January 17, 2017

NARF, NICWA, NCAI file federal civil rights lawsuit in 'Baby Veronica' case

WASHINGTON – As promised, three Native American organizations filed a federal civil rights complaint Wednesday on behalf of a three-year-old Cherokee child at the heart of a protracted custody battle.

The National Congress of American Indians, National Indian Child Welfare Association and the Native American Rights Fund filed the lawsuit on Veronica Brown’s behalf in South Carolina’s federal district court after the state’s Supreme Court refused to allow a best interest hearing and ordered the lower family court to finalize the child’s adoption by a non-Native couple from James Island, S.C.

"As a matter of law, the actions of the state courts of South Carolina have deprived the plaintiff (Veronica) of a meaningful opportunity to be heard on the matter of her current best interests before being transferred from her father to an adoptive couple," according to the filing.

More than 40 tribes, attorneys general, scholars and organizations signed a letter in support of the lawsuit, including the Inter-tribal Council of the Five Civilized Tribes, of which Veronica and Dusten Brown’s tribe, the Cherokee Nation, is a member. Through a spokeswoman, the council released the following statement Wednesday afternoon:

“A severe injustice has been committed to an innocent Cherokee child and her loving family in Oklahoma. The Brown family, including Veronica, deserves their due process. They do not deserve to have their lives forever transformed by the South Carolina judicial system without cause or consideration.

“Indian children being removed from their families and homes is not a new story in Indian Country. Those dark days have reared their head again sadly in South Carolina. We will stand with Veronica, the Browns, and national tribal organizations fighting for fairness and justice."

The lawsuit was filed just before a South Carolina family court was scheduled to hear a proposed transfer plan to facilitate a custody transfer from Dusten Brown to Matt and Melanie Capobianco. The civil filing also requested an injunction to prevent the proceedings. However, the family court approved the Capobiancos’ seven-day transition plan that calls for the child to gradually spend more time with the South Carolina couple before leaving Oklahoma.

Through his attorney, Dusten Brown released the following statement after the family court hearing:

“Our family is shocked and deeply saddened that the SC Supreme Court has refused to allow Veronica’s best interests to be considered. Even worse, the court issued an order that they acknowledge will cause my daughter to suffer harm. The court gave its blessing to a transition plan offered by the Capobiancos that says upon transfer to them, Veronica will be ‘fearful, scared, anxious, confused.’ They say she will likely become quiet and withdrawn and may cry herself to sleep. That the transfer will cause her to suffer ‘grief’ and ‘loss’ and she will feel rejected by me and my family. They say it will leave her with many ‘unanswered questions.’

“I will not voluntarily let my child go through that; no parent would. I am her father and it is my job to protect her. My family and I continue to pray that the justice system will bring justice to Veronica.

“To Matt and Melanie Capobianco, I want to say this: Please, for Veronica’s sake, just stop. Stop and ask yourself if you really believe this is best for her.”

Statement of Support Issued by Tribal Governments and Leading Native American, Civil Rights, Child Welfare and Legal Advocates along with Arizona and New Mexico State Attorneys General to Stop Violation of “Baby Veronica’s” Civil Rights by South Carolina Courts

Washington, DC (July 31, 2013) -  Today, the Native American Rights Fund filed a complaint in the United States District Court in South Carolina to protect the civil rights of Veronica Brown, a citizen of the Cherokee Nation who has been denied due process in the South Carolina courts. The filing comes after the South Carolina Supreme Court issued two controversial orders to the state’s family court on July 17 and 24, calling for the removal of Veronica from her father and a transfer her to the adoptive couple without a hearing of best interest.

The lawsuit was supported in a national statement released today by a broad coalition of civil rights, child welfare, adoption advocates, legal authorities, tribal governments, and Native American advocacy groups. These groups and individuals joined with the National Congress of American Indians, Native American Rights Fund, and National Indian Child Welfare Association in releasing the national statement of support for Veronica’s civil rights, and the rights of all children, to a hearing of best interest.

The litigation was filed on behalf of Veronica, by Angel Smith, an attorney appointed as counsel for the child by the courts of the Cherokee Nation, in U.S. District Court in South Carolina, and asks the Court to determine whether Veronica has a constitutionally protected right to a meaningful hearing in the state courts to determine what is in her best interests.  Furthermore, the litigation asserts that Veronica, as an “Indian child” under the Indian Child Welfare Act, has a federally protected right to have the state courts fully consider and appropriately weigh her best interests as an Indian child. Daniel E. Martin, Jr., the judge for the family court system of South Carolina, is named as the defendant in the suit.

According to the filing, Veronica “doubtless has a liberty interest in remaining with her father and such an interest justifies at a minimum a plenary hearing on her current status, her relationships with others and her genuine need for stability… Despite the finding of the family court and the implicit assumption by the Supreme Court of South Carolina that [Veronica’s] best interest would be served by being with her father, two years later the court now determines, despite the passage of time and [Veronica’s] stage of development at age four, that her ‘best’ interests will now be served by being removed from him and given back to the adoptive couple. Again, this order is without any consideration to the present circumstances, psychological and emotional well-being, and future impact on [Veronica]. This is an arbitrary result, depriving [Veronica] of any opportunity to be heard on her own behalf, irrespective of the competing interests of the adult litigants in her young life.”

Click to download the Complaint.

Broad National Support for the Litigation

Also today, on behalf of broad coalition of civil rights, child welfare, legal authorities, tribal governments and Native American advocacy groups, the National Congress of American Indians, along with the Native American Rights Fund and the National Indian Child Welfare Association released a national statement of support for Veronica’s civil rights to be upheld. The statement of support has been endorsed by a broad coalition of tribal governments, state and federal legal authorities including two state attorneys general – Arizona and New Mexico – civil rights institutions such as the Leadership Conference on Civil and Human Rights, child welfare and adoption organizations including the Child Welfare League of America, and leading national and regional Native advocacy organizations representing the interests of almost every tribe located within the United States (see full list below).

According to the letter:

[T]he rights promised to our children are being compromised in the courts of the State of South Carolina … The recent [South Carolina Supreme Court] ruling in the case denies the basic fundamental right of an almost four-year-old Indian child to a hearing of her ‘best interests’ before removing her from her biological father after almost two years of child-rearing, bonding and establishing a loving home environment. Plainly stated, this is a denial of Veronica’s human rights and constitutional rights to due process as a citizen of the United States.

The following organizations and individuals have signed on to the letter of support for the civil rights lawsuit being filed on behalf of Veronica:

Attorneys General
The Office of Arizona Attorney General Tom Horne
Attorney General of the State of New Mexico Gary K. King

Civil Rights, Child Welfare, and Adoption Advocacy Organizations
The Leadership Conference on Civil and Human Rights
Child Welfare League of America
North American Council on Adoptable Children
Voice for Adoption
Consortium for Children
Adopt America Network
The Adoption Exchange
Spaulding for Children
Three Rivers Adoption Council
Applied Research Center
Asian Americans Advancing Justice—AAJC
Asian & Pacific Islander American Health Forum
Center for Social Inclusion
Friends Committee on National Legislation
League of Rural Voters
National Latino Farmers & Ranchers Trade Association

Tribal Nations in Support
Cherokee Nation - Principal Chief Bill John Baker
California Valley Miwok Tribe - Chairperson Silvia Burley
Central Council of the Tlingit and Haida Indian Tribes of Alaska – Vice President Lowell Halverson
Confederated Tribes of the Umatilla Indian Reservation- Les Minthorn, Chairman of the Board of Trustees
Crooked Creek Traditional Council - President Evelyn Thomas
Enterprise Rancheria, Estom Yumeka Maidu Tribe - Tribal Chairwoman Glenda Nelson
Fort McDermitt Paiute-Shoshone Tribe, Tribal Chairperson Maxine Smart
Jamestown S’Klallam Tribe - W. Ron Allen, Tribal Chairman/CEO and Chairman - DOI, Self-Governance Advisory Committee (representing 253 Tribes and Native Villages throughout the United States)

Mohegan Tribe - Chief Lynn Malerba, - Chairwoman IHS, Tribal Self-Governance Advisory Committee (representing 336 Tribes and Native Villages throughout the United States)

Navajo Nation – President Ben Shelly
Ohkay Owingeh Tribal Council - Governor Marcelino Aguino
Osage Nation - Assistant Principal Chief Scott Bighorse
Ponca Tribe of Nebraska - Vice Chairman Jeremy Wright
Round Valley Indian Tribes - Vice-President Joe Dukepoo
San Manuel Band of Mission Indians
Skagway Traditional Council - Tribal President/Administrator Delia Commander
Soboba Band Of Luiseno Indians - Chairwoman Rosemary Morillo.
Southern Ute Indian Tribal Council - Chairman Jimmy R. Newton, Jr.,
Tulalip Tribes of Washington - Deanna Muir, Deputy General Manager of the Tulalip Tribes

Regional Tribal Government Organizations
Affiliated Tribes of Northwest Indians
Alaska Federation of Natives
California Association of Tribal Governments
Coalition of Large Tribes
Inter Tribal Council of Arizona
Inter-Tribal Council of the Five Civilized Tribes
Great Plains Tribal Chairman’s Association
United South and Eastern Tribes
United Tribes of North Dakota

American Indian & Alaska Native Organizations
American Indian Child Resource Center
Association on American Indian Affairs Tribal Law & Policy Institute
California Indian Legal Services
Division of Indian Work
First Nations Repatriation Institute
ICWA Law Center
Oklahoma Indian Child Welfare Association
Sealaska Heritage Institute
National Indian Education Association
National Indian Health Board
Native Public Media
Self-Governance Communication and Education Tribal Consortium

Legal Scholars
Carla F. Fredericks, Co-Director, American Indian Law Program Associate Clinical Professor of Law University of Colorado Law School
Eric Eberhard, Distinguished Indian Law Practitioner in Residence, Center for Indian Law and Policy
Seattle University School of Law
Jennifer Weddle, Chair, Federal Bar Association Indian Law Section
Kristen Carpenter, Co-Director, American Indian Law Program Associate Professor of Law University of Colorado Law School
Lorie M. Graham, Professor of Law, Co-Director, International Law Concentration Suffolk University Law School


On July 17 and July 24, the South Carolina Supreme Court issued two controversial orders to the state’s family court calling for an expedited transfer of Veronica Brown to the South Carolina-based adoptive couple without a hearing of best interest. It is standard procedure that all custodial transfers, including adoption proceedings, require a hearing to determine the best interest of the child in advance of any transfer proceedings, an essential step the South Carolina Supreme Court failed to take, thus denying Veronica the right to have her best interests considered. One year ago the South Carolina Supreme Court, followed the family court’s finding that it was in the best interest of Veronica to be with her father stating: “Likewise, we cannot say that Baby Girl's best interests are not served by the grant of custody to Father, as Appellants have not presented evidence that Baby Girl would not be safe, loved, and cared for if raised by Father and his family.”

Click here to read additional background on the case. (http://bit.ly/13xZ1td)