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TUESDAY, JUNE 10, 2003

Two tribes seeking to invalidate the adoption of an Indian child were rejected by a federal appeals court on Monday.

The Navajo Nation and the Yakama Nation sued to stop the adoption of a baby, now 12, of Navajo and Yakama heritage. Citing the Indian Child Welfare Act (ICWA), the tribes asserted jurisdiction over adoption proceedings.

But the 9th Circuit Court of Appeals, in a unanimous ruling, rejected the tribes' claims. A three-judge panel said the child, although conceived on the Yakama Reservation in Washington, was not "domiciled" on tribal land, and that the birth parents didn't want their Indian heritage known.

"[I]n this case, the birth parents were domiciled off-reservation and voluntarily repudiated application of ICWA and tribal court jurisdiction," wrote Judge Johnnie B. Rawlinson in the 11-page decision.

According to court documents, Theodora and David Becenti, while living on the Yakama Reservation, conceived a child. Theodora Becenti is a member of the Yakama Nation while David Becenti is a member of the Navajo Nation.

Theodora Becenti kept her pregnancy from her husband and her parents, according to court documents. She informed David Becenti in her eighth month of pregnancy, and the couple moved off the reservation "in part to conceal the pregnancy and in part to attend community college," U.S. District Judge Edward F. Shea wrote in a March 1999 decision.

While living off the reservation, the Becentis arranged for an adoption. They agreed to sever all parental rights and reject tribal court jurisdiction over the proceedings. No notice was given to the Navajo Nation, the Yakama Nation or Theodora Becenti's parents. A state court approved the adoption.

But a few months after the child, identified in court records as K.H., was born, the Becentis moved back to the Yakama Reservation. Theodora Becenti finally told her parents, setting in motion attempts by the Navajo and Yakama tribes to invalidate the state court proceedings.

Under ICWA, tribes have exclusive jurisdiction over adoption proceedings but only in cases involving children "domiciled" on the reservation. Otherwise, tribes share jurisdiction with state courts.

A child doesn't have to be born on a reservation to be considered "domiciled." A Supreme Court precedent involving the Mississippi Band of Choctaws ruled that the domicile of the birth parents must be taken into account, otherwise "the tribe's exclusive jurisdiction [would be defeated] by the simple expedient of giving birth and placing the child for adoption off the reservation."

The Becenti's case would appear to fit that holding. But the 9th Circuit said the couple took several steps to declare their off-reservation status. The state court adoption, therefore, was ruled valid.

"The state court considered the provisions of ICWA and made a reasoned determination that the Becentis' off-reservation domicile conferred concurrent jurisdiction upon the state court," Rawlinson wrote.

James and Gayle Norris, a Washington couple, have kept custody of K.H. since birth.

The Indian Child Welfare Act was passed in 1978 to correct for what Congress called an "alarmingly high percentage" of Indian children being placed for adoption and foster care in non-Indian homes and institutions. In the decades preceding the law, the adoption rate for Indian children was 8.4 times greater than that of non-Indian children, according to the American Indian Child Resource Center.

Get the Decision:
Navajo Nation v. Norris (June 9, 2003)

Relevant Links:
Navajo Nation - http://www.navajo.org
Yakama Nation - http://www.yakamanation.com
National Indian Child Welfare Association - http://www.nicwa.org