Is Your State Passing its own ICWA law?

CAICW has submitted the following letter to the ND legislature in opposition to a state ICWA law.  This can be adapted for any state.  Please feel free to use this information for your own letter.  Let us know if you need help

January 28, 2023

Honorable Chairman Weisz and distinguished committee members,

I want to thank you for this opportunity to address the Indian Child Welfare Act and House Bill 1536.

The Indian Child Welfare Act is an unconstitutional law that has harmed innumerable children and families over the last five decades.  This is why it has become an issue before the United States Supreme court.  Our brief in the Brackeen case – which includes the constitutional argument as well as the experiences of several signatories who have been hurt by the ICWA –  can be read on our website at CAICW.org.

My name is Elizabeth Sharon Morris.  I am the birth mother, grandmother, foster and adoptive mother to several enrolled or eligible members.  I was an accepted ICWA home for seventeen years.  I am also an appointed congressional commissioner on the Alyce Spotted Bear and Walter Soboleff Commission on Native Children, author of the book, Dying in Indian Country, and the Chairwoman of the Christian Alliance for Indian Child Welfare, a national 501c3 headquartered in North Dakota.

Founded in 2004, CAICW represents children and families across the nation who have been hurt by the Indian Child Welfare Act – and/or who, as U.S. citizens, do not want tribal government control or interference in their family’s lives.

I am writing today on behalf of the Christian Alliance for Indian Child Welfare.

 

Misrepresentation of the Needs of Children:

About 75% of tribal members do not live within Indian Country, according to the last 3 U.S. censuses.  Many have deliberately taken their children and left in order to protect their families from the rampant crime and corruption that exists within the boundaries of their home reservation.  Some families, content living mainstream, have not been connected to the reservation system for decades or generations.

Many tribal leaders, along with their friends at the Casey Foundation, NARF and NICWA, assert that separation from Indian culture most assuredly endangers children, and only tribal governments truly know what they need and can care for them.  The claim that the reservation system is the only place for these children is made so often and so forcefully that they have convinced society that interference is akin to child abuse on the part of society – and possibly even a form of genocide.

This is an insult to many good parents and relatives who have chosen alternative ways of life.

Further, tribal government apologists claim that children of even minute heritage who have never lived anywhere near a reservation or with a tribal member are going to suffer identity issues, as if there is an inherent gene that makes these children different from any other child. In some circles, belief in inherent racial differences is referred to as “racism.”

Tribal leaders claim that the reservation system is the only place for these children – even if their tribal government does not have a working system to care for the children.  Many tribal officials have a difficult time finding safe homes to place children in within reservation boundaries.  It is not just the lack of licensed foster homes – it is the inability to meet the mandates of the Indian Child Welfare Act in the form of safe, willing, relative homes.  The lack of safe homes brings some tribal governments to place children into unsafe homes.

Interestingly, without any concern for psychological effect, ICWA is frequently used to remove children from non-Indian homes that better reflect the cultural heritage the children are comfortable with.  Remember, children of less than 100% blood quantum have other heritages and relatives as well.   Further, physical heritage does not determine cultural heritage.  Children who have been born and raised within mainstream culture are sometimes uncomfortable in reservation communities – no matter their heritage.  Yet, according to Chrissi Nimmo, assistant attorney general for the Cherokee Nation, in 2012 the Cherokee Nation alone had over 100 attorneys targeting about 1,100 active Indian Child Welfare cases involving some 1,500 children across the nation.

There is no denying that not all reservations struggle with crime, not all homes within Indian Country are unsafe, and not all children brought from outside reservation boundaries are unfamiliar with or uncomfortable with reservation life.  The point is, governments should not be mandating what is good for children based on nothing more than their DNA.

Some examples of children hurt by ICWA:

1. A Detective in Bonney Lake, WA, was forced by ICWA social workers to leave a toddler he had been raising from infancy at the home of suspected drug dealers. The child was forced to stay there about 6 months before he was moved somewhere else – but not back to the only family he had known.
2. Because social workers believed ICWA demanded it, the Rodriguez boys of California were taken from the home of Hispanic grandparents and placed with their maternal grandmother on the Ute Reservation – a woman who had abused and lost custody of her own children. The boys were subsequently beaten every time they spoke Spanish. Within three weeks, the oldest was permanently brain damaged.
3. Sierra, who joined CAICW in DC in February 2013, and is currently on the board, told Congressional staff she was torn from a safe home outside the Leech Lake reservation at the age of nine and placed in a relatives’ home, where she was given to a man as a sexual partner. She begged to return to where she felt loved but wasn’t allowed to until she tried to hang herself at age 16.

Other stories can be read on our website or within our Brackeen Amicus

Why are Governments doing this?

There is no treaty that specifically states that tribal governments have exclusive jurisdiction over families of heritage.  It was understood from early on that tribal members could become United States citizens and manage their own allotments if they chose.

Even some tribal elders, in the congressional hearings prior to the passing of ICWA in 1978, warned of its potential to infringe on the rights of individual tribal members.

Further, Congress took a stand when the best interest of children in Russia was in question.  Late Tuesday night, January 1st, 2013, the U.S. Senate unanimously passed S. Res. 628, expressing disappointment over a Russian law banning adoption of children by American citizens.  Senator Inhofe, one of two Senate Co-chairs of the Congressional Coalition on Adoption, stated,

“It is extremely unfortunate and disheartening that the Russian Duma and President Putin would choose to deprive the children, the very children that they are entrusted to care for, the ability to find a safe and caring family that every child deserves…It is nothing more than a political play…that ultimately leads to greater hardships and more suffering for Russian children who will now be denied a loving family.”

CCA Members of Congress have sent a bi-partisan letter to President Putin urging him to veto the legislation, stating,

“We fear that this overly broad law would have dire consequences for Russian children…Nothing is more important to the future of our world  than doing our best to give as many children the chance to grow up in a family as we possibly can.”

 

Further, on June 30, 2014, U.S. President Barack Obama stated in a letter to Speaker John Boehner that the children crossing our southern border are an urgent humanitarian situation and the U.S. has a legal and moral obligation to make sure they are appropriately cared for.  …That being the case, and Native American children already wards of the United States government, why has so little been done to alleviate the humanitarian crisis within our reservation system?

The facts are: 

• Tribal members are not permanently destined to be traumatized or forever victims, forever in need of government assistance. The very suggestion is profoundly insulting and paternalistic.
• According to the last three U.S. censuses, 75% of tribal members DO NOT live in Indian Country – and many have deliberately taken their children and left to protect their families from rampant crime and corruption within a reservation system.
• Gang activity involving drugs is heavy on many reservations.  Child abuse is also rampant. There are child victims within Indian Country whose names do not make it to the media – and for whom justice is never given.
• These abuses are rampant on many reservations because the U.S. Government has set up a system that allows extensive abuse to occur unchecked and without repercussion.
• Many, many more children leave the reservation system in the company of their parents, who have mass exited – than do children who have been taken into foster care or found a home in adoption.  But tribal leaders cannot admit many parents are deliberately taking their kids out of Indian Country in attempt to get them away from the reservation system, crime and/or corrupt leaders. It makes a better sound bite to blame it on evil social services.

It is time to stop listening to those with a vested financial interest in increasing tribal government power, and learn more about the physical, emotional, sexual, and financial abuse of tribal members by other tribal members and even many tribal leaders.

Every time power to tribal leaders is increased, tribal members – U.S. citizens – are robbed of civil freedoms under the constitution of the United States.  More power given to tribal leaders means less freedom and constitutional rights for tribal members.  Equal Protection, for example, is a constitutional right.

 

To better protect children, we need to:

1. Guarantee protection for children of Native American heritage equal to that of any other child in the United States.

2. Guarantee that fit parents, no matter their heritage, have the right to choose healthy guardians or adoptive parents for their children without concern for heritage.

3. Recognize the “Existing Indian Family Doctrine” as a viable analysis for consideration and application in child custody proceedings. (See In re Santos Y, In Bridget R., and In re Alexandria Y.)

4. Guarantee that United States citizens, no matter their heritage, have a right to fair trials.

a. When summoned to a tribal court, parents and legal guardians will be informed of their legal rights, including USC 25 Chapter 21 1911 (b)“…In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child’s tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent…”

5. Include well defined protections for Adoptive Parents.

6. Mandate that a “Qualified expert witness” be someone who has professional knowledge of the child and family and is able to advocate for the well-being of the child, first and foremost.

7. Mandate that only parents and/or legal custodians have the right to enroll a child into an Indian Tribe. Because it is claimed that tribal membership is a political rather than racial designation, we are asking that parents, as U.S. citizens, be given the sole, constitutional right to choose political affiliation for their families and not have it forced upon them.

a. Remove the words “or are eligible for membership in” 1901 (3)

b. Remove the words “eligible for membership in” from 1903 (4) (b), the definition of an ‘Indian child’ and replace with the words “an enrolled member of”

Thank you again for your patience and willingness to hear our concerns.  The attachment is this letter in proper form, contains a reference list, and includes links to a 2013 National Public Radio Ombudsman report concerning inaccurate NPR reporting on the ICWA.

Elizabeth Sharon Morris
Chairwoman
Christian Alliance for Indian Child Welfare (CAICW)
 

 

References:

Adoptive Couple v. Baby Girl. No. 12–399 (U.S. Supreme Court, June 25, 2013).

Baude, Will. “The Indian Commerce Clause: The Natelson/Ablavsky Debate.” Reason: The Volokh Conspiracy. 5 17, 2022. https://reason.com/volokh/2022/05/17/the-indian-commerce-clause-the-natelson-ablavsky-debate/ (accessed 10 18, 2022).

BIA. “Indian Child Welfare Act Proceedings.” Federal Register, June 14, 2016: 369.

Brackeen v Haaland. 21-378 & 21-380 (United States Supreme Court, October 8, 2021).

CAICW. “Spirit Lake plans to take the twin sister of murdered Laurynn.” Christian Alliance for Indian Child Welfare. 3 1, 2017. http://caicw.org/2017/03/01/spirit-lake-plans-to-take-the-twin-sister-of-murdered-laurynn/#.WMbP8BsrKyJ.

—.  The New ICWA Rules. Public Policy, Fargo: CAICW, 2016.

Cano, Regina Garcia. 2 Malnourished Girls Found on South Dakota Reservation. News, Seattle: Seattle Times, 2016.

CDC. “The Adverse Childhood Experience Study (ACE).” Centers for Disease Control and Prevention. US Dept of Health and Human Services. 2019. https://www.cdc.gov/violenceprevention/childabuseandneglect/acestudy/index.html (accessed 3 2018).

DOJ. Committee on American Indian and Alaska Native Children Exposed to Violence: Ending Violence so Children can Thrive. Final Full Report, Office of Juvenile Justice and Delinquency Prevention, Office of Justice Programs, Department of Justice, Washington DC: Dept. of Justice, 2014.

Fiddler, Mark. Adoptive Couple v. Baby Girl, State ICWA Laws, and Constitutional Avoidance. Minnesota State Bar Association Family Law Forum. 2014.

FBI. “Indian Country Crime.” FBI.gov. 2016. https://www.fbi.gov/investigate/violent-crime/indian-country-crime (accessed July 27, 2016).

IHS. Indian Health Service. 2019. https://www.ihs.gov/aboutihs/ (accessed 3 28, 2019).

In re Alexandria Y. G018179 (Fourth Dist., Div. Three, 5 31, 1996).

In re Bridget R. B195282 (Cal. App. 4th, 41 Cal. App. 4th 1483 January 19, 1996).

In re SANTOS Y., B144822 (Cal. App. 4th, Second Dist. Div. Two July 20, 2001).

Morris, Elizabeth. Child Abuse within Indian Country. Literature Review, Helm’s School of Gov’t, Liberty University, Lynchburg: Unpublished, 2016.

—.  Inside the Iron Triangle of Federal Indian Policy. Lynchburg: Unpublished, 2022.

—.  The Implications of Native American Heritage on U.S. Constitutional Protections. Lynchburg: Unpublished, 2017.

—.  The Philosophical Underpinnings and Negative Consequences of the Indian Child Welfare Act. Master Thesis, Public Policy, Helms School of Government, Lynchburg: Liberty University, 2019.

—.  VIEWPOINT: Law could tear children from a ‘tribe’ they love . Grand Forks: Grand Forks Herald, 2007.

Morris, Roland John. Testimony before the Senate Select Committee on Indian Affairs. Seattle: Concerning Tribal corruption and Jurisdiction, 1998.

Morrison, Scott Kayla. Testimony before the Senate Committee on Indian Affairs on tribal sovereignty and tribal courts, Choctaw Attorney; Wilburton, Oklahoma, 1998.

Natelson, Robert. “A Preliminary Response to Prof. Ablavsky’s “Indian Commerce Clause” Attack.” Independence Institute.org. 4 7, 2022. https://i2i.org/a-preliminary-response-to-prof-ablavskys-indian-commerce-clause-attack/ (accessed 4 8, 2022).

—.  “The Original Understanding of the Indian Commerce Clause: An Update.” Federalist Society Review 23 (8 2022): 209-237.

NNI. “Child Welfare.” Native Nations Institute. Udall Foundation and University of Arizona. 2021. https://www.nni.arizona.edu/programs-projects/policy-analysis-research/child-welfare (accessed 11 7, 2021).

Omdahl, Lloyd. Commentary by Former ND Lt. Governor. Grand Forks: Grand Forks Herald, 2013.

Poore, James A. “The Constitution of the United States Applies to Indian Tribes: A Reply to Professor Jensen.” Montana Law Review, 1995/1999: 19.

Redfern, Beth. “What Drives Native American Poverty?” Institute for Policy Research. February 24, 2020. https://www.ipr.northwestern.edu/news/2020/redbird-what-drives-native-american-poverty.html (accessed 1 7, 2022).

Riley, Naomi Schaefer. The New Trail of Tears: How Washington is Destroying American Indians. 1. New York City: Encounter Books, 2021.

Sullivan, Thomas F. 13th Mandated Report. Denver: ACF, 2013.

—. “Continual Rape of 13-yr-old Ignored.” To Superiors at the Administration of Children and Families. Denver, Colorado: ACF, 2014.

—. “Criminal Corruption continues at Spirit Lake.” To DC Superiors with the Administration of Children & Families. Denver, Colorado: ACF, May 6, 2014.

Tevlin, Jon. Tevlin: Sierra shares lessons on Indian adoption. February 12, 2013. http://www.startribune.com/local/190953261.html?refer=y.

Turanovic, Jillian J, and Travis C Pratt. “Consequences of Violent Victimization for Native American Youth in Early Adulthood.” Journal of Youth and Adolescence 46, no. 6 (6 2017): 1333 – 1350.

UAF. “General Principles of Federal Indian Law.” Federal Indian Law for Alaska Tribes. UNIVERSITY OF ALASKA FAIRBANKS. 2021. https://www.uaf.edu/tribal/112/unit_4/generalprinciplesoffederalindianlaw.php (accessed 5 5, 2021).

United States. “Treaty with the Sioux – Sisseton and Wahpeton Bands.” First People. February 19, 1867. https://www.firstpeople.us/FP-Html-Treaties/TreatyWithTheSiouxSissetonAndWahpetonBands1867.html (accessed 5 2, 2019).

US Congress. “Congressional Record ICWA.” 95th Cong. 2nd Sess. 124 (1978): 38101-112.

Woodward, Stephanie. “Suicide is epidemic for American Indian youth: What more can be done?” 100 Reporters. Oct 10, 2012. http://investigations.nbcnews.com/_news/2012/10/10/14340090-suicide-is-epidemic-for-american-indian-youth-what-more-can-be-done (accessed July 27, 2016).

  

SD: Indian Foster Care 1: NPR Investigative Storytelling Gone Awry
National Public Radio Ombudsman – August 09, 2013
My finding is that the series was deeply flawed and should not have been aired as it was.  Also: S. Dakota Indian Foster Care 2: Abuse in Taking Children from Families? http://www.npr.org/blogs/ombudsman/2013/08/09/186943868/s-dakota-indian-foster-care-2-abuse-in-taking-children-from-families?ft=1&f= Also: S. Dakota Indian Foster Care 3: Filthy Lucre: http://www.npr.org/blogs/ombudsman/2013/08/09/186943952/s-dakota-indian-foster-care-3-filthy-lucre Also: Indian Foster Care 4: The Mystery Of A Missing $100 Million: http://www.npr.org/blogs/ombudsman/2013/08/09/209282064/s-dakota-indian-foster-care-4-the-mystery-of-a-missing-100-million Also: S. Dakota Indian Foster Care 5: Who Is To Blame For Native Children In White Homes?: http://www.npr.org/blogs/ombudsman/2013/08/09/209528755/s-dakota-indian-foster-care-5-who-is-to-blame-for-native-children-in-white-homes Also: S. Dakota Indian Foster Care 6: Where It All Went Wrong – The Framing: http://www.npr.org/blogs/ombudsman/2013/08/09/203038778/s-dakota-india

Full NPR Ombudsman Report: http://www.scribd.com/doc/159252168/Full-NPR-Ombudsman-Report-South-Dakota-Foster-Care-Investigative-Storytelling-Gone-Awry
http://www.npr.org/blogs/ombudsman/2013/08/09/186943929/s-dakota-indian-foster-care-1-investigative-storytelling-gone-awry