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Court's decision on SC adoption case could have ramifications for federal Native American law

The U.S. Supreme Court could reshape longstanding federal law on the adoption of Native American children, depending on how the justices rule in the case of a South Carolina family fighting for custody of their adopted daughter.

That law is at the center of the appeal by Matt and Melanie Capobianco, a Charleston-area couple who adopted a baby girl several years ago. But the girl's biological father — a member of the Cherokee Nation whom she had never met — later went to court seeking custody, arguing that the girl's mother gave her up without his consent.

A South Carolina court agreed with Dusten Brown, who took the girl named Veronica back to Oklahoma in 2011. The Capobiancos challenged that decision in the state Supreme Court, saying they had bonded with Veronica and arguing that removing her was detrimental to her development.

But justices sided with Brown last summer, saying that, while the Capobiancos were "ideal parents," federal law requires that custodial preference be given to the child's Native American parent.

The court used as its guide the Indian Child Welfare Act, passed in 1978 because of the high number of Indian children that, at the time, were being removed from their homes by public and private agencies. The act gives the tribe and relatives a say in decisions affecting the child.

The U.S. Supreme Court has considered Native American adoption before. In 1989, the court ruled that it was up to tribal courts to make decisions about Indian adoptions. In that case, a tribal court ultimately ruled that a set of toddler twins could stay with their adoptive, non-Indian parents.

One legal scholar said the fact the court agreed to hear the Capobiancos' case means the justices may be looking to overturn part of the law or reverse it altogether.

"And that's a shock because we have 250 years of precedent that Congress has broad authority to legislate in terms of Indian affairs," said Marcia Zug, professor of Indian issues at the University of South Carolina School of Law.

The court has not yet set a date to hear the case.

The couple's adoption attorneys knew these issues might come up, writing to the Cherokees to determine if Veronica had Indian heritage, Zug said. But they proceeded with the adoption anyway.

"They didn't get any kind of green light from the tribe," Zug said. "What should have happened was follow up, get more information. If that had happened, she should have been placed with her father."

Terry Cross, executive director of the Portland, Ore.-based National Indian Child Welfare Association, agreed.

"The attorneys at least knew this was an illegal adoption, and it's never in the best interest of the child to pursue an illegal adoption," Cross said.

It's a common misconception that the federal law requires Indian children to stay with Indian families, but that's not the case, Cross said.

"It leaves the door open for courts to make informed decisions about the needs of children, which I think the court in South Carolina did. ... It really isn't about race. It's about who gets to make that decision," Cross said.

For some adoption advocates, it's high time to revisit what they call an antiquated law. Johnston Moore runs the Long Beach, Calif.-based Home Forever group that advocates that children be raised in permanent homes — and Moore has personal experience with the law.

Three of the six children Moore and his wife adopted are of Native American heritage. They were engaged in a protracted fight over the adoption of one of the children after the boy's relative challenged them in court, several months after the process was done.

The boy and his biological brother are 1/16 Native American, though no one knew that at the time — and neither child was raised in the native culture, Moore said. But federal law allowed the case to drag through the courts, causing the children great distress, Moore said — including nightmares for one of the boys.

"Though these boys themselves had not changed when this relative came forward, nor had their attachment to us, the system's perception of them had changed," he said.

The Capobiancos aren't speaking publicly now that the high court has agreed to hear their case. But as the case moved though the court system, the couple maintained a high profile, with photographs of the Capobiancos clutching their young girl appearing alongside stories claiming Veronica was spirited away to an unfamiliar place and relatives with whom she had no bond.

However, that attention may have allowed emotion to take over the facts of the case, said Zug, the legal expert. However, Veronica has been with her biological father more than a year now, and taking her out of that environment may not be in her best interest, Zug said.

"People think, 'How can this happen? This must be wrong,'" she said. "They just see a 2-year-old taken from loving home."

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Kinnard can be reached at http://twitter.com/MegKinnardAP

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