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U.S. Supreme Court case considering Indian adoption

By The Associated Press

This article was published January 20, 2013 at 9:52 a.m.

— 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.

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