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Lawsuit: MN law could derail couple's adoption plans, divulge private info

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The mother and father hand-picked the adoptive couple, finding a duo they deemed good people and excellent parents to raise their child.

They will stay connected; pictures and texts will be shared, and the child will learn about the American Indian heritage of he and his parents. The adoptive couple has another older child with a similar arrangement.

But those carefully considered plans could be derailed because the adoptive parents are not also American Indian.

The biological mother and father filed a federal lawsuit arguing a Minnesota law meant to protect American Indian families is infringing on their rights.

The couple is "adamant" their tribe not be notified as is currently required, fearing word in the tribal offices will spread throughout the entire community.

The couple "want and are entitled to privacy concerning this decision — to shield them from embarrassment, tribal ostracism, and pressure to deviate from their determination as to where Baby Doe’s best interests lay," a memorandum filed with the lawsuit says.

Baby Doe

The couple – identified only as John and Jane Doe – are not married, but have been together for 12 years now. The baby was born in April of 2015, and the pregnancy and birth were kept a secret from the tribe.

The Does made the "difficult decision" to put Baby Doe up for private direct placement adoption due to their own "personal circumstances," saying in a memorandum they believe it's the best decision for the child's care and future upbringing.

Mark Fiddler is one of the Does' attorneys, and a member of the Turtle Mountain Band of Chippewa Indians.

While not offering specific details, Fiddler told the Star Tribune in his experience, parents usually cite "family, alcoholism and other dysfunction" as reasons for choosing a non-native family, as they "don’t want kids placed in that kind of environment.”

But a state law could prevent John and Jane Doe from placing their child with the family they feel is best.

The Indian Family Preservation Act

The lawsuit directly questions the constitutionality of Minnesota's Indian Family Preservation Act.

That law was enacted in 1985, and requires tribes to be notified of a native child being put up for adoption. It also gives the tribe the option to intervene to make sure the child is placed with another native family.

It was based off a national law, the point being to end a pattern of abusive practices where American Indian children were taken from tribes and placed with white families, the Washington Post explains.

Before the federal Indian Child Welfare Act was passed, 25-33 percent of American Indian children were taken from their parents' custody — and 90 percent of them ended up in non-native homes, the Post says. That law was "hailed as a landmark protection" when passed in 1978, writes the paper.

Minnesota's act is actually more expansive, the lawsuit argues – not just requiring tribes being notified during an involuntary proceeding, but (because of a 1997 change to the law) also in voluntary private adoptions.

That requirement comes "without .. any rationale or justification," the memorandum argues.

John and Jane Doe's lawsuit argues that, because they are American Indians, they are forced to divulge private information to outside parties because of the Indian Family Preservation Act – something parents of any other race wouldn't be subject to, since adoption proceedings in Minnesota are considered strictly confidential.

The defendants

The lawsuit names Samuel Moose, the commissioner of health and human services for the Mille Lacs Band of Ojibwe, as one of the defendants.

Also named: Lori Swanson, the state' attorney general; and Lucinda Jesson, commissioner of the Department of Health and Human Services.

A spokesperson for Swanson's office told MPR News they plan to ask the department be removed, saying it's "not a proper defendant"; a spokesperson with the Department of Health and Humans Services said they couldn't yet comment.

The Pioneer Press also reached out to Moose and that office, and did not hear back.

The lawsuit is asking for an injunction (basically, an order that someone stop doing something) allowing the adoption to go through unimpeded.

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