News Law and Policy

Oklahoma Supreme Court Extends ‘Stay’ in Baby Veronica Case

Jessica Mason Pieklo

The ruling keeps "Baby Veronica" in Oklahoma with Dusten Brown, her biological father, for now.

The Oklahoma Supreme Court Thursday left in place a “stay” in the execution of lower court orders in the case of “Baby Veronica,” a young Cherokee girl. The ruling keeps Veronica in Oklahoma with Dusten Brown, her biological father, for now, while the appeals process in the ongoing custody battle runs its course.

According to reports, the sealed order provides minimal details about the decision or the court’s reasoning, and with both parties in the case and their attorneys subject to gag orders, those involved are limited in what information they can offer. What is known is that the order is dated September 12 and does not make an earlier Oklahoma Supreme Court stay permanent, which means the court could lift it before the appeals process is completed. It is not clear at this time how long that process could take.

Brown claims he was misled into giving up any parental rights and thought he was only agreeing to relinquishing custodial rights to the birth mother. According to the many lower court proceedings, the girl’s adoptive parents, Matt and Melanie Capobianco, arranged a private adoption with Veronica’s birth mother, and came to Oklahoma for her birth on September 15, 2009.

As Tulsa World reported, Brown challenged the adoption in the Capobianco’s home state of South Carolina. Two years later, the South Carolina courts eventually gave Brown custody. But the Capobiancos appealed, and their case made it all the way to the U.S. Supreme Court, which ruled this summer that South Carolina had misread the Indian Child Welfare Act—which, among other things, set limitations on the adoption of Native children by non-Natives—in granting custody to Brown. As a result of the decision, South Carolina had to reconsider its original custody decision.

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In July, the South Carolina courts did just that with the South Carolina Supreme Court giving the Capobiancos custody of Baby Veronica. Since then, two other district courts in Oklahoma have sided with the Capobiancos and ordered that Baby Veronica be sent to them.

But Brown has appealed both the district court decisions in Oklahoma and South Carolina to the Oklahoma Supreme Court, according to Tulsa World. On August 30, the Oklahoma Supreme Court issued an order temporarily blocking the Capobiancos from taking Veronica out of the state. Because Brown is in violation of the South Carolina order, he faces possible extradition to the state, where If convicted of custodial interference he could be sentenced to up to five years in prison. His possible extradition hearing is currently scheduled for October 3.

News Law and Policy

Supreme Court Tie in Dollar General Case ‘Clear Victory’ for Tribal Sovereignty

Nicole Knight Shine

The case, Dollar General v. Mississippi Band of Choctaw Indians, hinged on whether the tribe had the authority to resolve civil lawsuits involving non-members—in this case, a $20 billion company—on Native lands.

A U.S. Supreme Court tie on Thursday represented a win for tribal court authority in a case involving a Dollar General employee accused of molesting a 13-year-old more than a decade ago.

The case, Dollar General v. Mississippi Band of Choctaw Indians, hinged on whether the tribe had the authority to resolve civil lawsuits involving non-members—in this case, a $20 billion company—on Native lands.

Justices deadlocked 4 to 4 in their opinion, leaving in place a federal appellate court decision that rejected Dollar General’s challenge to tribal court jurisdiction.

“It’s a clear victory,” said Mary Kathryn Nagle, counsel to the nonprofit National Indigenous Women’s Resource Center (NIWRC), in an interview with Rewire. NIWRC filed an amicus brief in the case in favor of tribal sovereignty, along with 104 other organizations. “Dollar General spent a lot of time, and lot of money, and a lot of resources attempting to completely eliminate tribal jurisdiction.”

In 2003, Dale Townsend, a Dollar General store manager, allegedly engaged in repeated acts of sexual molestation at the store on a then-13-year-old Choctaw boy, who was placed there by a youth job-training program. The Dollar General store sits on tribal trust lands, agreed to Mississippi Choctaw tribal court jurisdiction regarding its store lease, and operates under a business license issued under Choctaw code.

In 1981, the Court ruled in Montana v. United States that tribal authority extends to non-Natives entering into consensual relationships with a tribe “through commercial dealing, contracts, leases, or other arrangements,” as SCOTUSblog wrote in the case preview.

Dollar General, however, argued the tribal court had no authority. In its appeal, the Tennessee-based corporation invoked a 1978 ruling, Oliphant v. Suquamish Indian Tribe, in which the Supreme Court held that tribal courts lacked judicial power over non-members in criminal cases.

The boy’s case, however, was a civil matter. While the tribe’s attorney general took steps to bar the Dollar General manager from the reservation, the U.S. Attorney did not bring criminal charges against Townsend. The boy’s family is suing Dollar General and the store manager for damages in excess of $2.5 million, a case that can now continue in tribal court.

Advocates had called the closely watched case an “attack on tribal sovereignty.”

“Nowadays, it’s a very good thing when tribal rights and powers are freshly affirmed,” Robert Coulter, executive director of the Indian Law Resource Center, told Rewire in a phone interview Thursday. “Had Justice Scalia been sitting on the Court, this case would have depended on Scalia’s vote. That’s why there was a great deal of concern and anxiety about the outcome of the case.”

The death of conservative Justice Scalia, and Republican gridlock, has left the highest court in the land with only eight justices.

“If Dollar General had been successful … tribal governments would have been stripped of their inherent jurisdiction over the majority of individuals attempting to harm their men, women, and children,” Nagle, counsel for NIWRC, told Rewire.

“In Indian country, our men, women, and children face the highest rates of sexual assault, domestic violence, and murder—higher than any other population in the United States,” she noted. “The U.S. Department of Justice has reported that the majority of these assaults are committed by non-Indians.”

When prosecutors decline to pursue these kinds of crimes, survivors have increasingly turned to civil courts for recourse.  

More than four out of five Native women are subjected to some form of violence, and 56 percent have experienced sexual violence, according to a May 2016 National Institute of Justice Research Report.

Mississippi Choctaw Tribal Chief Phyllis Anderson told the Associated Press that the Supreme Court tie was a positive outcome “not only for our tribe, but for all of Indian country.”

Roundups Law and Policy

Gavel Drop: Supreme Court ‘Friends’ Are Usually White Guys

Imani Gandy & Jessica Mason Pieklo

Of course, the nation's highest court would consider white men the most natural fit as a "friend of the court" in legal proceedings.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts.

In “No One Could Have Predicted” news, when the Supreme Court appoints lawyers to argue as a “friend of the court,” the Court usually chooses white dudes.

Filed under the same “No One Could Have Predicted” category, radical anti-choice group Operation Save America is rallying support behind Alabama Supreme Court Justice Roy Moore, who faces yet another removal from the bench for refusing to recognize federal law—in this case, marriage equality.

After a 50-year battle, a small town in Mississippi is being forced to desegregate its middle and high schools. And yes, it is 2016.

Meanwhile, a new report issued by ProPublica shows the software used across the country to try and predict future criminals is biased against Black people.

Remember when Oklahoma was botching executions? Turns out that after first receiving the wrong execution drugs, Gov. Mary Fallin’s (R) top lawyer told prison officials to “Google” the drugs they did receive. Thankfully, that didn’t happen and a last-minute stay means Richard Glossip remains in an Oklahoma prison. Alive.

The National Park Service continues to be a difficult space for women to work within, as this latest sexual harassment investigation—and the ensuing resignation of the Grand Canyon national park superintendent—shows.

And the financial services sector also continues to be a difficult space for women workers.

Or any industry, apparently. Even with some of the best employment law protections on the books, a New York court still ruled against a woman who claims she was fired for being “too cute” and perceived by her boss as a threat to her marriage.

Liberty Counsel is itching for any fight they can get on the issue of transgender rights, this time asking the Supreme Court to take up its challenge to a Fairfax, Virginia, school district’s nondiscrimination ordinance.

Judges in Texas have some interesting ideas concerning the state’s relationship to the federal government. Like the idea that a federal trial court judge would oversee “ethical education” of any Washington-based Justice Department lawyer in any case—state or federal—in 26 states over the next five years.

Bah. A federal trial court upheld Virginia’s Voter ID law.