Not long after an Oklahoma court ordered Veronica’s birth father to hand her to a James Island couple, the nearly 4-year-old girl donned a shawl and held hands with family members of the Cherokee Nation’s chief.
Behind uniformed members of a color guard, she and her father and his wife marched during the grand entry ceremony for the Cherokee National Holiday powwow.
Veronica’s appearance Friday was possible because the state’s highest court had halted a lower judge’s ruling that confirmed her adoption in Oklahoma.
The stay of judgment from the Oklahoma Supreme Court prevented the girl’s immediate transfer to her adoptive parents, Matt and Melanie Capobianco, until its nine justices can review the legal questions presented by the case. A decision could come as soon as this week.
While the court confirmed those actions Tuesday, still unknown is exactly how, when and in what court the interstate custody dispute will end. The details of various arguments also remained secret because the case is sealed and attorneys are barred from talking about it.
The proceedings also ratcheted up calls from Gov. Nikki Haley, who vowed Tuesday to ensure that South Carolina’s court orders are enforced and that Dusten Brown is held criminally accountable for refusing to give up his daughter.
During a hearing Friday, a judge in Nowata County District Court confirmed the adoption decree from South Carolina. The ruling in Nowata, where Brown has a home, would have allowed Oklahoma authorities to enforce the Palmetto State’s court order.
Brown’s initial victory in challenging the ruling, though, might bring an argument from his attorneys that the case should play out in Cherokee Nation District Court. Brown and Veronica are citizens of the tribe, and his attorneys have insisted that its court should decide who raises the girl based on her best interests.
Attorneys on both sides argued their positions Tuesday in front of a “referee” for the Oklahoma Supreme Court, according to the Tulsa World newspaper. That referee is expected to present a report to the court’s nine justices, who will later rule.
Taiawagi Helton, a professor at the University of Oklahoma College of Law, said that the Oklahoma high court’s granting of the stay signifies the case’s importance and that the justices likely will quickly rule.
To Helton, who specializes in American Indian law, Brown and the tribe haven’t been defying another court’s orders. Instead, the tribe has asserted its sovereignty as a nation with jurisdiction over its own people, he said.
That’s a concept that people outside tribes have difficulty grasping, the professor said.
Brown and the tribe could argue that the case isn’t about adoption, it’s about the custody of a child who has lived for nearly 20 months on land where the tribal court has jurisdiction, he said.
“This is new territory for these kinds of conflicts,” Helton said. “No matter how it works out in the meantime, I imagine it could wind up back in U.S. Supreme Court.”
To Haley and the Capobiancos’ supporters, another court is required by law to recognize orders from South Carolina.
The Capobiancos’ adoption of Veronica was finalized after the U.S. Supreme Court ruled that Brown wrongly obtained custody under the Indian Child Welfare Act.
When Brown didn’t relinquish the girl, authorities in Charleston County acquired a warrant for his arrest. Brown turned himself in days later in Sequoyah County, Okla., but he was released on bail and ordered to return Wednesday for a court appearance.
Haley since signed a warrant for his extradition, but Oklahoma’s governor, Mary Fallin, refused to immediately put her own signature on it.
On Tuesday, Haley’s general counsel submitted a brief to the Oklahoma Supreme Court in support of the Capobiancos. The document confirmed that the Nowata court had discounted any jurisdiction challenges.
Haley’s attorney, Swati Patel, wrote that South Carolina courts have a “compelling interest” in ensuring that their orders are enforced in Oklahoma.
The filing also stated that South Carolina wants to make sure that Brown is “held accountable for criminally withholding” the girl for nearly a month from the Capobiancos. It accused Brown of choosing “to obey only those orders entered in his favor.”
“This matter should come to an end,” it said, “now.”
When the adoption decree was filed in Oklahoma state court, Brown had the option to challenge it. Supporters also said Brown could fight for the tribal court to rule in his favor.
Though the outcomes of the subsequent hearings are murky and the ruling of Oklahoma’s highest court remains uncertain, Arizona attorney Jay McCarthy said the district court appeared to be leaning toward giving the South Carolina order “full faith and credit.”
The legal concept entails one state’s court abiding by the rulings of another state’s court.
The Parental Kidnapping Prevention Act, which contains national standards for determining jurisdiction in custody cases, has such a provision. McCarthy, who specializes in family law and has advocated for the Capobiancos, said one of the remaining questions is whether the tribal court will claim that the act doesn’t apply to it.
The case is bound to end, McCarthy said, with none of the sides agreeing and authorities forcefully removing Veronica from her father.
“A state court (in Oklahoma) has finally recognized that they’re going to enforce (the adoption),” McCarthy said. “But it’s not over. That’s the real tragedy.”
As his attorneys continue their battle to keep Veronica, Brown was honored during the Cherokee holiday celebrations over Labor Day weekend in Tahlequah. Considered the tribe’s capital, the city became home for Brown as the front lines of his legal fight shifted to Oklahoma.
During a ceremony in which he received a Medal of Patriotism for his military service, Brown stood in the crowd alongside his wife. Cradled in his arms, an exhausted Veronica clung to his chest.
Reach Andrew Knapp at 937-5414 or twitter.com/offlede.
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