Montana Attorney General Opinion 15-414

Opinion No. 414 Childt'en-Adoption-Indians. HELD: Whether or not a Child. who is one-eighth Indian, is of the white "race" for the purposes of adop- tion statutes depends upon his envir- onment, the circumstances attendin;.: hi.; hringin;.: up. and u[)on whether 01' not he has maintained tribal relations with Indians. December 23, 1933. We acknowledge receipt of yours of the 12th requesting un opinion on the following matter: "Is it possible, un- ller Section 5856, for those of the white race to adopt a child that is one-eighth Indian?" Section 5856, R. C. M. 1921, pro\ides: "Any minor child may be adopted by any adult person who is a citizen, or who, under tile laws of the United States, may become a citizen of the United States, and is of the same race as the child to be adopted, in the cases and subject to the rules pre- scribed in this chapter." "The common classification of races is that of Blumenbach which is five, (1) the Caucasion or white race, to which belong the greater part of the I~uropean nations and those of west- ern Asia; (2) the Mongolian or yel- low race, occupying Tartary, China, ,Japan, etc.; (3) the Ethiopian or ne- ;.:ro race occupying all of Africa, except the north; (4) the American Hed Raee containing the Indians of North and South America; and (5) the Malay or Brown race, occupying the islands of the Indian Archipelago." (In re Ah Yup, 5 Saw~'er 155.) The American IIHiilln is an anomaly to anthropolo- gists so far us his ancestrul derivations are concerned, but it is well settled that he is not of the white "race." 'l'herefore, one of the white raee is pro- hibited from adopting a child who is an Indian, by the statute quoted. 2SS OPI:\IOi\S OF THI~ ATTOU:\EY GE:\EUAL Whether a child of one-eighth Incli- an blood is an Indian or of another race depends, under the general rule laid down by the courts, upon his en- vironment, whether he has maintained tribal relations with the Indians or not and other facts. In Farrell v. United States, 110 Fed. n42, the court said: "The rule is that children of free parents follow the status of the father * * *. But there is an exception to this rule which has been generally recognized and acted upon by the legislative, executive and judicial departments of this gO\'ern- ment. * * • It is that the child of a white citizen and an Indian mother who is abandoned by the father and is nurtured and reared bv the Indian mother in the tribal relation, and is recognized by the tribe as a member of it, follows the status of the mother and hecomes a member of the Indian tribe." It was held in the case of In 1'1' Ca- \llille, 6 Sa w~'er 541 that. the son of a white Canadian father by an Indian woman was not a white person within the meaning of the naturalization laws. This. decision did not refer to any trihill relation of the offspring of mixed blood nor to whether the father had a bandoned such offspring or not. In 20 Attorney General Opinions (U. S.) 711, it was said: "Presumptively a per- lion apparently of mixed blood resid- ing upon a reservation and claiming to he an Indian is, in fact, an Indian." It is obvious from the foregOing that the circumstances attending the bring- ing up of the child will govern in clas- ~ifying it as an Indian or otherwise. If it has been under the care and cus- tody of a white father as well as the Indian mother, and has not maintained its Indian tribal relations it would be classed as a white person and may be adopted by a white person, otherwise not. Adoption proceedings must be pre- sented to and passed upon by the Dis- trict Court, illld the best way to have the particular case decided is to ad\ise the interested parties to proceed with adoption in the regular way and let the court decide such case on its merits.