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Indian Adoption Case Sparks Wisconsin Involvement

February 26, 2013

State Bar of Wisconsin

February 20, 2013

Joe Forward
Legal Writer

The U.S. Supreme Court will decide whether the federal Indian Child Welfare Act blocks the adoption of a Native American child by a non-Indian couple. The State Bar of Wisconsin’s Indian Law Section may file a brief opposing the adoption.

baby custodyFeb. 20, 2013 – The U.S. Supreme Court has agreed to hear a rare child custody case involving the attempted adoption of an Indian child by a non-Indian couple, which implicates the federal Indian Child Welfare Act and could impact Wisconsin law.

Carolyn Grzelak, a board member of the State Bar of Wisconsin’s Indian Law Section, says a ruling in favor of the adoptive couple could negatively impact existing state law. The adoptive couple is fighting with the biological father, a member of Cherokee Nation.

Specifically, Grzelak says the adoptive couple is arguing that the “existing Indian family doctrine” applies to block application of the federal Indian Child Welfare Act (ICWA), and Wisconsin rejected that doctrine by unanimous legislative action in 2009.

“The fear is that if the U.S. Supreme Court upholds use of this judicially created doctrine, litigants would start arguing that it should be recognized in Wisconsin,” said Grzelak, a legislative attorney for Ho-Chunk Nation in Black River Falls.

Indian Child Welfare Act

In the 1960s and 70s, large numbers of Indian children were being removed from Indian families and tribes through adoptions and foster care placement, despite cultural differences in the way Native American communities raise and parent their children.

ICWA, enacted by Congress in 1978, protects the best interests of Indian children and promotes “the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children.”1

The federal law applies to state child custody proceedings, including adoptions, involving an Indian child. An Indian child is any unmarried minor who is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.2

Under ICWA, state courts cannot terminate parental custody of an Indian child unless the court determines – beyond a reasonable doubt and with qualified expert testimony – that continued custody is likely to result in serious emotional or physical damage to a child.3

A “parent” under ICWA means “any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom.”4 However, a “parent” does not include “the unwed father where paternity has not been acknowledged or established.”5

The Case on Review

In Adoptive Parents v. Baby Girl, the U.S. Supreme Court will decide whether the biological father was a “parent” under ICWA, even though he did not establish paternity until after the mother relinquished her parental rights to the adoptive couple.

The biological father, a member of Cherokee Nation in Oklahoma, was not married to the child’s non-Indian mother. They were engaged to be married but the relationship ended. The father, who is in the military, did not take steps to establish paternity initially.

In their petition for review, the adoptive parents argued that “ICWA impacts thousands of adoption cases involving Indian children of unwed parents,” and “ICWA does not create parental rights for unwed fathers that do not otherwise exist.”

They say the father relinquished or otherwise abandoned his parental rights because he took no steps to be involved in the child’s life before birth. Upon birth of the child in 2009, the mother consented to the adoption and relinquished her parental and custody rights to the adoptive couple, who helped the mother financially during the pregnancy.

The mother did not tell the biological father about the adoption. Further, Cherokee Nation was unaware of the adoption because they received incorrect information from the mother’s attorney, who sent a letter to inquire about father’s status in the tribe.

The pre-adoptive parents obtained authority, pursuant to the Oklahoma Interstate Compact on Placement of Children (ICPC), to take the child to South Carolina. They instituted adoption proceedings in South Carolina. However, the mother had indicated on the required ICPC forms that the baby was “Hispanic.” The father says the baby would not have been removed but for the misinformation provided by the mother.

“Had the birth father’s status as a member of the Cherokee Nation been known, neither the Cherokee Nation nor the Oklahoma ICPC agency would have consented to the removal of the child from Oklahoma,” his attorneys argued in court documents.

Three months later, the father became aware of the pending adoption when they served him with adoption papers requesting his consent. He signed the papers, but asserts that he signed them thinking he was relinquishing parental rights to the mother.

He filed suit to block the adoption and pursued action to establish paternity and custody. The Cherokee Nation confirmed his membership in the tribe. The case went to family court in South Carolina, which recognized the father’s rights under ICWA.

Ultimately, the South Carolina Supreme Court ruled in favor of the father and ordered the adoptive couple to return the child to him. The child had been living with the adoptive couple for two years, and now lives with the father. The adoptive couple filed a petition for review, which the U.S. Supreme Court recently granted.

The Existing Indian Family Doctrine

The existing Indian family doctrine says ICWA does not apply if the Indian child is not part of an existing Indian family. In this case, the adoptive parents say the father relinquished his parental rights, so the baby was not part of an existing Indian family.

Wisconsin, which codified ICWA, expressly rejects this doctrine. Wis. Stat. section 938.028(3)(a), known as WICWA, states that Wisconsin courts may not determine whether ICWA applies to an Indian child based on whether the Indian child is part of an existing Indian family.

Wisconsin is one of six states that have rejected the doctrine legislatively. No states have legislatively adopted it. According to Grzelak, another 20 states have judicially banned use of the existing Indian family doctrine. However, the courts of seven states have not rejected the doctrine, according to court documents.

“The doctrine allows a court to determine if a family is an Indian family. That’s not a decision for a state court. It’s a decision for the tribe,” Grzelak said.

She says the purpose of ICWA is to give tribes and Indian families the ability to preserve the tribal community without losing Indian children to state court determinations.

But the adoptive couple wants the U.S. Supreme Court to make a final decision, urging the court to uphold use of the doctrine in ICWA cases involving unwed parents.

“ICWA applies only when a child is being removed from the existing custody of an Indian parent,” the adoptive couple argued in its petition for review.

Wisconsin is home to 11 federally recognized Indian tribes with sovereign rights, and all have a stake in preserving the purposes of ICWA, Grzelak says.

“What happens in another state affects a child who is a member of, or eligible to be a member of a tribe here,” she said. “What the U.S. Supreme Court rules not only affects Wisconsin, but it affects Wisconsin tribal members who live in other states.”

The Indian Law Section will argue in support of the father and Cherokee Nation, if the State Bar’s Board of Governors grants authority to file or join a brief in the case. The State of Wisconsin is still deciding whether to join or file an amicus brief, according to Dana Brueck, communications director for the Wisconsin Department of Justice.

1 25 U.SC. § 1902.

2 25 U.S.C. § 1903(4).

3 25 U.S.C. § 1912(f).

4 25 U.S.C. § 1903(9).

5 Id.

Joe Forward is the legal writer for the State Bar of Wisconsin. He can be reached at, or by phone at (608) 250-6161



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