Couple files suit challenging Indian Child Welfare Act

By Randy Ellis, The Oklahoman

An Oklahoma couple has filed a federal lawsuit challenging the constitutionality of portions of the Oklahoma Indian Child Welfare Act.

The couple specifically objects to provisions of the Oklahoma act that permit tribes to intervene in private, voluntary adoption cases involving Indian children.

Under the Oklahoma law, tribes are allowed to intervene — even when both birth parents oppose tribal intervention and have agreed on who they want as adoptive parents for their child.

“It’s nobody’s business who is involved in the adoption and they shouldn’t have to give anybody any notice and run the risk of having all their personal information exposed to other people,” said Tulsa attorney Paul Swain, who represents the couple in the lawsuit filed Wednesday in Tulsa federal court.

The couple contends that people of Indian descent, just like non-Indians, should have a right to privacy in voluntary adoption cases and that the state law giving tribes the authority to intervene violates their constitutional rights to due process and equal protection under the law.

Oklahoma Attorney General Scott Pruitt and Cherokee Nation Attorney General Todd Hembree are listed as defendants in the lawsuit because of their official positions.

Chrissi Nimmo, assistant attorney general for the Cherokee Nation, said the tribe believes it is important for tribes to have a voice in adoptions of Indian children and it plans to vigorously defend the law.

The Cherokee Nation is a government and has an interest in what happens to its citizens, just like the State of Oklahoma has an interest in what happens to its residents, she said.

“In addition, we have a history that led to the Indian Child Welfare Act of children being removed from their tribes and their families,” Nimmo said. “Even in voluntary placements, there’s a long history where young mothers were coerced by adoption agencies to place their children for adoption because there was an attitude that a child would be much better off with a middle class or upper middle class home than to be raised by a young Indian mother.”

Nimmo said the Cherokee Nation likes to be notified early when a tribal member wants to put a child up for adoption so that the tribe can work with the birth parents to identify prospective Indian adoptive parents agreeable to all, before other arrangements have been made.

The Oklahoma Supreme Court has previously upheld the constitutionality of the Oklahoma act, she said.

A spokesman for Pruitt said he had not yet seen the lawsuit.

The lawsuit uses fictitious names to identify both the birth parents and prospective adoptive parents to protect their identities. The birth couple, who are both 18 and unmarried, are referred to as Jane and John Doe, while the prospective adoptive parents are referred to as Richard and Mary Roe.

“After discussing the matter with their counsel, Jane and John Doe became incensed that the Cherokee Nation would have any right to interfere with the adoption plan … which they had agonized over for many months,” the lawsuit states.

Although the birth mother is enrolled in the Cherokee Nation, the birth father is not and neither birth parent grew up following tribal traditions or participating in tribal events, the lawsuits says.

“They do not know anything about the Cherokee culture and heritage and, at this point, they have no interest in learning about those subjects,” the lawsuit states.

The prospective adoptive father is enrolled in the Cherokee Nation, but the prospective adoptive mother is not enrolled in an Indian tribe, according to the lawsuit.

“Jane and John Doe are also adamant that they do not want the Cherokee Nation put on notice regarding Baby Doe’s adoption,” the lawsuit says. “This notice will result in word spreading in the tribal offices of their adoption plan in violation of their privacy rights and if the tribe seeks out alternate placements, then others in the tribal community will learn of their adoption plan and John and Jane Doe feel that the decisions that they have made for their child are confidential and are not the proper subject for discussions among tribal members.

“This will result in embarrassment and immense pressure to deviate from what Jane and John Doe have determined to be the best decision for Baby Doe.”

The lawsuit states that the initial couple that the birth parents selected to serve as adoptive parents “made the tearful decision to withdraw from the adoption because they did not want to experience the emotional turmoil of litigating an adoption case.”

That couple was not of Indian descent, but had an adoption profile that impressed the birth parents, who spent months building a relationship with them, the lawsuit says.

The birth parents subsequently selected another couple as prospective adoptive parents, and that couple joined them in filing the federal lawsuit.

The Oklahoma Indian Child Welfare Act goes beyond the federal Indian Child Welfare Act by granting tribes the right to intervene in voluntary adoption cases, the lawsuit says.

The federal act gives tribes the right to intervene in cases where there has been an involuntary termination of parental rights, which can happen for a number of reasons including abandonment, neglect, abuse or failure to provide financial support for a child.

Under state law, when an Indian child is put up for adoption — absent good cause to take other action — preference is to be given to a member of the child’s extended family, other members of the Indian child’s tribe or other Indian families.

Both the state and federal Indian Child Welfare Acts were written to halt a trend of huge numbers of American Indian children being taken from their parents and placed with white foster or adoptive parents because of cultural differences rather than actual abuse or neglect.

The federal and state Indian Child Welfare Acts both have come under attack recently in a number of court cases.

In May, the Oklahoma Court of Civil Appeals ruled that contrary to new Bureau of Indian Affairs guidelines, a judge can deviate from child placement preference contained in the federal Indian Child Welfare Act when such action is in the best interest of a child.

In July, the Goldwater Institute filed a class-action lawsuit in Phoenix contending the federal Indian Child Welfare Act is unconstitutional because it doesn’t give Indian children the same right that other children have to be placed in homes based on their best interests, without regard to their race. That case is pending.

The Oklahoma and federal Indian Child Welfare Acts frequently come into play in Oklahoma foster child placement and adoption cases. About 30 percent of the children in state care have American Indian ancestry, according to a spokeswoman for the Oklahoma Department of Human Services.

Lawsuit challenges Native American adoption law

By Mary Jo Pitzl, The Arizona Republic

Native American children are being deprived of equal protection when it comes to foster care and adoptions because federal law places tribal supremacy ahead of the children’s best interests, a class-action lawsuit filed today alleges.

The suit, filed by the Goldwater Institute in U.S. District Court in Phoenix, challenges portions of the Indian Child Welfare Act as it applies to Native American children living off-reservation.

The suit details the cases of two Arizona families, each of which sought to adopt a child with Native American heritage only to have their plans held by the provisions of the 37-year-old federal law.

“Alone among American children, their adoption and foster care placements are determined not in accord with their best interests but by their ethnicity, as a result of a well-intentioned but profoundly flawed and unconstitutional federal law, the Indian Child Welfare Act,” the suit states.

It names as defendants the federal Bureau of Indian Affairs, the U.S. Department of the Interior and the state Department of Child Safety.

Federal officials did not have an immediate response.

Arizona Department of Child Safety Director Greg McKay is named in the suit because his agency has to follow the provisions of the federal law. The agency said it would not comment until the case is resolved.

The suit noted 1,336 Native American children were in out-of-home placements as of last September, citing the latest DCS data. If not for the federal law, the suit alleges, some of those children could be in permanent family situations.

The lawsuit does not involve Native American children living on reservation, where tribal courts have jurisdiction

Foster child adoption halted over tribal ties



LYNDEN, Wash. — Her photos are still up on the refrigerator door.  Three-year-old “Elle” was Pete and Laura Lupo’s foster child, but she was much more than that to them.

“Every day when I walked through the door she would run to the door and squeeze my leg,” said foster father Pete Lupo.

“She would be just rough and tumble, but then she also like to have her nails painted and she liked pink,” said Laura Lupo, her foster mother.

In December, they say their dream came true. DSHS designated the Lupos to be her adoptive parents. “Elle’s” biological mother lost her parental rights. Her biological father, Scott Vaughn, who was serving time for assault with a deadly weapon, was about to lose his when the Lupos say he enrolled in the Cherokee tribe.

Related: Foster child’s uncle: “We wanted her all along”

It sent into motion a legal nightmare for the family, ending with DSHS removing “Elle” from her home two weeks ago.

“So on June 5, they came and got her. And we haven’t heard anything on how she’s doing,” said Laura Lupo, crying.

DSHS declined to comment stating the confidentiality of child welfare records, but the Lupos’ attorney says the department cited the Indian Child Welfare Act and state law, which says “any adoptive or other permanent placement of an Indian child, preference shall be given to…extended family members” first. A Skagit county court commissioner made the decision final on Tuesday.

“We have offered to enroll her, we have offered to go to Oklahoma, we have offered to meet with tribal members. It didn’t matter, none of it mattered,” said Laura Lupo.

“Elle” was placed with an uncle and aunt who she had met twice as an infant, and had a few arranged visits with in recent months. The Lupos say the heritage that “Elle” should have been taught to honor and cherish was used to rip her from her home and her family.

With tears in his eyes, Pete Lupo remembers saying goodbye to her.

“She gave me a kiss back and she said ‘I love you, Daddy.’ And I had to walk away,” he said.

A KING 5 investigation helped lead to a new state law allowing foster children to have their own attorney to give them a voice over life changing decisions, such as where they will live. The Lupos are hoping that law will help “Elle” get what is best for her. A Facebook page is dedicated to help bring “Elle” home.

Adoption, From a Native American Perspective


By: Shannon Logan

Feb 07, 2014


Leland Morrill was estranged from his Navajo lineage for twenty years. Today, as an author, advocate, and speaker, Morrill shares the unique perspective of how adoption is viewed by Native American family and culture, through the eyes of an adult adoptee.

Leland Morrill was born in 1966, on sovereign land, in the Navajo Nation, within the state of Arizona. He was not issued a birth certificate, and does not know the exact date of his birth. His young, unwed mother was his sole caretaker for the first few years of his life, and according to Leland, this wasn’t unusual in Native American culture.

“Marriage is a Christian concept, not Native,” said Morrill. “Many people from my parent’s generation weren’t married. It’s a very matriarchal society. When you’re born, you take on your mother’s last name, you go to your mother’s family, and the women decide whether the men stay around after the children are born. That’s the way it was. ”

When Leland was two years old, his mother suffered a fatal head injury after flipping her car on a bridge in Albuquerque New Mexico. It was September 1968; Leland was two years old.

“My brother and I went to St. Anthony’s orphanage, where they figured out that we were Navajo, and took us back to the reservation to stay with my grandmother. In our culture, once your mother dies, your next caretakers are your aunts and grandmothers. They are considered your mothers,” said Morrill.

callout2Less than a year after being placed in the care of his grandmother, Leland was taken to the Indian Health Services Hospital for a minor burn on his foot. After Leland was treated, he was taken to another hospital in Gallup, New Mexico, where the Bureau of Indian Affairs decided to investigate.

“They saw poor people, Indians. My grandmother was a sheepherder, living on an Indian reservation without electricity,” Morrill said. “My relatives couldn’t speak English, so they said— ‘we don’t know if these people are your relatives or not, so we are going to take you.’”

Leland was immediately removed from his home and placed with an adoptive couple looking for Native American children to foster and adopt. The day after he was adopted, the family moved to Ontario, Canada, severing all ties Leland had to his biological, Native American family.

Not uncommon for the times, before 1978, when Congress passed the Indian Child Welfare Act, a very high number of Indian children were removed from their homes by public and private agencies and placed in non-Indian foster and adoptive homes or institutions. Leland, who was part of the Amicus Group that went to DC to attend the argument on behalf of Dusten Brown and the Cherokee Nation in the “Baby Veronica” adoption case, explained that there are new laws and bills being passed currently to help further protect biological families. One bill in particular, the Oklahoma Truth In Adoption Act (HB 1118), urges judges to consider the biological family members first before allowing a child to be placed with non-related adoptive parents by an adoption agency.

“From a human trafficking point of view, I was trafficked,” said Morrill. “Every time they adopted a child, they went to another country. They adopted seven more children when we got to Canada, and then we moved right after that. They separated us from our cultures.”

callout4“They trained us within the Mormon ideology; they thought they were saving us. They thought they were doing the right thing, and from that perspective they were good people. But from a Native American perspective—they were not.”

Leland Morrill returned to his mother’s clan, the Many Goats Clan, for the first time in 1989, to be greeted with open arms by his grandmother and his cousins. “I was a little freaked out, like—wow! this is what I would have been raised like.”

“I tell Native American adoptees like myself—yes, this is what happened to you. You were trafficked. But you have to get past that. Consider yourselves different, because you were forced to assimilate into a different culture. But use that assimilation in your favor—whatever education or opportunities were presented to you that others on the reservation didn’t have, you can come back and use them to help your people.”

For more about Leland’s story, read: Two Worlds: Lost Children of the Indian Adoption Projects