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Baby Veronica battle revived

The legal tug-of-war over a Cherokee Nation girl named Veronica now has a new audience in the U.S. Supreme Court, much to the disappointment and annoyance of her father’s attorneys.

They’d hoped that the emotional case had finally reached an end in July when a divided South Carolina Supreme Court affirmed a family court order that the adoptive couple who had raised Veronica since infancy had to return her to her Native American father in Oklahoma.

The battle over Veronica, which has garnered coverage everywhere from The New York Times to the Dr. Phil Show, centers on the Indian Child Welfare Act, a federal law enacted in 1978 to protect and preserve Native American culture by keeping Indian children with their biological families.

The U.S. Supreme Court has issued just one ruling on ICWA, and that was back in 1989. Since then, the court has consistently declined to get involved in ICWA cases – until Jan. 4, when it agreed to hear Veronica’s case.

The adoptive couple has argued that Veronica’s father gave up his custody rights under state law by not paying child support or visiting with his daughter for six months. The father contends that he was duped by the birth mother. His attorneys also believe that the lawyers who handled the adoption failed to follow federal and state law, and may have tried to cover up the fact that Veronica is Cherokee.

After their setback in state court, the adoptive couple gained the pro-bono assistance of top gun appellate attorney Lisa S. Blatt, a partner at Arnold & Porter in Washington, D.C., who clerked for Justice Ruth Bader Ginsburg. They also have backing from former U.S. Solicitor General Paul D. Clement, who filed an amicus brief on behalf of Veronica and her guardian ad litem. Blatt declined an interview request and Clement could not be reached.

The couple’s “full-court press” helped keep the case alive, but it also may have been a matter of timing, said an appellate attorney for her father, John S. Nichols of Bluestein, Nichols, Thompson & Delgado in Columbia.

“Furthermore, the [U.S. Supreme] Court didn’t have a whole lot to fill out its roster and I was afraid of this,” he said. “It’s either grant petitions in terms of interesting cases or cancel terms of court.”

In their petition for cert, the couple asserted that appellate courts across the country are divided over whether an Indian parent who abandoned a child under state law can use ICWA to keep a custodial non-Indian parent from putting the child up for adoption. They also have asked the court to clarify the definition of parent under the act.

Meanwhile, Nichols contends that the couple’s appellate team, which includes ICWA specialist Mark D. Fiddler of Minneapolis, “have manufactured what they claim is a dispute among the circuits that does not exist.”

“At bottom, they want [the court] to say that the state’s determination of the best interests of the child should control over the Indian Child Welfare Act,” he added. “It’s that thinking that specifically led Congress to enact the [ICWA] statute.”

While Blatt has argued 30 cases before the U.S. Supreme Court – losing just one – this will be Nichols’ first time in the nation’s highest court.

“It’ll be interesting,” he said.

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