Agency Pushes Suit Over Indian Adoptions ‘The Indian Nation Was Being Weaned Away From The Tribes’

After a year of negotiations, Idaho Legal Aid is pushing for a solution to its lawsuit against the state over the 1978 Indian Child Welfare Act.

In its lawsuit filed last year, Legal Aid contends the Idaho Department of Health and Welfare has violated state and federal laws by not incorporating welfare act requirements in Indian child custody cases.

When the act was passed, up to one-third of Indian children had been removed from their homes, said Robert McCarthy of Lewiston, director of Legal Aid’s Indian Law Unit.

“Basically, that just shocks me,” he said. “The whole Indian nation was being weaned away from the tribes.

“In Idaho, we don’t know what’s happened in the past years because they don’t keep records.”

Legal Aid seeks a summary judgment in its lawsuit. McCarthy said there is no mention of Indians in the department’s rules on adoptions.

“We are still going to try and reach a settlement,” Health and Welfare attorney Marcy Spilker replied Wednesday. She said last year’s election and subsequent changes in administration slowed things down.

“We’re kind of starting at ground zero again,” she said, adding the department has organized a task force and hired a staff person specializing in Indian child custody issues.

“It’s not accurate to say the state’s done nothing,” she said.

The lawsuit was filed on behalf of the Oglala Sioux Tribe of South Dakota, the Tlingit and Haidia tribes of Alaska, the Northwestern Band of Shoshoni Nation, and six individuals, including four Nez Perce.

Legal Aid wants Health and Welfare to be ordered to notify the child’s tribe and the U.S. Bureau of Indian Affairs of pending proceedings and their right of intervention.

It also would give preferences for adoptions or foster care placement with a member of the child’s extended family, other people in the child’s tribe or other Indian families.

A central repository also would be established as evidence the state is complying with the act. Every state order involving Indian children’s adoptions after Nov. 8, 1978, would go to the U.S. Interior Department.

The motion will be argued May 16 before 2nd District Judge Ida Leggett.