If given a choice, most Native American tribes would prefer to avoid the U.S. Supreme Court, which in recent years has rarely ruled in favor of their interests. However, the Cherokee Nation, with support from more than 100 tribes and the United States, finds itself in the high court in a messy child adoption case with potentially high stakes for the future of all tribal self-government.
The justices on April 16 will hear arguments in Adoptive Couple v. Baby Girl, a challenge involving the federal Indian Child Welfare Act (ICWA), enacted in 1978 "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families."
The adoptive couple, Matt and Melanie Capobianco of South Carolina, contend the law does not apply to their attempted adoption of the toddler, Veronica, because her Cherokee biological father, Dusten Brown, relinquished his parental rights in a text message to her non-Indian, unmarried birth mother. The federal law, they contend, does not resuscitate rights that the father repudiated. The South Carolina Family Court and the South Carolina Supreme Court disagreed with their arguments, denied the couple’s adoption petition and ruled the child belonged with her father.
The state high court found that Brown met ICWA’s definition of "parent" by acknowledging his paternity through court proceedings as soon as he became aware that his child was placed for adoption and by DNA testing. Evidence at trial, said the court, showed that Brown and his family "have created a safe, loving and appropriate home for her."
Veronica was removed from the Capobiancos’ home after living with them for 27 months; she has been with her father and his family in Oklahoma, home to the Cherokee Nation, now for more than a year. In their briefs and throughout the litigation, the parties blamed each other for missteps and misinformation that complicated the case and heightened the emotions and national media attention surrounding it.
"The stakes are high for ICWA itself, and there’s obviously even a bigger Indian law issue," said Assistant Attorney General Chrissi Ross Nimmo of the Cherokee Nation. "The opposition is definitely questioning whether ICWA is within the scope of Congress’ power in dealing with Indian tribes. I think everyone in Indian country that represents tribes is aware of that. Even a decision that limited ICWA based on statutory interpretation would be pretty devastating to the tribes. It would be much worse if there is a bigger decision about congressional authority and Indian tribes."
Congress passed ICWA in response to a crisis in the 1970s in which abusive child welfare practices resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes. Studies presented during Senate hearings reported that 25-35 percent of all Indian children had been separated from their families and placed in adoptive families, foster care, or institutions.
The law establishes special federal procedures and protections, which apply whenever an Indian child is involved in state court child custody proceedings, including foster care placement, termination of parental rights, pre-adoptive placement or adoptive placement.
An atypical ICWA case
Cherokee Nation’s Nimmo is intimately familiar with ICWA as it is her primary responsibility in the attorney general’s office. "I primarily do ICWA cases in state and federal courts," she said. "On a regular schedule, I’m in court three to four days a week in these cases. I would guess at any one time I have 30-40 cases. Some of those may involve review hearings every three or six months.
"We have cases all over the country," she added. "I would guess Cherokee Nation has the largest caseload. Statistics from last year show we had approximately 1,000 cases. They’re not always contested. We intervene in every deprived or dependency case and in every adoption. It doesn’t mean we are contesting it; it could mean getting proper notice and paperwork. We also intervene in guardianships, based on whether they are contested."
Nimmo was born in Tahlequah, Oklahoma, the capital of Cherokee Nation. She was raised in Warner, Oklahoma, which, she likes to say, is probably the only town in the country with a college and no stoplight. "It’s that small," she said. She has a master’s in business administration from Northeastern State University in Tahlequah and a law degree from the University of Tulsa College of Law.
The Cherokee Nation’s attorney general’s office is midsized "by Oklahoma standards," 10 attorneys. Nine are tribal citizens and one is an "honorary" Cherokee. They are prosecutors in Cherokee court and in-house counsel to Cherokee Nation by advising its departments, handling contracts and appeals before administrative boards, among other duties.
Nimmo joined the attorney general’s office right out of law school in 2008. "I was in the top five percent of my class and did some internships at some big law firms in Tulsa," she recalled. "I quickly realized that was not what I wanted to do when I graduated. Part of it was I wanted to be in a courtroom. I also didn’t want to do solo. This is a great place to work. As an attorney, I’m salaried and don’t do billable hours. Why would you ever leave that?
"Indian law is a tight knit group of attorneys. Whether you work in-house for a tribe or represent a tribe, every Indian law decision in an appellate court can affect all tribes."
The Supreme Court case is not the typical ICWA case, she said. (Cherokee Nation is a respondent with Nimmo as counsel of record; Brown, the toddler’s father, also is the respondent and is represented by Charles Rothfeld of Mayer Brown.)
"One of the differences is just how long it has taken," she explained. "The adoption petition was filed in September 2009 and it’s still going on. Then there is the media coverage. Cherokee Nation didn’t participate when it hit the media because juvenile cases are confidential. Then we felt we had to make sure it was presented fairly in the media. Eventually the South Carolina Supreme Court unsealed the case and that was helpful to us because some of the documents favoring the Nation and the father had not been seen."
Some media still report, inaccurately, that the Capobiancos’ adoption petition was finalized, she noted, adding, "It’s frustrating that two years into the case we’re still fighting that in the media."
High court help
For the Supreme Court, Cherokee Nation brought on board Carter Phillips of Sidley Austin to help. "We brought Carter on for his Supreme Court experience," she said. "He is an encyclopedia of Supreme Court knowledge, not only the technical part of following rules, but he knows the court, how the justices think, what issues are important. He was invaluable to us." Also important to their effort, she added, was Indian law litigator Lloyd Miller of D.C.’s Sonosky, Chambers, Sachse, Endreson & Perry.
Cherokee Nation and Brown have drawn an outpouring of amicus support from tribes, state attorneys general, Indian law and family law scholars, national child advocacy and welfare organizations and others, an effort coordinated by Richard Guest of the Native American Rights Fund.
Their opponents also have high-power assistance. Lisa Blatt of Arnold & Porter represents the Capobiancos. A state court-appointed guardian ad litem, supporting the adoptive couple, has as counsel, Paul Clement of Bancroft.
Nimmo said Guest told her that of the last nine Indian law cases in the Supreme Court, tribal interests prevailed in only one.
"The public in general is not familiar with Indian law and tribal issues and tribal government, and neither are most attorneys," she said. "Unless you take an Indian law class, which many law schools don’t even offer, the concept of Indian law and the relationship between Congress and tribes is a bit foreign to those not involved in it on a daily basis. I have no doubt all of the justices understand the legal issues, but it’s also one of those things that’s so very different. It seems like we’re starting over with each case.
"Beyond ICWA, there’s a sense of urgency in Indian country about what the court will do with this case."
Marcia Coyle can be contacted at email@example.com.
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