The opinion
REIF, V.C.J.,
dissenting:
¶ 1 I respectfully dissent to the denial of the application to assume original jurisdiction and the vacation of the emergency stay.
¶ 2 Unwed father Dusten Brown and the Cherokee Nation ask this Court to assume original jurisdiction and to deny full faith and credit to a South Carolina adoption decree. This decree allowed the adoption of Mr. Brown's daughter, Veronica, without his consent and over the objection of the Cherokee Nation. The adoption decree is the culmination of protracted litigation between Mr. Brown and the Cherokee Nation on the one hand, and the Adoptive Parents and the consenting biological mother on the other.
¶ 3 The history of the litigation between the parties is recounted in two published opinions by the South Carolina Supreme Court-Adoptive Couple v. Baby Girl, 398 S.C. 625 , 731 S.E.2d 550 (2012); Adoptive Couple v. Baby Girl [Adoptive Couple II], 404 S.C. 483 , 746 S.E.2d 51 (2013)-and a published opinion of the United States Supreme Court, Adoptive Couple v. Baby Girl, - U.S. -, 133 S.Ct. 2552 , 186 LEd.2d 729 (2013). These opinions are not only important for the history of the case, but because they form the settled law of the case on all issues, including the necessity of Mr. Brown's consent to the adoption.
¶ 4 Briefly, the first opinion of the South Carolina Supreme Court applied the doctrine of law of the case in determining South Carolina was Veronica's "home state," rather than Oklahoma where she was born. See Adoptive Couple, 731 S.E.2d at 559 . This opinion also noted that the adoption could take place under South Carolina law without Mr. Brown's consent, if not for his status as an "Indian parent" under the federal Indian Child Welfare Act, 25 U.S.C. §§ 1901 *919 through 19683. The South Carolina Supreme Court refused to allow the adoption without Mr. Brown's consent because the requirements of sections 1912(d) and (£) of the federal Indian Child Welfare Act were not met. 1
¶ 5 The United States Supreme Court granted certiorari to review the South Carolina Supreme Court's interpretation of the federal Indian Child Welfare Act as applied to Mr. Brown's parental rights. The United States Supreme Court ruled that the federal Indian Child Welfare Act did not apply to Mr. Brown's parental rights The Court reached this conclusion because Mr. Brown (1) never had physical or legal custody of Veronica, and (2) had made no meaningful attempts to assume his responsibility of parenthood during Mother's pregnancy or in the four-month period after Veronica's birth and prior to the filing of the adoption proceeding. The United States Supreme Court reversed the judgment of the South Carolina Supreme Court and remanded for further proceedings not inconsistent with the United States Supreme Court's opinion.
¶ 6 In its opinion on remand from the United States Supreme Court, the South Carolina Supreme Court noted "our previous decision ... held that, under state law, [Mr. Brown's] consent to the adoption was not required." Adoptive Couple II, 746 S.E.2d at 53 (citing Adoptive Couple, 731 S.E.2d at 560, n. 19 .) South Carolina statutory law requires the consent of an unwed father in adoption placements within six months or less after the child's birth, only if (1) the father. lived with the child or the child's mother is in the six month period prior to the adoption placement, or (2) the father paid a fair and reasonable support of the child or the expenses of the mother's pregnancy. Oklahoma has a statute that provides that an unwed father's consent to adoption is not required in similar cireumstances. 2
¶ 7 Under this settled law of the case, Mr. Brown's consent to the South Carolina adoption of Veronica was not required, and would not have been required even if the adoption had been pursued under Oklahoma law. However; this settled law of the case issue alone does not compel this Court to recognize the South Carolina adoption decree in toto under 10 0.8.2011 § 7505-1.4 or to give it full faith and credit. Other settled law of the case also protects the interests of Veronica as an "Indian child," independent of the interests of Mr. Brown or any of the other parties to this case.
¶ 8 The South Carolina Supreme Court stated: "Where an Indian child's best inter *920 ests are at stake, [an] inquiry into that child's best interests must also account for his or ber status as an Indian child, and therefore, must also inquire into whether the placement is in the best interests of the Indian child." Adoptive Couple, 731 S.E.2d at 565 (emphasis in original). The South Carolina Supreme Court further observed that: "In making this determination, the child's relationship with his or her tribe is an important consideration, as the [federal Indian Child Welfare Act] is 'based on the fundamental assumption that it is in the Indian child's best interest that [his or her] relationship to the tribe be protected."" Id. As specifically applied to Veronica, the South Carolina Supreme Court held that "[shel, as an Indian child, has a strong interest in retaining ties to her cultural heritage." Id.
¶ 9 The South Carolina Supreme Court not only said that this special best interests inquiry and determination must be made in this case, but also emphasized that " '[when] parental rights and the best interests of the child are in conflict, the best interests of the child must prevail'" Adoptive Couple, 731 S.E.2d at 566 (quoting the family court order). At the very least, this calls for accommodation of Veronica's "strong interest in her cultural heritage" with the parental rights of the Adoptive Parents.
¶ 10 Nothing in the United States Supreme Court opinion states or even hints that this protection of Veronica as an Indian Child under the federal Indian Child Welfare Act was not correct or could not be applied as law of the case on remand. Nothing in the opinion of the South Carolina Supreme Court on remand or in the family court adoption decree reflects that this special best interests inquiry and determination were made in finalizing the adoption.
¶ 11 Veronica was entitled to this special best interests inquiry and determination under the settled law of the case and as a matter of due process. To the extent that the South Carolina adoption decree denied Veronica due process, it is not entitled to recognition under 10 0.S.2011 § 7502-1.4, or under the Full Faith and Credit Clause.
¶ 12 In addition to Veronica's interests, the Cherokee Nation has been a party to all of the proceedings in the courts of South Carolina, in the United States Supreme Court, and in the courts of this State. As such, the Cherokee Nation has a direct and substantial interest in seeing that Veronica's rights as an Indian child and member of the Cherokee Nation are fully protected, including the right to the special best interests determination under the law of the case. It would be virtually impossible for any court to make this special best interests determination without hearing from the Cherokee Nation.
¶ 13 The denial of due process to Veronica and the Cherokee Nation warrant the exercise of this Court's original jurisdiction in the enforcement of the South Carolina decree. The totality of the cireumstances surrounding this case also call for this Court to fashion a remedy for such denial, while at the same time recognizing the finality of the South Carolina adoption decree insofar as the rights of Mr. Brown, the Adoptive Parents and the consenting birth mother are concerned.
¶ 14 The submission of the South Carolina adoption decree to the courts of this State for enforcement invokes, at a minimum, the due process protection of Oklahoma law. In addition, Oklahoma and South Carolina have mutual interests in seeing this case brought to finality. The only way to do this is to treat fulfillment of the special best interests determination as a condition to the enforcement of the decree. Because all the parties are before this Court, and all parties are aware of and bound by this law of the case requirement, this Court is a proper forum for the special best interests inquiry and determination.
¶ 5 This Court should first assume original jurisdiction and continue the emergency stay. Second, this Court should consolidate the appeal from the Cherokee County habeas corpus proceeding with this original proceeding and extend the emergency stay to that proceeding as well. Third, this Court should appoint a retired active judge as special master to hear the parties on the issue of Veronica's best interests as an Indian Child and member of the Cherokee Nation, including continued contact with the members of her *921 Cherokee family. This Court should allow the parties two days to agree upon a retired active judge and, if they cannot do so, instruct them to submit objections to any of the retired active judges serving as special master in that same time frame. Fourth, this Court should instruct the special master to conduct the hearing within five days of the order appointing the special master and to submit recommendations to this Court within five days of the hearing. Last, upon receipt of the special master's report, this Court should forthwith enter a determination concerning Veronica's best interests as an Indian Child and member of the Cherokee Nation. This determination should be set forth in an order that recognizes the adoption decree under § 7502-1.4 and: gives it. full faith and credit; such determination being subject to modification by an appropriate court of South Carolina upon a showing of changed conditions.
. Title 25 U.S.C. § 1912 (d) provides:
Remedial services and rehabilitative programs; preventive measures ,
Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.
and 25 U.S.C. § 1912 (f) provides:
Parental rights termination orders; evidence; determination of damage to child
No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
. Title 10 0.$.2011 § 7505-4.2, states:
C. Consent to adoption is not required from a father or putative father of a minor born out of wedlock if:
1. The minor is placed for adoption within ninety (90) days of birth, and the father or putative father fails to show he has exercised parental rights or duties towards the minor, including, but not limited to, failure to contribute to the support of the mother of the child to the extent of his financial ability during her term of pregnancy; or
2. The minor is placed for adoption within fourteen (14) months of birth, and the father or putative father fails to show that he has exercised parental rights or duties towards the minor, including, but not limited to, failure to contribute to the support of the minor to the extent of his financial ability, which may include consideration of his failure to contribute to the support of the mother of the child to the extent of his financial ability during her term of pregnancy. Failure to contribute to the support of the mother during her term of pregnancy shall not in and of itself be grounds for finding the minor eligible for adoption without such father's consent.
The incarceration of a parent in and of itself shall not prevent the adoption of a minor without consent.