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Navajo Nation Opposes Adoption

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The person need not be Indian to be a parent, but only a "biological" parent of an "Indian child." Thus, parental status does not affect the "Indian child's" status. In other words, the child does not cease to be an Indian child just because the putative father is not a "parent." Section 1915, which concerns the adoptive placement preferences for Indian children, does not mention parental status either. It refers only to "[A]ny adoptive placement of an Indian child..."

ICWA simply applies to any Indian child, as determined by biology. The lack of established paternity affects the father's, but not the tribe's, rights. Otherwise ICWA would be undermined because, as in Holyfield, the tribe's interest is circumvented by the unilateral actions of an independent tribal member. The lack of a registered father should not relieve the agency from needing to use due diligence in trying to identify and notify the tribe. The father and the tribe are separate entities with separate notice rights. Making notice to the tribe dependent on the tribal member's putative father registration lets state law undermine ICWA.

The Existing Indian Family Doctrine

Some state courts have reasoned that the Indian Child must belong to an "existing Indian family." I disagree. Regardless of Utah law, I believe § 1902 must be liberally construed to protect the tribe. That section states that ICWA's policy is to protect the "best interests of Indian children" and to "promote the stability of Indian tribes" by placing Indian children in "adoptive homes that will reflect the unique values of Indian culture." Although 1902 speaks of the "removal of Indian children from their families," ICWA's ultimate concern is for the tribes to preserve their children.10 Once the child is an "Indian child," the tribe has an interest in preserving him.

ICWA's placement preferences do not improperly interfere with the non-Indian mother's individual parental rights. The Constitution does not give one the right to surrender a child for adoption,11 much less to dictate placement preferences.

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10 25 U.S.C. § 1901(2-3)

11 For example, Does 1-7 v. State, 993 P.2d 822, 836 (Or. App. 1999) ("[A] birth mother has no fundamental right under the federal constitution to have her child adopted...")

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