Supreme Court rejects Native American father’s custody request

WASHINGTON — The Supreme Court, deeply divided in a dispute involving the rights of parents and a law to protect Native American families, ruled Tuesday against the biological father of a 3-year-old girl who said their Native American heritage entitled him to custody.

At the center of the case was Veronica, whom the justices called “Baby Girl” in their decision. Veronica was adopted at birth by a South Carolina couple with the consent of her mother, who is not named in court records. She had broken off an engagement with Veronica’s father, Dusten Brown. Brown initially had consented to the adoption in a text message and signed documents when Veronica was 4 months old. But the next day he objected, saying he had not understood what he was signing, and he sued for custody.

Under standard custody laws, Brown would not have had a strong case. But he is part Cherokee and Veronica is “3/256 Cherokee,” as Justice Samuel A. Alito Jr. put it, and that complicated the situation because of the Indian Child Welfare Act of 1978. That law was intended to stem the breakup of Native American families through adoption or foster care placement.


The justices were called upon to interpret how the act applied to Veronica. In a 5-4 decision, Alito said that because Brown had never had custody of Veronica and never made any meaningful attempt to assume his responsibilities as a parent, he did not have the right to reverse the adoption, despite the 35-year-old law.

In a dissent, Justice Antonin Scalia said the decision “needlessly demeans the rights of parenthood.”

Alito said the law “was enacted to help preserve the cultural identity and heritage of Indian tribes,” but if it were used to give Veronica to her father, it “would put certain vulnerable children at a great disadvantage solely because an ancestor — even a remote one — was an Indian.” Given such a result, “many prospective adoptive parents would surely pause” before adopting a Native American child, he said.

In an unusual lineup, Chief Justice John G. Roberts Jr. and Justices Stephen G. Breyer, Anthony M. Kennedy and Clarence Thomas agreed with Alito. Justices Elena Kagan, Sonia Sotomayor and Ruth Bader Ginsburg dissented with Scalia.

Veronica has lived with her biological father in Oklahoma since South Carolina courts ordered the adoptive parents, Matt and Melanie Capobianco, to give her up at the age of 27 months. The decision does not end the tug of war over Veronica, who will turn 4 years old in September. Alito sent the case back to the South Carolina courts, where Brown’s lawyer, John S. Nichols, vowed to continue the battle.

“He loves his daughter,” Nichols said of Brown, who has since married. “She’s thriving. He calls that child ‘my entire life.’”

Lawyers for Native American groups decried the decision but said they were relieved that it focused narrowly on Veronica’s plight and did not overturn the law.

Sotomayor wrote a strongly worded dissent that accused Alito of creating “a lingering mood of disapprobation” because Veronica is considered a member of the Cherokee Nation.

“Baby Girl has now resided with her father for 18 months,” Sotomayor wrote. “However difficult it must have been for her to leave [the Capobiancos’] home when she was just over 2 years old, it will be equally devastating now, if, at the age of 3 1/2, she is again removed from her home and sent to live halfway across the country.”