Oct 142018
 
Empty Swing

The Texas DFPS is wrong…but this just illustrates what our families will continue to be up against.

The story –

Just recently, the Brackeen family learned that their adopted daughter has a newborn sister in need of care – so their attorney contacted Texas DFPS about the Brackeens fostering and/or adopting her and keeping the girls together.

DFPS responded that they would take it under consideration, but that “such placement” would be “subject to any requirements of the Indian Child Welfare Act, which as you know, remains in effect.”

The attorney for the Brackeens responded “…on October 4, the U.S. District Court for the North District of Texas declared all relevant provisions of the Indian Child Welfare Act to be unconstitutional and also set aside the legislative regulations that the Department of Interior issued with respect to ICWA in 2016…Texas and its agency, DFPS, is bound by that judgment and its declaration of ICWA’a unconstitutionality. DFPS, therefore, cannot apply ICWA or Interior’s 2016 regulations with respect to the placement…”

Read the communications between them here…

170-appendix Brackeen attorney letter 10-10-18

Oct 042018
 
Destination Heaven

FINALLY!
October 4, 2018
Northern District Court of Texas, Civil Action No. 4:17-cv-00868-0
BRAKEEN v.. ZINKE

ICWA DECLARED UNCONSTITUTIONAL

Among several other requests that were granted –

F. Indian Commerce Clause Claim
Plaintiffs also claim Congress did not have the constitutional authority to pass sections 1901–23 and sections 1951–52 of the ICWA under the Indian Commerce Clause. Ind. Pls.’ Br. 66, ECF No. 80; State Pls.’ Br. 49–52, ECF No. 74. Defendants counter that the Indian Commerce Case 4:17-cv-00868-O Document 166 Filed 10/04/18 Page 46 of 47 PageID 4175
47
Clause grants Congress plenary authority over Indian Affairs. Fed. Def’s Resp. Ind. 35, ECF No. 123; Trib. Defs.’ Resp. 21–28, ECF No. 118. But as shown above, Murphy does not permit Congress to directly command the States in this regard, even when it relies on Commerce Clause power. Murphy, 138 S. Ct. at 1479. Therefore Plaintiffs’ request for a declaration that these sections are unconstitutional is GRANTED.

Final Judgment ICWA STRUCK DOWN
167_-_final_judgment ICWA STRUCK DOWN –

Brackeen v Zinke – ICWA UNCONSTITUTIONAL
166_-_order_on_msj

START WRITING YOUR AMICUS BRIEFS

Sep 282018
 
OPEN LETTER to SENATOR HEITKAMP

Senator Heitkamp,
 
As a North Dakota constituent, I am very concerned by your silence during these Senate hearings concerning Judge Kavanaugh. I, along with many North Dakotans, am disturbed by the inappropriate disruptions by protestors and discourteous, insulting behavior of Democratic senators on the committee.
 
I am wondering how you would feel if you were in honorable Judge Kavanaugh’s position, or how you would feel if the shoe were on the other foot as a committee member having to endure this level of rudeness.
 
I am wondering why you haven’t made a statement calling for civility and respect. Do Democrats want the developing chasm between Americans to continue to widen? Or do you, Senator Heitkamp, value unity and respectful dialogue?
 
This is a very important question for me, personally. I will be attending hearings as a member of your Congressional Commission – the Alyce Spotted Bear and Walter Soboleff Commission on Native Children over the next couple years. Having attended contentious hearings in the past with my husband, I am very aware of the potential for angry, insulting behavior directed at me during these hearings – especially if I ask a question someone might not like. I remember an angry, packed, out-of-control hearing in Billings that frightened even my husband so much that he decided against openly testifying. He handed his written testimony to a staff person and we left. My husband was afraid of being physically hurt at that hearing – and that was in the late 90’s or so when things were a lot more civil than they are today.
 
I am a human being. I get hurt, I bleed, just like everyone else. Courteous behavior in the public square used to be normal and anticipated. I want to know that manners and civility are not only expected but insisted upon at public hearings of any type, anywhere in this country. I want to know – I NEED to know – that I will be physically SAFE at the meetings I attend.
 
If you are refusing to stand up for civility and safety at a hearing inside a Congressional building in DC – at the hearing for a Supreme Court Justice no less – how can I expect you to stand up for my safety at hearings across the country? Will you stand up for my safety?
 
Despite your campaign claim that you value all voices and prioritize standing up “for North Dakotans and making sure that their voices are heard in the halls of Congress” and that you “make it a point to meet with, listen to, and fight for North Dakotans every day” – this is not how I have ever been received by your staff. Despite several attempts to schedule direct meetings with you over the years, I have yet to have even one meeting with you.
In late 2013, I actually felt ridiculed by your DC staff when attempting to meet with an aide.
 
Watching you sit silently now while Judge Kavanaugh’s children are escorted out of the hearing for their safety – I have no confidence you will be a voice of protection for me, one of your constituents, at the hearings I will be attending as member of your commission.
 
Senator Heitkamp – please show your mettle and take a stand for what is right. Please show us that you value all voices as you say you do – and make a statement against the out-of-control behavior currently exhibited during the Kavanaugh hearings. Please make it clear that respectful, considerate behavior – including from members of the committees – is expected at any and all government hearings.
 
It is impossible for our nation to come together and reach any kind of consensus without it.
 
 
Elizabeth Sharon (Lisa) Morris
Chairwoman
Christian Alliance for Indian Child Welfare (CAICW)

Jun 202018
 
Opening doors. Commission on Native Children

Alyce Spotted Bear and Walter Soboleff Commission on Native Children

On Monday, May 21, 2018, Elizabeth Morris, Chairwoman of the Christian Alliance for Indian Child Welfare, was appointed by Speaker Paul Ryan to the Alyce Spotted Bear and Walter Soboleff Commission on Native Children. We deeply appreciate and thank him for opening this door. It is an opportunity to communicate the experience and wisdom of a large demographic of persons of tribal heritage whose views are rarely surveyed or acknowledged.

The Commission has been tasked with conducting a comprehensive study of Federal, State, local, and tribal programs that serve Native children, including an evaluation of

(A) the impact of concurrent jurisdiction on child welfare systems;
(B) the barriers Indian tribes and Native Hawaiians face in applying, reporting on, and using existing public and private grant resources, including identification of any Federal cost-sharing requirements;
(C) the obstacles to nongovernmental financial support, such as from private foundations and corporate charities, for programs benefitting Native children;
(D) the issues relating to data collection, such as small sample sizes, large margins of error, or other issues related to the validity and statistical significance of data on Native children;
(E) the barriers to the development of sustainable, multidisciplinary programs designed to assist high-risk Native children and families of those high-risk Native children;
(F) cultural or socioeconomic challenges in communities of Native children;
(G) any examples of successful program models and use of best practices in programs that serve children and families;
(H) the barriers to interagency coordination on programs benefitting Native children; and
(I) the use of memoranda of agreement or interagency agreements to facilitate or improve agency coordination, including the effects of existing memoranda or interagency agreements on program service delivery and efficiency.

We appreciate your prayers for this commission and its work.

Apr 062018
 
ICWA rules, CAICW

RE: ABSENCE OF DATA ON OUTCOMES FOR CHILDREN TRANSFERRED UNDER ICWA: In an April, 2016, interview with The Chronicle of Social Change, Administration on Children, Youth and Families Commissioner Rafael López confirmed the absence of ICWA data, stating, “Not being able to articulate very clearly what’s happening to all children, let alone American Indian and Alaskan Native children, is unacceptable.’ (Kelly 2016).

In 2015, the ACF initiated database collection for all children of tribal heritage who present before a court for foster care, but decided it didn’t go far enough. “HHS had determined that it did not have jurisdiction to collect information on Native American youth through the enforcement authority regarding ICWA and, therefore, was not able to make the requested changes or additions to the AFCARS data elements regarding ICWA” (Kelly 2016).

However, since then, “…legal counsel re-examined the issue and determined it is within ACF’s existing authority to collect state-level ICWA-related data on American Indian and Alaska Native (AI/AN) children in child welfare systems…” (Kelly 2016).

All 50 States have now received guidelines pertaining to the data they are to keep. Obviously, it will take time for the ACF to collect and evaluate the data. Complicating matters, several tribal entities are now claiming “data sovereignty,” with the right to govern how data concerning their membership is collected and used, leaving an open question of manipulation and accuracy.

NOTE – tribal entities and the ACF are claiming the right to data collected concerning ALL children in need of care – regardless of heritage – not to mention regardless of parental decisions to distance themselves and their families from tribal governments.

That all said, if the data MUST be taken from all these independent, free citizens, it should be open for study and verification by ALL stakeholders – meaning, not just the entities that the BIA and ACF claim to be stakeholders – but EVERYONE who is deemed under the jurisdiction of ICWA – or under this rule.

AND because the BIA’s ICWA rules mandate that each and every child presented to court in need of care – no matter presumed heritage – be evaluated for geneology and forced to participate in this data collection – ALL children who are in need of care and those involved with them are affected by this rule.
This is regardless of the fact that MOST children in need of care do not have any tribal heritage or connection to a tribal government.

Children and their families – who may have no tribal heritage at all – are still evaluated for geneology ‘just in case’ – and are potentially delayed in their process and ability to quickly find permanency, as well as potentially prevented from being with the family they have emotionally chosen.

BUT this personal, family data collected within this rule will ONLY be given to a federal agency – the Administration for Children and Families (ACF) to assist its work with tribal entities to benefit tribal governments.

This rule affects citizens of all heritages and communities – BUT most people and non-tribal organizations will not have direct access to the data.

This private, family data – if it must be collected – needs to be open to everyone for study and research – as it involves children unrelated to tribal or BIA jurisdiction and needs eyes that DO NOT have a vested interest in twisting data to secure an agenda involving other people’s children.

THAT said – one attorney has additional comments concerning it.

According to one of the best ICWA attornies in the nation – … the proposed rule is a waste of time… determining when a child is in “Indian child” can be a process! Agencies must send time-consuming notices and inquiries to the tribes to determine whether or not a child is eligible for membership — even when that’s not relevant (because the parent isn’t a current member). Here is what the actual rule requires:

In paragraph (b)(3), we require that the state title IV-E agency report whether the state title IV-E agency researched whether there is reason to know that a child is an “Indian Child” as defined in ICWA by: Inquiring with the child, the child’s biological or adoptive parents (if not deceased), the child’s Indian custodian (if the child has one), and the child’s extended family; indicating whether the child is a member or eligible for membership in a tribe; and indicating whether the domicile or residence of the child, parent, or the Indian custodian is on an Indian reservation or in an Alaska Native Village. This is similar to paragraph (i)(3) as proposed in the 2016 SNPRM, however we moved data elements related to ascertaining the tribal membership status of the child’s parents to section 1355.44(c)(3) and (c)(4), and we added, in response to comments discussed later, a data element for inquiring with the child’s extended family in paragraph (b)(3)(iv).

From the attorney – “This is asking the agency to inquire into irrelevant questions! And how many checkboxes does an agency have to complete in order to answer every single one of the questions above? I simply don’t see the pay off for answering those questions.”

PLEASE TELL THE HHS/ACF THAT THE IMPLEMENTATION OF THE RULE MUST BE DELAYED UNTIL ALL THIS CAN BE PROPERLY CONSIDERED.

TO ADDRESS THIS RULE BY APRIL 16th –

SUMMARY: The Children’s Bureau proposes to delay the compliance and effective dates in the Adoption and Foster Care Analysis and Reporting System (AFCARS) 2016 final rule for title IV–E agencies to comply with agency rules for an additional two fiscal years. We propose to delay the compliance and effective dates at the same time we seek public comment through an Advance Notice of Proposed Rulemaking (ANPRM), published elsewhere in this issue of the Federal Register, on suggestions to streamline the AFCARS data elements and remove any undue burden related to reporting AFCARS.
.

DATES: In order to be considered, we must receive written comments on this NPRM on or before April 16, 2018.
.
ADDRESSES: You may submit comments, identified by [docket number and/or RIN number], by one of the following methods:
.
• Federal eRulemaking Portal:
https://www.regulations.gov. Follow the instructions for submitting comments.
.
• Email: CBComments@acf.hhs.gov.
Include [docket number and/or RIN number] in subject line of the message.
.
• Mail: Written comments may be submitted to
.
Kathleen McHugh
U.S. Department of Health and Human Services
Administration for Children and Families
Director, Policy Division
330 C Street SW, Washington, DC 0024.

Please be aware that mail sent in response to this ANPRM may take an additional 3 to 4 days to process due to security screening of mail.

Instructions: When commenting, please identify the topic, data element, or issue to which your comment pertains. All submissions received must include the agency name and docket number or Regulatory Information Number for this rulemaking. All comments received will be posted without change to https://www.regulations.gov, including any personal information provided.

.

WRITE AGAIN TO THE SAME ABOVE ADDRESSES BEFORE JUNE 13 TO DISCUSS THE REASONS THE RULES SHOULD NOT BE IMPLEMENTED OR SHOULD BE CHANGED TO BE LESS INTRUSIVE, AND/OR SHOULD BE CHANGED TO CCESSIBLE TO ALL INTERESTED PARTIES.

SUMMARY: ACF is seeking public suggestions, in particular from state and tribal title IV–E agencies and Indian tribes and tribal consortiums and other stakeholders, for streamlining the Adoption and Foster Care Analysis and Reporting System (AFCARS) data elements and removing any undue burden related to reporting AFCARS.

DATES:Comments on this advance notice of proposed rulemaking must be received by June 13, 2018.

READ the posted PDF from the Federal Register/ Vol. 83, No. 51 / Thursday, March 15, 2018 / Proposed Rules Page 11450

BIA taking comments re ICWA data March 2018

Apr 032018
 
CAICW

The Christian Alliance for Indian Child Welfare, an advocacy and ministry, was co-founded by Roland Morris, an enrolled member of the Minnesota Chippewa tribe. Roland was born and raised on the Leech Lake Reservation in 1945 and spoke only Ojibwe until he started kindergarten. But he as an adult, he made a personal choice not to raise his children there.
Later in life, out of concern for things he had witnessed and experienced, he founded CAICW.

CAICW does not handle adoptions or place children in any homes. It has never been a social service agency or facilitated any kind of placement at all. It is simply an advocacy – an ear to listen, understand and assist as able.

As an advocacy, it has served families of all heritages and children of all ages – the oldest child being sixteen and held on a Michigan reservation against her will. The point has been to keep children in the homes where they want to be – in the homes they feel safe and loved, no matter the heritage. Sometimes this means the home of the birth parent. Sometimes it is the home of an extended family member. Other times, it is a foster or adoptive home that the child feels safest in. CAICW has served all families to this end, regardless of heritage, religion, income or location.

Most often, CAICW deals with children who have been taken to a reservation against their will. This is not because CAICW has a set standard against reservations. It is because that is the direction most children are pulled. According to the last two U.S. censuses – 75% of tribal members do not live in Indian Country. Many have never lived in Indian Country.
Sometimes abuse is what the child is afraid of on the reservation. Other times – it is simply that they don’t know anyone there and want to stay in the communities where they feel comfortable. Other times – the parents or grandparents have decided that they don’t want their children to live within the reservation system.

In the spring of 2017, CAICW assisted a birth mom enrolled at the Spirit Lake reservation by driving her to her visitations at Spirit Lake. CAICW also helped with her initial attorney’s fees. Her baby had been taken from her just after birth. She had told the county social worker that she did not want her baby taken to the reservation. She had chosen to leave Spirit Lake because she had been treated badly and didn’t trust the tribal government or the social services. Against the ICWA law – the county gave her baby to the tribal social services anyway.

A mother enrolled at Leech Lake asked for CAICW’s help in getting her 7-yr-old son returned from the custody of her half-brother, who had made untrue allegations and told her she could never have her son back again. This child was successfully returned to his mother.

There are also cases that involve non-tribal relatives. A grandmother in Colorado was told by the Warm Springs tribe that she could not keep her 7-yr-old grandson, who had lived with her for several years. They told her she could not keep him because she was ‘white.’ The grandson was not eligible for enrollment, but tribal government staff falsified a birth certificate, making it appear that the tribal grandmother was the mother – thus giving him more blood quantum. The county attorney and social workers told the family to give up. They were told they cannot win this.
Fortunately, CAICW was able to get the family a consultation with a very good attorney who gave them information they needed to represent themselves. They were able to prove the birth certificate was false – as well as educate the judge concerning what the ICWA said concerning grandparents. They won and retained custody of their grandson.

Two board members of CAICW are former ICWA children. Both, from two different reservations in two different areas of the country, fought to return to the homes where they felt loved and wanted after having been taken to a reservation. Both had been placed in the homes of relatives on the reservation where they were severely abused. Both tried running away but were prevented. One made it all the way back to her former home one rainy night – but was picked up by the police and returned again to the home where she was being abused. Their hearts go out to other children who are in situations similar to theirs.

Over half of CAICW’S clients are tribal members or the relatives of tribal members. All participants and members through the years have found CAICW online and requested assistance. CAICW does not look for clients or advertise for them.

CAICW has a limited budget and staff – and does what it can, when it can, for whom it can in the form of advocacy and guidance.
CAICW bases everything it writes and shares on documented facts – many of the facts coming directly from federal and tribal government entities and organizations. CAICW sites sources that include the U.S. Dept of Justice, the BIA, ACF, HHS, varied tribal governments, NICWA, and even Obama’s White House. CAICW encourages anyone who questions the facts to contact them directly. CAICW gladly shares source documents.

The work of this ministry/advocacy isn’t easy. It comes with a lot of abuse from opponents. Also, for a long period of time in 2013-2014, attacks to the website by hackers were frequent. A lot of volunteer time was wasted trying to prevent them or fix damage from successful hacks. This was resolved by blocking IP’s that attempted to login or made other clear indications of a hack attempt.

CAICW has no paid staff. There is no money involved in this advocacy. Everything is done volunteer. While not easy, this is preferred, given false claims by the opposition that CAICW is centered around making money. It is also preferred in that – there is no motivation to keep the status quo. CAICW wants things to improve and has no financial stake in keeping things the same.

In fact, should goals be met and there is no longer a need for this advocacy – staff would be very happy to close up and move on. There are so many things to do in this world – finishing this task to the end and knowing it is truly done would be an incredible blessing.

But as it is – people continue to contact CAICW and ask for help. As long as children need help – CAICW will continue, no matter what.

The appreciation from families who have been helped makes all the difficulties worth it.

Mar 282018
 
ICWA

.

SUMMARY: The Children’s Bureau proposes to delay the compliance and effective dates in the Adoption and Foster Care Analysis and Reporting System (AFCARS) 2016 final rule for title IV–E agencies to comply with agency rules for an additional two fiscal years. We propose to delay the compliance and effective dates at the same time we seek public comment through an Advance Notice of Proposed Rulemaking (ANPRM), published elsewhere in this issue of the Federal Register, on suggestions to streamline the AFCARS data elements and remove any undue burden related to reporting AFCARS.
.

DATES:In order to be considered, we must receive written comments on this NPRM on or before April 16, 2018.
.
ADDRESSES: You may submit comments, identified by [docket number and/or RIN number], by one of the following methods:
.
Federal eRulemaking Portal:
https://www.regulations.gov. Follow the instructions for submitting comments.
.
Email: CBComments@acf.hhs.gov.
Include [docket number and/or RIN number] in subject line of the message.
.
Mail: Written comments may be submitted to
.
Kathleen McHugh
U.S. Department of Health and Human Services
Administration for Children and Families
Director, Policy Division
330 C Street SW, Washington, DC 0024.

Please be aware that mail sent in response to this ANPRM may take an additional 3 to 4 days to process due to security screening of mail.

Instructions: When commenting, please identify the topic, data element, or issue to which your comment pertains. All submissions received must include the agency name and docket number or Regulatory Information Number for this rulemaking. All comments received will be posted without change to https://www.regulations.gov, including any personal information provided.

READ the posted PDF from the Federal Register/ Vol. 83, No. 51 / Thursday, March 15, 2018 / Proposed Rules Page 11450
BIA taking comments re ICWA data March 2018

Mar 282018
 
ICWA

.

SUMMARY: ACF is seeking public suggestions, in particular from state and tribal title IV–E agencies and Indian tribes and tribal consortiums and other stakeholders, for streamlining the Adoption and Foster Care Analysis and Reporting System (AFCARS) data elements and removing any undue burden related to reporting AFCARS.

DATES:Comments on this advance notice of proposed rulemaking must be received by June 13, 2018.

.
ADDRESSES: You may submit comments, identified by [docket number and/or RIN number], by one of the following methods:
.
Federal eRulemaking Portal:
https://www.regulations.gov. Follow the instructions for submitting comments.
.
Email: CBComments@acf.hhs.gov.
Include [docket number and/or RIN number] in subject line of the message.
.
Mail: Written comments may be submitted to
.
Kathleen McHugh
U.S. Department of Health and Human Services
Administration for Children and Families
Director, Policy Division
330 C Street SW, Washington, DC 0024.

Please be aware that mail sent in response to this ANPRM may take an additional 3 to 4 days to process due to security screening of mail.

Instructions: When commenting, please identify the topic, data element, or issue to which your comment pertains. All submissions received must include the agency name and docket number or Regulatory Information Number for this rulemaking. All comments received will be posted without change to https://www.regulations.gov, including any personal information provided.

READ the posted PDF from the Federal Register/ Vol. 83, No. 51 / Thursday, March 15, 2018 / Proposed Rules Page 11449
BIA taking comments re ICWA data March 2018