By RCA, July 1, 2015
An unnamed Mille Lacs Band member is challenging a Minnesota law that requires tribal notification when Indian babies are put up for adoption.
In early June, the mother and father of the baby filed suit in federal court against the Minnesota Department of Human Services, Minnesota Attorney General Lori Swanson, and Mille Lacs Band Commissioner of Health and Human Services Sam Moose.
Mille Lacs Band Solicitor General Todd Matha said, “While Commissioner Moose is a named defendant in the case, he has neither committed nor intends to commit a violation of state or federal law. Consequently, the Band will vigorously defend its executive officer in federal district court and seek an immediate dismissal of this suit.”
According to Matha, tribes cannot be sued because they have sovereign immunity, but individual tribal officials can be sued under certain circumstances.
The lawsuit challenges the constitutionality of the Minnesota Indian Family Preservation Act, which was passed in 1985 to require tribes to be notified when children who are members require out-of-home placements. It was updated in 1997 to require adoption agencies and attorneys to notify tribal social services of adoptions involving Indian children, including information about parents who voluntarily give their children up for adoption.
The parents chose a non-Indian family to raise their child in an “open adoption” and were told the tribe would have to be notified. The birth parents said they intended to maintain contact with the child and to teach him about his Indian heritage, according to the Washington Post.
The state MIFPA law, like the federal Indian Child Welfare Act (ICWA), was put in place because of the high number of Indian children placed in boarding schools or non-Indian families. Tribes argued that they had an interest in the placement of Indian children to preserve their cultures and foster the health of Indian children.
ICWA, which was passed in 1978, gives preference to family members in adoption of Indian children, followed by other tribal members and other Indians.
The parents in the current suit, referred to as “Jane and John Doe,” claim that the law violates their right to privacy and equal protection. Their attorney, Turtle Mountain Ojibwe member Mark Fiddler, says the law is unfair because race cannot play a role in adoption for anyone except Indians. He says it allows the tribe to “second guess” the decision of parents.
Fiddler also represented the mother in an Indian adoption case that went to the U.S. Supreme Court in 2013. In that case, known as the “Baby Veronica” case, the Supreme Court determined that ICWA did not prevent a non-Indian mother from putting her daughter up for adoption, since the Indian father had given up custodial rights.
Sam Moose told Minnesota Public Radio that the Mille Lacs Band has traditionally enforced laws that protect cultural identity of tribes and individuals. “It’s important for children to understand their identity, to have access to the tribe’s resources and to be supported in that process. It’s critical to the development of the child. It’s in the child’s best interest with regards to welfare and health.”
The baby is currently living with the prospective adoptive parents. The case is expected to be resolved quickly because an adoption hearing is scheduled for July 8, and the matter must be settled before the adoption can be finalized.