ST. PAUL - A local Native American couple wishing to place their newborn with a non-native family has filed a federal lawsuit challenging the constitutionality of Minnesota’s adoption law, which they say could hinder their ability to make that decision.

The couple, identified in the suit as Jane and John Doe to protect their privacy, is suing the commissioner of the Minnesota Department of Human Services, the state Attorney General and the Commissioner of Health and Human Services for the Mille Lacs Band of Ojibwe.

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They aim to stop notification of the adoption to tribal officials, required under the Minnesota Indian Family Preservation Act, with hopes to prevent interference with their voluntary placement.

“They’re entitled to a presumption under the law that their decisions for their children are correct,” said attorney Mark Fiddler, who represents the couple and has handled similar adoption cases. “And the (U.S.) Constitution doesn’t tolerate some third party like the government or the tribe coming in and saying, ‘We don’t believe this is what’s best for the child.’”

The federal Indian Child Welfare Act, passed by Congress in 1978, was created in response to large numbers of American Indian babies being removed from their homes and tribes. According to the text of the law, the intent is to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.” It grants tribes the right to intervene in cases of involuntary termination of parental rights.

The Minnesota Indian Family Preservation Act, enacted in 1985, is the state arm of the federal law. It goes a step further in intervention rights and requires notification of tribes in adoption cases. This gives tribes “the right under the color of state law to interfere with voluntary, private adoptions,” the lawsuit said.

The parents at the center of this lawsuit are “solid,” Fiddler said, but they made the “tough, gut-wrenching decision” to place their child with adoptive parents. He wouldn’t disclose their reasons but said that if they were any other race, their decision and autonomy would be protected.

“There’s different reasons why birth parents decide to place away from their own communities,” Fiddler said. “It’s nothing unique. What’s unique is that tribal members have to suffer the tribal organizations coming in and second-guessing their parental decisions.”

Fiddler, who is an enrolled member of the Turtle Mountain Band of Chippewa Indians in North Dakota, added: “There’s this idea that Indian children are harmed by being raised in non-Indian homes. But there’s not a single peer-reviewed study that supports that allegation.”

The birth parents claim that any interference in the adoption would violate the couple’s rights and due process, and would deprive them of equal protection under the Constitution’s 14th Amendment. They are asking the court to issue an injunction.

The couple has been in a relationship for 11 years and have other children in common. The mother is a member of the Mille Lacs Band of Ojibwe and the father is enrolled in an unspecified tribe, the suit said. They do not live on a reservation; they live in the Twin Cities metro.

They hid the pregnancy and their son’s birth in April, and have not had their parental rights terminated. “Instead, they reached the difficult decision that adoption would be best for Baby Doe in light of their personal circumstances,” the suit said. They chose to locate an adoptive family using a private agency.

The couple is concerned that notifying the tribe will erase the confidentiality of the adoption process and alert the broader community of their private adoption plans, resulting in embarrassment, pressure to deviate from their plans and possible intervention by tribal officials, according to their lawsuit.

“Jane and John Doe are profoundly worried that any attempt to interfere with their private direct placement adoption will not be in Baby Doe’s best interest and will be devastating to them and the Adoptive Parents,” the suit said.

Notifying the tribe could trigger another problem. There’s a 60-day window in which the couple must sign off on their consent to the adoption. That expires July 8. If they are required to notify the tribes - even if the tribes choose not to intervene - that deadline could pass and the court would be legally required to notify child-protection officials, who would then have to investigate the case as an abandonment, Fiddler said.

That would again jeopardize the couple’s privacy and their right to confidential adoption proceedings - rights afforded to all other couples without native lineages, he said.

Fiddler said he doesn’t know of any similar constitutional challenges in other states, though other states have notification requirements.

There is currently a proposal to make notices required nationally, in all states, he said.

“So the ramifications for this case, if we win and the court finds the notification requirement unconstitutional, would affect the national effort,” he said.

A call to Samuel Moose, the Commissioner of Health and Human Services for the Mille Lacs Band of Ojibwe, was not returned Tuesday.

The Pioneer Press is a media partner with Forum News Service

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