Cherokee Nation father Dusten Brown and his family in Oklahoma. Photo Courtesy National Indian Child Welfare Association

A Cherokee Nation man whose Indian Child Welfare Act case went all the way to the U.S. Supreme Court lost custody of his daughter to a non-Indian couple on Monday.

Dusten Brown was battling to keep custody of his daughter, Veronica, who turned 4 last week. But he agreed to the transfer after the Oklahoma Supreme Court cleared the way for the girl to be adopted by the non-Indian couple.

"Dusten and his wife Robin packed two bags for Veronica, one with clothing and one with toys," Cherokee Nation Attorney General Todd Hembree said in a statement. "Dusten told Veronica how much he and the rest of the family love her, and that he would see her again

"Dusten Brown was just as brave today, as we he was when he fought for our country in Iraq," Hembree added."Although this is not something any parent should ever have to do, we could not be more proud of the dignity and courage with which he carried himself."

In a separate statement, Hembree indicated that the Cherokee Nation will continue to defend Brown's rights. The tribe's court system has a conflicting custody order in the case.

"We are a sovereign nation with a valid and historic court system," Hembree said in the statement. "As Attorney General, I will require that our court system be honored and respected."

For now, the girl has been taken to South Carolina by Matt and Melanie Capobianco, a non-Indian couple who arranged the adoption without Brown's consent. When they lost an ICWA decision in their state court, they asked the U.S. Supreme Court to intervene.

On June 25, the Supreme Court sided with the non-Indian couple. The majority ruled that ICWA did not apply in Brown's situation because he "abandoned" his daughter and never had custody of her.

The South Carolina courts moved quickly to finalize the adoption. But as Brown was pursuing his appeals in that state, he was sent to military service in Iowa, preventing him from physically complying with an order to transfer his daughter to the couple.

After completing his service, Brown turned himself into Oklahoma authorities in anticipation of being extradited to South Carolina to face custodial interference charges. In the meantime, the non-Indian couple traveled to Oklahoma and a new round of litigation began in the Oklahoma courts.

But rather than look at the situation anew, two Oklahoma courts ordered Brown to hand over his daughter. The Oklahoma Supreme Court put a stay on those orders pending an appeal.

Meanwhile, Brown and the couple engaged in several days of mediation, according to news reports. Those talks ended last week without an agreement, according to the reports, and the Oklahoma Supreme Court lifted the stay in its decision on Monday.

Not all of the judges on the Oklahoma Supreme Court agreed with the outcome. Justice John Reif questioned whether ICWA was followed and why further hearings weren't held to determine whether it was in the best interests of the girl to be adopted.

"Nothing in the United States Supreme Court opinion states or even hints that this protection of Veronica as an Indian Child under the federal Indian Child Welfare Act was not correct or could not be applied as law of the case on remand," Reif wrote in his dissent. "Nothing in the opinion of the South Carolina Supreme Court on remand or in the family court adoption decree reflects that this special best interests inquiry and determination were made in finalizing the adoption."

“Baby Girl deserves her day in court,” Justice Noma Gurich wrote in her dissent.

Get the Story:
After Okla. court ruling, Cherokee girl at center of custody dispute goes to adoptive parents (AP 9/23)
Cherokee Nation: Child at center of custody dispute handed over to adoptive parents (AP 9/23)
Oklahoma Supreme Court lifts order keeping Cherokee girl with biological father in Oklahoma (AP 9/23)
Veronica in Capobiancos’ care ‘a sweet thing to finally see,’ attorney says (The Charleston Post and Courier 9/24)
State court orders Baby Veronica to adoptive parents (The Tulsa World 9/24)

Oklahoma Supreme Court Decision:
Brown v. DeLapp (September 23, 2013)

U.S. Supreme Court Decision:
Adoptive Couple v. Baby Girl (June 25, 2013)

Related Stories:
Court holds second day of hearings in Cherokee custody case (9/18)
Oklahoma court hears custody dispute involving Cherokee girl (9/16)
Christian evangelicals support adoptive couple in ICWA case (9/13)
Scott Starr: Conservative politics affect Cherokee ICWA case (9/12)
UN official urges consideration of culture in adoption dispute (9/11)
Cherokee Nation father files second appeal in adoption dispute (9/9)