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  • WisBar News
    March 07, 2013

    Indian Law Section Requests Input on Amicus Brief in Adoption Case

    The Indian Law Section will request authorization to file an amicus brief in a U.S. Supreme Court case involving the attempted adoption of a Native American child by a non-Indian couple. Comments are due by March 20.

    March 7, 2013 – The State Bar of Wisconsin’s Indian Law Section is seeking feedback on its plan to file an amicus curiae brief in a U.S. Supreme Court case, Adoptive Couple v. Baby Girl, brought by a couple who attempted to adopt a Native American child.

    Pursuant to State Bar bylaws, Indian Law Section will request that the State Bar’s Board of Governors authorize the filing of a non-party, amicus brief by the section.

    The case involves a Cherokee Nation father and a non-Indian mother who had a child, Veronica. Veronica’s father was on active military duty at Fort Sill, Oklahoma, when the mother broke off their engagement while pregnant with Veronica.

    The father and his family attempted to contact the mother during the pregnancy, but the mother cut off communication a few months before the birth of Veronica.

    A few months before Veronica’s birth, her mother began working with an adoption attorney in Oklahoma for adoption by a non-Indian family from South Carolina.

    The father was not informed of these plans until four months after Veronica’s birth and subsequent placement with the couple, the Capobiancos.

    Oklahoma law required the child’s tribe, the Cherokee Nation, to be notified about the adoption, but the notice provided by the adoption attorney was not complete and not properly executed. It included a misspelling of the father’s name and the wrong birth date. This delayed the tribe’s ability to certify that Veronica was eligible for tribal membership and become involved in the adoption proceedings until months after Veronica was moved to South Carolina. Additional Interstate Compact paperwork only identified Veronica as Hispanic even though it was known that she had Indian ancestry. 

    When Veronica was four months old, her father was served with notice of the adoptive couple’s intent to adopt. He was served in a parking lot outside the army base without counsel present just days from his deployment to Iraq.

    The father signed the paperwork under the impression that he was relinquishing his parental rights to the birth mother, but recognized soon after that it was asking for him to relinquish his parental rights for placement with the adoptive couple. The father asked for the paperwork to be returned to him and was denied by the server.

    Immediately, he contacted the Judge Advocate General attorney at the military base and began the process of challenging the proposed adoption. He was deployed to Iraq seven days after filing a stay of the adoption proceeding. 

    The South Carolina district court denied the South Carolina couple’s petition to adopt and ordered transfer of custody to her father. The South Carolina couple appealed, but the ruling was upheld by a lower appellate court in South Carolina. Veronica’s father assumed custody of his daughter on December 31, 2011, in a highly publicized handing over of Veronica.

    The adoptive couple then appealed to the South Carolina Supreme Court, which upheld the lower court’s decision. In the state Supreme Court decision, the court said that there was no evidence that Veronica was not presently in a safe and loving home with her birth father. The adoptive couple appealed to the U.S. Supreme Court where their petition for certiorari was granted on Jan. 4, 2013.

    Principles of Law   

    Among the issues that the Indian Law Section wishes to address are the following:

    • Whether the federal Indian Child Welfare Act (ICWA) can block an adoption voluntarily initiated under state law to preserve a tribal child’s ties to their tribe.

    • Whether ICWA’s definition of a “parent” in 25 U.S.C. § 1903(9) is dependent upon state law.

    • The continuing need for ICWA based on current and past data. 

    If you have any questions or comments please send them to: by 5 p.m. on March 20 or contact Cale Battles, Indian Law Board Government Relations Coordinator at (608) 250-6077.

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