The Enid News and Eagle, Enid, OK

National and world

September 4, 2013

Okla. gov. signs order for Cherokee girl's dad

OKLAHOMA CITY — Oklahoma Gov. Mary Fallin on Wednesday signed an extradition order to send the father of a Cherokee girl in the middle of a custody dispute to South Carolina to face a criminal charge for refusing to hand his 3-year-old daughter over to her adoptive parents.

But a lawyer for Dusten Brown said he doesn't believe his client will be extradited because he has not committed a crime and a judge will not enforce the order.

Brown was charged with custodial interference last month and a warrant for his arrest was issued out of South Carolina. Brown and Matt and Melanie Capobiano, of James Island, S.C., have been fighting for years over Veronica. The Capobiancos were finalized as her adoptive parents in July, but Brown did not turn over the 3-year-old girl.

The girl, who turns 4 later this month, has been staying with her grandparents and stepmother on Cherokee Nation land in Tahlequah, and Fallin's order does not affect her placement.

Fallin earlier said she would not sign the extradition order if Brown showed he was willing to work with the Capobiancos. But Fallin said Wednesday that Brown isn't showing a willingness to work with the couple.

"Unfortunately, it has become clear that Dusten Brown is not acting in good faith," Fallin said in a statement.

She said Brown has disobeyed a court order to allow the Capobiancos to visit Veronica.

"He is acting in open violation of both Oklahoma and South Carolina courts, which have granted custody of Veronica to the Capobiancos," she said. "Finally, he has cut off negotiations with the Capobiancos and shown no interest in pursuing any other course than yet another lengthy legal battle."

But one of Brown's lawyers, Clark Brewster, said that's not true and that the adoptive parents have met with Veronica many times recently.

Brown turned himself in to authorities in Sequoyah County in Oklahoma last month after the warrant was issued out of South Carolina on a charge of custodial interference. He posted bail, and a hearing is set for Sept. 12. Brewster said Brown will be back in court then — or sooner if necessary — to answer to a judge.

"He still has constitutional rights to due process," Brewster said. The judge "will have to make a determination whether the crime that's alleged by South Carolina is in fact a crime. It's not. I don't expect him to be extradited."

Veronica's birth mother was pregnant when she put the girl up for adoption, and the Capobiancos had been lined up to receive custody since 2009. But Brown and his family claimed the Indian Child Welfare Act mandated that the child be raised within the Cherokee Nation, and he won custody when the girl was 2.

A Cherokee Nation court had named the grandparents and stepmother as temporary guardians while Brown was out of the state undergoing National Guard training.

The Indian Child Welfare Act was passed in 1978 with the intent of reducing the high rates of Native American children being adopted by non-Native American families. A South Carolina court cited the law when awarding Veronica to Brown in 2011, but the U.S. Supreme Court said this summer the law did not apply in Brown's case because he had been absent from the child's life.

A South Carolina family court judge then ruled in July that custody be awarded to the Capobiancos and ordered Brown to hand Veronica over. Brown refused, and South Carolina authorities charged him with custodial interference after he failed to show up to a court-ordered meeting.

The dispute has raised questions about jurisdictions, tribal sovereignty and the federal law meant to help keep Native American tribes together. Veronica's birth mother is not Native American.


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