South Carolina Supreme Court Upholds Return of 2 year old Cherokee

Levi Rickert, editor-in-chief in Native Currents. Discussion »

COLUMBIA, SOUTH CAROLINA – In what is considered a victory for the Federal Indian Child Welfare Act, on Thursday, the South Carolina Supreme Court upheld a lower court's decision that returned an American Indian two year to her biological Cherokee father.

Veronica will remain with her Cherokee Father.

In a 73 page decision, the South Carolina Supreme Court justices, in a 3-2 split decision, declared the Indian Child Welfare Act confers custodial preference to the two year old's father, who is a tribal citizen of the Cherokee Nation of Oklahoma.

Throughout the document the true identities of the parties involved were not used because in adoption cases, identities are concealed due to privacy issues.

The father, Dusten Brown, and the child's mother never married even they were engaged prior to the birth of the child. The engagement was broken off and Brown was deployed to Iraq where he earned a Bronze Medal.

The child, Veronica, now two years old, was adopted by a couple from Charlestown, South Carolina. According to the court documents, the fact that Veronica had Indian blood was concealed from the adoption agency by the biological mother.

For a span of time he was unaware his child was put up for adoption. It was discovered that the adoption papers never disclosed Brown was a tribal citizen.

Upon his return from active duty, Brown went to court seeking custody of Veronica, using the Indian Child Welfare Act that was enacted in 1978 due to the large number of American Indian children that were removed from their homes. The Indian Child Welfare Act grants rights to American Indian children's tribes and family to raise Indian children in American Indian families.

Late last year, a lower South Carolina court awarded custody of Veronica to Brown. He journeyed to Charleston, South Carolina with his parents on New Year's Eve 2011 to get Veronica. The South Carolina adoptive parents appealed to the South Carolina Supreme Court this past April.

Thursday's ruling was written by Chief Justice Jean Toal, who writes:

"We do not take lightly the grave interests at stake in this case. However, we are constrained by the law and convinced by the facts that the transfer of custody to Father was required under the law. Adoptive Couple are ideal parents who have exhibited the ability to provide a loving family environment for Baby Girl. Thus, it is with a heavy heart that we affirm the family court order.

Because this case involves an Indian child, the ICWA applies and confers conclusive custodial preference to the Indian parent."

“In light of the South Carolina Supreme Court's decision regarding the custody of Baby Veronica, the National Indian Child Welfare Association commends the court's affirmation of the rights of Veronica's biological father, Dusten Brown, to maintain custody of his daughter. Our hearts go out to the families on both sides of this case. At the heart of the National Indian Child Welfare Association's mission is advocacy for full implementation of the Indian Child Welfare Act in order to protect all families from such tragic situations.”

commented Terry Cross, executive director of the National Indian Child Welfare Association, based in Portland, Oregon.

“We're very pleased with the results,”

Cherokee Nation Attorney General Todd Hembree said.

“This is a victory not only for the Cherokee baby and her father, but for all of Indian Country. The Cherokee Nation has done a great job to ensure the Indian Child Welfare Act is enforced to preserve Indian families.”

updated 9:30 am edt; posted July 27, 2012 6:50 am edt