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Tribe Attempts to Use Sovereign Immunity to Avoid Paying Attorneys Fees

Cherokee Nation found it “inappropriate, unreasonable and unconscionable” for Baby Veronica’s adopted parents to seek more than $1 million in legal fees from Brown and the Tribe. Generally, “[f]ederal and state law gives the tribe sovereign immunity from any efforts to collect money.”

But, sovereign immunity would not apply to Dusten Brown, the biological father of Veronica, who is a member of the tribe. Brown had legal custody of her for two years and fought an “epic legal battle to keep [Veronica] in Oklahoma.”

Custody of the 4-year-old was awarded to Matt and Melanie Capobianco. They subsequently filed a motion on November 1, 2013 to collect “$1,028,796.50 in attorney fees from Brown and his tribe.”

A judge in Nowata County will probably hold a hearing on the matter, but no date has been set. Chrissi Nimmo, the Cherokee Nation’s assistant attorney general, filed the arguments for the Tribe. While Brown has hired separate attorneys, some of Nimmo’s arguments seem to apply equally to him.

Nimmo argues that by fighting court orders from South Carolina to hand over the girl, “Brown was only thinking of his daughter.” The tribe said, “Cherokee Nation and Dusten Brown repeatedly asked every court involved to . . . determine what was best for Veronica.” The Capobiancos are accusing Brown and the tribe of prolonging the litigation unnecessarily.

Brown and the tribe believe they were merely playing the Capobiancos game. According to the tribe, when the courts originally ordered the Capobiancos to surrender custody of Veronica, the Capobiancos appealed the decision for several weeks before turning her over to her biological father.

The tribe also insists that the Capobiancos were never paying their attorneys anyways. The Capobiancos’ attorneys have publicly stated that they are working “pro bono.”

According to lawyers from Washington D.C., Cherokee Nation waived its sovereign immunity by intervening in the case.

This all began after the Capobiancos “arranged a private adoption with Brown’s ex-fiancee in 2009.” The tribe intervened on Brown’s behalf “arguing that he never willingly gave up his parental rights.”

The case made it all the way to the United States Supreme Court, where it was argued that “Brown didn’t have standing under the federal Indian Child Welfare Act.” The ICWA had been a factor in lower courts’ ruling in Brown’s favor.

Once the ICWA no longer applied, South Carolina’s highest court reversed itself and held that “Brown’s consent was not necessary for the adoption.” The Capobiancos had to spend two months in Oklahoma attempting to enforce that decision.

Veronica was finally handed over to the Capobiancos on September 23, 2013 after the Oklahoma Supreme Court ruled against Brown. The attorneys’ fee issue has yet to be decided.

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