Navajo Nation Opposes Adoption

Published Date Written by 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] The nation claimed the adoption agency did not properly inform it of the proceeding under the Indian Child Welfare Act (ICWA).[2]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 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..."[3]


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:


"In any adoptive placement of an Indian child under State law, a preference shall be a member of the child's extended family; (2) other members of the Indian child's tribe; or (3) other Indian families.[4](Emphasis added.) Adoptive placement, in turn, means "any action resulting in a final decree of adoption."[5]


The U.S. Supreme court case of Mississippi Choctaw Indian Band v. Holyfield,[6]also supports the general application of ICWA. There, both parents were tribal members who moved off of the reservation to avoid tribal court jurisdiction. The Supreme Court held that the children having been voluntarily surrendered did not alter the jurisdictional question:


"Nor can the result be any different simply because the twins were "voluntarily surrendered" by their mother. Tribal jurisdiction...was not meant to be defeated by the actions of individual members of the tribe, for Congress was concerned not solely about the interests of Indian children and families, but also about the impact on the tribes themselves of the large numbers of Indian children adopted by non-Indians."[7]


This case differs from Holyfield mainly in that here no established Indian "parent" exists. We analyze ICWA further to see if that defeats the tribe.


An "Indian Child" is "[A]ny unmarried person who is under age eighteen...and (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe[.][8]


From all appearances, the child in this case qualified as an Indian child. The child is unmarried, presumably eligible for membership in an Indian tribe through the biological father who is a confirmed tribal member.


ICWA defines "parent" as "[A]ny biological parent...of an Indian child.... It does not include the unwed father where paternity has not been acknowledged or established[.]"[9]


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..." Simply put, ICWA 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.1025 U.S.C. § 1901(2-3). 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,11For 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...") much less to dictate placement preferences.

The Ohio Putative Father Registry–the WHAT?

I am a single man. Yet I had been in Ohio for over a year before hearing of the Ohio Putative Father Registry, and then only in a Probate Law class. The professor was covering how a child could be adopted without the birth father's consent. "ORC 3701.061: A man who has sexual intercourse with a woman is on notice that if a child is born as a result and the man is the putative father, the child may be adopted without his consent pursuant to division (B) of section 3107 of the Revised Code." That section required the man sign the Putative Father Registry within thirty days after the birth to get notice of the adoption.


Ohio Putative Father Registry: The Basics

Unwed fathers are entitled to notice of petitions to adopt their biological children. Yet many fathers lose this right by not registering timely with the Ohio putative father registry (PFR).1R.C. 3107.062. Because adoptions are probate proceedings, lawyers practicing juvenile, domestic relations, or traditional probate law may not understand how the Ohio PFR applies.  At initial consultations then, attorneys may omit counseling fathers about the registry and refer them to attorneys with more specialized experience. But the strict registration deadline, and often unknown deadline date, demand that the father register immediately. Thus the attorney should consider counseling the client about the PFR and help him register that day before referring him. This article gives the information needed to do that.

Preventing Your Infant Child From Being Adopted Without Your Consent


Consult an adoption law or family law attorney. Otherwise: An unwed father has no absolute right to veto an adoption. You must take action to preserve your rights. Whether the mother is considering adoption or not, an unwed father should, as soon as possible and preferably before the birth:

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