For nine long months, a Minnesota woman kept her pregnancy a secret. Other than the baby’s father, no one could know that she was about to give birth and put her son up for adoption. Not her family, not her friends, and certainly not her tribe.
That’s because the woman is a member of the Mille Lacs Band of Ojibwe, a Native American tribe in central Minnesota. The couple she and the baby’s father have selected to adopt their son are not.
Minnesota state law requires that tribes be notified of any adoption of an Indian child, granting them access to private documents like birth certificates, medical histories and criminal background checks that in any other circumstance would be completely confidential. It also allows tribes to intervene in the adoption — something that profoundly worried the Minnesota parents, who feared that their child would be removed from the home they’d chosen for him and placed with an Indian family instead.
Required to consent to the adoption in juvenile court, yet knowing that the mother’s tribe would be notified and might intervene as soon as they did so, the couple has sued the Mille Lacs Band of Ojibwe, the Minnesota Department of Human Services and the Minnesota Attorney General to allow the adoption to go forward. The federal lawsuit, filed last week in U.S. District Court in Minneapolis, says the Minnesota Indian Family Preservation Act violates the couple’s constitutional rights.
“For every other race, it’s illegal, it’s against the law to place a child on the basis of race in the United States,” one of their attorneys, Mark Fiddler, told Minnesota Public Radio. “Except if your child is Indian.”
Fiddler is a member of the Turtle Mountain Band of Chippewa Indians in North Dakota and the founding director of the Indian Child Welfare Law Center. He’s also a fierce critic of laws like Minnesota’s, which make it hard for Indian children to be taken from their tribes and their heritage. Two years ago, his case “Adoptive Couple v. Baby Girl,” colloquially known as “the baby Veronica case” made headlines when it went to the Supreme Court. The court eventually ruled that the federal Indian Child Welfare Act didn’t require that a little girl who had been put up for adoption by her non-Indian mother remain in the custody of her Cherokee father.
Laws like the Minnesota Indian Family Preservation Act and the ICWA were enacted decades ago, aimed at ending the abusive practice of removing Native American children from their families and placing them in white communities. Before the ICWA was passed, between a quarter and a third of Indian children were taken out of the custody of their parents — 90 percent of them wound up in non-native homes. The law sets up a hierarchy of preferences for the adoption of Indian children, requiring that family members be considered for custody first, then other members of the child’s tribe, then any Indian family. When it passed in 1978, the law was hailed as a landmark protection for tribes and their heritage.
The Minnesota law being challenged in the couple’s lawsuit is more expansive than its federal predecessor. Fiddler says the state law is interfering with native parents’ rights to make their own decisions about what is best for their child. And, in Minnesota’s case, it exposes their private records to public scrutiny.
According to the lawsuit the Minnesota couple, identified only as Jane and John Doe, have not had their parental rights taken away. Instead, they decided that adoption would be best for their baby “in light of their personal circumstances.” They made plans for an open adoption with the family they selected, allowing them to stay connected with their baby and teach him about his Indian heritage. The couple they have chosen is white.
Fiddler told the Minneapolis Star Tribune that some Indian couples choose a non-native family to adopt their child because of concerns about “family, alcoholism and other dysfunction.”
“They don’t want kids placed in that kind of environment,” he said. “It’s a sad comment on the Indian community. But the parents have the right to make these choices.”
Baby Doe, who was born in April, is currently living with his prospective adoptive parents, Fiddler said.
But tribal advocates say that laws like Minnesota’s and the federal ICWA provide much-needed protection against the erosion of native culture.
“The tribe has an interest in its member children,” Joe Plumer, a tribal attorney for the White Earth Band of Ojibwe who is not involved in the lawsuit, told Minnesota Public Radio. “When the permanent placement of minor children, tribal members, is being considered, then the tribe likes to have a voice in that to make sure that it’s the best thing because that child is the tribe’s future.”
Sandy White Hawk, a Sioux woman who was adopted by a white missionary family in the 1950s and now works with Indians who grew up in non-native families for the First Nations Repatriation Institute, said that separation from Indian culture can be traumatizing.
“We know that the children who grow up outside of their culture suffer greatly,” she told the Star Tribune. “The grief is loss of identity. Non-native homes cannot give an adopted Indian child their culture.”
White Hawk also noted that rates of suicide and depression among Indians who were adopted into non-native homes are high. She herself experienced that, she wrote in a biography for the First Nations Repatriation Institute Web site.
“I didn’t look like any one around me. Which lead to unbearable feelings of isolation,” she wrote. “I did not grow up looking into Indian faces, looking at Indian bodies. All I knew was that I did not fit in anywhere, and at the age of fourteen I learned to numb those desperate feelings with alcohol and drugs.”
“Attending social gatherings, ceremonies and pow wows has returned the years eaten away by the pain of separation from my spiritual center,” her essay continues.
Representatives for the Minnesota Department of Human Services and Attorney General Lori Swanson both declined to comment on the lawsuit to the Star Tribune. Swanson’s office added that she had been improperly listed as a defendant. As of Tuesday, a spokesman for the Mille Lacs Band of Ojibwe told the paper that the tribe had not yet been served with the suit.
Meanwhile, the couple’s lawsuit calls their situation “an emergency.” They have 60 days from the time of their son’s placement to submit their consent to his adoption. As soon as they do, the juvenile court will be required to notify the mother’s tribe — exposing the couple to pressure and scorn from her community, and possibly resulting in their son being taken from the home they’d chosen for him. They’re seeking an exemption from the notification requirement of the Minnesota Indian Family Preservation Act and asking the court to allow their adoption to go ahead as planned.
Fiddler told the Star Tribune that this is the first suit he’s aware of that challenges the state law’s notification requirements, which he contends are discriminatory.
“Indian parents are the only parents in the state that have that duty to notify,” Fiddler said. “In an adoption, all of that information is private and confidential. If you’re Indian, that has to be surrendered to the tribe.”
Correction: An initial version of this story incorrectly said that Mark Fiddler believed the Does had not placed their child with a non-Indian family because of concerns about dysfunction. He actually told the Star Tribune that it is his experience generally that Indian couples place their children with adoptive families outside their tribes for that reason.