Claiming an invasion of privacy, a Tulsa couple has filed suit to challenge the federal Indian Child Welfare Act, specifically the Oklahoma provision which allows tribal intervention in adoption procedure, even if the birth parents want no tribal involvement.
The couple argues that American Indians are not exempt from an expectation of privacy during voluntary adoptions.
Chrissi Nimmo, an assistant attorney general for Cherokee Nation, said the Oklahoma Indian Child Welfare Act was passed to “tighten up” the federal Indian Child Welfare Act.
The federal version of the law gives tribes the right to intervene in adoptions of Indian children, but it does not require notification of tribes in voluntary adoptions.
The Oklahoma act requires tribes receive notification whenever an adoption of an Indian child occurs.
Since the lawsuit is entirely anonymous, Nimmo said the tribe has been put in an odd position as they prepare to defend the act in court.
“We don’t have any information about the case, only supposed facts,” said Nimmo.
This particular piece of the Oklahoma Indian Child Welfare Act has been deemed constitutional by the Oklahoma Supreme Court.
Nimmo also said the federal and state versions of the law require adoptions to remain confidential, though the lawsuit states that the biological parents did not want to notify the tribe of the adoption for fear of their personal story “spreading through the tribal community.”
Nimmo said while the tribe has a legal right to intervene, it does not necessarily have the power to stop an adoption.
“We may choose not to intervene in this case,” said Nimmo.
Because the adoptive father is a Cherokee Nation citizen, according to the lawsuit, Nimmo said the adoption follows the guidelines of the Indian Child Welfare Act.
Asked if the tribe would intervene if the adoption had been pursued with the original non-Indian adoptive parents, Nimmo did not specify whether the tribe would intervene under such circumstances.
“It depends on the facts of the case,” said Nimmo.
She said factors may include other Cherokee families interested in adopting, if a placement fits a child’s special needs in a manner available Cherokee families could not, and the preferences of the birth parents.
“Under the law, preference of both parents is a reason to deviate,” said Nimmo.
Within the law, there is an order of prefered placement.
Family members are considered first, then Cherokee families, then other viable families wishing to adopt.
But if there is “good cause” to deviate from the ICWA, it can legally be done. A recognized good cause for deviation is the parent’s wishes.
The tribe can object to a child’s placement, and the child may still be placed against the tribe’s wishes, though Nimmo suggested going against the tribe would entail some legal procedures.
Nimmo said even if biological and adoptive parents have no relationship with the tribe, the child has individual rights to apply for citizenship in the future, to receive benefits, and to have a relationship with the tribe.
If the tribe is not notified when a child is being placed, records of their connection to the tribe may be lost during adoption, according to Nimmo.
“Just because this child is being adopted doesn’t mean the relationship or the future relationship between the child and their tribe should be severed,” said Nimmo.