For months, a Twin Cities couple worked to keep their pregnancy a secret, never telling their friends and family, and most important, their tribes.
Minnesota law requires a tribe be notified of any adoption involving an American Indian child, but the couple feared that if their tribes learned of their plans to give the baby to a white couple, they would exercise their legal right to intervene and try to place the baby with Indian parents.
Now the couple are suing the Minnesota Department of Human Services, the Minnesota Attorney General and a commissioner with the Mille Lacs Band of Ojibwe to allow the adoption to go forward. In a federal lawsuit filed last week, the couple, identified only as John and Jane Doe, argue that the requirement to tell the tribe about the baby violates their constitutional right to due process and equal protection.
Advocates for the law say the couple are putting their own interests above the rights of the child, who would be better served with an Indian family.
The lawsuit challenges federal and state laws enacted in the 1970s and 1980s that sought to keep Indian children in Indian families. The laws were an attempt to remedy the tradition of breaking up Indian families by sending their children into institutions or to non-Indian adoptive parents. The couple want the court to throw out the state’s requirement to inform a tribe of an adoption.
“Indian parents are the only parents in the state that have that duty to notify,” said one the couple’s attorneys, Mark Fiddler. “In an adoption, all of that information is private and confidential. If you’re Indian, that has to be surrendered to the tribe.”
The couple chose a white family, Fiddler said, because “it’s been my experience in these cases that most of the birthparents identify problems with family, alcoholism and other dysfunction, and they don’t want kids placed in that kind of environment.”
“It’s a sad comment on the Indian community,” said Fiddler, a member of the Turtle Mountain Band of Chippewa Indians in North Dakota. “But the parents have the right to make these choices.”
Fiddler said this is the first lawsuit he’s aware of that challenges the notification requirements, which were imposed in 1997. Federal law bans discrimination in adoptions on the basis of race, but makes an exception for Indian children.
If either the couple or the adoption agency chose not to tell the tribe, they would open themselves to fraud charges and risk having the adoption voided if the truth were discovered, Fiddler said.
He noted that if the parents chose to have an abortion, they would not have to tell the tribe.
The parents declined to be interviewed for this story. The baby was born in April in Minneapolis and is currently living with the potential adoptive couple, Fiddler said.
Putting the baby with an Indian family would better serve the child, said Patina Park, an attorney and the executive director of the Minnesota Indian Women’s Resource Center. A tribe plays a strong role as a parent to adopted Indian children, Park said, helping to connect them to their culture. That can’t be done by a white family, Park said, no matter how caring they are.
“This is a way to get Indian children adopted into non-Indian families,” she said.
Sandy White Hawk said she has counseled hundreds of Indians who were adopted into white families as part of the First Nations Repatriation Institute. She said the rates of suicide and depression among those Indians are high.
“We know that the children who grow up outside of their culture suffer greatly,” she said. “The grief is loss of identity. Nonnative homes cannot give an adopted Indian child their culture.”
The health commissioner for the Mille Lacs Band of Ojibwe named in the suit, Samuel Moose, did not return a call requesting comment. A spokesman for the band said they have not yet been served with the lawsuit.
A spokeswoman for Minnesota’s Department of Human Services declined to comment, saying the agency needed to review the lawsuit. A spokesman from the attorney general’s office declined to comment on the lawsuit, saying the office was improperly listed as a defendant.