Mar 132024
 
child abuse

To the President of the United States, the Speaker of the House of Representatives, and the President Pro Tempore of the Senate:

Pursuant to the Alyce Spotted Bear and Walter Soboleff Commission on Native Children authorizing legislation (Public Law 114-244), October 14, 2016, as amended, I respectfully submit a Minority Report of the Commission on Native Children.

This report attempts to include the perspective of those Native Americans who live outside of the reservation system and do not use any form of tribal benefit or program.  Indeed, about 75% of Native Americans do not live on reservation land or participate in reservation politics.  As a result, countless families of Native American heritage are not heard through methods normally employed by those assessing the needs of the United States’ native population. 

This is significant as legislation and administrative rules often include them and their children, whether they have chosen to be involved with the reservation system or not.  

With their voices in mind, this report presents additional recommendations, several of which were presented to the Commission but were not put forward for discussion or vote.

Due to the strength of an ‘iron triangle’ encompassing federal Indian policy, it is necessary to submit this minority report.

 

Respectfully submitted,

Elizabeth Morris, Commissioner

Alyce Spotted Bear and Walter Soboleff Commission on Native Children

The Cult of Advocacy: Comments on the State of Legal Scholarship

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Nov 012022
 

By Rob Natelson – October 23, 2022 – Independence Institute.org

This posting relates some experiences from my long career writing for legal academic journals. It was triggered by Professor Gregory Ablavsky’s response to my “Cite Check” of his article, Beyond the Indian Commerce Clause (“Beyond”), and I use features of that response for some of my examples. But if you are interested only in a shortcut telling you who is being accurate in the Natelson-Ablavsky exchange, then I recommend the following:

*          Read his quoted extracts from Beyond and from his Fifth Circuit appeals court brief. They are in the Cite Check, which cites to the original documents so you can verify the accuracy of my reproductions.

*          Next, read the quotation in the original source. These also are reproduced in the Cite Check.

*          Compare the original source with how Ablavsky represented it. The differences should be apparent to any fair minded person. And the reasons behind the differences should be obvious.

The Larger Context: The Cult of Advocacy

That said, the fundamental problem addressed here goes far beyond selective quotation. It is that much—likely most—law review writing is not scholarship at all; it is advocacy in scholarly drag.

The passionate desire to “prove the case” creates incentives to engage in selective quotation. It also fosters other questionable practices: enlisting irrelevant evidence, ignoring and manipulating relevant evidence, and substituting word play for more substantial material. More rarely, you find what appears to be outright plagiarism, as I discovered recently in a law professor’s article in American University Law Review.

The cult of advocacy encourages commission of such misdemeanors, and they are further enabled by how legal academia hires law professors, defines their jobs, and operates law journals.

First Experiences

In 1971, I was a second year law student beginning a stint on the Cornell Law Review.  One day a senior editor (i.e., a third year student) assembled us newbies and told us we should start working on our student notes. (A note is a short article on a legal topic by a student law journal staffer.) He handed us a list of suggested topics prepared by the senior editors. Most or all of the topics explicitly prescribed our conclusions. The one I (reluctantly) accepted read something like, “Explain why the New York courts should grant summary judgment more readily in personal injury cases.”

After researching every relevant case, I concluded that, in fact, New York State courts should not grant summary judgment more readily in personal injury cases. I reported this to a senior editor, and that proved to be one step in the deterioration of my relationship with the editorial board.

Another step occurred when I was sent to the library to edit an article by a law professor from another school. The text of the article was substantially complete, but the footnotes contained many gaps. Quite a few featured the instruction, “Student: Find sources to support text.” When I inquired as to why we had accepted such an unfinished and obviously biased article, a member of the editorial board told me the…

READ MORE –

– https://i2i.org/the-cult-of-advocacy-comments-on-the-state-of-legal-scholarship-with-examples-from-professor-ablavskys-latest-response/

Mother says her tribe kidnapped her baby through ICWA

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Jul 012022
 
Mother testifies before Commission on Native Children June 2022

Tribe used ICWA to serve its own purpose, at the expense of a mother

“I didn’t want ICWA involvement. I hadn’t lived on the reservation for almost four years at that time and I had told social services that I wanted my case to stay in Grand Forks. It was my home. It was my child’s domicile. I had the right to choose. …[ICWA] stripped me as a parent of my rights. …I worked my case. I did everything that Spirit Lake social services required me to do, but I did it on my own…. My tribe, that was supposed to help me, that was supposed to keep my family together; ICWA that was supposed to be – the goal is reunification…there was no reunification. My reunification wasn’t there, and my tribe took that from me. …Those rights I was given as a U.S. citizen, my rights under federal guidelines, my rights under state guidelines, all those rights I’m afforded as a citizen, I wasn’t given. …I had to watch my daughter – and all my kids – I have to watch them from the sidelines, and it breaks my heart.”
– Child Welfare, Juvenile Justice and Violence Panel, Great Plains & Midwest Regional Hearing, Bismarck, June 24, 2022

#brackeen #caicw #icwa

The Indian Child Welfare Act: An Unconstitutional Attack on Freedom

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Mar 082022
 
ICWA

In Support of Brackeen

Adapted from the thesis Philosophical Underpinnings and Negative Consequences of the Indian Child Welfare Act,’
by Elizabeth Morris*

PDF: The Indian Child Welfare Act: An Unconstitutional Attack on Freedom 

The Fifth Amendment to the United States Constitution provides that: “No person shall be…deprived of life, liberty, or property, without due process of law…” and the Fourteenth Amendment, Section 1, states “nor shall any State deprive any person of life, liberty, or property, without due process of law...” (Congress 1787).  But for almost 200 years, the U.S. federal government has assumed a power that deprives members of federally recognized Indian tribes of these privileges – and for almost a century, the federal government has claimed wardship over U.S. citizens who happen to be tribal members.

Yet, despite the nineteenth century U.S. federal court rulings that propagated this view, disagreement continues as to whether tribes located within the United States are indeed sovereign, whether Congress has plenary power over them, and whether individual tribal members have U.S. Constitutional rights.

  • Some tribal officials argue that international law should not have been forced upon non-European cultures that had no say in it. Others point to natural law and international law – the grounds for treaties between nations – as basis for uninterrupted tribal sovereignty.
  • Some tribal representatives argue that the Constitution has no authority over tribes or tribal members. Others cite the Constitution when seeking judicial redress for their community.
  • Some historians say the Constitution never gave Congress anything more than the power to regulate trade with tribes. Others claim the Constitution not only gave Congress total and exclusive plenary power to decide almost every aspect of life in Indian Country – but by unstated extension, gave the executive branch this power as well.
  • Some say treaties promise a permanent trust relationship. Others point out that most treaties have clearly specified final payments of federal funds and benefits and were written and signed with clear intent for gradual assimilation.

Where Does the Plenary Authority of Congress Come From?

Law professor Robert G. Natelson writes, “For many years, Congress has claimed, and the Supreme Court has conceded, a plenary power over American Indian tribes” (2007, 204).  But, according to Natelson, there are problems with how historical documents have been construed.  Legal scholar Matthew L. M. Fletcher agrees and notes that the origin of federal authority over Indian tribes is unclear, as the Constitution carried no “clear textual provisions” concerning such power. Due to that lack, the Supreme Court has created a body of “unwritten constitutional law” (Fletcher 2006, 654).  Supreme Court Justice Stephen Breyer’s 2004 majority opinion in United States v. Lara is an example of Congressional authority in dealing with Indian affairs being categorized as “beyond the strictures of the Constitution” (Fletcher 2006, 656).

Authority is not Inherited from Britain

This unwritten authority, according to Natelson, is said by some to have been inherited from the British Crown, which transmitted “extraconstitutional sovereign authority to the Continental Congress, which then passed it to the Confederation Congress, which in turn conveyed it to the federal government” (2007, 204). However, Natelson argues:

As a matter of historical record, the British Crown did not transfer its foreign affairs powers to the Continental Congress, but to the states. The Confederation Congress did not receive its authority from the Continental Congress, but from the states. The federal government did not receive its powers from the Confederation Congress, but from the people (R. Natelson 2007, 205-206).

Natelson further contends that case law does not support the doctrine of inherent plenary authority. The Supreme Court “has acknowledged the [plenary] theory, but only rarely and in limited respects” (R. Natelson 2007, 204). He added, “The Supreme Court’s reluctance to fully accept inherent sovereign authority is understandable, for the doctrine is fundamentally unconvincing. It clashes with the Constitution’s underlying theory of enumerated powers and would render some enumerated powers redundant.” (R. Natelson 2007, 205).

Natelson explained that the dicta of Chief Justice Marshal and others has frequently been cited as recognizing Congress’s plenary authority over Indian Affairs – but it does not (R. Natelson 2007, 204). Other cases often cited are similarly lacking.  “A passage in Chief Justice Taney’s opinion in Dred Scott v. Sandford[1] suggests an inherent sovereignty theory, but later in the opinion Taney made it clear that he was invoking an enumerated power” (R. Natelson 2007, 204).   Natelson explained further, “Kansas v. Colorado (1907),[2] the Supreme Court’s clearest pronouncement on inherent sovereign authority in internal affairs, actually rejected the doctrine. United States v. Curtiss-Wright resuscitated it, but only for foreign affairs. In 2004, the Court suggested an application to Indian concerns, but the Court’s language was neither definitive nor necessary to its decision” (R. Natelson 2007, 205).

Lastly, if inherent authority had in fact existed in any context when the federal government was created, Natelson clarifies its fate: “[T]he doctrine of inherent sovereign authority is simply contradicted by the text of the Constitution. Any extra-constitutional authority inhering in the federal government in 1789 was destroyed two years later, when the Tenth Amendment became effective. By its terms that Amendment precluded any federal power beyond those bestowed by the Constitution… precisely to re-assure Anti-Federalists who feared that the new government might claim powers beyond those enumerated” (R. Natelson 2007, 206-207).

Authority is not from the U.S. Constitution

Another theory is that plenary authority comes from within the Constitution itself. Several Constitutional powers are suggested, including the War Power; the Executive Power; the Necessary and Proper Clause; the Treaty Clause; the Territories and Property Clause; and the Indian Commerce Clause.  However, Natelson contends “…[M]ost of those provisions can be readily dismissed” (R. Natelson 2007, 207).  For example, Natelson states that if it were true that the Territories and Property Clause, were the source of plenary power:

…then legal title to this land is federal ‘property’ subject to congressional management under the Territories and Property Clause, and such title would give Congress at least some jurisdiction over the minority of Indians who reside on reservations. But this begs the question of the source of authority for holding reservation land in trust. As already noted, pre- or extraconstitutional power is not a viable answer. Nor, as originally understood, is the Territories and Property Clause, for that Clause originally granted Congress the unlimited power to dispose of federal lands within state boundaries, but not the unlimited capacity to retain or acquire such lands. As for the treaty power, it happens that not a single Indian treaty provides that the government has retained or acquired trust title to the reservation. The sole references to trust arrangements in Indian treaties are peripheral provisions, such as temporary trusts incident to sale and trusts to fund Indian schools and other amenities (R. Natelson 2007, 209-210).

Just one theory for the origin of plenary power remains. Felix Cohen, in his ‘Handbook of Federal Indian Law,’ states that Congress has power over tribes through the Indian Commerce Clause as long as members are wards of the government (Cohen [1942] 1971, 353). A large body of law has been written in support of this.

Authority is not from the Commerce Clause, specifically

The United States Constitution was written to protect the lives, liberty, and property of the People.  As part of that protection, the Constitution needed to clarify roles and responsibilities necessary for the promotion of a stable and productive economy. The founding fathers understood that regulation of commerce was a proper function of government, and regulation of interstate and international commerce was a proper function of federal government. Article 1, Section 8 of the United States Constitution enumerates the powers vested in the federal government to regulate commerce between lower and foreign political entities:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; To borrow Money on the credit of the United States; To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes… (Congress 1787). [stresses added]

The commerce clause is one of the Constitution’s central pillars. It prevented states from setting up trade barriers, while at the same time not giving the federal government complete power.  In protecting markets, the commerce clause is at the heart of what has become one of the “largest common markets in the world” (Weingast 1995, 8). But this clause also contains one of the limited mentions of tribes within the Constitution.  The third point within the Commerce Clause refers to Congress’ power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” (Congress 1787, Art. 1 Sec 8).

The United States Constitution goes on to reserve all other rights and powers to the people and to the States. Amendment IX declares that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” and Amendment X declares “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” (Congress 1787).

Despite these clarifying amendments, the Bureau of Indian Affairs claims “Article 1, Section 8 of the United States Constitution vests Congress, and by extension the Executive and Judicial branches of our government,” with exclusive authority over the tribes (BIA, 2013). Constitutional Law Attorney Philip J. Prygoski also affirms Congress’s constitutional power to regulate commerce with tribal governments and states the “Indian Commerce Clause” is the primary power source and vehicle for Congress to define tribal sovereignty (Prygoski 2015).

Yet Natelson asks, “[W]hy were treaties understood for so long as the principal method of dealing with tribes if Congress could regulate all affairs under the ICC?” (R. Natelson 2019). Indeed, why were treaties necessary if the Constitution had already given Congress power over the tribes?

In his historical research, Natelson found that the “drafting history of the Constitution, the document’s text and structure, and its ratification history all show emphatically that the Indian Commerce Power was not intended to be exclusive” to the federal government. He further notes, “Throughout the Colonial and Revolutionary period, colonies and states frequently entered into treaties with Indians within their territorial limits. New York even appointed treaty commissioners after the Constitution had been issued and ratified” (R. Natelson 2007, 223).  Founding Fathers, Thomas Jefferson, and William Samuel Johnson, also alluded to this state authority to regulate commerce with Indian tribes inside their borders (R. Natelson 2007, 225).

State authority over commercial regulation aside, United States v. Kagama (1886)[3] “rejected the Indian Commerce Clause as a source of plenary congressional authority” (R. Natelson 2007, 210).  The Supreme Court stated “it would be a ‘very strained construction’ of the Commerce Clause to conclude that it authorized creation of a federal criminal code for Indian country” (R. Natelson 2007, footnote 65, at 210 ).  Kagama  “did recognize unenumerated federal power over Indian affairs, but the Court’s justification was Indian dependency on the federal government, not inherent sovereignty” (R. Natelson 2007, 204-205).

Patent attorney Nathan Speed notes that when Congress first began asserting authority over tribes beyond trade, the Indian Commerce Clause was not cited as the source of that authority.  Further, the Supreme Court rejected the claim that the Clause was the source of plenary power over tribes (Speed 2007).

Nevertheless, according to Cohen, the Clause has become “the most often cited basis for modern legislation regarding Indian tribes” [ (LexisNexis 2005, 397) ] In the case Cotton Petroleum Corp. v. New Mexico, (1989), it was stated that “the central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs” (R. Natelson 2007, 211).

Many have argued that the Founding Fathers intended the word “commerce” within the cited clause to refer not just to merchant trade, but to all economic activity and even beyond to any and every transaction.  Natelson contends that a meaning that expansive would not belong in a list of ‘enumerated’ powers. However, this argument persists, and being so pervasive, several studies have recently examined how the word was employed in constitutional, lay, and legal contexts “before and during the Founding Era” (R. Natelson 2007, 214).

Those studies[4] found that “‘commerce’ meant mercantile trade, and that the phrase ‘to regulate Commerce’ meant to administer the lex mercatoria (law merchant) governing purchase and sale of goods, navigation, marine insurance, commercial paper, money, and banking (R. Natelson 2007, 214). Natelson states:

In both lay and legal discourse in the 18th Century, the term “commerce” “was almost always a synonym for exchange, traffic, or intercourse. When used economically, it referred to mercantile activities: buying, selling, and certain closely-related conduct, such as navigation and commercial finance (2006).

Justice Clarence Thomas, in his concurrence in United States v. Lopez, (1995)[5], agreed, stating:

At the time the original Constitution was ratified, ‘commerce’ consisted of selling, buying, and bartering, as well as transporting for these purposes. See 1 S. Johnson, A. Dictionary of the English Language 361 (4th rev. ed. 1773)[6] (defining commerce as “Intercourse; exchange of one thing for another; interchange of anything; trade; traffick”); T. Sheridan, A Complete Dictionary of the English Language (6th ed. 1796) (“Exchange of one thing for another; trade, traffick”). This understanding finds support in the etymology of the word, which literally means “with merchandise.” See 3 Oxford English Dictionary 552 (2d ed. 1989) (com–“with”; merci–“merchandise”). In fact, when Federalists and Anti Federalists discussed the Commerce Clause during the ratification period, they often used trade (in its selling/bartering sense) and commerce interchangeably (United States v. Lopez 1995).

Thomas quoted his Lopez comments in his concurrence in Adoptive Couple v. Baby Girl (2013), and added, “The term ‘commerce’ did not include economic activity such as ‘manufacturing and agriculture,’ ibid., let alone noneconomic activity such as adoption of children” (Adoptive Couple v. Baby Girl 2013). Thomas also cited Natelson nine times in his concurrence.

“Thus,” Natelson writes, “‘commerce’ did not include manufacturing, agriculture, hunting, fishing, other land use, property ownership, religion, education, or domestic family life.” In fact, the Federalists during the Constitution’s ratification explicitly maintained that “all of the latter activities would be outside the sphere of federal control” (R. Natelson 2007, 214-215). He adds in his article concerning the legal meaning of the Commerce Clause, “The fact that other uses of the term “commerce” existed during the pre-ratification and post-ratification periods, does not change the accepted general meaning of the word ‘commerce’” (R. G. Natelson 2006, 789, 811)

Finally – and most obvious – the word ‘commerce’ could not have had a broader meaning for Indian tribes than it had for States and foreign Nations, which are located in the exact same clause (R. Natelson 2007, 215). Natelson notes, “I have been able to find virtually no clear evidence from the Founding Era that users of English varied the meaning of “commerce” among the Indian, interstate, and foreign contexts” (R. Natelson 2007, 216).  The United States government has not asserted plenary jurisdiction over state and international actors in the same manner it has tribes and tribal members.

Natelson further asks “If a broad power was intended, why use the same word for Indians as was used for foreign nations and interstate commerce? Why not use instead the readily available and traditional phrase ‘Indian affairs’?” After all, he notes, the writers of the Constitution were meticulous in the word usage and “knew about the presumption of the same word not changing meaning” (R. Natelson 2019). Natelson wrote in 2019:

Edmund Randolph’s list of powers that can be exercised under the Commerce Clause with foreign nations, interstate commerce, and Indian tribes is a list of examples of common kinds of regulation within the three categories.  It does not define different scopes. For example, Randolph speaks of restricting the travel of merchants with the Indians, but he could have used exactly the same example for merchants with foreign countries, as in the case of embargoes (R. Natelson 2019).

Attorney Krystal V. Swendsboe concurs, quoting Vielma v. Eureka Co.,[7] “When the terms of a statute are ambiguous, we will employ cannons of statutory construction to discern the legislature’s intent…In the absence of some indication to the contrary, we interpret words or phrases that appear repeatedly in a statute to have the same meaning’(citations omitted) ” (Swendsboe 2019) and in Clark v. Martinez,[8] “To give th[e] same words a different meaning for each category would be to invent a statute rather than interpret one” (Swendsboe 2019).

Assistant Professor of Law, Gregory Ablavsky, agrees and stated: “[T]he history of the Indian Commerce Clause’s drafting, ratification, and early interpretation does not support either ‘exclusive’ or ‘plenary’ federal power over Indians. In short, Justice Thomas is right: Indian law’s current doctrinal foundation in the Clause is historically untenable”  (Ablavsky 2015).

The final draft of the Constitution gave James Madison, a nationalist, less authority than he had wanted for the federal government and the ratification process reduced the powers even further. But even with this, not even Madison “suggested granting Congress plenary dominion over the Indians. His proposal was for Congress to ‘regulate affairs with the Indians’—to govern transactions between tribes and citizens. Yet this still was more than the convention, or the public, was willing to accept”  (R. Natelson 2007, 258).  Fellow delegate, John Rutledge of South Carolina, instead suggested to the Committee of Detail a federal power concerning Indians that “stripped down Madison’s proposal to a mere commerce power” (R. Natelson 2007, 258).

Among the issues defined by the Federalists as outside of congressional regulation (and therefore, under state jurisdiction) were “crimes malum in se (except treason, piracy, and counterfeiting), family law, real property titles and conveyances, inheritance, promotion of useful arts in ways other than granting patents and copyrights, control of personal property outside of commerce, torts and contracts among citizens of the same state, education, services for the poor and unfortunate, licensing of public houses, roads other than post roads, ferries and bridges, and fisheries, farms, and other business enterprises” (R. Natelson 2007, 248-249).

To summarize, the Indian Commerce Clause was included to give Congress the power to regulate trade between tribes and non-tribal members.  It gave Congress the ability to override state laws, but not to abolish or alter “pre-existing state commercial and police power over Indians within state borders” (R. Natelson 2007, 265).  The Commerce Clause did not establish a ‘Trust status” authorizing a pupilage condition.  Nor did it grant Congress a plenary police power over tribal members or a license to interfere in Indian affairs.

Natelson concludes, “…the results of textual and historical analysis militate overwhelmingly against the federal government having any ‘inherent sovereign power’ over Indians or their tribes” and “…the Founders intended the states to retain their broad residual police power” (R. Natelson 2007, 266).

One of the most Damaging Results of Unconstitutional Congressional Authority: The Indian Child Welfare Act

Tribal member and Family Law Attorney Mark Fiddler examines the constitutional ramifications of the Indian Child Welfare Act through the lens of the case, Adoptive Couple v. Baby Girl, and various State ICWA laws.  He explains that one of the questions asked in Adoptive Couple was “if a birth father has no rights under state law, what specifically is it in ICWA that accords him greater federal rights?” (2014, 3).

The attorneys for the birth father and Cherokee Nation had argued that the constitutional issues did not apply and cited Morton v. Mancari, 417 U.S. 535 (1974), in which the Supreme Court had construed that preferential treatment for Native Americans was based on their unique political status, not on their heritage. Attorneys for Adoptive Couple, however, argued that “differential treatment predicated solely on “ancestral” classification violates equal protection principles” and cited Rice v. Cayetano, 528 U.S. 495 at 514, 517 (2000). When unequal treatment is predicated on a status unrelated to social, cultural, or political ties, but rather blood lineage, the ancestry underpinning membership is “a proxy for race.” Rice, 528 U.S. at 514.

Supreme Court Justice Clarence Thomas, in his Adoptive Couple concurrence, cited Professor Rob Natelson’s white paper concerning the Commerce Clause and the unconstitutionality of the ICWA. Justice Thomas explained he was construing the statute narrowly to avoid opening the door to rule the ICWA unconstitutional. But he noted, “In light of the original understanding of the Indian Commerce Clause, the constitutional problems that would be created by application of the ICWA here are evident. First, the statute deals with “child custody proceedings,” §1903(1), not ‘commerce’” (Adoptive Couple v. Baby Girl 2013).

While the court did not address the constitutional issues, Fiddler believes that “…at a minimum, Adoptive Couple stands as a clear signal from the Court that the application of ICWA, and perhaps other Indian preference statutes, cannot be based merely upon a person’s lineal or blood connection with a tribe. Something more is required. In Adoptive Couple, it was the requirement of parental custody” (Fiddler, Adoptive Couple V. Baby Girl, State ICWA Laws, and Constitutional Avoidance 2014, 7-8).

Families and children are not ‘commerce’ with Indian tribes and thus are not legitimately dealt with under the Indian Commerce Clause, yet tribal attorneys continue to claim ICWA is constitutional, and some assert a right to claim any child they choose as a member. In reference to Baby Girl, Chrissi Nimmo, Attorney General for the Cherokee Nation stated, “… we repeatedly explained that… tribes can choose members who don’t have any Indian blood” (Rowley 2015).

The increased push for jurisdiction over other people’s children has increased the push back from those who hold the ICWA is unconstitutional.  Swendsboe states in her amicus brief concerning the 2018 ICWA case Brackeen v. Bernhardt:

Because adoption proceedings like this one involve neither “commerce” nor “Indian tribes,” there is simply no constitutional basis for Congress’ assertion of authority over such proceedings. Also, the notion that Congress can direct state courts to apply different rules of evidence and procedure merely because a person of Indian descent is involved raises absurd possibilities. Such plenary power would allow Congress to dictate specific rules of criminal procedure for state-court prosecutions against Indian defendants. Likewise, it would allow Congress to substitute federal law for state law when contract disputes involve Indians. But the Constitution does not grant Congress power to override state law whenever that law happens to be applied to Indians. Accordingly, application of the ICWA to these child custody proceedings would be unconstitutional (Swendsboe 2019).

ICWA: Necessary for the Child’s Well-being …or the Tribal Government’s?

Often cited as justification for the ICWA is a 1998 pilot study by Carol Locust, a training director at the Native American Research and Training Center at the University of Arizona College of Medicine.  Locust’s study is said to have shown that “every Indian child placed in a non-Indian home for either foster care or adoption is placed at great risk of long-term psychological damage as an adult” (Locust, Split Feather Study 1998).

Referring to the condition as the “Split-feather Syndrome,” Locust claims to have identified “unique factors of Indian children placed in non-Indian homes that created damaging effects” (Locust, Split Feather Study 1998).  The Minnesota Department of Human Services noted “an astonishing 19 out of 20 Native adult adoptees showed signs of “Split-feather syndrome” during Locust’s limited study (DHS 2005). The MDHS did not mention that there were only twenty, hand-picked participants in the study. All twenty adoptees were removed from their biological families and placed with non-native families. There were no control groups to address other variables.

“Unfortunately,” according to Bonnie Cleaveland, PhD ABPP, “the study was implemented so poorly that we cannot draw conclusions from it.” According to Cleaveland:

Locust asserts that out-of-culture removal causes substance abuse and psychiatric problems. However, she uses no control group. She doesn’t acknowledge the high rates of trauma, psychiatric and substance abuse among AI/AN people who remain in their culture and among the population of foster children. These high rates of psychosocial problems could easily account for all of the symptoms Locust found in her subjects (Cleaveland 2015).

Cleaveland concluded, “Sadly, because many judges and attorneys, and even some caseworkers and other professionals, are not familiar with the research, results that may be very wrong are leading to the wrong outcomes for children” (Cleaveland 2015).

While supporters of ICWA often cite “Split-feather Syndrome” as proof the ICWA is in the best interest of children, and some children and families faced with foster care, adoption or child custody disputes have felt protection through the ICWA, others have felt forced into relationship with tribal governments – and some have been forced into dangerous, abusive homes  (Morris 2019, 194-221, 237-251)[9].

Federal government has focused on how the ‘child drain’ has affected tribal governments and the future of the tribe as an entity but has paid little attention to the children themselves: their needs, passions and diversity of individuals affected by federal Indian policy – many of whom have spiritual beliefs, political views, or parental practices unlike those promoted by the tribal government.  There is no acknowledgement that most of the children eligible for tribal membership are multi-racial and live outside of Indian Country. Not only are the views of individual tribal members dissimilar to each other, but it is also unarguable that children of slight tribal heritage have many more non-tribal relatives than they have tribal relatives – and might actually be bonded to non-tribal relatives.

The “best interest” that select federal agencies appear to be more concerned with is that of the tribal government.  The Obama administration’s ICWA rules in 2016 prejudicially assumed it is always in the best interest of a child to be under jurisdiction of tribal government, even if parents and grandparents have chosen to raise them in an alternative environment and worldview. The 2016 rules marginalize the rights of birth parents as well the reality of extended tribal and non-tribal birth family.

Yet, the Obama ICWA rules were long called for by tribal leaders.  Tribal governments, using ‘wardship’ and ‘trust relationship’ as revenue vehicles, requested Congress enact legislation giving increased control over certain vulnerable children to tribal governments and have repeatedly returned to DC to insist Congress make the resultant ICWA even more stringent – covering more people and closing all “loopholes” for escape. When some members of Congress recognized the overreach and constitutional implications of ICWA amendments and blocked them from passage, tribal leaders went to the White House to insist on the strict regulation of independent families through the executive branch – even going so far as to accuse some families of committing ‘fraud’ by not admitting they had tribal heritage.

Tribal leaders have also asked state governments to take responsibility for ensuring larger numbers of children and families remain within the reservation system – even if against the will of the children and families – and state governments have acquiesced.  Ironically, in doing this, tribal leaders, under the premise of strengthening jurisdiction over children of heritage, have essentially admitted their lack of it.  In going to Congress and the president with the expectation and demand that they do something about grounding enrollable children to the reservation system, tribal leaders have admitted they lack the authority and are willing to submit to the sovereign authority of the United States of America. They have also essentially admitted that the best interest of children and families are second to the best interest of the tribe as a corporation.

Conclusion

The national dilemma has become whether an individual’s right to privacy, constitutional equal protection, and freedom of association are of less priority than tribal sovereignty and the future of a tribe.

Too many within federal government choose to please political leaders and protect tribal interests and sovereignty rather than save children’s lives. The federal government has reduced children to the status of a ‘resource’ for tribal governments, just as the private property of individual tribal members has been relegated to the control of the BIA as a resource for tribal governments. Children are treated as material assets, and adults are treated as children. Throughout history and every heritage, various men have coveted power over others.  Today, tribal governments, while accepting and playing into Congress’ claim of plenary power, have themselves, also, claimed exclusive jurisdiction and authority over unwilling citizens. Tribal governments regularly lobby and petition both Congress and the White House to codify tribal jurisdiction over the lives, liberty, and property of everyone within reservation boundaries as well as some outside reservation boundaries.  While claiming to have exclusive jurisdiction, tribal governments have paradoxically requested and given blessing for the federal government to manage children of tribal heritage – asking Congress to write the Indian Child Welfare Act and the executive branch to write federal rules governing the placement of every enrollable child in need of care. Some tribal governments and supportive entities have gone further – asking even governors and state legislators to expand on and strengthen control over children with heritage.

Independent political communities have a legitimate right to determine their own membership. However, basing that determination on an individual’s heritage and then forcing the individual into political affiliation because of that heritage is the epitome of racism.  While family and community are important to children of every culture, tribal government claims that eligible children are lost without tribal culture infer there is something inherently different about children of tribal heritage as opposed to other children.  Recognition that children of every heritage are individuals with their own wants, needs and goals is quashed.

While it is unarguable that a certain amount of strain occurs when traversing disparate cultures, children from around the world are successfully and happily adopted into American homes on a regular basis. Yet, it has become accepted belief that children of tribal heritage are, as a rule, unable to thrive outside of Indian Country. The evidence is to the contrary. The vast majority of tribal members live outside of reservation boundaries, and many are living happy and successful lives.  Meanwhile, according to statistics provided by numerous tribal organizations, the BIA, FBI, and ACF, crime and physical, and sexual abuse have been steadily worsening on many reservations – even with reservation crime and child abuse frequently under-reported.

A concerned community does not wait for additional studies to act on an obvious and immediately known danger.  We do not wait for a study to rush a child out of a burning building. When a child is bleeding to death, we know to immediately put pressure on the wound and get the child to a hospital. Unwillingness to deal effectively with the immediate needs of children suffering extreme physical or sexual abuse from extended family or community – no matter where it is – casts doubt on tribal and federal government assertions that safety of the children is of paramount importance. These ten statements are not absolute to all reservations and individuals, but clarify the general reality witnessed:

  • Crime and child abuse are rampant on many reservations
  • Crime and child abuse are rampant because the U.S. Government has set up a system that allows for extensive abuse and crime to occur unchecked and without repercussion.
  • Because a certain amount of crime has been allowed to occur unchecked, many families who desire a safer community for their children (not all) have moved away from the reservation system.
  • At the same time, gang related tribal members remain or move to the reservation because it is protected from state police. With the increase in gang activity there is an increase in crime, drug abuse, alcoholism, child neglect, child abuse, and Fetal Alcohol Spectrum Disorder.
  • As a result of the migration off the reservation, tribal governments experience a drop in federal funds.
  • As an increasing percentage of healthier families leave the reservation system, an increasing percentage who remain willingly participate in the crime and abuse.
  • As a result of increasing crime and child abuse, more children are in need of care.
  • Some tribal governments are reticent to admit they no longer have enough safe homes to place children in, and not wanting to place the children off the reservation, have placed children in questionable and even dangerous homes.
  • It appears more important to some in federal government as well as some in tribal government to protect tribal sovereignty than it is to protect children.
  • In other words, there seems to be a protection of tribal sovereignty at all costs – even at the cost of children’s lives.

In contrast, the following five points clarify self-evident truths that policy makers need to know:

  • International law and treaties are valid and relevant
  • Life, liberty, and the ability to pursue happiness are rights endowed by the Creator to all men equally, no matter their heritage.
  • The vast majority of tribal members live outside of reservation boundaries, and many are living happy and successful lives.
  • A wide body of research confirms that foster care children of every heritage experience higher levels of emotional and psychological trauma.
  • A growing body of work by legal and historical researchers is finding current federal Indian policy unconstitutional

Although the ICWA has some statutory safeguards to prevent misuse, numerous families continue to be hurt by the law.  While the ICWA itself states it is not to be used in custody battles between birth parents, parents can refuse tribal court jurisdiction, non-tribal grandparents have the same rights as tribally enrolled grandparents, and courts can deviate from placement preferences with “good cause,” what has played out in various state and tribal courts has not always followed the wording and intent of the law. Further, wording in a law is of no help if one does not have the money to hire an attorney who knows Indian law. Many times, families fighting ICWA are low income.  Further, many non-tribal courts do not understand the law and defer to the tribal court. The ICWA has given some tribal leaders, social services, and tribal courts a sense of entitlement when it comes to children of heritage.

The era of the Indian Child Welfare Act will become one of the numerous shames in American history. While many have been led to believe the ICWA is a righteous law, the reality is that powerless citizens have again been placed under subjugation.

If the ICWA were to remain law, it would require several amendments:

  • Children of tribal heritage need protection equal to that of any other child in the United States. State health and welfare requirements for foster and adoptive children should apply equally to all. Importantly, those assigned to child protection, whether federal, state, county or tribal, need to be held accountable if a child is knowingly left in unsafe conditions. (Title 42 USC 1983).
  • Fit parents, no matter their heritage, should have the right to choose healthy guardians or adoptive parents for their children without concern for heritage or the overriding wishes of tribal or federal government. US Supreme Court decisions upholding family autonomy under 5th and 14th Amendment due process and equal protection include Meyer vs. Nebraska, Pierce v. Society of Sisters, and Brown v. Board of Education.
  • The ‘Existing Indian Family Doctrine’ should be available to families and children who choose not to live within the reservation system. Alexandria had held that “recognition of the existing Indian family doctrine [was] necessary to avoid serious constitutional flaws in the ICWA”. Thus, if the existing Indian family doctrine has already been ignored in current ICWA cases, then serious constitutional flaws may have already occurred.
  • United States citizens, no matter their heritage, are guaranteed civil rights which include fair hearings. When summoned to a tribal court, parents, and legal guardians, whether enrolled or not, should be fully informed of their rights, including 25 USC Chapter 21§1911(b), which states “Transfer of proceedings [to tribal jurisdiction]” will occur only “…in the absence of good cause to the contrary, [or] objection by either parent….” The rights of non-member parents must be upheld. According to 25 USC Chapter 21§1903(1)(iv), ICWA placement preferences “shall not include a placement based … upon an award, in a divorce proceeding, of custody to one of the parents.” ICWA placement preferences also include all grandparents – no matter the heritage. Finally, non-members must be able to serve county and state summons to tribal members within reservation boundaries and must have access to appeal.
  • A “qualified expert witness” must be someone who is able to advocate for the well-being of the child, first and foremost, not a tribe. An expert witness needs to be a professional person with substantial education and experience in the area of the professional person’s specialty and significant knowledge of and experience with the child, his family – and the culture, family structure, and child-rearing practices the child has been raised in. There is nothing a tribal social worker inherently knows about a child based on nothing more than the child’s ethnic heritage. This includes children of 100% heritage who have been raised apart from the tribal community. A qualified expert witness needs to be someone who has not only met the child, but has worked with the child, is familiar with and understands the environment the child has thus far been raised in and has professional experience with some aspect of the child’s emotional, physical, or academic health. This is far more important than understanding the customs of a particular tribe.
  • Finally, if tribal membership is truly a political rather than racial designation, than the definition of an “Indian” child is one who is “enrolled” in the tribe, not merely “eligible.”

Allowing tribal governments the right to determine their own membership at the expense of the rights of any other heritage or culture as well as at the expense of individual rights is indeed political. However, relatives being told these children are suddenly now members of an entity with which the family has had no political, social, or cultural relationship betrays the reality that at least in the case of their child, “race” is determining membership.

Keeping children, no matter their blood quantum, in what a State would normally determine to be an unfit home – solely on the basis of tribal government claims that European values do not apply to and are not needed by children of tribal heritage – is racist in nature and a denial of the child’s personal right to life, liberty and the pursuit of happiness.

Tribal members are not just U.S. citizens; they are human beings. They are not chattel owned by tribal governments or servants indentured to the success of tribal governments, nor are they lab rats for Congress, pawns to be used at the negotiating table, or zoo exhibits for patronizing tourists looking for entertainment.

Even if a child had significant relationship with tribal culture, forced application of ICWA conflicts with the Constitution. There is nothing within the U.S. Constitution nor any treaty that gives Congress the authority to mandate individuals stay connected to a tribe, support a particular political viewpoint, or raise their children in a prescribed culture or religion.

For this reason, the ICWA cannot remain law. Natelson has shown that the ICWA goes far beyond the limited scope of the Indian Commerce Clause.  While some tribal members appreciate that proper application of the Constitution means that Congress has no plenary power over tribal affairs, it also means that Congress has no power to enact laws such as the ICWA.

In light of constitutional issues inherent to the foundational enactment of the Indian Child Welfare Act, the ICWA must be repealed. The Commerce Clause does not give Congress plenary authority over tribes or children of heritage, and tribal governments do not have the authority to force membership onto individuals, no matter their age.

Allowing individuals to employ their full constitutional rights would preserve to citizens their God-given right to individuality, liberty, and property, which is what the United States government is tasked to do.  In the words of Dr. William Allen, Emeritus Professor, Political Science, MSU and former Chair of the U.S. Commission on Civil Rights:

 “… We are talking about our brothers and our sisters. We’re talking about what happens to people who share with us an extremely important identity. And that identity is the identity of free citizens in a Republic…” (2010)[10]

*BIO:

Elizabeth Morris is the administrator of the ‘Christian Alliance for Indian Child Welfare’ – a national non-profit she and her husband, a member of the Minnesota Chippewa tribe, founded in 2004.  She is also a Congressional Commissioner on the Alyce Spotted Bear and Walter Soboleff Commission on Native Children.  Ms. Morris has been writing, lobbying, and advocating on issues related to federal Indian policy since 1995 and is currently working on her PhD in Public Policy: Social Policy at Liberty University.

Ms. Morris graduated with a Bachelor of Science, Interdisciplinary Studies: Government and Policy, Communication, and Health Science magna cum laude in August 2016 and earned her Master of Arts in Public Policy with Distinction in July 2019, both at Liberty University.  Her Master Thesis is titled: “The Philosophical Underpinnings and Negative Consequences of the Indian Child Welfare Act.’

Ms. Morris also earned a Bachelor of Arts in Christian Ministries; Associate of Science (Registered Nurse), a Diploma of Bible & Missions, and is the author of the book, Dying in Indian Country.’

FOOTNOTES

[1] Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)

[2] Kansas v. Colorado 206 U.S. 46 (1907)

[3] United States v. Kagama 118 U.S. 375, 378 (1886)

[4] See generally Randy E. Barnett, New Evidence of the Original Meaning of the Commerce Clause, 55 ARK. L. REV. 847 (2003); Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. CHI. L. REV. 101 (2001); (R. Natelson, The Original Understanding of the Indian Commerce Clause 2007, Supra note 2, 214 )

[5] United States v. Lopez, 514 U.S. 549, 585, 586, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995)

[6] (reprint 1978)

[7] 218 F.3d 458, 464–65 (5th Cir. 2000)

[8] 543 U.S. 371, 378 (2005)

[9] SEE The Philosophical Underpinnings and Negative Consequences of the Indian Child Welfare Act: ‘ICWA Case Studies’ and ‘Child Abuse.’

[10] Dr. William B. Allen’s keynote speech at the Christian Alliance for Indian Child Welfare’s  ICWA Teach-In, titled ‘Indian Children: Citizens, not Cultural Artifacts,’ on  October 28, 2011, in the chambers of the Senate Committee on Indian Affairs.

REFERENCES

Ablavsky, Gregory. “Beyond the Indian Commerce Clause.” Yale Law Journal 124 (2015): 1012, 1017.

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

Allen, William B. “ICWA Teach-in, Keynote.” Washington DC: CAICW, 10 2010.

Brief of Amicus Curiae Christian Alliance for Indian Child Welfare in Support of Plaintiffs-Appellees and Affirmation (Brackeen v. Zinke, 2018). 4:17-CV-00868 (U.S. Court of Appeals for 5th Circuit, February 2019).

Cleaveland, Bonnie PhD ABPP. Split Feather: An Untested Construct. Scientific Analysis, Charleston: Icwa.co, 2015.

Cohen, Felix S. Handbook of Federal Indian Law. 1942. Albuquerque, NM: University of New Mexico Press, [1942] 1971.

DHS. ICWA from the Inside Out: ‘Split Feather Syndrome’. Article, Dept of Human Services, State of Minnesota, St. Paul: DHS, 2005.

Fiddler, Mark. “Adoptive Couple V. Baby Girl, State ICWA Laws, and Constitutional Avoidance.” Minnesota State Bar Association Family Law Forum (Minnesota State Bar) 22, no. 2 (Spring 2014): 10.

Fletcher, Matthew L.M. “The Iron Cold of the Marshall Trilogy.” N.D. Law Rev (Michigan State University College of Law) 82 (2006): 627.

LexisNexis. Cohen’s Handbook of Federal Indian Law. LexisNexis, 2005.

Locust, Carol. Split Feather Study. Pilot Study, Native American Research and Training Center, University of Arizona College of Medicine, Tucson: Pathways, 1998.

Morris, Elizabeth. “The Philosophical Underpinnings and Negative Consequences of the Indian Child Welfare Act.” Scholars Crossing, 8 2019: 337. https://digitalcommons.liberty.edu/masters/591/

Natelson, Rob. “Constitutional Law Professor.” Email Correspondence. 1 22, 2019.

Natelson, Robert G. “The Legal Meaning of “Commerce” in the Commerce Clause.” St. John’s Law Review 80 (2006): 789, 805–06.

Natelson, Robert. “The Original Understanding of the Indian Commerce Clause.” Denver University Law Review 85 (2007): 201.

Prygoski, Philip J. “From Marshall to Marshall: The Supreme Court’s changing stance on tribal sovereignty.” GP Solo Magazine, 7 2, 2015.

Rowley, Sean. 43rd Symposium on the American Indian at Northeastern State University . April 17, 2015. http://m.tahlequahdailypress.com/news/icwa-discussed-at-symposium-seminar/article_08846b3a-e543-11e4-8421-7744ec7971c6.html?mode=jqm (accessed April 20, 2015).

Speed, Nathan. “Examining the Interstate Commerce Clause Through the Lens of the Indian Commerce Clause.” Boston University Law Review, 2007, 87 ed.: 467, 470-71.

United States. “Constitution.” Cornell University Law School: Legal Information Institute. 1787. https://www.law.cornell.edu/constitution/.

United States v. Lopez. 93-1260 (U.S.S.C., 4 26, 1995).

Weingast, Barry R. “The Economic Role of Political Institutions: Market-Preserving Federalism and Economic Development.” The Journal of Law, Economics and Organization, 1995: 1-31.

Wiley Files Amicus Brief in High-Profile Supreme Court Case on Behalf of Christian Alliance for Indian Child Welfare and Former ICWA Children and Families

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Oct 172021
 

October 11, 2021

Washington, DC – Wiley, a preeminent DC law firm, submitted an amicus brief to the U.S. Supreme Court on behalf of the Christian Alliance for Indian Child Welfare in Brackeen v. Haaland. The brief was filed in support of adoptive families and states in this high-profile case, which urges the Court to review a Fifth Circuit decision involving the rights of Native American children and their families under the Indian Child Welfare Act of 1978 (ICWA). The brief was joined by seven individual signatories who are former ICWA children or are parents to ICWA children, all of whom have been harmed by ICWA.

Wiley partner Stephen J. Obermeier and associate Krystal B. Swendsboe, who authored the amicus brief, are members of the firm’s Issues and Appeals Practice and are representing the nonprofit Alliance on a pro bono basis.

The case, which stems from a child-custody dispute, addresses the harm suffered by Indian children and their families as a result of ICWA – such as the denial of the full range of rights and protections of the federal and state constitutions to the petitioners when subjected to tribal jurisdiction under the ICWA.

“For nearly fifty years, ICWA has imposed race-based classifications on Indian children and their families – a clear violation of Equal Protection – and has caused horrendous individual suffering as a result,” Obermeier and Swendsboe explained in the Alliance’s brief.

As noted in the brief, this case raises particularly significant issues for Alliance because its members are birth parents, birth relatives, foster parents, and adoptive parents of children with varying amounts of Indian ancestry, as well as tribal members, individuals with tribal heritage, or former ICWA children – all of whom have seen or experienced the tragic consequences of applying ICWA’s race-based distinctions. The brief includes, as examples, stories from the individual amicus signatories who have been harmed by ICWA’s race-based distinctions and discriminatory placement preferences.

In addition to violating the U.S. Constitution’s Equal Protection Clause, the ICWA exceeds the authority granted to Congress under the Indian Commerce Clause, according to the amicus brief.

Congress “may not exercise power over family and custody matters under the guise of regulating commerce with Indian Tribes,” the brief argued. “ICWA, therefore, exceeds Congress’s power to regulate commerce, as it is entirely unrelated to commerce and intrudes on noncommercial subjects belonging entirely to the states.”

https://www.wiley.law/pressrelease-Wiley-Files-Amicus-Brief-in-High-Profile-Supreme-Court-Case-on-Behalf-of-Christian-Alliance-for-Indian-Child-Welfare-and-Former-ICWA-Children-and-Families

UPDATE: Brackeen Partial Victory for Kids, Despite Tribal Leaders Continuing Demand that Congress Retain Plenary Control OVER EVERYONE

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Apr 152021
 

Why do tribal leaders WANT Congress to have “plenary and exclusive” power over ALL tribal members? In a land where life, liberty are supposed to be guaranteed, it is so backward and insane to want “Father government” to retain complete control over your membership.

From our attorney:

The 5th Circuit’s En Banc opinion in the Brackeen case is a lengthy opinion that, in part, affirms the District Court’s ruling that portions of ICWA are unconstitutional. This is good news, but, because the En Banc Court was not able to reach a majority in their reasoning, certain swaths of the decision are not precedential. This means that the opinion, although generally positive for plaintiffs, will have limited applicability in later cases. And it may mean that a Supreme Court appeal is less likely, although it is still possible.

CAICW’s amicus argument is referenced briefly in Judge Duncan’s opinion (around page 182-183). This is typical for amicus briefs, particularly ones like CAICW’s which was highlighting a separate and tangential point for any potential Supreme Court review.

Although the opinion is complicated, it can be summarized as follows: (1) the plaintiffs have standing to assert their claims; (2) Congress had authority to enact ICWA and the “Indian Child” classification does not violate Equal Protection, but the Court could not agree as to whether ICWA’s placement preferences constituted a violation, thus the District Court’s ruling on that point is affirmed without precedential opinion; (3) portions of ICWA unconstitutionally commandeer state actors, but the Court is divided on whether other portions constitute unconstitutional commandeering, so the District Court’s ruling on those latter points is affirmed without precedential opinion; (4) ICWA’s allowing Indian tribes to establish different adoptive and foster preferences does not violate the non-delegation doctrine; and (5) although the BIA did not violated the APA, the portion of the Final Rule interpreting “good cause” violated the APA.

As for next steps, the parties have until June to seek certiorari from the Supreme Court. If they choose not to do so, the case will be returned to the District Court for further proceedings to determine the harm suffered by plaintiffs.

CAICW Newsletter, January 2021

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Jan 122021
 
Merry Jesus Christmas native

CAICW NEWS – 2020 Summary

“You are Israel’s teacher,” said Jesus… “and do you not understand these things? Very truly I tell you, we speak of what we know, and we testify to what we have seen, but still, you people do not accept our testimony. I have spoken to you of earthly things and you do not believe; how then will you believe if I speak of heavenly things? No one has ever gone into heaven except the one who came from heaven—the Son of Man. Just as Moses lifted up the snake in the wilderness [for people to see], so the Son of Man must be lifted up, that everyone who believes may have eternal life in him.” (John 3:12-15)
16 For God so loved the world that he gave his one and only Son, that whoever believes in him shall not perish but have eternal life. 17 For God did not send his Son into the world to condemn the world, but to save the world through him. 18 Whoever believes in him is not condemned, but [NOTE: This is important] – whoever does not believe stands condemned already [That’s why Christ’s birth was necessary – Jesus said we had already been condemned – but He is a lifeline – an attempt to SAVE us from what has already been set to happen] – because they have not believed in the name of God’s one and only Son. 19 This is the verdict: Light has come into the world, but people loved darkness instead of light because their deeds were evil. 20 Everyone who does evil hates the light and will not come into the light for fear that their deeds will be exposed. 21 But whoever lives by the truth comes into the light, so that it may be seen plainly that what they have done has been done in the sight of God (John 3:10 – 21). – She will give birth to a son, and you are to give him the name Jesus, because he will save his people from their sins” (Matthew 1:21, NIV). … God sent his Son, born of a woman, born under the law, to redeem those under the law, that we might receive adoption to 6sonship (Galatians 4:4b-5, NIV). The Love, Peace, Joy and Promise of Christmas – hope for all.

CAICW.org UPDATE

• CAICW continues to support the Brackeen case (Un-constitutionality of ICWA) case with an amicus arguing an additional Constitutional argument.
• Our new treasurer, Tania Blackburn, is taking her Doctorate in Philosophy at Liberty University. Tania will be maintaining the Facebook CAICW page, Elizabeth Morris will be maintaining the MeWe page
• We Have Some Legal Funds Available for Families in danger of harm from the ICWA.

Alyce Spotted Bear/Walter Soboleff Commission on Native Children

 Elizabeth Morris was appointed to this congressional ‘Commission on Native Children’ 2.5 years ago. Due to COVID-19 and sundry issues prior to it, there has been no public hearings yet. They have, however, recently begun holding phone hearings with invited guests, primarily those who have an invested interest in expanding current programs.
What can be done to make certain alternative voices are heard and considered?
SEND ELIZABETH MORRIS YOUR STORY – No matter what your relationship is to an affected child. Parent, grandparent, uncle, aunt, sibling, family friend, teacher, nosy neighbor – we NEED honest testimony, and as much of it as possible. This is NOT making a report to social services, etc. This is testimony to the commission – as well as data for academic reports.
 Sending testimony directly to Elizabeth Morris CAN BE made ANONYMOUS upon request. Any Commissioner, upon request of the witness, can remove all identifying information prior to submitting it to the Commission. The original testimony will not leave Commissioner Morris’ office and, according to IRP protocol, will be held in an inaccessible, off-line file.
 We NEED your support! PLEASE PRAY for this commission, for academic reports Tania and Elizabeth will be writing – as well as for CAICW and ALL children and families affected by federal Indian policy.

Website: https://caicw.org
MeWe address: https://mewe.com/p/christianallianceforindianchildwelfare
Facebook: https://Facebook.com/CAICW.org/

Morris’ Master thesis: ‘

The Philosophical Underpinnings and Negative Consequences of the Indian Child Act can be found at https://digitalcommons.liberty.edu/masters/591/ or on Pro-quest.

Doctor of Philosophy: Public Policy: Social Policy

Recently, Tania and Elizabeth have been studying destructive derivatives of the ill-conceived, injudicious, and disingenuous narrative known as “critical theory,” as well as healthier, more helpful theories largely ignored.

MERITS OF SUBSIDIARY, COVENANT, AND SPHERE SOVEREIGNTY

WHY Life, Liberty, Property, and man’s Pursuit of Happiness are
God-given rights, protected in the US Constitution

Economist Thomas Sowell writes that the federal government, under the pretense of rescuing people through a vague sense of “cosmic justice,” has been “attaching conditions to its ever-expanding largesse to states and to private institutions” (Sowell 1999). These unconstitutional conditions, indirectly imposed through threats to cut off billions in subsidies, essentially mean the “federal government has been buying up the freedom of the people with the people’s own tax money” (Sowell 1999).

Impacts of “cosmic justice”

It is understandable that men want to help others less fortunate. However, in recent years, the condition of ‘hardship’ has become misconstrued to always mean “injustice,” which gives the impression it is incumbent on society to fix the situation. This misunderstanding leads to “public policies that exacerbate rather than ameliorate problems” (Boudreaux 2000). Sowell explains:
…the quest for greater economic and social equality is promoted through a far greater inequality of political power. If rules cannot produce cosmic justice, only raw power is left as the way to produce the kinds of results being sought. In a democracy, where power must gain public acquiescence, not only must the rule of law be violated or circumvented, so must the rule of truth. However noble the vision of cosmic justice, arbitrary power and shameless lies are the only paths that ever seem to lead in its direction (Sowell Speech).

The result of these efforts is “devastating costs and social dangers.” Sowell writes that “Freedom is …the right of ordinary people to find elbow room for themselves and a refuge from the rampaging presumptions of their ‘betters, (Boudreaux 2000), and “when the state tries to do anything other than ensure traditional justice it necessarily bestows unequal and frightful powers on a select few to decide the fate of the many” (2000).

Finding elbow room for themselves: Subsidiary, covenant, and sphere sovereignty

Each man has a personal covenant with God and a mandate to perform the work given to him individually. To fulfill this purpose, God gives each man liberty through personal sphere sovereignty. Sphere sovereignty, (defined as “sovereignty in one’s own sphere”), means each individual and each social construct has their own, equal sphere of sovereignty – with God as the only, ultimate authority (Koyzis 2019, 236). The state cannot act “in a totalitarian manner, encroaching on or subjugating the other societal spheres” (2019, 236). Along with a personal sovereignty, there is a level of sovereignty within each aspect of community referred to as “subsidiarity.” The classic statement on subsidiarity teaches it is “gravely wrong to take from individuals what they can accomplish by their own initiative and industry.” More than this, it is an injustice. “For every social activity ought of its very nature to furnish help to the members of the body [polite] and never destroy and absorb them (2019, 222). Tasks are to be accomplished by the lowest element of society, and only when they are truly unable is a higher authority to step in – then withdrawn once the immediate crisis is over. In this way, all parts of society retain liberty, sovereignty, and “vitality” (2019, 222).

Biblical principles

The “foundation for a good society” rests on rule of law, and rule of law rests on agreed upon morals. As men have historically been unable to agree on a consistent set of morals, God and scripture have been foundational to much of law today and affirm the inalienable rights of life, liberty, and property. As part of God’s covenant, Scripture extols men to “do justice, and to love kindness, and to walk humbly with your God” (Micah 6-8). This instruction to seek justice, love kindness and walk humbly is non-negotiable (Koyzis 2019, 270). No one knows to what extent his personal work plays in the final result, but God has purpose for that work. “Every act of doing justice, whether in the political or other realms,” is a reflection, foretelling, and signpost to the coming of God’s final justice (2019, 273).

Letter to Federal Agency re: Missing and Murdered Native Americans

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Oct 092020
 
dyinginindiancountry.com/

Re: Administration for Children and Families Missing and Murdered Native
Americans Framework

Dear Assistant Secretary Johnson:

We are writing in response to your request for comments on the Administration for Children and Families (ACF) Missing and Murdered Native Americans (MMNA) Framework.

The Christian Alliance for Indian Child Welfare is a Christian ministry and family advocacy dedicated to the safety and welfare of children and families affected by federal Indian policy.

Your framework states that the crisis is a result of the insufficiency of programs meant to target the housing, lack of employment, mental and physical health care, nutrition, and education of tribal members. We believe the problem does not lie in the insufficiency of government programs or funding. There is already too much of both. We believe the problem lies in not recognizing and addressing the root of the crisis. In fact, this crisis might not benefit from intervention by the ACF, a social service agency, at all.

CAICW holds that all United States citizens are individually guaranteed a personal and distinct right to life, liberty, and property, and that no government on earth can remove those rights. We welcome a federal administration that views citizens who are eligible to be tribal members as individuals with separate and unique visions and needs, not as property of a tribal government or as a caricature of who authoritarians claim them to be.

(1) The level of crime and alcohol/drug abuse condoned in many reservation communities has direct correlation to the health and safety of women and children.

Required to address the crisis:

(1) Provisions to control crime and drugs.
a. This tends to get lost in a focus on the “background” or “underlying” public health conditions; and
b. Trying to put everything under the rubric of public health leads to treating the issues indirectly rather than directly, implying as it does that people need treatment rather than protection.

(2) Provisions to address corruption of leadership on many reservations
a. This is rarely addressed by the federal government.
b. This is vital, as leadership affects the temperament of a community. Further, there are cases in which leadership themselves are complicit to abuses – as public testimony showed at a Spirit Lake town hall meeting in February 2013 and in witness testimony to the House Subcommittee on Indian, Insular and Alaska Native Affairs in June 2014.

(3) Provision for protection of women and children:
a. Tribal governments need to partner with proven organizations (such as Operation Underground Rescue, Veterans for Child Rescue, and others) to combat sex trafficking on reservations. These organizations have toolkits already to go, as well as resources to conduct operations to rescue victims. All they need is an ok and request from a tribal entity to partner with them.

b. REQUIRE ALL EMPLOYEES in tribal governments, police, social services, schools, courts and hospitals and ANY PROGRAMMING RELATED TO CHILDREN’S AND WOMEN’S ACTIVITIES to pass strict background checks. Anyone with any record related to domestic or sexual abuse should not be allowed to serve in these positions. Permanently fire any employee convicted of domestic or sexual abuse of any person.

c. Set up a National hotline/safehouse mechanism so that tribal victims can report abuse without fear of retribution from their community or corrupt state entities that are partnering with tribes. This hotline should not be run by the federal, state, or tribal governments or agencies and organizations beholden to them. It should be a system that uses groups mentioned in action item #1. Funding these groups would allow them to set up regional outposts that can quickly and effectively rescue and provide victim services.

d. Provide a mechanism for victims to emancipate themselves from their tribal community if they so choose.

Lastly, government at all levels needs to stop using tax dollars to fix problems created by earlier tax dollars. Government has viewed tribal families (and all other families) as wards of the state. This view was established in the 1930’s by Felix Cohen and the Roosevelt administration and has proven nothing but disastrous. The federal government implemented programs and appropriated funds that created dependency and destroyed personal responsibility and the role of parents. Government agencies then implemented more programs and appropriated more funds for yet more bureaucracy in attempt to address the problems created by the first wave of programs and funding. Each layer of additional programs and bureaucracy has only added to the crisis – never solving anything – as evidenced by the last 90 years of increasing crises in Indian Country under the Roosevelt era policies.

The ACF’s proposed framework calls for even more government funding and bureaucracy to solve what government funding and bureaucracy created in the first place, and throws in additional grants for programs such as Native American Language Preservation and Maintenance – which has no relevance in the crisis of Missing and Murdered Native Americans.

Governments–and government bureaucrats–do not make good parents. Intact families, with fathers who understand and honor their God ordained role as guide, protector, and provider — are the surest defense against having missing and murdered Americans.

Sincerely,

Elizabeth Morris
Chairwoman
Christian Alliance for Indian Child Welfare
administrator@caicw.org

Lloyd Omdahl: No demonstrations for Native Americans

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Sep 082020
 
Reveals result of tribal government corruption

[CAICW Note: While Mr. Omdahl is correct concerning the extent of corruption, protest demonstrations by Native Americans will NOT make a difference. This was already done for many years and included occupations of Alcatraz, Wounded Knee and the BIA building in DC. All that these protests did was cause the death of several people and give certain powerful tribal leaders even more power through underhanded corruption involving federal officials – resulting in increased tribal corruption, oppression and abuse of tribal members. The protests did NOT improve quality of life for a large number of tribal members. In fact, things have only gotten worse.
… What needs to happen is for Americans across the board to demand a genuine end to federal sanction, encouragement and empowerment of tribal government corruption.]

Written By: Lloyd Omdahl | Jun 17th 2020

Native Americans in North Dakota have been experiencing the same discrimination as the African Americans now demonstrating across America.

Hundreds of North Dakotas went to the streets to support African Americans even though we have only a few in the state. It was a demonstration of compassion worthy of the state.

In North Dakota, we shouldn’t think about the suffering of minorities without remembering that we have hundreds of Native Americans with grievances to redress.

In their recent demonstrations, the African Americans were fortunate in that they have been able to focus on a problem that was clearly identified. When it comes to Native Americans, our exploitation and their needs are general, making them difficult to rally societal support.

American Indians in North Dakota are faced with crisis living from the cradle to the grave. Their longevity is years behind whites; their educational system is second class; they experience chronic health problems; they are ill-prepared for off-reservation jobs.

And tribal councils fester with corruption, some highly paid and drawing double salaries, first as council members and second as economic development board members, or casino board members, or any other board that can be utilized. As they are feasting at the trough, their constituents are suffering all of the ailments of a Third World country.

If State Auditor Joshua Gallion was ever allowed on the reservation to identify the corruption in tribal operations, he would never be seen again. He would find at least 50 irregularities on each of the four reservations.

Patronage is still a big problem. Doreen Yellow Bird of the Fort Berthold Reservation once mourned about the rampant nepotism on reservations: “Employing people who support them allows leaders to stay in tribal government positions. Nepotism is hobbling program directors and law enforcement officers.”

And there is a worse kind of patronage in the form of foster care payments, patronage that has ended up with the deaths of several children in the past few years, one just weeks ago.

The problem involves the Indian Child Welfare Act that requires that foster children be returned to the tribe even though white foster parents have provided them with education, medical care and love that would not be available on the reservation.

And why would the tribe exercise the option of demanding children back? Why, Cousin George or Aunt Isabell needs the monthly stipend that goes with foster children. So children get passed around as patronage.

Writing in the Washington Post, the highly respected George F. Will called it “the blood stained Indian Child Welfare Act,” citing the case of a Methodist minister in Bismarck having to give up Indian foster children on the demand of the Spirit Lake Sioux, only to have one of them killed when a grandparent threw the child down an embankment.

Reservations are a curse for Native Americans who are not a part of the ruling cliqués. They are run like Central American republics, with the largesse consumed by a few at the top, and constituents who have little to say about tribal living.

All of the white man’s treaties should have been printed on toilet paper so they could have served some useful purpose. The promises were never kept. The most relevant one today is the assurance that the federal government would provide health care. Despite the chronic ailments suffered by Indians, federal health care was underfunded from the start.

Through the years, we have had study commissions, investigations, meetings with governors and senators, but nothing much has happened. To really solve problems will require money, and there will be no money until Native Americans can deliver huge demonstrations.

In the meantime, discrimination and deprivation on reservations will continue.

READ MORE: https://www.inforum.com/opinion/6538262-Omdahl-No-demonstrations-for-Native-Americans

Lloyd Omdahl is a political scientist and former North Dakota lieutenant governor. His column appears Sundays.

To our Members and Followers

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Sep 072020
 

It may have seem as though very little has been happening within our small organization. As many know, I have been very busy between my Doctoral studies, the congressional Commission for Native Children [Alyce Spotted Bear and Walter Soboleff Commission on Native Children], and doing what I can for the Christian Alliance for Indian Child Welfare.

Nevertheless, much is going on. Along with our Amicus Brief in the Brackeen case and support of a mother fighting to regain custody of her child, I have taken eight weeks off from school to begin writing about some relevant research findings. I will be posting as much as I can over the two months.

To Senators Hoeven & Udall Concerning Congressional Commission on Native Children

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Jul 282020
 

As a member of the Alyce Spotted Bear and Walter Soboleff Commission on Native Children, I am sharing with you my letter to the Chairman and Ranking member of the Senate Committee on Indian Affairs concerning the Commission on Native Children.

It is important that every Congressman, as well as the President of the United States, fully understand the points made in this letter.

I encourage you to share the letter or your own version of it with your elected officials as well.

——————————–

July 27, 2020

The Honorable John Hoeven
Chairman
U.S. Senate Committee on Indian Affairs
838 Hart Senate Office Building
Washington, D.C. 20510

The Honorable Tom Udall
Ranking Member
U.S. Senate Committee on Indian Affairs
838 Hart Senate Office Building
Washington, D.C. 20510

Sent via e-mail

Re: Letter concerning an extension of time for the Alyce Spotted Bear and Walter Soboleff Commission on Native Children

Dear Chairman Hoeven and Ranking Member Udall,

Due to difficulties securing funding through the Department of Interior, followed by the threat of the Covid virus, the Alyce Spotted Bear and Walter Soboleff Commission on Native Children has not been able to maintain the necessary timeline for its work. As a member of this Commission, I am writing to you concerning S. 3948

As you know, a comprehensive study determining the effectiveness of all programs, grants, and supports available for Native children is absolutely necessary. Redundant, ineffective and detrimental programs cannot continue. Limited resources coupled with the severe need of a large number of children means attention needs to be on programs that are genuinely beneficial. After decades of government interventions, the difference between what has helped and what has not should be evident.

Of particular importance is recognition that children who have Native American heritage are diverse individuals, each with their own needs, experiences, and world view. Not only do the 500 different tribal communities each have their own diverse histories, traditions and culture, but not all the children live within tribal communities. They live within disparate environments and situations. Some live within the reservation system, some live in cities or suburbs, and some live on rural farms. Some live with financial wealth, some do not. Some live in safe and loving homes, other do not. Some decisively embrace traditional religion. Others do not as a matter of choice. The children live within all walks of life, and most do not live within Indian Country. Some reject the reservation system and do not want tribal officials making decisions for them.

It is vital this be recognized and that children not be treated as if cut from all the same cloth. Programs fail when they do not correctly address the true heart of a child, but instead make assumptions about what the child really wants and needs.

This makes wide-ranging and far-reaching research all the more important. This Commission needs time to ensure that the recommendations submitted to Congress are well informed and bring genuine understanding and respect for the individual needs of children.

I am submitting a letter of support for S. 3948. Thank you for your consideration of our request.

Sincerely,

Elizabeth Morris
Commissioner
Alyce Spotted Bear and Walter Soboleff Commission on Native Children

Senator Hoeven and Senate Committee push “historic levels of funding for Indian country in Phase III Coronavirus response”

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Apr 022020
 
Washington DC

While all communities are in need of support during this unprecedented world crisis, when reading the numbers below, note the amount of money given to federal agencies – not to communities, and the number of redundant programs within those agencies.

Remember as well, individual tribal members will be receiving the same $1200 all eligible citizens will receive, and are able to access county and state resources as citizens.

According to a March 26, 2020 Press Release from the Senate Committee on Indian Affairs;

Senator John Hoeven (R-ND), Chairman of the Senate Committee on Indian Affairs, today released the following statement after the United States Senate passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act, the third phase of legislation to address coronavirus response and mitigation efforts across the country, including American Indian and Alaska Native communities.

“We worked hard to secure necessary resources to help Tribes combat the coronavirus outbreak,” said Hoeven. “This legislation delivers important resources for Indian Tribes to help health care providers, small businesses, schools, communities, and individuals mitigate the impact of COVID-19 in tribal communities.”

The CARES Act includes a number provisions for Indian Tribes, such as:

– $8 billion in the Tribal Stabilization Fund to provide emergency relief to tribal governments and offset costs incurred by Indian Tribes due to the COVID-19 pandemic.
– Ensuring that Indian Tribes and their businesses are eligible for the $454 billion loan guarantee funds and $349 billion under the U.S Small Business Administration (SBA) Loan 7(a) Program.
– $1.032 billion for Indian Health Service (IHS) for coronavirus response efforts, including treatment and preventing the spread of COVID-19 on tribal lands.
– $100 million for USDA’s Food Distribution Program on Indian Reservations.
– $453 million for Bureau of Indian Affairs (BIA) Public Safety and Law Enforcement.
– $327 million for Bureau of Indian Education (BIE) and Tribal Colleges and Universities (TCUs).
– $305 million for Indian Housing Programs at the Department of Housing and Urban Development (HUD).

This bill will now move to the U.S. House of Representatives for further consideration.

DETAILED SUMMARY OF TRIBAL PROVISIONS

U.S. Department of Treasury Tribal Stabilization Fund — Section 601 provides $8 billion in emergency relief funds to Indian Tribes. These funds will be available to tribal governments who certify that the funds will be used to offset expenditures incurred due to the COVID-19 outbreak. In consultation with the Bureau of Indian Affairs, these funds will be disbursed by the Secretary of Treasury.
U.S. Small Business Administration Loan 7(a) Program — Section 1102 makes tribal businesses and tribal government owned businesses eligible for the $349 billion loan guarantee program. Additionally, $265 million has been secured for the education, training, and advising of small businesses in dealing with COVID-19.
U.S. Department of Treasury’s Loans and Guarantee Loans — Section 4002 makes Indian Tribes, and their businesses, eligible for the $454 billion loan guarantee fund.
U.S. Department of Education and the Bureau of Indian Education schools clarification — Section 3511 clarifies that all Bureau of Indian Education schools, including contract and grant schools, are eligible to receive certain U.S. Department of Education waivers due to COVID-19.
Special Diabetes Program for Indians — Section 3832 reauthorizes the SDPI Program to the end of November 2020.
Native Inclusion of Education and Training Relating to Geriatrics — Section 753 awards grants to support the training of health care professionals who treat elderly Native Americans. $40.7 million was authorized in the Act for these grants to eligible entities, including those who prioritize serving older adults in Indian Tribes and tribal organizations.

The legislation also provided supplemental funding to help tribal communities respond to the COVID-19, including:

  • U.S. Department of Agriculture
    1. $100 million for the Food Distribution Program on Indian Reservations
    2. $50 million for Facility Upgrades
    3. $50 million for Additional Food Purchases
  • U.S. Department of the Interior
    1. $453 million for Bureau of Indian Affairs, including Public Safety & Justice, to address COVID-19 on tribal lands
    2. $69 million for Bureau of Indian Education (BIE), of which no less than $20 million is for Tribal Colleges and Universities (TCUs)
  • U.S. Department of Education
    1. $153.8 million for BIE schools
    2. $105 million for Institutions of Higher Education, which includes Tribal Colleges and Universities funding
  • U.S. Department of Health and Human Services
    1. Of the $1.032 billion in funding, the IHS resources will be allocated for:
    1. Up to $65 million for Electronic Health Record Stabilization
    2. Not less than $450 million for Tribal shares and contracts with Urban Indian Organizations
    3. Up to $125 million may be transferred to and merged with the “Indian Health Service, Indian Health Facilities” account
    4. All remaining funds are to be used at the discretion of the Director of the Indian Health Service
  • $15 million for Substance Abuse & Mental Health Services Administration Health Surveillance and Program Support for Indian Tribes
  • $15 million for Indian Tribes to utilize the Office of the Assistant Secretary for Preparedness & Response’s Public Health and Social Services Emergency Fund
  • $1.5 billion for Centers for Disease Control and Prevention (CDC) grants and cooperative agreements of which Indian Tribes, Tribal Organizations, and Urban Indian Organizations are eligible to apply
  • $125 million for CDC coronavirus funding directly to Indian Tribes, Tribal Organizations, and Urban Indian Organizations
  • U.S. Department of Housing and Urban Development
    1. $200 million for the Indian Housing Block Grant Program
    2. $100 million for Indian Community Development Block Grant Program
    3. $5 million for Office of Public and Indian Housing
  • U.S. Department of Commerce
    1. $300 million for assistance to Tribal subsistence, commercial, and charter fisheries affected by COVID-19.

The total increase in the supplemental appropriations funding is $2.692 billion, with more available through competitive grants along with state and local governments, bringing total resources to $10.314 billion for Indian Tribes.

https://www.indian.senate.gov/news/press-release/hoeven-us-senate-passes-historic-levels-funding-indian-country-phase-iii

We will NOT be Intimidated – Send your Testimony for the Commission on Native Children

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Apr 012020
 
Phoenix Arizona

I never use alcohol or drugs – not in decades anyway – and have no intention of starting. While I struggle with ADD – which can definitely make situations more adventurous if not challenging – it hasn’t stopped me from ultimately doing what I need to.

If anyone wants a fuller listing of my faults, they can find them in the book ‘Dying in Indian Country.’ There are plenty of faults in there – (https://dyinginindiancountry.com/ ).

I have a job to finish with ICWA and fully intend to do so.

In fact – following recent events and the dishonest manipulations those events exposed – I have renewed motivation. We cannot leave our families at the mercy of those bent on political agendas, greed and/or personal power.

I have had less time to work with CAICW over the last five years or so because I was in school, working on my Master of Arts: Public Policy, then began my doctorate.

I had also toned down my work over the last three years because I had been nominated to the Commission on Native Children and was advised not to rock boats for a little while.

Well…“a little while” is done. I will no longer remain ‘toned down.’

As some of you know, we have filed Amicus briefs in the Brackeen case. With the Brackeen case and others along the pipes, we might see an end to this horrid law within a couple years. Praise God.

I have also published my Master thesis – which, at 350 pages, is a wealth of documented history from colonial times as well as legislative history and case law concerning various aspects of Indian law. You might be surprised by some of the facts that came out of that research.

“The Philosophical Underpinnings and Negative Consequences of the Indian Child Welfare Act”
https://digitalcommons.liberty.edu/masters/591/

Further, there is the Commission on Native Children. I hope each and every one of you will SUBMIT TESTIMONY.

When you consider the testimony you will be sending to the Commission on Native Children – form it as the message you know CONGRESS needs to hear.

We need genuine talk from genuine people about the best interest of their children, grandchildren, nieces, nephews, siblings, students, foster children, playmates, neighbors, “2nd Cousin’s girlfriend’s grandma’s nieces”… anyone that has anything at all to say. We need to know: What things genuinely helped the children to grow – and which things did not.

We especially need testimony from young adults that have tribal heritage – explaining what they felt helped or hurt them.

The testimony from tribal entities and their supporters, which the writers of the final report will focus on and play up, is that participation in tribal programs, tribal services, language immersion, etc, are the only way our children can be healthy and happy.

To prevent Congress from continuing to sign the lives of our children over to these tribal entities, we need Congress to accept that there is a full range of possibilities for our children – not just the politically-favored viewpoint. If the other options and experiences are not mentioned to the Commission, they won’t be included in the data as acceptable and effective avenues of healthy growth for the children.

One does not need to mention tribal programs if tribal programs haven’t been a part of that child’s experience. That is fine. One could elaborate on what the child HAS experienced as a normal part of growing up. For example – how high school sports impacted a child, or learning jazz dance, or participation in school plays, or an interest in gardening, raising sheep, playing the harp, or the child’s relationship with the church or a particular school teacher.

However, it is also important to mention experiences that were detrimental to health and growth – including whether tribal programs or services were harmful. It is very important to include those experiences if the child has had them. Congress needs to accept that this has been a reality for many, many children.

Did the above make sense? For more information, including where to send your testimony – read this post on CAICW’S blog…

https://caicw.org/2020/03/13/tell-congress-how-to-best-meet-the-needs-of-native-children/?fbclid=IwAR2WTqWCQyNB4nRsldDmjvcRV0_puANlE-9I86M4ZR10cz0M2-wu7VPJFnY

Tell Congress How to Best Meet the Needs of Native Children

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Mar 132020
 
Little girl on trike

The Alyce Spotted Bear and Walter Soboleff Commission on Native Children (also known as the congressional Commission on Native Children, or CNC) wants to hear your experience as a child with tribal heritage – OR – raising children who have tribal heritage. Too often, Commissions such as this have heard from only one segment of the population. However, this Commission – which is tasked by Congress to identify new strategies for lasting solutions and report back to them – wants to hear from ALL who have experience – no matter the relationship. Everyone matters.

– If you are an individual with tribal heritage – what were some of the most beneficial experiences you had growing up? What programs, entities, or individuals helped your growth most? Which experiences were most hurtful or destructive? Again, you can do this anonymously if you choose.

– If you are a parent, grandparent, other relative or foster/adoptive parent who is eligible for membership in a federal tribe but prefer to raise your child outside of the reservation system, please let the Commission know why. Your testimony can be anonymous and will help them to understand tribal members who choose not to be under tribal jurisdiction, as well as help them to assess whether living outside of government programs is beneficial to children.

– If you are a parent, grandparent, extended relative, or adoptive parent who is NOT eligible for membership, YOUR TESTIMONY IS JUST AS RELEVANT AND VITAL.

Has any government – federal, state, tribal or county – attempted to interfere with your

  • chosen worldview?
  • relationship with your extended family/parents/child/children, or
  • method of raising children

If so – how has this affected the well-being of child/children involved?

~

HOW TO SEND

Written testimony is to be given just as much weight as oral testimony and CAN be anonymous.

To send signed testimony identifying you and/or the child – Send your testimony directly to the Commission at: asbwsnc@gmail.com

See near the bottom of the page for how to submit testimony anonymously.

~

WHAT TO SEND

“The Commission will focus its recommendations on solutions to issues that would improve the health, safety, and well-being of Native children, including: child welfare; physical, mental, and behavioral health; educational and vocational opportunities; school district policies and practices; access to cultural and extracurricular activities; juvenile justice; early education and development; wraparound services for Native children.”

It is important to tell your child’s story. Your honest opinion about any of what is described above is important. The Commission needs to know your observations and experience – good or bad. They won’t know the full spectrum of experiences if they continually hear only from the same sources.

Also – if your child has struggles in certain areas, let the Commission know why you think that might be and what methods have been used to try to resolve it.

One federal program, the Administration of Children and Families (ACF), has a budget of about 50 billion and “awards on the average $647 Million to Native Americans through programs like Head Start… TANF, LIHEAP,…and the Administration for Native Americans, to name a few.” Have any of ACF programs benefited your child? Why or why not? Which government programs have helped? Which have hurt?

If your child is doing well physically, emotionally, academically, and/or spiritually – let the Commission know and tell them which factors you believe helped your child attain that well-being. Was there a close relationship that inspired them? A particular tribal, federal, school or church program? – OR no program at all – just stable, loving home life? If so, the Commission NEEDS to know this.

If a Commission hears only from Social Service professionals who continually say ALL Native Children suffer from (fill in the blank) and All NEED a certain social service program to get better… than that is what they will decide needs to be done. If the Commission is not able to obtain alternate data, it will rely on the data social services, organizations and agencies give it.
If you have a different story – please tell it. If the best outcome for a child is in a stable and loving home setting, independent of government programs, the Commission needs to know this.

All the below suggested topics are OPTIONAL. We are putting them here merely to generate thought concerning current federal Indian policy.

You could choose to include any other issue related to your child that you feel needs addressing, including any words or phrases commonly used by governments or organizations when referring to children of heritage that you feel diminish your child.

These are some of the words, phrases and sentences found in the legislation enacting the Commission or providing data to the Commission. What are the thoughts and inferences behind those words? Do they paint a correct or incorrect perception of your child? Are they truthful or paternalistic and condescending? Do they promote children or protect victim-hood? Do you feel ‘triggered’ by any of the words and inferences made by government agents and policies, or do they seem correct to you?

  • “The Wrongs We Are Doing Native American Children,”
  • “The protective role of Native American culture and language”
  • “Complex program requirements and limited resources stymie efforts to reduce the disparities among Native children.”
  • “Acts of Self-Determination Foster Strong Native Families and Communities”
  • “Native Language Holds Culture, Culture Holds Language, and Both Hold Wellness”
  • “Stakeholders” (when referring to a selective group that you don’t believe includes you)
  • Data on all “Native children” is required “to see how well children are cared for” and that the “rights of children and families are adhered to.”
  • ICWA “protects the best interest of the Indian Child and promotes the stability and security of Indian tribes and families.”
  • “Part of ensuring the safety and security of American Indian and Alaska Native (AI/AN) children is having basic data collected that provides information on their circumstances.”
  • Under the AFCARS Rule, agencies can collect and keep “information on children who are not enrolled.”
  • They will examine the “unique challenges Native children face”
  • They will build “on the strengths and leadership of Native communities, with the goal of developing a sustainable system that delivers wrap-around services to Native children.”
  • “Resources and supports for Native children are currently inappropriate, insufficient, or limited by bureaucracy so that they are ineffective.”
  • “The vision of Native children and youth who are resilient, safe, healthy, and secure requires many types of evidence, including a wide range of evaluation data, descriptive research studies, performance measures, innovative practice models, financial and cost data, survey statistics, and analyses of program administrative data; all contributing to shared strengths-focused narratives relevant and useful to tribal leadership and stakeholders.”

OPTIONAL Adoption/Foster care Questions: [Wording is pulled from the conclusions of a 1998 pilot study report]
1. Does placing American Indian children in foster/adoptive non-Indian homes puts them at great risk for experiencing psychological trauma leading to the development of long-term emotional and psychological problems in later life?
2. Are there unique factors of Indian children being placed in non-Indian homes that create damaging effects in the later lives of the children?
3. Do American Indians have a cognitive process different from non-Indians – a cognitive difference in the way Indian children receive, process, integrate and apply new information—in short, a difference in learning style”?
a. Is the difference in learning style a cognitive difference in race, a familial difference, an issue unique to your child, or a symptom of fetal alcohol effects?
4. Are the ties between Indian children and their birth families and culture extremely strong, and the ties between Indian children and non-Indian foster/adoptee families only “foster parent-tie-to-Indian child, not Indian child-ties-to-foster parent?”
5. Do American Indian adults who were adopted into non-Indian families as children have greater problems with self-identity, self-esteem, and inter-personal relationships than do their peers from non-Indian and Indian homes?
6. Do Indian adoptees, regardless of age at placement, list identity with their family and their tribe as their first priority, and the sorrow of not knowing their culture, language, heritage and family as a life-long, often emotionally debilitating anguish?

Encourage as many people as possible to send in their testimony. There has been a long history of misinformation concerning children who have heritage, and it will take the stories of quite a few people to begin to correct the mind-view of government agencies.

~

TO PROVIDE ANONYMOUS TESTIMONY TO THE COMMISSION:

For the Commission to receive anonymous testimony, signed testimony must be given to a trusted CNC Commissioner who will then verify it, remove identifying data, and deliver as anonymous to the full Commission. Elizabeth Morris, chair of CAICW, is a CNC Commissioner.
Elizabeth will keep your signed copy in a protected file and deliver the anonymous copy to the Commission.

You can submit your testimony to Elizabeth Morris at:
administrator@caicw.org

or mail through USPO to:
PO Box 460, Hillsboro, ND 58045

Other Commissioners of the Alyce Spotted Bear and Walter Soboleff Commission on Native
Children
who can receive signed testimony and provide an anonymous copy to the Commission are:

Gloria O’Neill (Chair)
President/CEO, Cook Inlet Tribal Council, Inc.
Alaska

Tami DeCoteau, Ph.D. (Co-Chair)
DeCoteau Trauma-Informed Care & Practice, PLLC
North Dakota

Carlyle Begay
Former State Senator
Arizona

Dolores Subia BigFoot, Ph.D.
Director, Indian Country Child Trauma Center
Oklahoma

Jesse Delmar
Director, Navajo Nation Division of Public Safety
Arizona

Anita Fineday
Managing Director, Indian Child Welfare Program, Casey Family Programs
Minnesota

Don Atqaqsaq Gray
Board Member, Ukpeagvik Inupiat Corporation
Alaska

Leander R. McDonald, Ph. D.
President, United Tribes Technical College
North Dakota

Elizabeth (Lisa) Morris
Administrator, Christian Alliance for Indian Child Welfare
North Dakota

Melody Staebner
Fargo/West Fargo Indian Education Coordinator
North Dakota

Heartbeat at 22 days: Students for Life will show colleges the truth about early abortions

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Feb 252020
 

Lifesite News – Tue Feb 18, 2020 – 12:07 pm EST

WASHINGTON, D.C., February 18, 2020 (LifeSiteNews) – Students for Life of America announced today their latest campaign, which will educate college students about babies killed by abortion early in pregnancy.

Every semester, Students for Life of America (SFLA) does a campus “tour” display – an interactive, educational banner setup about a specific life-related topic, depending on the current national conversation. 

This semester, SFLA created a new display – the Heart to Heart Tour – launching this week in Kansas. Taking the pro-life conversation to students outside the beltway, SFLA will engage in conversations about human development and the impact of abortion on infants in the womb. These conversations will be added to SFLA’s goal of having pro-life conversations with students this year, addressing the human rights issue of our day with the generation targeted by the abortion industry. No organization has more face-to-face pro-life conversations than Students for Life of America. 

The “Heart to Heart” tour takes on one of the most controversial of the abortion issues today – the impact of abortion early in pregnancy. Ninety-one percent of abortions happen in the first trimester, and the largest demographic getting abortions is, so SFLA says acknowledging the humanity of first trimester babies is vital for any meaningful discussion of how abortion impacts real people. 

Abortions by pill (chemical abortions), usually taking place earlier in pregnancy, account for almost 40 percent of all lives ended in the womb. 

“Right now, legislators are preparing to debate protections for babies born during botched abortions or abortions on viable infants in the womb who can experience great pain. Both of these are important and represent the bare minimum of legal protections we can all agree on,” said Kristan Hawkins, president of Students for Life of America. “But we must talk with this generation about the fact that abortion stops a beating heart even early in pregnancy. Where there is a heartbeat, there is life. This fact can lead us to common ground in addressing the needs and rights of living human beings in the womb.” 

READ MORE – https://www.lifesitenews.com/news/heartbeat-at-22-days-students-for-life-will-show-colleges-the-truth-about-early-abortions

Lawmakers Pressure U.S. Indian Health Service to Release Sex Abuse Report

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Feb 252020
 
Stanley Patrick Weber

By Dan Frosch and Christopher Weaver
Updated Feb. 24, 2020 8:03 pm ET

Lawmakers who oversee the U.S. Indian Health Service are demanding the health care agency release a report on its mishandling of a pedophile doctor that it wants to keep confidential, saying the agency must be held accountable.

On Monday, Sen. Tom Udall, (D., N.M.), vice chairman of the Senate Committee on Indian Affairs, said in a statement that the IHS ran the risk of an “appearance of a desire to avoid accountability” if it didn’t disclose “as much of the report as is possible, as soon as possible.” The report focused on the IHS’s failure to protect children during the nearly 30-year-career of staff pediatrician, Stanley Patrick Weber, who was later convicted of sexually abusing Native American boys.

Also on Monday, Sen. Steve Daines (R., Mont.), in a letter to Alex Azar, the secretary of the Department of Health and Human Services, which includes the IHS, wrote: “I am concerned over the lack of transparency with this report, and I strongly urge you to make this report public.”

The IHS commissioned the independent investigation last May, months after The Wall Street Journal and the PBS series Frontline jointly reported that IHS employees ignored warnings about Weber’s abuse of Native American boys for years and shuffled him from one reservation to another despite suspicions.

Last week, the agency said it wouldn’t release the report prepared by contractor Integritas Creative Solutions LLC, because it considered its findings confidential under a 2010 law. That stance prompted anger from victims’ families, former employees and tribal officials.

Mr. Udall said that IHS, which provides health care to about 2.6 million Native Americans, needed to provide a detailed justification to Congress of any legal barriers it was using to keep the report confidential.

Mr. Daines said the agency could release the report but make “appropriate redactions” to protect the privacy of patients and Weber’s victims.

The IHS said it is committed to transparency and is following the law in keeping the report confidential. “Staff are encouraged to participate in these reviews and to be as transparent as possible with the understanding that the goal is to improve the system, not to take punitive action,” the agency said.

The IHS also said it would release a report to Congressional committees overseeing the agency with certain redactions “as soon as possible.”

Other lawmakers joined Messrs. Udall and Daines in urging more transparency from the IHS after its contractor completed the report last month.

“Montanans, and all Americans, expect accountability from their government, perhaps no more so than when a government agency has deeply failed the people it is intended to serve,” said Sen. Jon Tester (D., Mont.), in a statement.

READ MORE – https://www.wsj.com/articles/lawmakers-pressure-u-s-indian-health-service-to-release-sex-abuse-report-11582586359?mod=hp_lista_pos3

How Founding Fathers Who Loved the God of Liberty & Their Freedom Built the Freest of Free Nations

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Feb 222020
 
Washington praying

02-16-2020 – Paul Strand, CBN News

PHILADELPHIA – As we celebrate Presidents Day, it’s important to remember the first five commanders-in-chief were also all Founding Fathers of the nation. What you may not know is how crucial The Founders’ faith was in America’s beginning. And much of that beginning took place in Philadelphia.

In locations all around colonial Philadelphia, Founders who knew the God of Liberty fought to form a nation of liberty.

Take a Do-it-Yourself Tour

The Providence Forum has organized a self-guided Faith and Freedom Tour to show you how Christianity and the intense desire for liberty in these locations birthed this freest of free nations.

“Why Philadelphia? Because this was the big city. It was much bigger than the little farm town of New York,” Providence Forum founder Peter Lillback told CBN News. “Philadelphia was also centrally located. It was a big city right in the middle.”

Touring around the sights, Lillback described how Bible beliefs backed each step the Founding Fathers took. Standing near a statue of George Washington, Lillback stated the first president personified this.

‘Follow Jesus Christ to Succeed’

“Washington said we need to follow Christ or we’re never going to succeed as a nation. That’s not a minister. That’s not a right-wing conservative fundamentalist. That’s the father of our country!” Lillback exclaimed.

He offered that it’s significant and apropos that Washington’s statue is located right outside Independence Hall since that’s where the Founders declared the colonies’ freedom and formed the fledgling country’s constitution.

Washington led the army that fought for that freedom, then presided over the 1787 Constitutional Convention, and finally led the nation as its first chief executive. But he was always guided by his faith that he held so dear.

How to be a Happy Nation

Lillback explained of Washington, “He’s the one who said, ‘Unless we imitate the Divine Author of our blessed religion in terms of His charity, humility, and specific temperament of mind, we’ll never be a happy nation.'”

In a world used to rule by monarchs, he almost singlehandedly broke Americans out of the habit of being subjects.

“When he was called on to become king, he refused. Because he said, ‘We’re going to let the people decide,'” Lillback shared.

Followers of Christ the Carpenter Met in Carpenters Hall

But many years before that, leaders from the various colonies gathered for the first time and in Philadelphia in 1774 to figure out how to remove the oppressive grip Britain had wrapped around the colonies’ collective neck.

These colonial leaders were overwhelmingly of the Christian faith, following Jesus Christ, a carpenter. And interestingly enough, where they first met was called Carpenters’ Hall.

They longed to unite against Britain but were divided by deep denominational differences and even regional customs. Like when Massachusetts’ John Adams first encountered Washington, the Virginian.

Some Would Shake Hands, Some Would Bow

“They’re all gathered together. They’ve never been in the same room, they’re meeting each other for the first time. John Adams meets this big tall Virginian, George Washington. And they don’t even know how to shake hands. John Adams comes up to shake his hand and George Washington steps back. Because Virginians don’t shake hands. They give a bow,” Lillback explained.

These men gathering in Carpenters’ Hall were taking the actions that would someday give birth to America. Did it begin in rebellion? In bloodshed? It actually began in that hall with prayer.

Standing in front of Carpenters’ Hall, Lillback stated, “This is where the first prayer for the country happens. But not without a debate. They debated the question could they even pray? Not because they didn’t believe in prayer, but because all the different denominations believed that the others were wrong, and they couldn’t fellowship with them,” Lillback related.

The Spark Plug of the American Revolution said ‘I’m no Bigot’

That’s when one of the fieriest radicals against the British stepped into the breach and bridged the gap.

“This is the great accomplishment of Samuel Adams, called the spark plug of the American Revolution, who said, ‘I’m no bigot. I can pray with any man who loves his God and loves his country’,” Lillback said.

Adams called on this First Continental Congress to invite over local Anglican minister Jacob Duche to come and lead them in prayer. Adams was a Congregationalist. Not all that many years before, his people waged war against England’s Anglicans and even beheaded the British king, head of the Anglican church.

They Prayed in Jesus’ Name

But like Samuel Adams, Jacob Duche rose to the occasion, and soon arrived in Carpenters Hall.

“Leads in prayer and he does it in the name of Jesus Christ,” Lillback shared. “So we can honestly say the United States was begun with a prayer meeting.”

He went on, “I think it’s a beautiful thing to realize that American colonialists found a way to come together, and they did it in the Gospel name of Christ, crossing denominational boundaries.”

What these men accomplished, Lillback characterized as, “The spiritual and political first step of the First Continental Congress of the United States.”

And Lillback said of Adams reaching out across the denominational aisle, “It was at that moment that Sam Adams created the American ecumenical spirit, where, in the public square, we can walk over our denominational boundaries.”

Jefferson Wanted Liberty for the Slaves, Too

As the Revolutionary War began, these rebel leaders soon moved into what would become known as Independence Hall. From there, they sent Thomas Jefferson off to come up with the Declaration of Independence. Working nearby, he put together those famed words about life and liberty but also wrote a whole section against slavery.

For those who believe America was just a bunch of uncaring, hard-hearted plantation owners lording it over slaves they felt they had every right to own, the picture was much more complex.

Lillback said of the Declaration’s author, “Jefferson, although a slave owner, realized that they were making the world over again. He said something unique is happening here. And he said, ‘We need to end slavery.'”

Aided by the likes of John Adams and Benjamin Franklin, Jefferson finished and submitted the Declaration to his fellow delegates.

88 Changes to the Declaration of Independence

“It went to the Congress. And we’re told that while it was being debated, Jefferson was fuming in the corner. Because there were some 88 changes that were made to his document,” Lillback said, adding that one of those changes was taking out Jefferson’s idea to wipe out slavery.

But others continued the battle. Opponents of slavery pointed out the scripture from Leviticus engraved in the nearby Liberty Bell.

Lillback stated they’d remark, “Doesn’t that old bell say, ‘Proclaim liberty throughout the land to ALL inhabitants thereof?’ And this became the great icon of the abolitionists’ assault against slavery. And they’re the ones who named it the Liberty Bell.”

Accepting All Men are Sinners, All are Depraved

Meanwhile, at the 1787 Constitutional Convention in Independence Hall, the Founders accepted the Bible’s saying all men are sinners and in their depravity can’t be trusted.

Lillback recalled, “There’s an amazing story that happens in James Madison’s record of the Constitutional Convention. They’re debating how they should distribute votes. And one of the large states says…

READ MORE – https://www1.cbn.com/cbnnews/us/2020/february/how-founding-fathers-who-loved-the-god-of-liberty-and-their-freedom-built-the-freest-of-free-nations

NATIONAL COMMISSION ON NATIVE CHILDREN HOLDS FIRST OFFICIAL MEETING

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Dec 292019
 
Commission on Native Children

The Alyce Spotted Bear and Walter Soboleff Commission on Native Children will conduct a comprehensive study of supports for American Indian, Alaska Native, and Native Hawaiian children.

FOR IMMEDIATE RELEASE: December 27, 2019
CONTACT: Carlyle Begay, asbwsnc@gmail.com

[Washington, D.C., November 2019] – The Alyce Spotted Bear and Walter Soboleff Commission on Native Children, established by Congress, held its first official meeting from October 30-November 1, 2019. The bipartisan Commission is the vision of former U.S. Senator Heidi Heitkamp (D-ND) and U.S. Senator Lisa Murkowski (R-AK), who provided opening remarks along with Tara Sweeney, Assistant Secretary for Indian Affairs at the U.S. Department of the Interior.

Comprised of 11 individuals specializing in juvenile justice, social service programs, Indian education, and mental and physical health, the Commission will conduct a comprehensive study of the programs, grants, and supports available for Native children at government agencies and in Native communities. They will then have three years to issue a report containing recommendations to address the challenges currently facing Native children, with the goal of developing a sustainable system that delivers wraparound services to Native children.

Native children (including American Indian, Alaska Native, and Native Hawaiian children) suffer from Commission on Native Children, DC, DOIhealth and well-being challenges at a much higher rate than their non-Native peers, often experiencing trauma that impacts their ability to learn, thrive, and become resilient adults. Resources and supports for Native children are currently inappropriate, insufficient, or limited by bureaucracy so that they are ineffective. The Commission has a unique and historic opportunity to fundamentally change the trajectory of Native children for the better. In her opening remarks, Senator Murkowski said to the Commissioners, “The Commission can address education issues and childhood trauma in a more holistic way…Sometimes it doesn’t take a lot of money to give a child support, love, and care.” Former Senator Heitkamp added, “I want the Commission to give us hope that things can change and that we can do better. You are the ‘Hope Commission’…Collect and rely on data and research, and lead with your heart; it will take you where you need to go.”

The Commissioners are excited to take on this charge. Gloria O’Neill, Chair of the Commission and President/CEO of the Cook Inlet Tribal Council in Anchorage, Alaska, stated, “We are looking forward to moving the needle on positive outcomes for Native children. We have a great opportunity as there is great alignment in Congress and our partners in the federal government to get things done.”

Over the next couple of years, the Commission will be holding hearings in and reviewing documentation from tribal communities throughout the country to hear from Native children, their families, tribal leaders, and community members. The Commission will also hear from respected researchers and experts as they consider their recommendations. The first public hearing of the Commission will be held in Arizona in March 2020.

The Commissioners of the Alyce Spotted Bear and Walter Soboleff Commission on Native Children are:

Gloria O’Neill (Chair)
President/CEO, Cook Inlet Tribal Council, Inc.
Alaska

Tami DeCoteau, Ph.D. (Co-Chair)
DeCoteau Trauma-Informed Care & Practice, PLLC
North Dakota

Carlyle Begay
Former State Senator
Arizona

Dolores Subia BigFoot, Ph.D.
Director, Indian Country Child Trauma Center
Oklahoma

Jesse Delmar
Director, Navajo Nation Division of Public Safety
Arizona

Anita Fineday
Managing Director, Indian Child Welfare Program, Casey Family Programs
Minnesota

Don Atqaqsaq Gray
Board Member, Ukpeagvik Inupiat Corporation
Alaska

Leander R. McDonald, Ph. D.
President, United Tribes Technical College
North Dakota

Elizabeth (Lisa) Morris
Administrator, Christian Alliance for Indian Child Welfare
North Dakota

Melody Staebner
Fargo/West Fargo Indian Education Coordinator
North Dakota
###

Merry Christmas

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Dec 262019
 
Merry Jesus Christmas native

CAICW Chairwoman Elizabeth Morris earned a Master of Arts degree in public policy this last summer as a ‘Graduate with Distinction.’ She is now working on her Doctor of Philosophy: Public Policy: Social Policy.

Morris’ master thesis, ‘The Philosophical Underpinnings and Negative Consequences of the Indian Child Welfare Act’ examines documented interactions between North American tribal communities and alternate governments from colonial times on, and the legal history, constitutionality, and social impact of current federal Indian policy. It is just under 350 pages long and can be accessed at https://digitalcommons.liberty.edu/masters/591/ or on Pro-quest.

The Congressional ‘Commission on Native Children’

In May of 2018, Morris was appointed by Speaker Paul Ryan to the “Alyce Spotted Bear/Walter Soboleff Commission on Native Children” (AKA the ‘Commission on Native Children’). The Commission finally had its first working meeting at the end of October this year…
• Representatives from the Dept. of Justice, Dept. of Interior, Dept of Health and Human Services, and Dept. of Education – and their various agencies, including the ACF, BIA, BIE, OJS and more – met with the Commissioners at the DOI in Washington. They each presented descriptions of their varied tribal programs and budgets in the millions.
• Four ‘detailees’ have been assigned to the Commission; one each from the DOJ, DOI, DHHS, and DOEd. Through these detailees, the Commissioners will get the agency data necessary to make decisions about program effectiveness.
• The commission will be holding hearings around the country. For the year 2020, the hearings are scheduled for Phoenix, Alaska, and Hawaii. (Although Hawaiians are not members of a federally recognized tribe and therefore not wards of the federal government.) There will be hearings in additional areas in 2021.

PLEASE PRAY for this commission – and keep watching the CAICW Facebook page for updates on hearings.

CAICW.org UPDATE


• CAICW filed a motion and an en Banc amicus in the Brackeen (Un-constitutionality of ICWA) case in the 5th Circuit Court of Appeals in October. We are making an additional Constitutional argument.
• We don’t post the stories of families who contact us on the CAICW Facebook page anymore because people have gotten into trouble for contacting us. But these families do still need prayer. There are several families to pray for right now – but there is one, in particular. A one-year-old boy is currently being transitioned into his birth mother’s home. Despite drug use, DWI’s, and jail time just last week, unsupervised overnight visits are taking place. The little boy screams and tries to get away from the birth parents when they come for him.
• CAICW has avoided fundraising for about six years. This isn’t because funds aren’t necessary, but because we no longer want to waste time or energy worrying about it. Living and working as frugally as possible is preferable. This is why there is no office or employees. Home offices work fine, and in 2014, living frugally meant camping in the DC area for six weeks, living on about 25 dollars a day – including subway fare. We choose and prefer to trust God and remain focused on the children. While we gratefully accept unsolicited donations, we don’t want money to be a primary focus. There is no way we can come close to matching the finances of our opponents anyway. What will win this battle is God – in prayer, partnerships, and perseverance.

Nevertheless, being small – and busy with the tasks we all know need to be done – we aren’t able to communicate as often as we would like. Thank you for your patience and prayers. Please keep returning to this site as well as Facebook for updates as we are able.

Thank you so much for your encouragement and support. Have a Blessed Christmas and New Year.

The Philosophical Underpinnings and Negative Consequences of the Indian Child Welfare Act

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Oct 212019
 
The Philosophical Underpinnings and Negative Consequences of the Indian Child Welfare Act - https://digitalcommons.liberty.edu/masters/591/

By Elizabeth S. Morris

A Thesis Submitted to the Faculty of the Helms School of Government in Candidacy for the Degree of Master of Arts in Public Policy

https://digitalcommons.liberty.edu/masters/591

‘Although the ICWA has some statutory safeguards to prevent misuse, numerous families continue to be hurt by the law.’

Preface

My husband and I began our lives together in a symbiotic alcoholic-enabler relationship in the late 70’s. With our family on the edge of self-destruction in 1987, my husband, an enrolled member of the Minnesota Chippewa Tribe, born and raised on the Leech Lake reservation, had a transformational experience which changed his worldview and led him to take our family in a new direction. 

Having watched many of his relatives suffer within the reservation system, he began to see reservation violence and crime as an outcome of current federal Indian policy more than it was about past policy. This led us to forming an advocacy in the late 90’s for families hurt by federal Indian policy.  We did our best to share hope and life, as inadequate as we were, by assisting extended family in our home, neighbors in our community, and strangers across the nation. We never did it for money; there was never any money. Everything we did came from passion for the lives of our children, nieces and nephews, and extended communities.

Unfortunately, reservation crime, corruption, drug abuse and violence have continued to increase over the years. My husband has since passed away and I am a widow, continuing the work we had begun in 1996.

This thesis compiles some of the documented history, philosophy, and consequences of federal Indian policy. It also includes a preliminary quantitative causal comparative survey with 1351 participants – 551 of whom identify tribal heritage – and explores the relationship between differences.

We serve a powerful God with whom all things are possible.  Our job is to serve in the capacity He has given us, even if we do not understand why, and then enjoy watching what He does next. 

Abstract

This paper will examine the philosophical underpinnings of current federal Indian policy and its physical, emotional, and economic consequences on individuals and communities.

The U.S. Civil Rights Commission found in 1990 that “[T]he Government of the United States has failed to provide civil rights protection for Native Americans living on reservations” (W. B. Allen 1990, 2). As Regan (2014) observes, individuals have been denied full title to their property – and thus use of the property as leverage to improve their economic condition (Regan 2014). Tribal executive and judicial branches have been accused of illegal search and seizures, denial of right to counsel or jury, ex parte hearings and violations of due process and equal protection (W. B. Allen 1990, 3). Violence, criminal activity, child abuse and trafficking are rampant on many reservations (DOJ 2018). Largely because of crime and corruption, many have left the reservation system. The last two U.S. censuses’ report 75% of tribal members do not live in Indian Country (US Census Bureau 2010).

Research suggests current federal Indian policy and the reservation system are built on philosophies destructive to the physical, emotional and economic health of individual tribal members. This paper contends that allowing property rights for individual tribal members, enforcing rule of law within reservation systems, supporting law enforcement, and upholding full constitutional rights and protections of all citizens would secure the lives, liberties and properties of affected individuals and families.

Introduction

For almost 200 years the U.S. federal government has claimed wardship over members of federally recognized Indian tribes.  Yet, despite the nineteenth century U.S. federal court rulings that propagated this view, disagreement continues as to whether tribes located within the United States are sovereign, whether Congress has plenary power over them, and whether individual tribal members have U.S. Constitutional rights: 

  • Some say the nineteenth century U.S. Supreme Court cases known as the ‘Marshall Trilogy’ contradict tribal sovereignty.  Others say they uphold it.
  • Some say treaties promise a permanent trust relationship. Others point out that most treaties have clearly specified final payments of federal funds and benefits and were written and signed with clear intent for gradual assimilation.
  • Some say the Constitution never gave Congress anything more than the power to regulate trade with tribes. Others claim the Constitution not only gave Congress total and exclusive plenary power to decide every aspect of life in Indian Country – but by unstated extension, gave the executive branch this power as well.
  • Some argue that the Constitution never had authority over tribes or tribal members. Others cite the Constitution when seeking judicial redress. 
  • Some tribal officials argue that international law should not have been forced upon non-European cultures that had no say in it. Others point to natural law and international law – the grounds for treaties between nations – as basis for uninterrupted tribal sovereignty.

Inherent, retained tribal sovereignty was reality for tribal governments prior to the formation of the United States and in the immediate years following its birth, but is not reflected in case law from the 1800s and much of the 1900s. By the time of Andrew Jackson, the United States had taken a position of control. Further, over the last two centuries, the vast majority of tribal leaders accepted large payments for land, accepted federal trust benefits, and submitted to federal government’s de facto power over them.   

Throughout history and every heritage, various men have coveted power over others.  Today, tribal governments, while accepting and playing into Congress’ claim of plenary power, have themselves, also, claimed exclusive jurisdiction and authority over unwilling citizens. Tribal governments regularly lobby and petition both Congress and the White House to codify tribal jurisdiction over the lives, liberty and property of everyone within reservation boundaries as well as some outside reservation boundaries.  While claiming exclusive jurisdiction, tribal governments have requested and given blessing for the federal government to manage children of tribal heritage – asking Congress to write the Indian Child Welfare Act and the executive branch to write federal rules governing the placement of every enrollable child in need of care. Some tribal governments and supportive entities have gone further – asking even governors and state legislators to expand on and strengthen control over children with heritage.

Often cited as justification for the ICWA is a 1998 pilot study by Carol Locust, a training director at the Native American Research and Training Center at the University of Arizona College of Medicine.  Locust’s study is said to have shown that “every Indian child placed in a non-Indian home for either foster care or adoption is placed at great risk of long-term psychological damage as an adult” (Locust, Split Feather Study 1998).  Referring to the condition as the “Split-feather Syndrome,” Locust claims to have identified “unique factors of Indian children placed in non-Indian homes that created damaging effects” (Locust, Split Feather Study 1998).  The Minnesota Department of Human Services noted “an astonishing 19 out of 20 Native adult adoptees showed signs of “Split-feather syndrome” during Locust’s limited study (DHS 2005).

“Unfortunately,” according to Bonnie Cleaveland, PhD ABPP, “the study was implemented so poorly that we cannot draw conclusions from it.” Only twenty adoptees with tribal heritage – total – were interviewed. All were removed from their biological families and placed with non-native families. There were no control groups to address other variables. According to Cleaveland:

Locust asserts that out-of-culture removal causes substance abuse and psychiatric problems. However, she uses no control group. She doesn’t acknowledge the high rates of trauma, psychiatric and substance abuse among AI/AN people who remain in their culture and among the population of foster children. These high rates of psychosocial problems could easily account for all of the symptoms Locust found in her subjects 

(Cleaveland 2015).

Cleaveland concluded, “Sadly, because many judges and attorneys, and even some caseworkers and other professionals, are not familiar with the research, results that may be very wrong are leading to the wrong outcomes for children” (Cleaveland 2015).  While supporters of ICWA cite “Split-feather Syndrome” as proof the ICWA is in the best interest of children, many children have been hurt by application of the law. 

Questions that need more extensive study include whether children who were adopted into non-Indian families as children show greater problems with self-identity, self-esteem, and inter-personal relationships than do their peers.  Are the ties between children who have tribal heritage and their birth families and culture stronger than that of their peers, no matter the age at adoption?  Other considerations include whether all tribal members support federal policies that mandate their cases be heard only in tribal courts and whether a percentage of persons of tribal heritage believe federal Indian policy infringes on their life, liberty and property.

 The central concern of this paper is how current federal Indian policy has affected the lives, liberty and property of those who have tribal heritage – most specifically the Indian Child Welfare Act.  Through research of the historical foundations of federal Indian policy and a nation-wide comparative survey of family dynamics, this paper will attempt to answer these and other questions.

READ FULL TEXT – https://digitalcommons.liberty.edu/masters/591

Citation

Morris, Elizabeth S. The Philosophical Underpinnings and Negative Consequences of the Indian Child Welfare Act. Master Thesis, Helms School of Government, Liberty University, Lynchburg: Digital Commons, 2019, 337.  

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Read CAICW’s Amicus in the Brackeen ICWA case

 Comments Off on Read CAICW’s Amicus in the Brackeen ICWA case
Feb 272019
 

…’the ICWA imposes sweeping regulations that are at best marginally related to commerce. The ICWA also intrudes on a quintessential area of state law: family and domestic matters. This intrusion obliterates the bedrock constitutional distinction between federal and local power, effectively allowing the federal government free reign to regulate however, and whatever, it wishes simply by invoking the Indian Commerce Clause. The ICWA, therefore, is an unconstitutional exercise of Congress’s authority under the Indian Commerce Clause.’

The amicus can be read here…

https://turtletalk.files.wordpress.com/2019/02/christianallianceamicus.pdf

URGENT!! ICWA STRUCK DOWN IN DISTRICT COURT

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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

Appointed to Congressional Commission on Native Children

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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.

COMMISSION ON NATIVE CHILDREN’S DECEMBER 2019 PRESS RELEASE

NATIONAL COMMISSION ON NATIVE CHILDREN HOLDS FIRST OFFICIAL MEETING

FOR IMMEDIATE RELEASE: December 27, 2019
CONTACT: Carlyle Begay, asbwsnc@gmail.com

The Alyce Spotted Bear and Walter Soboleff Commission on Native Children will conduct a comprehensive study of supports for American Indian, Alaska Native, and Native Hawaiian children

[Washington, D.C., November 2019] – The Alyce Spotted Bear and Walter Soboleff Commission on Native Children, established by Congress, held its first official meeting from October 30-November 1, 2019. The bipartisan Commission is the vision of former U.S. Senator Heidi Heitkamp (D-ND) and U.S. Senator Lisa Murkowski (R-AK), who provided opening remarks along with Tara Sweeney, Assistant Secretary for Indian Affairs at the U.S. Department of the Interior.

Comprised of 11 individuals specializing in juvenile justice, social service programs, Indian education, and mental and physical health, the Commission will conduct a comprehensive study of the programs, grants, and supports available for Native children at government agencies and in Native communities. They will then have three years to issue a report containing recommendations to address the challenges currently facing Native children, with the goal of developing a sustainable system that delivers wraparound services to Native children.

Native children (including American Indian, Alaska Native, and Native Hawaiian children) suffer from health and well-being challenges at a much higher rate than their non-Native peers, often experiencing trauma that impacts their ability to learn, thrive, and become resilient adults. Resources and supports for Native children are currently inappropriate, insufficient, or limited by bureaucracy so that they are ineffective. The Commission has a unique and historic opportunity to fundamentally change the trajectory of Native children for the better. In her opening remarks, Senator Murkowski said to the Commissioners, “The Commission can address education issues and childhood trauma in a more holistic way…Sometimes it doesn’t take a lot of money to give a child support, love, and care.” Former Senator Heitkamp added, “I want the Commission to give us hope that things can change and that we can do better. You are the ‘Hope Commission’…Collect and rely on data and research, and lead with your heart; it will take you where you need to go.”

The Commissioners are excited to take on this charge. Gloria O’Neill, Chair of the Commission and President/CEO of the Cook Inlet Tribal Council in Anchorage, Alaska, stated, “We are looking forward to moving the needle on positive outcomes for Native children. We have a great opportunity as there is great alignment in Congress and our partners in the federal government to get things done.”

Over the next couple of years, the Commission will be holding hearings in and reviewing documentation from tribal communities throughout the country to hear from Native children, their families, tribal leaders, and community members. The Commission will also
hear from respected researchers and experts as they consider their recommendations. The first public hearing of the Commission will be held in Arizona in March 2020.

The Commissioners of the Alyce Spotted Bear and Walter Soboleff Commission on Native Children are:

Gloria O’Neill (Chair)
President/CEO, Cook Inlet Tribal Council, Inc.
Alaska

Tami DeCoteau, Ph.D. (Co-Chair)
DeCoteau Trauma-Informed Care & Practice, PLLC
North Dakota

Carlyle Begay
Former State Senator
Arizona

Dolores Subia BigFoot, Ph.D.
Director, Indian Country Child Trauma Center
Oklahoma

Jesse Delmar
Director, Navajo Nation Division of Public Safety
Arizona

Anita Fineday
Managing Director, Indian Child Welfare Program, Casey Family Programs
Minnesota

Don Atqaqsaq Gray
Board Member, Ukpeagvik Inupiat Corporation
Alaska

Leander R. McDonald, Ph. D.
President, United Tribes Technical College
North Dakota

Elizabeth (Lisa) Morris
Administrator, Christian Alliance for Indian Child Welfare
North Dakota

Melody Staebner
Fargo/West Fargo Indian Education Coordinator
North Dakota
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