Updated: June 10, 2:15 p.m. | Posted: June 9, 7:25 p.m.
A Minnesota Native American couple who want their 2-month-old baby to be adopted by a white family have sued their tribe and the state for trying to intervene.
The couple, identified as "Jane and John Doe" in the federal lawsuit filed last week in U.S. District Court in Minneapolis, claim their rights to privacy and due process have been violated. They kept the birth of their baby secret out of fear the Mille Lacs Band of Ojibwe would block their decision to put the baby up for adoption.
In addition to the Mille Lacs Band's health and human services department, the lawsuit names the Minnesota Department of Human Services and the state's attorney general. The couple argues that it's unconstitutional for tribes to intervene in adoption proceedings as allowed under the Indian Child Welfare Act and the Minnesota Indian Family Preservation Act.
Jane and John Doe, who have two other children, already chose adoptive parents they felt were fit to care for the baby, attorney Mark Fiddler, said.
"They had good reason to pick this couple," he said. "I told them, 'I'm sorry but I have to notify the tribe, under state law.'"
The federal Indian Child Welfare Act passed in 1978 as a response to a high number of children removed from their homes by both public and private agencies. It was intended to promote stability in Native American tribes and curb the number of times when parents involuntarily lost their rights. It gives preference to extended families, other members of the tribe or other Indian families when it comes to permanent placement.
The Minnesota Indian Family Preservation Act of 1985 requires tribes be told of vulnerable children that may require out-of-home placements. It requires the state DHS to maintain records on the children.
Minnesota law was amended in 1997 to require all adoption agencies, petitioners, or attorneys to notify tribal social services of all adoption proceedings involving Indian children, including information about their parents who are voluntarily giving up their rights.
Fiddler, a member of the North Dakota Turtle Mountain Band of Chippewa Indians, says that part of the law promotes racism and violates John and Jane Doe's privacy and equal protection rights.
"It's their own private affair," he said. "What it essentially does is it allows the tribe to come in and second guess the decisions of the fit birth parents."
But tribal advocates say the intent is obvious. White Earth Tribal Attorney Joe Plumer, who is not involved in the lawsuit, said federal and state laws help children grow up with family and learn about their heritage.
"The tribe has an interest in its member children," he said. "When the permanent placement of minor children, tribal members, is being considered, then the tribe likes to have a voice in that to make sure that it's the best thing because that child is the tribe's future."
Most recent data from the U.S. Department of Health and Human Services says 8 percent of 583 Minnesota children adopted through public agencies in 2013 were Native American.
A DHS spokesperson couldn't comment on the case and said the department was served with the lawsuit last Thursday and hasn't had ample time to review it.
Minnesota Attorney General Lori Swanson plans to ask the court to be removed from the lawsuit, according to a spokesperson who said her office is "not a proper defendant."
Samuel Moose, Mille Lacs Band of Ojibwe commissioner of health and human services, said the tribe has a longstanding history of enforcing the laws to preserve cultural identity which he said is instrumental in a child's upbringing.
He said evidence has shown that some Native American children who were removed from their families and placed in boarding schools have experienced depression and suicide.
"It's important for children to understand their identity, to have access to the tribe's resources and to be supported in that process," Moose said. "It's critical to the development of the child, it's in the child's best interest with regards to welfare and health."
Fiddler said he's asking the court for a preliminary injunction to allow the couple to proceed with the adoption without disclosing its identity to the tribe. He then hopes the court would take time to make a final decision on the specifics of the law.
"For every other race, it's illegal, it's against the law to place a child on the basis of race in the United States," he said. "Except if your child is Indian."