Chrissi Ross Nimmo (JD '08): National Law Journal Appellate Lawyer of the Week

Tuesday, April 16, 2013

Published in the National Law Journal, April 10, 2013

By Maricia Coyle
National Law Journal

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."

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