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Supreme Court wrestles with Native American adoption dispute

Veronica, the adoptive Native American daughter of Melanie Capobianco. is shown trick-or-treating in Charleston, S.C.
Veronica, the adoptive Native American daughter of Melanie Capobianco. is shown trick-or-treating in Charleston, S.C.
Associated Press

WASHINGTON — The Supreme Court is trying to sort out a wrenching adoption case involving a Native American child, a biological father who first renounced any interest in her and adoptive parents who were eventually ordered to hand her over to the father.

The justices heard an appeal Tuesday from the South Carolina couple who wanted to adopt the girl, named Veronica. The outcome of the case was unclear after arguments that included an unusually emotional appeal from the couple's lawyer. Justice Anthony Kennedy said he wished he could call upon King Solomon to figure it out.

The case turns on the federal Indian Child Welfare Act, enacted in 1978 because Indian children were being removed from their homes and typically placed with non-Indian adoptive or foster parents. The law gives tribes and relatives a say in decisions affecting a child.

The Obama administration, 18 states, several Indian tribes, current and former members of Congress and children's welfare groups have lined up in support of the father. The National Council for Adoption and the American Association of Adoption Attorneys are among the groups supporting the South Carolina couple.

Dusten Brown, a member of the Cherokee Nation, invoked the federal law to stop the adoption arranged by the girl's non-Indian mother when she was pregnant and the Charleston, S.C.-area couple, Matt and Melanie Capobianco. The couple was present at Veronica's birth in Oklahoma. Brown had never met his daughter and, after the mother rebuffed his marriage proposal, played no role during the pregnancy and paid no child support.

But when Brown found out Veronica was going to be adopted, he objected and said the law favored the girl living with him and growing up learning tribal traditions.

South Carolina courts agreed and Brown took Veronica, now 3, back to Oklahoma at the end of 2011, even though she had lived with the Capobiancos for the first 27 months of her life.

The justices seemed to recognize there is no ideal outcome to a case in which one side or other will be left without Veronica. But Justice Antonin Scalia said the law clearly favors the biological father and does not direct courts to take into account the best interests of the child.

Scalia, the conservative justice who has nine children, got considerable support from a liberal colleague, Justice Sonia Sotomayor, who does not have children.

"If the father's fit, why do you think that the federal statute requires that it be given to a stranger rather than to the biological father?" Sotomayor asked Lisa Blatt, the Capobiancos' lawyer.

Blatt argued repeatedly that Brown had relinquished his parental rights and should not have been allowed to intervene at the last minute to block the adoption.

"You are rendering these women second-class citizens with inferior rights to direct their reproductive rights and who raises their child. You are relegating adopted parents to go to the back of the bus and wait in line if they can adopt. And you're basically relegating the child to a piece of property with a sign that says, 'Indian, keep off. Do not disturb,' " Blatt said.