Matter of Adoption of Baby Boy D

In the Matter of ADOPTION OF D,

BABY BOY minor child.

No. 62024.

Supreme Court of Oklahoma. 12, 1985.

Nov.

Rehearing Sept. Denied Haney, Gary Taylor,

Susan Work Okla- City, appellant. homa Buxton, Leach, Sullivan, William Green Buxton, Duncan, Travis, & Rex K. Okla- City, Viscosi, Duncan, homa J. Michael appellees.

SUMMERS, Justice. Appellant year a 19 old member of was the Seminole Nation of Oklahoma when his girlfriend, former year an unmarried 17 old non-Indian, gave Baby Boy birth D. her adopted by With consent the infant was appellees, couple. a married After learning of the without notice to consent, him and without his he filed a Court, petition claiming in the District to be seeking the father and adop- to vacate the tion.

Appellant’s requested Petition to Vacate that the Adoption Decree of be set aside on (1) grounds Baby Boy D was an Indian child as defined the Indian Child (ICWA), Welfare Act1 and that the proceedings subject tion to invalidation (2) thereby2 that the was denied process, say, due that is to notice and the heard, (3) opportunity to be and the Decree being subject vacated on the grounds practiced of fraud on the court sought the natural mother. He also custo- dy of the child. (1) appel- trial court found that the urge

lant lacked the vacation of (2) Adoption, the Decree of that the ICWA (3) applicable, was not and that no relation- ship existed between the Baby Boy give D which would rise to standing predicated princi- on constitutional ples, citing Robertson,3 Lehr v. Caban Mohammed,4 Quilloin v. Walcott.5 special The trial ap- court sustained the pearance, objection jurisdiction 1901-1963, 1. 25 U.S.C. §§ 4. 441 U.S. L.Ed.2d 297 (1979). 2. 25 U.S.C. § 1914. 5. 434 U.S. 54 L.Ed.2d 511 3. 463 U.S. 77 L.Ed.2d 614 (1978). quash appel- court and motion to do with mother or the p. child. [Tr. adoptive parents the Petition to lee 135-137] Adoption Decree of was dismissed. Vacate Approximately on appel- March to Va- Prior to dismissal Petition Muskogee lant went live with his cate, appel- the trial court also denied the go p. 103, brother to school there. [Tr. proceed pauperis motion to forma lant’s Again, he did tell the natural 104] compel his motion the natural moth- mother, baby whose he knew was due the (49) forty-nine questions certi- er answer April, end of March or first of that he was by appellant’s attorney. fied the court going. p. During time, the entire [Tr. 154] appellant suggested never to his family FACTS that the natural pregnant mother was appellant The and the natural mother his They accidentally child. learned when January, met Shawnee where heard member about it and They they both continued date for lived. appellant’s told the father’s mother. At 15, August Ap- seven months until point 30, on March days four go pellant then left to an Indi- Shawnee child, appellant before the birth of the still p. school at Eufaula. an [Tr. 122-123]. had no interest. p. [Tr. 138] Although appellant knew when he left that the was Shawnee Eufaula mother Throughout the pregnancy, ap- mother’s gave thought no pregnant, he to his future pellant not did make an effort to assist the baby nothing did as with the as far way. mother in any natural He did not p. baby. commitment to the mother or [Tr. support offer financial did he nor offer to 98, 121, at While Eufaula 130] marry p. her. baby [Tr. 141] 15, August School 1982 to December April Appellant was on born first Sep- telephoned 1982 he the mother in by telephone contacted natural mother and, p. although tember he made [Tr. 91] April, on 22nd or 27th of 1983. [Tr. trips or six “stomp five to Indian dances” He never told the natural mother he 140] approximately Seminole miles at 17 or 18 May wanted the child until after from Shawnee and came to Shawnee p. when his suit was filed. [Tr. 144] Thanksgiving p. 126], 100 and made he [Tr. attempt no p. to contact the mother. [Tr. After three months at the Indian 127] ISSUES (around November, 1982) appel- school following presented issues are again “just lant lost interest in school” [Tr. appeal:

p. and on December 1982 came 131] (1) father of Whether unwed a new- not, however, He did tell back Shawnee. standing challenge has born child the natural mother about his return. [Tr. constitutionality adoption of the Oklahoma p. He remained Shawnee from De- 131] adoption that allowed the 1,1983 statutes during cember 1982 until March consent, child without his time he called nor newborn did which neither the mother Appel- her p. given op- wrote a letter. he notice and an require not [Tr. 134] had dur- lant two contacts with the mother portunity to be heard. ing time, by neither initiated him. On (2) Indian father Whether an unwed of a “bumped December into” child has under the Fed- newborn natural mother aat record store in Shaw- Child eral and Oklahoma Indian Welfare

nee baby’s but he did not discuss the fu- challenge adoption of his child. Acts to p. ture. The other oc- contact [Tr. 101] (3) Adoption Whether Oklahoma stat- 2, 1983 February curred when the natural allowing of a child bom utes mother came to his home to him she tell consent of the out wedlock without the going put baby up was requiring father and notice natural that she want any did not interference opportunity to be heard to the objection from him. no and the He made sponse. anything He did want to have unwed father are constitutional.

(4) contemplated by under the facts of this statutory Whether or constitutional pauperis provisions.10 of forma status the denial process. of due contrary to law and a denial petition, In his amended al- (5) the trial court erred in Whether over- alia, leged inter that he is the natural ruling appellant’s compel motion to D, Baby Boy father of that a final decree requested the trial wherein Baby has been entered for Boy compel court to the natural mother to an- D, relinquishment and that the (49) forty-nine questions certified to swer tion of the child maternal consent alone by appellant. the court 60.5(2) authorized 10 O.S. and 10 §§ 29(2)(g) rights O.S. violated his of due I. process guaranteed by the 5th and 14th Amendments of the United States Constitu- DOES APPELLANT HAVE STANDING tion. CHALLENGE THE TO CONSTITU- TIONALITY OF THE OKLAHOMA law, legal matter As ADOPTION STATUTES? and interest in his newborn were ter “Standing” legal right is the of a by adoption proceeding minated if the challenge person to the conduct of another alleges is allowed to stand. He judicial in a forum.6 The United States liberty that this interest has been denied Supreme Court has stated: process due Focusing of law. our standing placed “When is issue a consideration on the and the alle question person is whether gations petition, in his we find that he has standing challenged, proper is whose a standing challenge statutes party request adjudication of a of this allegations state on the basis of his particular issue and not whether the is- liberty he was denied his interest justiciable.”7 sue itself is his son. As this court has stated: “ ‘Standing’ right is the to commence liti- II. gation, to take step the initial legal frames adjudica- issues ultimate DOES APPELLANT HAVE STANDING by tion jury.”8 court or TO CHALLENGE THIS ADOPTION THE UNDER FEDERAL AND When party of a OKLAHOMA INDIAN CHILD WEL- issue, brought into the focus is on the FARE ACTS? party seeking get complaint before the court and not on the (ICWA)11 issues wishes The Indian Child Welfare Act adjudicated.9 to have On of review is structured around the concern “that an ruling appellant’s trial court’s alarmingly high stand percentage of Indian fami- ing, it is not necessary removal, to decide up by whether lies are broken often ultimately unwarranted, will be entitled to of their children from them relief legal right but whether he has the by public private agencies” nontribal seek judicial grievance. placed redress for his in non-Indian homes and institu- proper inquiry concerning standing Congress tions.12 policy has declared the whether the defendant has fact suffered passing of this Nation in the ICWA as injury to legally protected interest as follows: Cartwright

6. (Okl. State ex rel. Dept. Transp., v. Oklahoma Tax rel. 646 P.2d of Com’n., (Okl. 1982). 1982). 653 P.2d Cohen, 83, 99-100, 7. Flast v. (cid:127) Independent School Dist. No. 9 Tulsa Coun of 20 L.Ed.2d 947 Glass, (Okl.1982). ty v. 639 P.2d Supra note 6. Supra note 1. Party Estep, Democratic Oklahoma v. of (Okl.1982); 1901(4). P.2d Application State ex 12. 25 U.S.C. protect the best result serious physical emotional or [T]o damage (emphasis added). to the child.” promote Indian children and to the stabil- ity security of Indian tribes and fam- (f) Subsection states: by the minimum ilies establishment “No parental rights may termination of federal standards for removal In- proceeding be ordered in such in the ab- dian children from their families and the determination, sence of a supported by placement of such children foster or beyond doubt, evidence in- reasonable adoptive cluding testimony qualified expert homes which will reflect wit- nesses, that continued unique of Indian values culture....”13 the child or Indian custodi- The central thrust and concern likely an is to result in serious emotional is, therefore, ICWA “the establishment physical damage (empha- minimum federal for the standards removal added). sis of Indian from their families”. applicable, The Indian Child Welfare Act is provisions support Numerous act therefore, when we are confronted with the this conclusion. removal Indian children from their fami- purpose promote lies. The of the act is to 1901(4) Section states: through the best interest of Indian children alarmingly high percentage of In- “[A]n promoting stability security of In- up by dian families are broken the re- dian tribes and families the establish-

moval, unwarranted, often chil- ment of minimum federal standards for the dren from them....” removal of Indian children from their fami- applicable you The act lies. is when have 1911(a) provides juris- Section exclusive being Indian children removed from their diction the Indian tribe: existing Indian environment. any custody proceeding “Over in- Oklahoma also has an Indian Child Welfare volving an Indian child who resides or is (OICWA).14 purpose Act The stated domiciled within the reservation....” policies act the “clarification state pending Section addresses court procedures regarding implementation (d) proceedings. requires: Subsection by the State of Oklahoma the Federal “Any party seeking to effect a foster “cooper- Indian Child Welfare Act” and to of, placement pa- care or termination fully ate with Indian tribes Oklahoma to, rental an provi- Indian child under order to insure that the intent and sions of the Federal Indian Child Welfare satisfy State law shall the court that Act are enforced”.15 The Oklahoma Indian active efforts have provide been made to applies Act Child Welfare when the ICWA remedial pro- services and rehabilitative applicable.16 grams designed prevent breakup appellant claims that has stand- family the Indian and that these ef- unsuccessful, ing Child under Indian Welfare Act proved forts (empha- have challenge validity added). sis upon son newborn based violations Sec- (e) Subsection declares: 1913 of tions 1912 and the ICWA. placement may “No foster care be or- gives jurisdiction Section 1911 Indian tribes proceeding dered in such in the absence custody proceedings Indian child in- over determination, supported of a by clear volving Indian child who resides or is evidence, convincing including testi- domiciled within the reservation of the mony qualified witnesses, expert pending Section 1912 addresses tribe. custody continued of the child concerning proceedings any court involun- parent or likely proceeding Indian custodian is tary a state court where the O.S.Supp.1984 § 25 U.S.C. 40.1. § 14. 16. O.S.Supp.1984 O.S.Supp.1984 §§ 40-40.9. 40.3. acknowledged paternity. or established to know that an or has reason court knows acknowledged This section re- take this to mean or We child is involved. Indian through procedures avail- parents and to established to the quires notice courts, through 1913 deals the tribal consistent tribe. Section able Indian child’s giving customs, through procedures custodian parent or tribal or an Indian with place- care paternity to a foster Until voluntary consent established state law.18 rights. established, acknowledged termination or an unwed ment or legal lay father has failed to claim Indian these alleges that three appellant applica- child and the ICWA is not specific in different were violated sections ble.19 therefore, and, has instances allows: 1914 which standing under Section This construction of the ICWA is “[A]ny parent from whose ... purpose of the act to accord with stated removed ... child was such [Indian] from the destruc protect Indian children competent jurisdic- any court petition family by child welfare tion of Indian units upon a such action tion to invalidate empha agencies and courts. The ICWA any showing that such action violated Congress protect seeks to sizes that the 1911, 1912, and provisions of Sections by setting minimum federal Indian 1913....” standards for the removal of that Indian parent defines as follows: The ICWA existing Indian unit.20 child from an “ ‘[Pjarentf any biological parent means have a child who hás never resid Here we parents of an Indian child family, in an Indian and who has a ed adopted person lawfully has who foregoing rea non-Indian mother. For the child, including adoptions un- an Indian lacks sons we conclude or custom. It does not der tribal law case. to invoke the ICWA this paternity include the unwed father where acknowledged or estab- has not been III. lished.” definition of does not The ICWA ARE THE OKLAHOMA ADOPTION paternity include the unwed father where UNCONSTITUTIONAL STATUTES acknowledged has not been or established. FATHER? AS TO THIS UNWED Further, standing to grants Section 1914 appellant challenges the constitution- The only invalidate an action adoption ality statutes21 of Oklahoma custody was re- whose such child held that he has on two fronts. We have moved. standing to do so. He claims that these Fourteenth attempt to statutes violated his Fifth and The made no rights process equal acknowledge until he amendment to due paternity or establish by Although there was notice petition protection. his decree of filed to vacate the this Stephens publication, he contends that notice adoption in the of District Court process to meet due County. has was not sufficient Until such time as a father of this acknowledged quirements under the circumstances paternity, or established therefore, argues, He his interest applicable. Congress by is not has case. ICWA him language his newborn child was denied this its intent not to evidenced not receive no- process out of due because he did extend the ICWA to the child bom heard on the opportunity fa and the to be wedlock as the instant whose tice adoption of his newborn child.22 He con- ther has never had and has not Act, 1903(9). Adoption Uniform 10 O.S. U.S.C. 21. Oklahoma § 17. 25 60.1-60.23. §§ 55, 60.3(4). 18. 10 O.S.1981 §§ adoption of a 60.5 states "An § 22. 10 O.S.1981 decreed there has been filed Maricopa County, be when Appeal 19. See Matter (2) by: adoption executed a written consent to (Ariz.App.1983). Ariz. 667 P.2d 228 wedlock, mother, its if If the child is born out of older, (16) age years shall be 20. 25 U.S.C. sixteen equal protection was right quacy procedure tends that that Oklahoma has by provided the Oklahoma statutes protection. violated for such of, require they the consent because legal problems In arising from par- opportunity afford notice and an thereby relationship, ent-child the United Su- States to, legit- be heard fathers and mothers of preme Court has held in some cases that children, illegit- and to mothers of imate the Federal supercedes Constitution state illegit- not to fathers of imate but law provides greater protection even In consideration of imate children.23 our for certain relationships. formal In challenges constitutionality these those cases the Court emphasized has statutes, the Oklahoma we will paramount interest is the welfare of argument, process first the due address the child noted and has that the equal protection. concerning then the one parents counterpart are a of the re- A. DUE PROCESS sponsibilities they have assumed. appellant contends that he de- The Court, Supreme development in its nied his interest his newborn with- of the theory constitutional process out the Oklahoma due law rights, given protection has attention to the addressing adoption statutes. this alle- given to be to biological parents who have gation this must Court answer follow- developed emotional bonds with their chil- ing question: dren. Those emotional bonds are a critical factor in the determination of the appellant-unwed constitu-

Was interest right biological parents tional to main- father such constitutional stature that tain their given relation A process required due children. be notice and biological relationship is of opportunity to be heard constitutional significance biological of his newborn child? because it offers unique develop opportunity pro Fourteenth Amendment these emotional bonds with their children.27 deprive any person vides that no state shall The Court has examined the extent life, liberty, property without due natural, which a biological unwed father’s process of law.24 When that is in clause relationship protec with his child receives context, voked this must Court process pre tion under the due clause in precise make a determination of the nature Illinois,28 cisely Stanley four cases: v. of the private threatened Quilloin Walcott,29 v. Moh Only the state.25 Caban after that interest has Robertson,31 been ammed30 and Lehr v. proper identified can a evaluation important These adequacy cases are instant process state’s We, therefore, only case de made.26 because when the Court has first consider the nature of the one liberty interest in which termined the unwed father to be whose protection, relationship claims with his child has amounted constitutional and then turn relationship, to the ade- a re discussion custodial has the Court 482-83, Brewer, 471, capable giving Morrissey

deemed consent." Because v. 408 92 U.S. 2593, 2600-2601, (1972). the consent of the unwed father of the S.Ct. 33 L.Ed.2d 484 required, born out of is no wedlock is not there provision opportunity for notice or to be Robertson, 27. Lehr v. 463 U.S. 103 S.Ct. heard to the father. (1983). 77 L.Ed.2d 614 states, legitimate 23. 10 O.S.1981 60.6 "A 28. 405 U.S. 92 L.Ed.2d 551 31 adopted cannot be of its consent (1972). parents, living, if nor of wed- a child born out mother, lock without the consent of its if liv- 29. 434 U.S. 98 S.Ct. 54 L.Ed.2d ing —” (1978). Const, XIV, 24. U.S. amend. 1.§ U.S. L.Ed.2d (1979). McElroy, Workers v. Cafeteria 895-896, 1743, 1748-1749, 6 L.Ed.2d supra 31. Lehr note 27. such purposes, In For a father. thers. once-custodial favorably to unwed sponded Illinois, relationship is similar that of described father’s a the Court Stanley v. custodial presently “sired and mother. Stanley a man had as who Peter had A man who his children. raised”32 to fathers like Caban36 limited Caban their supported them all lived with and relationships have had who substantial opinion, there was In the Court’s lives.33 their with children. Fathers newborn natural Stanley that was question no poten- children are excluded because equated interest The Court father. locating tially greater difficulties in them. any father that unwed with a custodial of a real Because difference avail- equal gave it parent and other custodial newborns, ability of the father of differen- stature. constitutional tial treatment of them directed their pre- unavailability can justified because of depended on the conclusive Illinois relationship to the fathers are un- its substantial state’s all unwed sumption that regardless promoting adoption, children. their interest qualified to have however, similarity Court, if Stan- of the father’s interest to concluded that his children mother’s.37 court noted that the ley parent, removal of a fit was argument posed by general nothing to the state’s unavailabil- would do further apply safety ity of his of unwed fathers did not to Caban in the welfare and Thus, necessity to fathers with substantial there a because like Caban children. was relationships disprove Stanley’s clearly As a custodial with fitness. father, Stanley if a father had had a constitutional not unavailable. But not unwed relationship such relationship with his children established a his interest in his children, par- complain he about equal interest of other custodial cannot differ- hearing him to a ential treatment.38 ents. His interest entitled was the stan- on his fitness because fitness Quilloin Walcott,39Quilloin’s In v. rela- applied dard to state removal of children quite his tionship with child was different parents. his from other custodial It was Stanley’s Specifically, Caban’s. children, biologi- custody of his and not his supported the consistently had never alone, him in- gave cal that connection sought and had never had nor actual or the same that of terest of stature as legal custody of the child.40 Unlike Stan- parent.34 other custodial a ley, the did not terminate cur- a Mohammed,35 relationship unlike custodial between father Caban rent Caban Caban, son, protection only Stanley, could claim for the and his unlike by past created custodial not terminate a current emotional rela- emotional ties a did tionship during that had created a relationship and not for current custodial been However, recog- relationship. Neverthe- relationship. former custodial the Court less, Quilloin claimed that his interest relationship nized that the established retaining relationship with his son support former care was Caban’s weight significance potentially equal the same constitutional children was relationship currently Stanley’s had and could not be terminated they with the jus- without the same substantive with their custodial mother. At least the state tification, weight against proof i.e. his unfitness equal as a state statute Marshall, Justice unanimous gave power mothers to withhold father. children, court, Quilloin focused on the fact did consent to the of their have, had, such fa- had and had denying power the same never never while Id., 392-93, at at Supra 32. note at at 1212-13. 99 S.Ct. 1768-69. 92 S.Ct. 37. Id., 33. 92 S.Ct. at at 1212. Id., 1768. 38. at S.Ct. at Id., 647-50, 34. 1210-12. at at Supra note 29. 39. Supra 35. note 30. Id., at at 554-55. 40.

36. Id. legal custody or sought deny actual his state even even them participation in child,41 permitted adoption of his and the preliminary stage the determining that emphasized child to The Court the stand. they are without an interest. In the in a and distinction between custodial father a stant this court must determine what that father and indicated the noncustodial right, if any, appellant, who has shown no of noncustodial have less interest interest in his in the care of the significance the constitutional than interest prior birth, mother and the child has parents. recently, the of custodial More respect with to notice and the opportunity distinguished Stanley and Caban court has concerning to be heard adoption the of his Quilloin calling relationships child. From Supreme newborn the four “developed” Stanley and Caban and cases, right Court we know that his is Quilloin relationship merely “poten- certainly less than father’s who has or essence, In the distinction tial”.42 relates custody has had and has fulfilled the custo special relationship kind of that is responsibilities dial go that custody. with developed the exercise custodial re- sponsibilities. protects only The Constitution par appellant, presently

The does not who relationships biological parents ent-child and has never had have his actually who have committed themselves to child, can make no claim that absolute responsi their children and have exercised empowered adoption be must veto for bility rearing their prin children. This Stanley, Caban and cipal his child. Under theory has its basis that the Quilloin,43 shouldering custody, sig- process defining relationships which are responsibility respect daily nificant with constitutionally significant includes con education, supervision, protection, and competing sideration of how the interests qua sine non protec- for substantial by protection. are served Parents who tion. commit themselves to their children and Robertson,44 Lehr v. responsibility rearing take for their chil natural fa ther, complained dren share the in assuming state’s failure to state’s interest provide participation his proceed proper for for care their children.

ings leading to daughter However, paramount interest to be off opportunity pro cut his establish considered is the child’s best interest. Chil- relationship tected child. objects. dren are They grow not static and Court declared that State of New York develop, growth development and their required of, was not notify Lehr nor require day-to-day more than satisfaction in, him participate allow the proceedings physical growth Their needs. leading child. The development require day-to-day also satis- give always pow state need not the father needs, pri- faction their emotional and a adoption, er to veto his child’s nor must the mary permanence emotional need for even state consider the father’s actual stability. Only when their emotional needs potential relationship with the child as a develop satisfied can children the emo- in determining factor whether independent tional attachments that have in the best the child.45 After significance.47 constitutional Lehr,46 it is clear some circumstanc recognizes This es court a child’s need may constitutionally the state omit to notify permanence his or her participation by stability, or allow like unwed fa needs, who It postponed. thers have never been established offi other cannot be must being interest, cially early provided early. as- need 41. Id. at 554-55. 45. Id. Lehr, supra note 103 S.Ct. at 2993. Id. Supra stability appellant for the in the permanence and be heard

surance determi- factor constitutional proceedings. essential tion or not instant case of whether nation appellant’s relation- potential protect the EQUAL B. PROTECTION child. for constitu- ship The basis with Although gender-based statutory missing if the classifi- protection

tional parental on seeking it has not taken those cations deserve ex- careful constitutional perma- such provide which responsibilities amination,48they invariably are not invalid. stability. nence and men and not in fact sim- When women are the case, ilarly we are concerned situated in the In this area covered child a newborn unwed father of rights an legislation questioned, Equal Protection those of the has, his interests and when Appellant urges is not Clause violated.49 conflict, the best are mother statutory appeal Oklahoma adoption legiti- is served of the child allowing illegitimate adoptions scheme all the in- After mation. consideration without the the natural consent of involved, goal legislative terests gender-based father constitutes a distinc- interest in re- compelling state statute and equal protection tion which is violative of only parent, of one quiring consent under the law. mother, are in adoptions is to facilitate Therefore, interest of child born out of necessary the best it is to determine many To do would wedlock. otherwise there are between the whether differences deny the child—and the state— instances provide of the two members classes that legitimation. adoption the benefits differently. justification treating them attempt to different, Here the made no are Men and women and the dif- during pregnancy. for the provide mother question ferences relevant attempt Nor did he to learn when given the mother the ex- whether Appellant child was where the to be bom. right adoption clusive consent to the any pay, attempt did not nor make ar- bom out of Because the wedlock. rangements for the of the ex- payment case, adoptions, in this inas most penses related to and care of the the birth infant, appropriate a newborn it is involves child or mother. in effect abandoned He significance focus on the of the differ- support and care mother and point in such cases. From the ences during He pregnancy and at birth. on, conception recognizes very the law responsibili- did not assume differences the father and real between ties. concerning destiny. mother the child’s The statutory Oklahoma scheme Only the mother constitutional has the adoption of a child did born out of wedlock right to decide to have the child or whether require the consent of the the child.50 mother has the not have and, thereby, require did not that he have marry right another male before the notice and an heard con opportunity to be “rights” child is bom affect the cerning of his child. Under father who not even have natural does the facts of this we hold that dispute child is the statutory scheme for of chil natural hus- child of the mother and her constitutionally dren bom out of wedlock is given At birth the custo- sound, band.51 mother is constitutionally per and that it was opportunity dy missible to omit the child bom notice and the out of wedlock.52 Boren, Craig 48. v. U.S. 97 S.Ct. 50. See Planned Parenthood Central Missouri 67-75, (1976). Danforth, U.S. L.Ed.2d 397 2840-2844, (1976). 49 L.Ed.2d 788 Ballard, Schlesinger v. § 51. 10 O.S.1981 42 L.Ed.2d 10 O.S.1981 marry humane, mother choose to the natural Concerns as practical, well as “rights”.53 positively father and affect abundantly support our statutory scheme only parent that one need to consent to the conception through infancy From the adoption illegitimate of the child, although constantly mother will be faced with unwed requires parents it both to consent to care for the the decisions about how best adoption already that of one legitimate. is much less certain the If child. It prob- father will faced with such consent unwed of both unwed parents were re- immediately after a lems. At the time and quired, consent, and one withheld that wedlock, the natural child is born out illegitimate child illegitimate. would remain real the mother differences between QuiUoin56 We know from requiring that justify father continue to some differ- of only consent parent one not in the mother ential treatment of and father itself constitutionally defective. process. These differences adoption QuiUoin, In Georgia the Court found a gives rule the mother in justify a that always Statute which required a mother’s charge the infant is often whose sole consent to of a child bom out placed flexibility deciding maximum wedlock, required but the father’s con- to best care for the child. This is the how only legitimated sent if he had gives rationale for a rule that the mother Equal did not violate the Protection Clause. of the newborn child bom out of wedlock The most relevant consideration right to the exclusive consent to its in evaluating rights Court both the of the tion. parents and the best the child is Also, adequacy notice to absent fa- the existence or non-existence of a substan- privacy, thers could invade the mother’s relationship tial between and child. adopting parents cause the to doubt the In the instant that same consideration reliability relationship, new and add sufficiently profound appel- to overcome expense required time con- lant’s claim invidiously that has been usually simple clude what is now against process. discriminated because he is male. Although certain in Caban54 the Court struck down the New York statute adoption proceeding the com equal protection argument, based an peting interests at stake must be balanced. Caban, as Stanley, past had in the had Granting rights unwed fathers the same custody and had exercised the burden of guarantee parents, all other but with no responsibilities given the custodial such im- they responsibilities would assume the portance in the opinion. Court’s The Court assume, giving that other would be special distinguish took care to Caban’s unqualified right father the unwed an claim from that aof father of a newborn. unfitness, adoption, block absent even responsi- Caban had full assumed custodial though adoption might be in the child’s bility thereby for his children and estab- Supreme relationship lished a best interest. Court has equal every way unwilling with that of single par- other been to allow unwed custodial fathers to said, however,: ent. The Court parenthood have also parent “In assuming responsibilities those cases where the father never has come participate reasoning represents forward to hood. This a careful rearing child, nothing Equal balancing competing interests at precludes Protection Clause the State reasoning stake. concur in We its from withholding from privilege him the Requiring result. the consent to vetoing child.”55 mother, of the natural but not the consent father, of the natural of the child out bom It must be remembered that there two, but of wedlock the instance case does not three at those interests stake: mother’s, protection deny appellant equal the father’s and child’s. of the law. 53. 10 O.S.1981 2. Id at 99 S.Ct. at 1767. Supra Supra at note 30. note pay no resources to financial for Human

IV. Leukocyte Antigen blood tests for the de- HAVE THE APPELLANT SHOULD (Rec. 119, paternity, p. termination of at Tr. PROCEED TO BEEN ALLOWED 36-37) No witnesses testified on behalf IN FORMA PAUPERIS? Appellees. litigation fund of the Appellant used a provides Oklahoma law no fees or that pay to initial Nation of Oklahoma Seminole required costs “upon satisfactory shall be filed he his Peti- costs of his action when showing litigant to the court” 25, that a 1983. On Octo- May on tion to Vacate to in 6, 1983, questing proceed pauperis Motion Proceed In “has he filed a forma ber Pauperis. is, therefore, pay Forma no means and unable applicable employ fees and and to costs motion, appellant filed support In are no civil counsel”.57 There Oklahoma poverty. In his affidavit he an affidavit containing cases further on the elaboration wholly stated, indigent, he “that requirements governing for- statute funds, resources property or other whatso- ma pauperis status. pay transcripts for and other servic- ever to necessary normally expect- might as es Although appellant has not prepare' tri- properly in order ed any been denied fundamental nor al....” prevented prosecuting been his law hearing at a The motion was denied on in find appeal, suit the trial court we 28, hearing, Ap- that November 1983. At overruling that trial court erred in years was nineteen pellant testified that he appellant’s Motion Proceed Forma only working job and his skills were old Pauperis. appellant established order “a little a short cook and bit of through testimony his affidavit and oral 119, (Rec. 36) carpentry p. at work”. Tr. indigent he no party was an who had high He testified that finished his school he means and remand pay fees costs. We August education on and was this to the trial to determine matter court unemployed for Then a month thereafter. who shall be reimbursed for fees and began working he his brother-in-law’s fees, filing including costs of action 35) this (Transcript, p. company. construction Antigen Leukocyte Human blood test58 began employment From the time any the first of until the 28 and costs authorized law for October November other hearing, only thirty-six he had poverty. worked reason of reimbursement $4.00, pay hours at a receiving rate of (Rec. 119,

gross salary of at Tr. $146.00. V. 34-35) Appellant further testified that he lived ERROR IN REFUSAL TO WAS THERE with his mother paid no rent utili- THE MOTHER TO AN- COMPEL ties, (Rec. 38), 119, at p. Tr. but he had QUES- THE CERTIFIED SWER helped groceries. his family pay for some TIONS? (Rec. 119, 59) p. drawing at Tr. He was no trial appellant contends that (Rec. unemployment 119, compensation at compelling court erred in not the natural 51), p.Tr. and had no other work outside (49) forty-nine questions mother to answer (Rec. company. p. the construction at court. that the certified to the We find 53) car, He did not did not own a have arguments per- (Rec. 38), insurance p. at Tr. and had light prevailing suasive We law. (Rec. no bank account or trust account. at question further moot as a 45) find this to be p. Tr. testified that his He holdings parts result of II and III of help were “in no our condition to me that much,” (Rec. 48), opinion. p. Tr. and he had this O.S.Supp.1984 Supp. 57. 28 See §§ 10 O.S.1984 503. LAVENDER, J., CONCLUSION concurs Part dissents Parts that the does not We hold have KAUGER, standing J., Child Welfare under concurs in Parts Welfare and dissents to Act and Oklahoma Indian Child Parts Adoption. Act to the Decree of We vacate he does have chal- hold that OPALA, JJ., HODGES and dissent. lenge constitutionality of the Oklahoma KAUGER, Justice, concurring part, but his statutes dissenting part. child was not such constitu- newborn agree I majority's with the conclusion in required given he be tional stature that the parts I and IV that the father had adoption by requiring right to veto the to challenge the constitutionality of the regard op- consent. In this notice and the statutes, Oklahoma and that the portunity to be heard on the father permitted pro- should have been to not, therefore, required child were under pauperis. ceed in I dissent from forma process due clause of the the Fourteenth II, in holdings parts III, the forV the

Amendment. Nor was the denied reasons stated below. equal protection under law the because his Although, it is well settled that statutes required consent was whereas the con- involving Indians are to be construed lib- sent the natural mother was. erally favor,1 in their in this the Indi- We hold that the trial court erred in pass ans were cut off the after the trial overruling the appellant’s Motion to Pro- court, acquiescence majori- the of the Pauperis ceed In Forma and we remand ty, ignored the Oklahoma Indian Child Wel- per this matter to trial (OICWA). the court as our fare Act. The Oklahoma Act policies procedures instructions. We hold clarifies the issue state provi- insure overruling that both the intent and the appellant’s court’s motion to sions the federal ICWA are compel enforced.2 light in holdings be moot of our policy The announced of the OICWA to above. cooperate fully with the Indian tribes of part; Affirmed in part; reversed in custody All proceedings state. involv- manded with instructions. ing children who are members an Indian tribe, eligible for membership, tribal or bio- SIMMS, C.J., DOOLIN, V.C.J., and logical children of tribal members with- fall WILSON, JJ., purview.3 HARGRAVE and concur. its Indians, Act, Montana 471 Tribe U.S. “A. The Oklahoma Indian Child Welfare Blackfeet 759, 764-67, 2399, 2403-04, 105 S.Ct. 85 L.Ed.2d in accordance with the Federal Indian Child (1985); McClanahan v. Act, Tax Arizona custody applies pro- Welfare to all child Comm’n, 164, 174, 1257, 1263, ceedings involving except child Indian (1973); Trapp, 36 L.Ed.2d 129 Choate v. following: 665, 675, U.S. 56 L.Ed. 941 proceeding custody arising 1. A child from a Housing Ahboah v. Auth. Kiowa proceeding; divorce Tribe, (Okla.1983). 660 P.2d proceeding arising A2. child adjudication delinquency, an unless there purpose O.S.Supp.1982 2. The is stated request been 40.1: has for termination of rights. purpose "The of the Oklahoma Indian Child B. The Indian poli- Welfare Act is Oklahoma Child Welfare Act the clarification of state procedures regarding only cies applies to a who a member of imlementa- an by tion the State of Oklahoma of the Federal eligible Indian tribe or who is for member- Act, Indian Child Welfare P.L. 95-608. It ship biological in an Indian tribe and policy cooperate shall of the state to child of of an a member Indian tribe. fully with Indian tribes in Oklahoma order seek C. The court shall a determination provisions ensure the intent the Indian status of accordance Federal Indian Child Welfare Act are en- following preceding with the standard forced." circumstances: Application provided 1. The court has been informed an inter- the Act is O.S. Supp.1982 court, tribe, party, § 40.3: an an ested officer country majority, na- ican exercising became a Indians.6 this tra- Well before precedent insensitive had tion, Anglo-Saxon been ditional notions of child custo- culture and tribal destroy Indian dy proceedings, has completely cast failed removing Indian children recognize relations, cohesiveness essential tribal and the and tribal environ- families from their right possess which Native Americans separation Continuing of Indian ments.4 preserve identity people. as a heritage is one from their aspects of con- and destructive tragic most I State intrusion into life. temporary Indian relationships parent-child American Native THE THE TRIBE AND PUTATIVE FA- perpetu- ability of the tribe to impedes the THER AN INDIAN OF CHILD it and, ultimately, unjustifiably itself, ate BORN WEDLOCK ARE EN- OUT OF assimilation in a coerced results TITLED TO NOTICE OF PENDING larger into a more ho- First Americans ADOPTION PROCEEDINGS Congress recognized society.5 mogenous If a trial court has reason to believe that most vital com- Indian children infant is an subject ponent continued existence of the verify it must first seek to child’s it enacted Indian Child tribes when tribe(s) status with the which be 25 the Act of U.S.C. 1901 et Welfare § of attempt responsibili- meet its tribe the Indian or with the Bu- seq., in an Here, protector and Amer- reau of guardian ties Indian Affairs.7 as the public Young organization private People formerly brought up or a or were indian Indian; Provinces; agency the child is or Colleges they that of the Northern subject pro- Sciences; but, child who is the of the 2. The ceeding gives your were all instructed in reason the court to believe he is us, they they when came back to were bad child; or an Indian Runners, ignorant every living means of in has reason to the resi- 3. The court believe Hunters, the woods ... neither fit for Warri- predomi- domicile of the child is a dence or ors, Counsellors, they totally good nor were community. nantly Indian are, however, nothing. for We not the less seek D. The court shall verification of the Offer, oblig’d by your kind tho’ we decline child Indian status of the from the Indian it; and, accepting grateful our to show Sense tribe or the Bureau of Indian Affairs. A de- it, Virginia if will the Gentlemen send us membership by termination of an Indian tribe Sons, a Dozen will take of their we Care of A shall conclusive. determination of mem- Education, know, instruct them in all we bership by the Bureau of Indian Affairs shall and make Men of them. contrary be conclusive in the absence of a Drake, History Biography of the See 1 and Indi by the Indian determination tribe. America, (3d. p. 27 ans of Ch. ed. North The determination of the E. Indian status of 1834). practicable a shall as soon as be made compliance order ensure notice with the Guerrero, Child Welfare Act “Indian 1978: requirements of Section 5 of the Oklahoma Response Threat to Indian Culture A to the Indian Child Welfare Act." Adoptive Placements of Caused Foster and 4.On June from commissioners Children," American Indian L.Rev. Indian 7 Maryland Virginia negotiated treaty and a with 53 Lancaster, the Indians of the Six Nations at Pennsylvania. The Indians were invited to send 1901(3) (1983) provides: 6. Title 25 U.S.C. boys Mary College. to William and The next that that is more "... there is no resource day, politely the Six Nations declined the offer. integrity vital to the continued existence Their letter stated: children and of Indian tribes than their that you highly “We know that esteem the kind interest, a the United States has direct learning taught Colleges, in those trustee, protecting Indian who are Men, young Maintenance of our while eligible membership members of or are you, very expensive you. would be We are tribe; an Indian ...” convinced, you that mean to do us Good your Proposal; you heartily. and we thank requirements 10 Notice are set forth in O.S. you, But wise must who are know that differ- 40.4; Supp.1982 § Conceptions ent Nations have different any involuntary pro- "In you Indian things and will therefore take it amiss, ceedings Child of the Oklahoma Indian Wel- if our Ideas of this kind of Education Act, hearings, yours. including happen fare review not to be the same as have court We Experience parents had some of it. or Several of our shall send notice to the court, ignoring tion invalid because was not the biological father.10 A literal Act, as well as due mandate reading of the act applica- federal dictates law, process of failed to seek determina- bility here. tion from child’s status either point, On this fallacy the fatal BIA, notify or to tribe or the tribe majority opinion distinguishes, it putative impending adop- father of the without citation of authority, biological par though proceedings. tion Even the father ents actually who responsi have exercised County, was a resident Pottawatomie bility rearing their children those and the tribe’s official office was main- birth, who have not. At the infant was County, the only tained Seminole notice adopted directly hospital, from the and the by publication pending given father was no opportunity to Stephens County newspaper.8 comply with the standards of Lehr v. Rob sanctioning opinion, adoption, majority ertson, 463 U.S. grounded 1) premises: flawed that the Mohammed, Caban v. (1983), L.Ed.2d Indian Child Welfare are inapplicable Acts U.S. children who are not domiciled in Indian S.Ct. 60 L.Ed.2d 297 Quilloin Wallcott, 2) homes; (1979), provisions pertain federal act do not to unwed fathers. (1978), 54 L.Ed.2d 511 relationship institute with his son. A perusal careful of the federal ICWA adoption proceedings telescoped, were reflects that unwed fathers not exclud- his, thereby excluding family’s, and the paternity has not been acknowl- ed unless edged or established.9 The father tribe’s claim to the child. The discrimina in this ting parents treatment of attempted acknowledge case of children paternity, born parties the adverse have con- out wedlock from other by pro never seriously putative tended viding father procedures substandard for termi custodians, 545, 552, 1187, any, Indian if to the tribe 380 85 U.S. S.Ct. 14 ZO, child, may be the tribe of the Indian (1965); and to City L.Ed.2d 62 Schroeder v. New appropriate the Bureau of Indian York, 208, 213, Affairs area 371 U.S. 9 office, by registered receipt mail return (1962); L.Ed.2d 89 A.L.R.2d 1398 Mullane quested. The notice shall be written in clear Co., v. Central Hanover Bank & Trust 339 U.S. language and understandable and the include 318-20, 652, 659-60, 94 L.Ed. following information: (1950); Inc., 875-76 Cate v. Archon Oil Co. 695 1. The name and tribal affiliation of the In- (Okla.1985); Socony P.2d 1356 Co., v. Bomford child; dian (Okla.1968). Mobil Oil 440 P.2d 718 copy petition by pro- 2. A of the which the initiated; ceeding was parent provided 9. The Federal definition of is rights biological 3. A statement of 1903(9) (1983): 25 U.S.C. § custodians, parents or Indian and the Indian (9) ‘parent’ biological any "... means tribe. parents or of an Indian child or Indian a. proceeding, to intervene in the person lawfully adopted petition who has an pro- b. Indian the court to transfer the child, ceeding child, including adoptions tribal or to the tribal under law court of the Indian and It does include custom. the unwed father request (20) twenty days paternity c. acknowledged an where has not been additional established; receipt prepare pro- from of notice to for the ...” ceeding; may further extensions of be time Legitimization by acknowledgement granted pro- approval; is with court potential § vided in 10 O.S.1981 55: legal A statement of the conse- quences adjudication of an on the cus- future illegitimate by publicly “The father an rights parents todial ans; of the or Indian custodi- own, acknowledging receiving his it as as it such, wife, consent of his if is 5. A statement that if the or Indian married, family, into his and otherwise treat- counsel, custodian are unable to afford coun- ing legitimate thereby if it as it were a them; appointed represent sel will be such, adopts thereupon as it and such child 6. A statement tribal should officials purposes legitimate deemed for all from the keep confidential information contained time of its birth. The status thus created is in the notice.” adopted by regular procedure that of a child Adams, 8.Mennonite Bd. court.” Missions v. 791, 797-801, 2706, 2711-12, LaSarge, See Re also In Estate 526 P.2d (1983); (Okla.1974). Armstrong L.Ed.2d 187-88 Man- rights imper recent an amendment 60.6.15 The father of their § nation equal protection of the tribe were entitled notice and to missible violation Constitution opportunity of the States clause United to be heard. Const, art. 5 59.11 The § Okla. recognized Legislature has II Oklahoma pro this denies due proceeding a such AN BE INDIAN CHILD NEED NOT It has equal amended protection. cess and AN INDIAN DOMICILED WITH require notice and 10 O.S. 1981 60.6 FAMILY TO BE BY PROTECTED hearing born out before fathers THE INDIAN CHILD WELFARE parental rights have their may of wedlock ACTS procedural requisites terminated.12 [The opinion, According majority to the the amendments —the place were before purpose prevent of the federal ICWA is to merely codified extant consti amendments being Indian children from from removed tutional law] existing holds that Indian units. It Even, assuming arguendo, that fed- disregarded Act may if the child has inapplicable, eral ICWA State living setting. been in a non-Indian familial Oklahoma, sovereign of its the exercise Again, majority Acts. misconstrues the individual powers, provide liberties lifestyles markedly differ expansive are than con- which more those Continuing those of the non-Indian world. Although ferred States.13 United tribal traditions result a world view majority acknowledge refuses to state group identity concept of which create supremacy in this matter federal act culture, culture within a the values of 192114requires does not. Title 25 U.S.C. § unknown, unnoticed, generally which are applied that state standards must be in lieu unrecognized by unacq- those who higher of federal law if the state affords a signifi- protection uainted with tribal customs. The degree of concerning cant in tribal parent of an differences values Indian child. That father of heritage, time, kinship, concepts schedul- protected a child born of wedlock has out activities, rights concerning ing geographical natural loca- his child is well seasonal OICWA, tion, race, religion, economics, language, documented in the Foster, (Okla. writing right 11. Wilson v. P.2d c. to notice of he waives 1979). hearing provided 4 of this in Section act, or 1308, 1521, 12. See H.B. 7 Okla. Sessions Law appear hearing provided d. he fails to (1985), provides pertinent part: 1524 which in for this all notice re- in Section 4 of act if putative "3. The or father father of a child quirements have been met...." born out of if wedlock prior hearing provided a. to the in Sec- for Robins, Shopping Pruneyard v. 447 Center act, having tion 4 of this and knowl- actual 2035, 81, 2040-41, U.S. S.Ct. 64 L.Ed.2d 100 edge impending of the birth or birth (1980); Kelly, Pauley 741 v. 162 W.Va. 255 child, he believed to be his fails to ac- (1979); Tulsa, City Bailey S.E.2d 864 of knowledge paternity the child of or to take (Okla.Crim.1971); 491 Dean v. P.2d 318 any legally action to establish his claim to (Okla.Crim.1975). Crisp, 536 P.2d 963 paternity parental of the child or exercise child, rights including or duties over the fail- (1983) provides: 1921 support Title 25 U.S.C. ure to to the contribute the mother of the child to the extent of ability during financial appli- "In case where State or law Federal pregnancy, her term or custody proceeding a child under cable to hearing provided b. at the for in Section 4 of provides higher law stan- State or Federal act: this protection rights dard of (1) prove he fails that he is the father of or than Indian custodian an Indian child child, or rights provided subchapter, under this (2) having paternity, established fails to he apply State or Federal court shall the State or prove parental rights that he exercised has standard.” Federal proves and duties child unless toward the knowledge that he had no child or had Evans, "Independent Adoptions: In Whose opportunity rights no to exercise and Best O.B.J. Interests?" 53 1808 duties toward

1075 mores, family prac- problems significant and were so historicity, sexual Congress recognized,17 realized that federal must be intervention tices and structure16 necessary was result was Indian notwithstanding apparent incompati- their —the Child Welfare Act of 1978. The evidence bility with middle class mores. presented prompted Congressional which by cultural must not be victimized Courts action Indian established that children were attempt rep- myopia a well-intentioned being removed and fami- homes have an majoritarian resent norms. Courts greater lies far than numbers non-Indian obligation become more sensitive to dif- children. The Association on American In- existing within ferent cultural values our Affairs, non-profit organiza- dian a national society.18 In pluralistic the case of the tion founded in to assist American Americans, it must be realized that Native and Alaskan Native communities achieve relationship tribes to Indian Ameri- civic, full and equality, social economic con- is, been, society, always and has can surveys ducted and 1969 1974. The sur- unique relationship premised not especially veys approximately reflected that 25 to 35 race, upon upon by law created but percent of all American Indian Children Constitution, perpetuat- United States separated were from their families and treaties, by ed more often breached [albeit placed homes, adoptive foster homes honored], sovereign than between nations. nearly and that every one in four Native those To who fear that child mixed year age American infants one under stamped impri- will blood not adopted.19 were Social worker misunder- society, matur of the dominant the answer of Indian life was often the is, society impact the dominant will on mi- removals, high basis for the which in a mores, nority traditions and but the heri- cases, percentage on percep- were based tage of Indian people will not be trans- allegations neglect tion of rather than on youth mitted and assimilated its work, Underlying physical abuse. social exposure absence the tribal within com- decisions, presumption, court munity. world, shared others the non-Indian joining that an Indian child was better off The 1960’s and 1970’s were watershed larger society possible. as soon as courts, years juvenile and the social personnel service involved with them. misguided results intervention do Winship, decisions—In Re three 397 U.S. philosophical premises. its not validate 358, 368, 1068, 1074-75, 25 L.Ed.2d may advantageous appear What to be de- Gault, In Re (1970); 1, 26, velopmentally the small child rob 1428, 1443, (1967); L.Ed.2d heritage, the child of his/her cultural States, Kent v. United U.S. development be detrimental later (1966)— 16 L.Ed.2d children, only of but of their fami- Supreme the United States Court advised Psychiatrists well. lies and communities as parens patri- the States that the informal Indian social workers testi- street level ae system had violated children’s significant psychological fied social significant changes procedure and that among placed in problems Indian children 1974, necessary. 1977, were In problems particu- non-Indian homes. United States Senate Subcommittee on In- in larly manifested themselves adolescense dian Affairs testimony ju- protective heard that state young adulthood when the children, failing venile were provided by adoptive courts cocoon foster families, longer their no their tribes. could isolate 5, 501, Cleveland, 494, supra. 16. See note 18. Moore v. East 431 U.S. 508, 1932, 1936-37, 1940, 52 L.Ed.2d (1977). 531 Houston, 17. Wisconsin Pottawatomies v. 393 719, (N.D.Mich.1973); F.Supp. 724 Carle McCartney, "The Indian Child Wel- American Carle, (Alaska 1972); 503 P.2d 1055 Alva fare Crisis: Cultural Genocide or First Amend- State, (Alaska 1971). rado v. 486 P.2d 902 Preservation,” Rights 7 Cal. Human L.Rev. ment (1975). 529 1076 “growing up unity lineages. Morgan

from the realities Indian.” within found that many In the result was suicide.20 cases joint, the care of children was a rather than responsibility. Morgan’s an individual differing general principle This famil people search also discovered that these ial standards was discussed In the Matter A.S., (Okla. 581 P.2d 888 genetic had a keen relation- Sherol Court, 1978). opinion, This a unanimous ships, and an obsession with tribal kin- integrity held that the fundamental of the ship.22 Generally, dynamics of Indian family subject to state intrusion and unit is extended families are misunderstood if only must be dismemberment meaning well social workers—and well harm; protected and that the from state meaning jurists. majori- The failure of the conformity or may not exact either an ac ty recognize undoubtedly this is the un- ceptable system and common value life derlying reason for its erroneous conclu- style citizen-parents. Finally, its Nevertheless, sion. family the extended Legislature the Oklahoma heard tes recogni- as much entitled to constitutional timony regarding the federal Act and con tion as is the more family. common nuclear necessary it provide cluded that was Neither the Constitution of the United supplemental procedural safeguards. In States nor the State of Oklahoma tolerate 8.2, Court, Rule Rules of District governmental imposition upon or societal O.S.Supp.1984 App., promul Ch. gated by requiring this Court all relevant preference pat- Indians suburbia’s finding compli final orders to contain a family living.23 terns of ance with the Acts. States not act if essential tribal rela- orphan, illegitimate, The word tions are involved or if the of Indi- naturally tion do not in any exist Native jeopardized.24 rearing ans are Child is an language,21 likely American most because function,25 pertinent essential tribal and the predominant pattern of the cultural of the Act, provisions 1911(b) of the 25 U.S.C. § among extended found North Amer- (1983),recognize by requiring this transfer phenomenon ican Indians. The of the cor- proceedings of termination to the tribe porate tribal embrace was first described parent may the tribe or either [which veto] by the anthropologist, American Lewis even an Indian child is not domiciled or if Morgan, in 1871. He noted that within the residing within the tribal reservation.26 generation tribes all members of the same Obviously, concept of a child’s tribal sisters, one knew another as brother membership impor- status or is much more while the generation recog- were tant child’s nized as than the domicile because of mothers and fathers. This kind of system classification feeling responsibility reflects a the tribe’s shared for all its Berlin, of Native Ameri- 24. Williams v. 217, 220-21, "Anglo Lee, Adoptions Adolescence,” Repercussion 269, 270-71, cans: (1959). 17 Journal 3 L.Ed.2d Academy Psychiatry American of Child (1978); Green, 387-88 “Risks and Attitudes As- Light, v. Little 276 Md. Wakefield sociated with Extra-Cultural Placement of Amer- (1975). 237-38 A.2d Review,” ican Indian Children: A Critical Academy Psy- Journal of the American of Child 26. Title 25 U.S.C. 1911(b) (1983) provides: (1983). Benefield, chiatry 63 "The Indian Child proceeding State court "... for the Acts,” Training Welfare Manual of the Foster of, placement foster care or termination of (1984). Care Review Board to, parental rights an Indian child not domi- Hollow, Report on Bottle Utah Conference residing ciled or within the reservation of the Care, Supportive Custody, Placement and tribe, court, Indian child’s in the absence Adoption Children, of American Indian Ameri- good contrary, cause to the shall transfer Academy Psychiatry, p. can of Child proceeding jurisdiction such tribe, objection by parent, upon absent either 22. C. Darlington, The Evolution of Man and petition of either or the Indian (Simon Society, p. Ch. 50-1 and Schuster custodian or the Indian child's tribe: Provid- 1975). ed, subject That such transfer shall be to decli- Cleveland, supra. See Moore v. East note 18 nation the tribal court of such tribe.” clearly pertain as as corporate child members.27 Acts well the tribal body, are protection. No distinction is entitled to constitutional to all Indian children.28 status based on reservation or envi- made

ronmental circumstance. biological father putative did not parents concerning in his full-blood

confide mother, Creek, His a dis- pregnancy. the fact March 1983. The

covered tradition

extended illustrated deposition testimony reflecting her ROBERTS, Appellant, Richard grandmother’s baby’s reaction to the birth on March the child question, In answer

on March SOUTH OKLAHOMA CITY HOSPITAL proud your grand- would be to have “You Community Hospi TRUST South d/b/a replied “I give my children? She wouldn’t tal Professional Medical Services Cor away.” “Are baby query, you To con- corporation; poration, a and Dr. Thom sidering your baby, this then?” Garrett, She Appellees. sponded, “Yes.” The record reveals that No. 60999. grandmother when the of this child learned Supreme Court birth, of Oklahoma. trig- the father’s interest was gered. keeping This with the tradi- July concept assumption tional automatic Rehearing Sept. Denied responsibility by the closest relatives of the Depending on family. extended tribal affil-

iation, the nearest relatives be either patrilineal

on the matrilineal side. cultures, many day-to-day Indian lodged grand-

care of the children with parents even when are alive. grandfather pater- term also includes

[The great uncles,

nal grand- the term likewise great

mother includes aunts.]29

Section 1915 Act states that cause, good preference

absence of 1)

tion given must be member 2) family,

child’s extended other members tribe, 3)

of the child’s Indian other fami-

lies. This interpreted, section to be when tribe,

possible, to keep the child within the preclude

but it does not placement anof

Indian child family. non-Indian

However, wagons this were

circled before up the Indians could send signal, appear

smoke much less on the way

bluff. Much of the Indian of life is a

separate distinguishable culture wor- members,

thy preservation. Individual Nations, 5, supra. regulate foreign 27. See note "To Commerce with States, among several and with Tribes;” Const, 8(3) provides: 28. The U.S. art. I § 20, 21, supra. notes 29 and 30. supra 47. See note at 2993. Lehr Supra note 27 at 2993-5.

Notes

29.See notes

Case Details

Case Name: Matter of Adoption of Baby Boy D

Court Name: Supreme Court of Oklahoma

Date Published: Nov 12, 1985

Citation: 742 P.2d 1059

Docket Number: 62024

Court Abbreviation: Okla.