Minnesota American Indian tribes and their allies in the state Legislature are seeking to plug a gap in child custody laws opened by a state Supreme Court decision last year.
The court's decision derailed the common practice of giving tribal courts a role during pre-adoption and adoption for off-reservation American Indian kids.
Until the late 1970s, American Indian children across the country were adopted outside their communities at very high rates. The practice had a devastating effect on tribes, as generations of youth were cut loose from their cultural identities.
"People thought they understood that children would fare better if they were raised in white middle class homes," said Andrew Small, a lawyer and former tribal judge in the state. "When you remove a child from their home, that begins a process that sometimes is impossible to stop... a child is going to be lost to the tribe."
In 1978, Congress passed the Indian Child Welfare Act, which was designed to allow tribes a say in child custody and adoption proceedings. Since then, Minnesota state courts dealing with custody of an American Indian child off the reservation have been able to transfer jurisdiction to tribal court, even in the later part of the proceedings, which are called adoptive or pre-adoptive stages.
But a Minnesota Supreme Court decision late last year found a gap in the Indian Child Welfare Act. The court decided that neither federal nor Minnesota statute explicitly allowed state courts, when dealing with an American Indian child living away from a reservation, to transfer jurisdiction during the later portion of custody proceedings.
Although Small warns that the issue isn't "black and white," he said a failure to pass legislation explicitly giving state courts the right to transfer jurisdiction to tribal courts might lead to a slight uptick in the sort of outside adoptions that first inspired Congress to pass the Indian Child Welfare Act in the first place.
"You're excluding the possibility that adoptive and pre-adoptive placement will be undertaken in a distinct and unique way of the tribe," Small said. "Children in that situation are typically going to be adopted out of their tribes."
Rep. Susan Allen, the first American Indian to serve in the Minnesota State Legislature, introduced a bill to fill the gap last week.
"The statute is adding [to] a procedure that's already in place," Allen said. "It's just extending that procedure to adoption proceedings."
Dawn Blanchard, Minnesota ombudsman for American Indian families, saw the state Supreme Court decision was a "fluke."
"For us it's sensitive, just because American Indians don't want their kids adopted outside the tribe," Blanchard said."This [bill] kind of helps keep it the way it should be and the way it should be going."
The Minnesota Chippewa Tribe and the three Dakota tribes have passed resolutions in support of the bill. The bill's next stop will be a hearing in the House Civil Law Committee.