Submitted by Robin Bushell Pettit on
Elizabeth Phill, No they didn't.. Here it is in the words of one of the Justices.. Alito wrote that Section 1912 of ICWA does not apply because Brown never had custody of his biological daughter, and wrote that Section 1915 of ICWA does not apply because no other Cherokee relatives, or other Indian families, stepped forward to assert custody.

Star Idlenomore Nayea
Star Idlenomore...
Submitted by Star Idlenomore... on
This case was a long shot.. For so MANY reasons.. There are so many layers here.. # 1 and many unanswered questions STILL..The main point I'd like to make clear, to anyone who has commented thinking this situation is a "HUMAN TRAFFICKING RING" (gone wrong)...You have no idea what you are saying.. Unless YOU were actually IN a human trafficking ring! This is as public as you can get.. & Although we all disagree with the outcome, it was all done above the board..This non Native family that won custody would never harm baby V.. Unlike the situations 30 to 50 years ago, where we were illegally stolen & disposed of!!! 85% of us placed in TOXIC, volatile Abusive in every way imaginable, "Families" "Homes" more like Prisons...This case is NOTHING close to the reasons WHY ICWA was born...This has damaged ICWA's Reputation for many different reasons, than one would consider...Baby V should have stayed with her Bio Father.. But then again, he should have never agreed to give Baby V up...In a TXT message...He has been said to have given permission to give baby V up, via TXT (which is so unfathomable to me). Birth Mom did what many Birth Mom's do ( now a day) in a healthy & LEGAL situation. Where she would have ZERO help raising a child properly...She in turn, sought out a LOVING couple to rear Baby V.. Baby V having some Native Ethnicity, is just one of her multi-ethnic layers..So this was not derived from a PRE-ICWA agenda or perspective, that the government never accepted responsibility for.. Birth Mom was paid $10,000.00 not $25, 000 as some keep saying...Still Baby V had no business being SOLD.. If in fact she was of some Cherokee descent... PLEASE..Let's be clear, Baby V was not STOLEN & placed in to a Human Trafficking ring! My GOD the conditions & comparisons of ICWA today, verses PRE- ICWA before 1978, & WHY ICWA was created, are completely night & day and as such are incomparable! Anyway..The adopted family won this round...But Cherokee Nation..I'd like to know a few more facts about Browns actual Heritage to the Tribe, OR was that used in a last ditch effort? My questions as always have been fair...Was Brown always enrolled or was this done to try to help alleviate, perpetuate or this adoption battle? If so, has Brown always been "Cherokee" in every way? He is cultural involved & a resident of the Cherokee Reservation? What I mean by that is.. "Being an Enrolled Indian" is more than being "Enrolled" Its a Privilege and Honor to be enrolled, bearing ties the CULTURAL/SPIRITUAL aspects of not only WHY ICWA was made a LAW in 1978, It was also supposedly WHY the Cherokee Nation took on this case!!!!! PRE-ICWA We were stolen by The US & CANADIAN Governments !!! THEY removed us from much more than just our "Birth Families"..We were stolen from our Homelands, Language, Culture, Ceremonies, Songs, Dances..Everything we were born to BE...The part that makes ICWA SO vital in a protective sense, is the Cultural/Spiritual/Emotional aspects and irreplaceable ties to all of that ..Including Family Formation..ICWA was about Keeping Native Families together on reservations, preserving our ways for always.. Cementing our Spiritual/Cultural/ Human Rights in place! The best way we can now a day...The 40 year (or more) Illegal baby ring was supposed to end with ICWA.. ICWA Education is DEARLY needed, Bi-laws need to be re-written, I'm my humble opinion as an actual Pre-ICWA survivor. I am saddened to think ICWA faces even more of an up hill climb, after this public case all to gain trust again...

Star Idlenomore Nayea
Star Idlenomore...
Submitted by Star Idlenomore... on
P.S. I forgot to add..I strongly feel,..This should have NEVER been an ICWA fight...Why couldn't Brown just fight for Baby V .Because She was his BIO Daughter? I'd like to know what possessed the Cherokee Nation to step in? Again, I'd like to hear more about Brown's actual tie to his Cherokee Heritage..Makes me worry if ICWA was actually the PAWN? It's important to remember!!! & get to the ROOTS of why ICWA was put into place, in 1978

jabatx's picture
Submitted by jabatx on
I'm very disappointed in the decision. I'm beyond disgusted with the entrenched campaign demonizing the child's father, and make the couple who tried to adopt her out as victims. I don't doubt they were used but their dramatics in the media don't make them sympathetic. I would love to see an expose on the adoption agency used. What if Baby Veronica's father was simply a soldier, and his bloodlines weren't a factor? There would have been a very different media blitz.