According to an article in the Salt Lake Tribune three months ago, the Navajo Nation asked a federal judge to stop the adoption of a 20-month-old girl whose father was Navajo Nation member.1 The nation claimed the adoption agency did not properly inform it of the proceeding under the Indian Child Welfare Act (ICWA). 2 The tribe claims the mother told the agency of the child's possible Navajo ancestry before the birth. But the mother refused to identify the father. The agency proceeded with an adoption, finding no fathers listed in Utah's Putative Father Registry. The father did not know about the baby until after the birth. The Utah court denied his custody petition.
The article did not relate how the adoption agency tried to identify or notify the tribe timely. Section 1912(a) of ICWA states:
- In any involuntary proceeding in a State court, where the court..has reason to know that an Indian child is involved, the party seeking the...termination of parental rights...shall notify the parent and...the Indian childs tribe...of the pending proceedings and of their right of intervention. If the identity or location of the parent and the ...tribe cannot be determined, such notice shall be given to the Secretary...who shall have fifteen days...to provide the requisite notice to the parent and the...tribe.
I lack enough facts to say whether the mother's alleged privacy right trumped any need for the agency to investigate the father's identity beyond searching the putative father registry and alerting the secretary. But the following issue is answerable:
Whether a tribe has an interest in an infant who has no Indian "parent" and is not a member of an existing Indian family--but whose biological father is a tribal member?
I answer yes. Accordingly, the court should let the tribe intervene, or grant relief from the judgment, and apply the placement preferences under ICWA.
ICWA aims to "
rotect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture..."3
ICWA applies equally to placements of children "removed" from a home as to children voluntary surrendered for adoption. As a later section of ICWA states: "In any adoptive placement of an Indian child under State law, a preference shall be given...to..(1) a member of the childs extended family; (2) other members of the Indian childs tribe; or (3) other Indian families.4 (Emphasis added.) Adoptive placement, in turn, means "any action resulting in a final decree of adoption."5
The U.S. Supreme court case of Mississippi Choctaw Indian Band v. Holyfield,6 also supports the general application of ICWA. There, both parents were tribal members who moved off of the reservation to avoid tribal court jurisdiction. The Supreme Court held that the children having been voluntarily surrendered did not alter the jurisdictional question:
"Nor can the result be any different simply because the twins were "voluntarily surrendered" by their mother. Tribal jurisdiction...was not meant to be defeated by the actions of individual members of the tribe, for Congress was concerned not solely about the interests of Indian children and families, but also about the impact on the tribes themselves of the large numbers of Indian children adopted by non-Indians."7
This case differs from Holyfield mainly in that no established Indian "parent" exists. We analyze ICWA further to see if that defeats the tribe.
An "Indian Child" is "[A]ny unmarried person who is under age eighteen...and (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe[.]8
The child in this case presumably qualified as an Indian child by being eligible for membership in a tribe through the biological father who was a confirmed tribal member.
ICWA defines parent as "[A]ny biological parent...of an Indian child.... It does not include the unwed father where paternity has not been acknowledged or established[.]"9
1Navajo Nation disputes adoption Kirsten Stewart and Elizabeth Neff. The Salt Lake Tribune. October 26, 2006.
2 25 U.S.C. § 1901 et seq.
3 25 U.S.C. § 1902.
4 25 U.S.C. § 1915.
5 25 U.S.C. § 1903(1)(iv).
6 490 U.S. 30 (1989).
7 Id. at 50.
8 25 U.S.C. § 1903(4).
9 25 U.S.C. § 1903(4).