Navajo Nation Opposes Adoption
Erik L. Smith
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"Navajo Nation disputes adoption", Kirsten Stewart and Elizabeth Neff. The Salt Lake Tribune. October 26, 2006. The nation claimed the adoption agency did not properly inform it of the proceeding under the Indian Child Welfare Act (ICWA).225 U.S.C. § 1901 et seq. The mother allegedly surrendered the 19 month-old child in September 2006. 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 the father's custody petition.
The article did not relate the adoption agency's procedures in trying 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 child's 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. 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 "[P]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..."325 U.S.C. § 1902.
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: