Legal issues in the Minnesota adoption of a Native American child

Complicated federal and state laws are involved.

In January 2017, the U.S. Supreme Court said it would not consider the suit of California foster parents trying to adopt a six-year-old child of Native American heritage who had been a foster child in their home for four years. Central to the case was the Indian Child Welfare Act, which requires that a Native American child in an adoption be placed with a person in the child's extended family of origin, with someone in the child's tribe or with another Indian family, unless good cause to deviate from these preferences in this order can be shown.

The federal IWCA

The ICWA also requires that if the child's tribe wishes these adoption-placement preferences to vary, the court must respect that wish so long as the resulting placement is the "least restrictive setting appropriate to the particular needs of the child." The court may also weigh the preferences of the child or its parent.

In the California case, the child's father is part Choctaw and his extended family wanted to care for her at their home in Utah. The courts upheld that request based on the ICWA preferences, despite her having spent most of her life with the foster family.

This case illustrates the power of the ICWA to keep Indian children within their own family and culture absent strong reason for deviation. Originally enacted in 1978, its aim was to stop the traumatic breakup of Indian families and culture.

The Act has many other provisions dealing with foster and preadoptive placements, tribal courts, termination of parental rights and other related matters. Embedded throughout the law are provisions that aim to strengthen Indian families and communities, and that make it challenging to overcome the IWCA's strong preferences to that end.

For example, termination of parental rights to an Indian child requires evidence beyond a reasonable doubt that remaining with the biological parent or another Indian custodian is likely to cause "serious emotional or physical damage" to the child. This must be shown at a minimum by the testimony of a "qualified expert witness." From a legal standpoint, these are high bars to meet, illustrating the seriousness of the law's intentions.

Seek legal advice

The Act is extremely complicated, with strict notice, deadline and procedural requirements. Anyone - whether non-Native American or Indian - involved in the foster placement, termination of parental rights or adoption of a child who is all or part Native American should involve an attorney as early as possible. Legal representation is important for biological, foster and adoptive parents as well as for any extended family members or Native American families seeking to intervene in the matter.

Strict compliance with the law is important so that the court's orders - involving a child's placement - cannot later be challenged. Also, legal counsel will explain the rights of the parties, the steps that should be taken to try to achieve the goals of the client and the likely outcome of the matter.

The Minnesota equivalent to the ICWA

The Minnesota Indian Family Preservation Act supplements the federal ICWA, so anyone facing adoption issues involving an Indian child in Minnesota can be impacted by the provisions of both state and federal law. A lawyer can help such a client understand the impact of the state law as well.

The family lawyers at the downtown Minneapolis office of Berg, Debele, DeSmidt & Rabuse, P.A., represent both adoptive and biological parents throughout the legal process involved in adoption, whether on a local, tribal, interstate or international level, including adoptions involving Native American children.