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Cherokee Nation says sovereign immunity prevents it from having to pay adoption fight lawyers

November 25, 2013

Associated Press - November 23, 2013

TULSA, Oklahoma — Court documents filed by the Cherokee Nation state it would be "inappropriate, unreasonable and unconscionable" for the adopted parents of a 4-year-old Cherokee girl to seek more than $1 million in legal fees.

The tribe claims federal and state law gives the tribe sovereign immunity. But that would not apply to Dusten Brown, the biological father who had custody of Veronica for two years and fought a legal battle to keep her in Oklahoma.

With custody of the girl awarded to Matt and Melanie Capobianco, the South Carolina couple has filed a motion to collect more than $1 million in attorneys' fees from Brown and his tribe. The Tulsa World reports ( ) that a judge in Nowata County, where the Brown family lives, will likely have a hearing on the issue, but no date has been set.

The Cherokee Nation's assistant attorney general, Chrissi Nimmo, filed the arguments for the tribe, while Brown has separate attorneys. But the tribe said Brown was only thinking of his daughter when he fought court orders from South Carolina to hand over the girl.

"Cherokee Nation and Dusten Brown repeatedly asked every court involved to consider the present day circumstances," the tribe said, "and determine what was best for Veronica."

The Capobiancos have accused Brown and the tribe of dragging out the litigation by refusing for several weeks to obey a court order from South Carolina.

Brown and the tribe, however, were only doing what the Capobiancos themselves did in 2011, when courts originally ordered them to surrender custody of Veronica, according to the tribe's argument.

The Capobiancos appealed the decision for several weeks before giving the girl, who was then 2 years old, to her biological father, according to court records.

One of the couple's lawyers claims the Cherokee Nation waived its immunity by intervening in the case.

"It is also disappointing that they would try to hide behind immunity," Lori Alvino McGill told the newspaper, "and leave Mr. Brown holding the bag."

The Capobiancos arranged a private adoption with Brown's' ex-fiancee in 2009, but the tribe helped him win custody in 2011 by arguing that he never willingly gave up his parental rights.

The Capobiancos appealed all the way to the U.S. Supreme Court, where they successfully argued that Brown didn't have standing under the federal Indian Child Welfare Act, which had been a factor in the lower courts' ruling in his favor.

With ICWA no long applying to the case, South Carolina's high court reversed itself, ruling this summer that Brown's consent wasn't necessary for the adoption.

The Capobiancos spent two months in Oklahoma trying to enforce that decision, landing in half a dozen different court rooms across five separate counties.

Brown finally handed Veronica over Sept. 23 after an unfavorable ruling from the Oklahoma Supreme Court.

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