As Dusten Brown fought to stop his daughter’s adoption, he and the Cherokee Nation argued that courts outside the tribe didn’t have a say over children who are members.
Their assertion of national sovereignty didn’t pan out as a legal strategy. Matt and Melanie Capobianco got custody of their 4-year-old adopted daughter, Veronica, in late September.
But tribal officials think the claim will be a valid defense as they fight a motion to award $1 million in legal fees to the James Island couple’s attorneys in Oklahoma and Washington.
Chrissi Nimmo, an assistant attorney general for the Cherokee Nation, said the tribe has immunity from monetary judgments unless federal or tribal authorities step in or if the tribe waives its sovereignty.
The attorneys’ quest to be paid isn’t right, Nimmo said Thursday, especially after they stated publicly that they were fighting for Veronica’s return to South Carolina free of charge. She said the lawyers were sending a message that they would “financially ruin” anyone who tried to stop the adoption of an Indian child.
“I believe the purpose of the attempt to collect these fees is to try to punish Cherokee Nation and Dusten and to warn other parents and tribes,” Nimmo said. “It will definitely have a chilling effect for other parents and tribes in similar cases.”
But Lori Alvino McGill, a Washington attorney for the Capobiancos, said the tribe had waived its claim to sovereignty when it “inserted itself” into state court proceedings in South Carolina and Oklahoma. The tribe also housed Brown during the time he refused to acknowledge the South Carolina adoption decree.
“It is also a bit astonishing that Cherokee Nation officials would try to hide behind immunity, implying that they intend to leave Mr. Brown holding the bag,” Alvino McGill said. “The tribe was a very public architect of the extraordinary and unlawful strategy of evasion.”
The statements came Thursday as Alvino McGill provided information indicating that Brown’s lawyer in Charleston also had asked for legal fees when he was winning the case in 2011.
Before she won a judgment transferring Veronica to Brown through the Indian Child Welfare Act, Shannon Jones asked for $33,445.57 from the Capobiancos, Alvino McGill said.
But the judge who presided over the four-day trial in September 2011 instead ordered each side to bear their own costs and to split the fees for the guardian ad litem who represented Veronica’s interests.
Alvino McGill has said that the attorneys, not the Capobiancos, were the driving force behind the action.
“No one is seeking a windfall here,” she said.
The practice is rooted in history, she said. The prevailing attorneys in the Voting Rights Act case at the U.S. Supreme Court, for example, recently filed for $2 million in fees, she said.
Jones acknowledged that she had asked for legal fees from the Capobiancos in 2011 but that Brown didn’t want to pursue the action.
“He needed the money,” Jones said. “He ended up having to work several jobs and borrowing money from his parents. He’s still paying them back.”
Reach Andrew Knapp at 937-5414 or twitter.com/offlede.