On September 23, 2013, the Oklahoma Supreme Court lifted a week-long stay of a lower court ruling that required Dusten Brown to turn over custody of his daughter, Veronica, to her adoptive parents, Matt and Melanie Capobianco. Veronica had spent the previous two years with Brown, her birth father, and his family in Nowata, Oklahoma, a small town within the historical boundary of the Cherokee Nation. Veronica had just celebrated her fourth birthday. Just a few short hours after the Court order, she was back with her adoptive parents and on the way to their home in South Carolina.

Over the past decade, Veronica and her families have largely returned to their normal lives, out of the glare of the judicial limelight they’d been under for years. But the Supreme Court case that resolved this fight—Adoptive Couple v. Baby Girl, which the justices decided ten years ago this month—is just part of Brown’s heartbreaking custody battle for his daughter. It is also part of a movement to pare back Tribal sovereignty, which continues to this day—and which, in a Court controlled by a conservative supermajority, is likely to get worse in the years to come.

Veronica was born to Christy Maldonado and Dusten Brown on September 15, 2009. The two had been engaged for a month when Maldonado became pregnant. According to the Capobiancos’ brief, Brown delivered an ultimatum when he learned that Maldonado was pregnant: The couple lived four hours apart at the time, and Brown refused to help pay medical expenses until Maldonado agreed to quit her job and move to the military base where Brown was stationed——which, according to the Capobiancos, Brown did so that his military pay would increase.

Rather than cede to Brown’s demands, Maldonado broke off the engagement, and by June 2009 had arranged a private adoption through the Nightlight Christian Adoptions Agency in Oklahoma, where she met the Capobiancos. Without him knowing of her plan, Maldonado asked Brown via text message whether he wanted to pay child support or relinquish his parental rights. Brown, a member of the U.S. Army who was preparing to deploy to Iraq, chose the second option.

This moment is critically important. Brown says that he didn’t understand what Maldonado was asking him: Again, Maldonado hadn’t told Brown that she was arranging to have the baby adopted, and Brown thought he was simply giving Maldonado full custody of Veronica. (Brown had a similar arrangement with his ex-wife and their daughter, which gave the mother full custody while allowing Brown visitation rights.) The text messages between Brown and Maldonado are not part of the record before the Supreme Court, so it’s unclear what led Brown to this conclusion. But, Brown says, if he had known he was giving up his right to ever take custody of the baby, he would have sought full custody then and there.

Brown’s lack of knowledge about Maldonado’s plan is crucial, because had he known that she planned to give baby Veronica up for adoption, he could have immediately invoked the Indian Child Welfare Act (ICWA). The ICWA applies to any adoption involving an Indian child. When she put Veronica up for adoption, Maldonado, who is not Native, told the adoption attorney that Brown was an enrolled citizen of the Cherokee Nation. The adoption attorney informed the Cherokee Nation, so that the Tribe could determine if the child is an Indian child under the ICWA, a 1978 federal law passed to stop a decades-long campaign of forcible adoptions of Indian children to non-Indian families. The law gives priority first to the child’s Indian family, and then to other Tribal citizens, before an outside adoption can take place.

But another twist of fate doomed Brown: When providing Brown’s information to the Cherokee Nation, the adoption attorney hired by the Capobiancos spelled Brown’s first name “Dustin” instead of “Dusten.” The attorney also gave the the incorrect birth day and birth year for Brown. Without accurate information on Brown, the Cherokee Nation determined that baby Veronica was not an Indian child under the ICWA and cleared Veronica for adoption outside the Tribe.

The Capobiancos claim that these were innocent clerical errors; Brown has used multiple spellings for his own name, and Maldonado claims to have not known Brown’s complete birth date. But Maldonado testified that she knew the determination could not be correct because she knew Brown was a citizen of the Cherokee Nation, and an opinion from the South Caroline Supreme Court would later acknowledge “some efforts to conceal [Brown’s] Indian status” to facilitate the adoption to the Capobioancos. To be sure, this doesn’t prove that the adoption attorney intentionally gave incorrect information, but the mistakes had the effect of failing to name Brown just the same—another example of how a system set up to protect Indian families can be so easily manipulated to their detriment.

Baby Veronica was taken by the Capobiancos immediately after her birth on September 15, 2009. Three days later, the couple filed an adoption action in their home state of South Carolina, but failed to serve Brown adoption papers for nearly four months. Again, accounts differ as to exactly why this happened, but Brown’s brief to the Supreme Court suggests that the Capobiancos intentionally delayed service of formal adoption papers to Brown until just a few days before he deployed to Iraq.

Brown, stationed at Fort Sill in Lawton, Oklahoma, met a process server at a nearby strip mall to sign the documents, still thinking that he was giving full custody to Maldonado. When the process server told Brown the truth—that Maldonado had given up custody months ago, and now, so had he—Brown panicked and tried to grab the papers back. The process server told him that he would go to prison if he damaged the documents.

Brown hired an attorney and filed a motion to stay the adoption pending his deployment so that he could pursue custody of his daughter. He also notified the Cherokee Nation about the girl’s eligibility for Tribal citizenship, and the Tribe intervened to stop the adoption under the ICWA. Thanks to his quick action and the Cherokee Nation’s involvement, Brown won in South Carolina family court, which found that Brown was a loving, capable father, and that absent a showing to the contrary, “parental rights could not be gained by adverse possession.” Brown took custody of Veronica on December 31, 2011—the first time they’d ever met.

The Capobiancos appealed the decision to the South Carolina Supreme Court, which affirmed the family court ruling. They then appealed to the U.S. Supreme Court, which agreed to take the case and heard oral argument in April 2013. It announced its decision in the case, which by then was known as Adoptive Couple v. Baby Girl, two months later. By this time, Veronica, 3, had lived with her father and his family in Eastern Oklahoma for nearly half her life. She had presumably learned to walk and talk in the presence of her birth relatives on land that her ancestors called home for two centuries. Her first day of preschool couldn’t have been far off.

In a 5-4 decision, however, the Supreme Court held that under the ICWA, an Indian parent challenging an outside adoption must prove that the adoption affirmatively interrupted the parent’s prior custody—that is, that an adoption would break up an existing family. An Indian parent like Brown, who had never had custody of their child, was out of luck.

Never has a Supreme Court opinion made me wish for Neil Gorsuch quite like Sam Alito’s majority. Its first sentence invokes blood quantum, an archaic concept created by the federal government that designates a person’s percentage, or quantum, of Indian blood based on their number of ancestors included on the original Indian census over a century ago. As an example, baby Veronica’s 3/256 blood quantum means that out of 256 lineal ancestors, three were included on the Dawes Rolls. Even though the Cherokee Nation and most Tribes have stopped using blood quantum in their citizenship requirements, the Bureau of Indian Affairs still assigns one via a “Certificate of Degree of Indian Blood” card it issues to each Tribal citizen.

Blood quantum was created to induce a procedural genocide of Native Americans. As Tribal citizens inter-married with non-citizens, their children’s blood quantums would continue to diminish until Natives had effectively bred themselves out of existence. Yet Alito’s opinion misreads the “3/256” on Veronica’s CDIB card to mean that she is only 1.2 percent Cherokee. Alito doesn’t outright say it, but the implication here is that such a low percentage of “Indian blood” somehow makes her less of an Indian.

There is no evidence that the number of Indian ancestors on the Dawes Rolls translates to an actual “percentage” of Indian blood. That’s just not how biological inheritance works. Native Americans are the only group in America that are subjected to this kind of analysis. If someone says they are Irish, or Scottish, no one asks them to prove it by their blood quantum. The fact that Alito invokes it as some kind of gotcha is offensive and plays right into the point of blood quantum: Rather than looking at the traditions or practices of Veronica’s Indian family, or how and why they became separated from those over the last two centuries, all Alito wants to discuss is whether her “percentage” is, in his judgment, enough.

Alito’s holding reversed the South Carolina Supreme Court’s ruling and remanded the case to family court, which found that absent the application of the ICWA, Brown could not intervene. He then challenged the South Carolina ruling in Oklahoma, but the Oklahoma Supreme Court refused to step in, and baby Veronica was returned to the Capobiancos in September 2013, just one week after her fourth birthday. A few months later, Brown and the Cherokee Nation announced that they would not pursue the matter further.

Before Adoptive Couple, the ICWA was one of the most important and successful pieces of Tribal rights legislation: It ended the adoption epidemic that saw hundreds of Native children forcefully adopted out of their Tribes and into white homes, and significantly reduced the overrepresentation of Native children in the foster care system. But the ICWA’s impact goes beyond numbers; it demonstrated a shift in the federal-Tribal relationship, as Congress began to recognize the importance of Tribal sovereignty and self-determination. The conservative wing of the Court was more than willing to tear down nearly half a century of progress in service of one rich, white family.

This case didn’t declare the ICWA unconstitutional, but conservatives, with financial support from the U.S. adoption industry, have continued to attack it. A case now pending before the Court, Brackeen v. Haaland, has the potential to finish what Adoptive Couple started and dismantle the law entirely. With an even stronger conservative majority in place, the law’s challengers might finally get their wish.

Latest News