High court: State, not tribe, must preside over adoption
- Article by: ABBY SIMONS
- Star Tribune
- October 26, 2011 - 9:27 PM
Adoption proceedings for an Indian child whose parents' rights were terminated must take place within state courts, not tribal courts, the Minnesota Supreme Court ordered Wednesday.
In the 4-2 decision, the court reversed two earlier orders granting the White Earth Band of Ojibwe permission to handle the child's adoption within its tribal court.
In its order, the Supreme Court reasoned that under the Indian Child Welfare Act, tribal authority is limited to foster care placement and termination of parental rights -- not adoptive placement.
The child in question, identified in court documents as L.S., is an enrolled member of the White Earth Band of Ojibwe. The mother is white, and the couple's five older children have all been removed from parental care or have had their parental rights terminated. According to documents, neither parent lived on the White Earth Reservation.
After parental rights were terminated, a Fillmore County judge granted the White Earth Band of Ojibwe permission to transfer pre-adoption proceedings to its tribal court under the rules of the Indian Child Welfare Act. A guardian ad litem for the child objected, but the Court of Appeals upheld the ruling in favor of the tribe.
In its reversal, the Supreme Court said there is no language in the federal law granting tribes jurisdiction over adoptive placement proceedings for children not living on the reservation. Because the language in the law was ambiguous, the court reasoned that adoptive proceedings should be excluded, not included.
The court also reasoned that the White Earth tribal court also lacked jurisdiction over the termination of parental rights because the mother was not a member of the tribe and the child did not live on the reservation.
The case will now return to Fillmore County District Court, where a guardian ad litem will be re-appointed and pre-adoptive placement will take place under state jurisdiction.
In his dissent, Justice Paul H. Anderson wrote that there is no language in the law that prevents transfer of pre-adoptive and adoptive placement proceedings to a tribal court in cases involving Indian children who do not live on or are not from their tribe's reservation. In light of the law, which is meant to favor tribes, the omission should instead be interpreted as granting the tribe permission to preside over the child's adoption.
Abby Simons • 612-673-4921
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