But Brown argues that he successfully established paternity under state law, and qualifies as a "parent" under the ICWA, thereby giving him proper control and custody of his daughter.
The federal law in question is the Indian Child Welfare Act (ICWA) of 1978, a response to decades of often abusive social service practices that resulted in the separation of large numbers of native youngsters from their families, in many cases to non-Indian homes.
"Courts in seven states have held that ICWA does not bar courts from terminating the parental rights of a non-custodial father under state law when the father abandoned his child to the sole custody of a non-Indian mother, " said Lisa Blatt, attorney for the couple.
The Capobiancos think the issue should be about whether the ICWA law can improperly block adoption proceedings voluntarily initiated by a non-Indian mother who had sole custody of her child, due to what the adoptive parents say is the Indian father's failure to establish a legal parent-child relationship under state law.