Beautiful Michelle hanged herself in a closet

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Dec 162010
 

A friend wrote:

“Lisa you can and are free. Free to go on, free to thank God for your life with Roland…free to learn from the craziness and free to take what you can and to leave the rest in God’s hands.”

How beautiful, wonderful, comforting those words are.

But it was worse than just craziness. It had been horrific. Over twenty years earlier, I stepped into the closet where Michelle, who was taller then I, had hanged herself that morning. The wooden rod from which clothing hung just touched the top of my head. She could have saved herself simply by standing up. How could she have hated herself that much? How could anyone hate themselves that much? How deep her despair must have been! Oh, why didn’t any of us realize the extent of her suffering? That beautiful girl! Why didn’t we visit her? Why didn’t I just come and talk to her, be her friend, take her to get her driver’s license as I had promised her? Something?

That very same evening, we got a call from a detective in the emergency room at the medical center. Owen had been stabbed in the chest.

“Oh, No,” I said to the detective. “His sister Michelle just died!”

“Michelle died?” The detective asked, “Do we know how Michelle died?”

“Oh, yes. She was upset about their sister Brenda’s accident and she hanged herself”.

“Brenda?” He asked hesitantly, “And do we know what happened to Brenda?”

“Yes, she fell down a flight of stairs in a wheelchair and reinjured her back”.

The detective paused.

“Do we know how Brenda fell down the stairs?”

“Yes. She was upset that Michelle hadn’t wanted to help her down the stairs. So she threw herself down.”

At this point the detective must have been wondering if there were some kind of conspiracy against the family. I think, in some backward way, many of us hoped there was. It was too much to imagine that all this could happen to one family in one week’s time. Worse – that they had all done it to themselves. It would have been a morbid comfort to have some other explanation.

And this was just one of many “Days of out lives.”

But after some thought, I respond to my friend: “You are right – the memories pain me, but even so, I do thank God for my life with Roland. He actually asked me before he died how I felt about our life together. And I actually had an answer ready—because I’d been thinking about it for awhile.

I told him that we had traveled from the Atlantic to the Pacific. We’ve lived in Canada and helped out at a Children’s home in Mexico. We’ve owned businesses and we’ve been on welfare. At times we had little or no food – and other times we ate at some of the finest restaurants. We have slept on dirty floors with dirty blankets in tribal housing, and we have stayed in upscale hotels on Capitol Hill in Washington DC and in Windsor, BC. I told him our life had been full. He seemed to relax into his pillow upon hearing me say it.

We felt just as comfortable talking to a drunk on Franklin Ave. as we did talking to a US Senator. I’ve called a US Senator looking for my husband, who was in his office at the time. The Senator made a real joke of it, as he handed Roland the phone, about how I can track him down anywhere. And…I’ve had an impossible time finding my husband on the reservation just after our son was born. No one would hand the phone to him then, as they were drinking with him.

A law professor and a state legislator both helped carry Roland’s casket. A retired US Navy Submarine officer carried Roland’s body back to the reservation in the back of his pickup.

Who would I have been without all those experiences?

It’s the truth, isn’t it? Who would I have been if I had married an average man and lived with two cars and 2.5 kids in the suburbs? Really – would I even be a Christian right now? Because it was Roland that essentially led me to Christ.

And …as I correspond with the various families that write to CAICW…how would I even begin to understand them and their fears if I hadn’t been there myself? I am able to write two simple words that mean the world to them… “I understand.”

And it is with that background: the birth mother to five members, the adoptive mother of one, the legal custodian of three, the step mother to four, and aunt to innumerable members of the Minnesota Chippewa Tribe – and as a former licensed Day care provider, foster care provider, as well as registered nurse – I am able to ‘withstand the barbs of the enemy’ and stand tall whenever anyone tries to call me a racist for speaking up on this issue.

I can unashamedly stand up and say what many others can’t bring themselves to say – because I don’t care what names they call me. And I can speak loudly. And I can help that no more children be treated as chattel for the benefit of a corrupt tribal government.

The idea some have that children “belong” on the reservation is racism at its core. It ignores who the child might factually be, who the child is connected to, what the child really wants and, importantly, what the child’s best interests are. It’s well known to everyone that the high school drop out rate, drug abuse, crime, fetal alcohol rate, child abuse, corruption, child neglect, sexual abuse, violence and suicide, etc. is so high on many reservations that no Congressman would ever willingly send their own child to live there…yet everyone is supposed to just go along with the lie that children of heritage must live with it because tribal and federal government say so. It’s not only insane but criminal.

I’m not going to diplomatically dance around so as not to step on toes. Kids are dying. Beautiful Michelle hanged herself in a simple closet, where all she had to do was stand up to save herself.

Others have died of overdose, accident, and violence.

So you are right. I have a job to do, and it is because of my life with Roland that I am able to do it.

– to be the loud-mouthed, angry witch that I am.

Bless you My Friends, you’ve been so good to hang in there with us through all these tough years.

Read “Dying in Indian Country”

Letters from Families, asking for Help – Christian Alliance for Indian Child Welfare

Case Law for Existing Indian Family Doctrine

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May 112010
 

.Holyfield – the first case in which the federal high court has construed ICWA,

Mississippi Choctaw Indian Band v. Holyfield, 490 US 30 (1989) Docket No. 87-980, Argued January 11, 1989, Decided April 3, 1989, CITATION: 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989),

DISCUSSION: I A The Indian Child Welfare Act of 1978 (ICWA), 92 Stat. 3069, 25 U.S.C. 1901-1963, was the product of rising concern in the mid-1970’s over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.

Dissenting footnotes: STEVENS, J., filed a dissenting opinion, in which REHNQUIST, C. J., and KENNEDY, J., joined.

[ Footnote 8 ] The explanation of this subsection in the House Report reads as follows: “Subsection (b) directs a State court, having jurisdiction over an Indian child custody proceeding to transfer such proceeding, absent good cause to the contrary, to the appropriate tribal court upon the petition of the parents or the Indian tribe. Either parent is given the right to veto such transfer. The subsection is intended to permit a State court to apply a modified doctrine of forum non conveniens, in appropriate cases, to insure [490 U.S. 30, 61] that the rights of the child as an Indian, the Indian parents or custodian, and the tribe are fully protected.” Id., at 21. In commenting on the provision, the Department of Justice suggested that the section should be clarified to make it perfectly clear that a state court need not surrender jurisdiction of a child custody proceeding if the Indian parent objected. The Department of Justice letter stated:

“Section 101(b) should be amended to prohibit clearly the transfer of a child
placement proceeding to a tribal court when any parent or child over the age of
12 objects to the transfer.” Id., at 32.

Although the specific suggestion made by the Department of Justice was not in fact implemented, it is noteworthy that there is nothing in the legislative history to suggest that the recommended change was in any way inconsistent with any of the purposes of the statute.

[ Footnote 9 ] Chief Isaac elsewhere expressed a similar concern for the rights of parents with reference to another provision. See Hearing, supra n. 1, at 158 (statement on behalf of National Tribal Chairmen’s Association)

(“We believe the tribe should receive notice in all such cases but where the
child is neither a resident nor domiciliary of the reservation intervention
should require the consent of the natural parents or the blood relative in whose
custody the child has been left by the natural parents. It seems there is a
great potential in the provisions of section 101(c) for infringing parental
wishes and rights”).

But when an Indian child is deliberately abandoned by both parents to a person off the reservation, no purpose of the ICWA is served by closing the state courthouse door to them. The interests of the parents, the Indian child, and the tribe in preventing the unwarranted removal of Indian children from their families and from the reservation are protected by the Act’s substantive and procedural provisions. In addition, if both parents have intentionally invoked the jurisdiction of the state court in an action involving a non-Indian, no interest in tribal self-governance is implicated. See McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 173 (1973); Williams v. [490 U.S. 30, 64] Lee, 358 U.S. 217, 219 -220 (1959); Felix v. Patrick, 145 U.S. 317, 332 (1892).


In Bridget R. –In re Bridget R. (1996) 41 Cal.App.4th 1483 (Bridget R.). January 19, 1996 , LLR No. 9601041.CA, Cite as: LLR 1996.CA.41 – The Pomo Twins

[33] As we explain, recognition of the existing Indian family doctrine is necessary in a case such as this in order to preserve ICWA’s constitutionality. We hold that under the Fifth, Tenth and Fourteenth Amendments to the United States Constitution, ICWA does not and cannot apply to invalidate a voluntary termination of parental rights respecting an Indian child who is not domiciled on a reservation, unless the child’s biological parent, or parents, are not only of American Indian descent, but also maintain a significant social, cultural or political relationship with their tribe.

[145] *fn11 We note in passing that Congress in 1987 failed to approve amendments to ICWA which were described in materials considered by the Senate Select Committee on Indian Affairs as having the effect of precluding application of the existing Indian family doctrine. (See Hearings before the Senate Select Com. on Indian Affairs, United States Senate, 100th Cong., 1st Sess. on Oversight Hearings on the Indian Child Welfare Act, Nov. 10, 1987, Appendix B, pp. 167-171.)

In re Alexandria Y.
(1996) 45 Cal.App.4th 1483, –

which applied the “existing Indian family doctrine” to a proceeding to terminate parental rights and implement a pre-adoptive placement.

…., the Fourth District held that “recognition of the existing Indian family doctrine [was] necessary to avoid serious constitutional flaws in the ICWA” (In re Alexandria Y., supra, 25 Cal.App.4th at p. 1493), and held that the trial court had acted properly in refusing to apply the ICWA “because neither [the child] nor [the mother] had any significant social, cultural, or political relationship with Indian life; thus, there was no existing Indian family to preserve.” (Id. at p. 1485.)

The court observed that not only did neither the mother nor the child have any relationship with the tribe, but also that the father was Hispanic, and that the child was placed in a preadoptive home where Spanish was spoken. “Under these circumstances,” the court commented, “it would be anomalous to allow the ICWA to govern the termination proceedings. It was clearly not the intent of the Congress to do so.” (Id. at p. 1494.)


From Santos y,
In re SANTOS Y., a Person Coming Under the Juvenile Court Law, In re Santos Y. (2001) , Cal.App.4th [No. B144822. Second Dist., Div. Two. July 20, 2001.]

“Application of the ICWA to a child whose only connection with an Indian tribe is a one-quarter genetic contribution does not serve the purpose for which the ICWA was enacted, “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families” (25 U.S.C. § 1902).”

The court paid “particular attention to In re Bridget R., and quoted from Bridget R.’s due process and equal protection analysis at relative length.”

They also said, “We do not disagree with the proposition that preserving Native-American culture is a significant, if not compelling, governmental interest. We do not, however, see that interest being served by applying the ICWA to a multi-ethnic child who has had a minimal relationship with his assimilated parents, particularly when the tribal interests “can serve no purpose which is sufficiently compelling to overcome the child’s right to remain in the home where he . . . is loved and well cared for, with people to whom the child is daily becoming more attached by bonds of affection and among whom the child feels secure to learn and grow.” (In re Bridget R., supra, 41 Cal.App.4th at p. 1508.)”

Finally, Santos states, “Congress considered amending the ICWA to preclude application of the “existing Indian family doctrine” but did not do so.”

RE: Santos Footnotes, – Existing Family Doctrine:

¬FN 15. Accepting the doctrine: Alabama (S.A. v. E.J.P. (Ala.Civ.App. 1990) 571 So.2d 1187); Indiana (Matter of Adoption of T.R.M. (Ind. 1988) 525 N.E.2d 298); Kansas (Matter of Adoption of Baby Boy L. (Kan. 1982) 643 P.2d 168); Kentucky (Rye v. Weasel (Ky. 1996) 934 S.W. 2d 257); Missouri (In Interest of S.A.M. (Mo.App. 1986) 703 S.W.2d 603); New York (In re Adoption of Baby Girl S. (Sur. 1999) 690 N.Y.S. 2d 907); Oklahoma (Matter of Adoption of Baby Boy D. (Ok. 1985) 742 P.2d 1059); Tennessee (In re Morgan (Tenn.Ct.App. 1997) WL 716880); Washington (Matter of Adoption of Crews (Wash. 1992) 825 P.2d 305).

Rejecting the doctrine: Alaska (Matter of Adoption of T.N.F. (Alaska 1989) 781 P.2d 973); Idaho (Matter of Baby Boy Doe (Idaho 1993) 849 P.2d 925); Illinois (In re Adoption of S.S. (Ill. 1995) 657 N.E.2d 935); New Jersey (Matter of Adoption of a Child of Indian Heritage (N.J. 1988) 111 N.J. 155, 543 A.2d 925); South Dakota (Matter of Adoption of Baade (S.D. 1990) 462 N.W.2d 485); Utah (State, in Interest of D.A.C. (Utah App. 1997) 933 P.2d 993.)
United States Code Title 25 – Indians Chapter 21 – Indian Child Welfare

§ 1911. Indian tribe jurisdiction over Indian child custody proceedings(b) Transfer of proceedings; declination by tribal Court: In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child’s tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child’s tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe.

(Ftn 1) “The 2000 Census indicated that as much at 66 percent of the American Indian and Alaska Native population live in urban areas,” the Senate Indian Affairs Committee wrote in a views and estimates letter on March 2 2007. http://www.indianz.com/News/2007/001803.asp
(ftn2) 14th Amendment, Section 1: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and therefore have all the privileges or immunities of citizens of the United States. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

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ICWA Case Law & other Authority

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May 012010
 

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Cases:
Adoption of Lindsay C. (1991) 229 Cal.App.3d 404, 280 Cal.Rptr. 194
Doe v. Hughes, Thorness, Gantz, et al. (Alaska 1992) 838 P.2d 804
In re Alexandria Y. (1996) 45 Cal.App.4th 1483, 53 Cal.Rptr.2d 679
In re Alicia S. (1998) 65 Cal.App.4th 79, 76 Cal.Rprt.2d 121
In re Baby Girl A. (1991) 230 Cal.App.3d 1611, 282 Cal.Rptr. 105
In re Brandon M. (1997) 54 Cal.App.4th 1387, 63 Cal.Rptr.2d 671
In re Bridget R. (1996) 41 Cal.App.4th 1483, 49 Cal.Rptr.2d 507
In re Charloe (Ore. 1982) 640 P.2d 608
In re Crystal K. (1990) 226 Cal.App.3d 655, 276 Cal.Rptr. 619
In re Crystal R. (1997) 59 Cal.App.4th 703, 69 Cal.Rptr.2d 414.
In re Derek W. (1999) 73 Cal.App4th 828, 86 Cal. Rptr.2d 742.
In re Desiree F. (2000) 83 Cal.App.4th 460, 99 Cal.Rptr.2d 688
In re John V. (1992) 5 Cal.App.4th 1201, 7 Cal.Rptr. 629
In re Jonathan D. (2001) 92 Cal.App.4th 105, 111 Cal.Rptr.2d 628.
In re Julian B. (2000) 82 Cal.App.4th 1337, modified by 83 Cal.App.4th 935A, 99 Cal.Rptr.2d 241
In re Junious M. (1983) 144 Cal.App.3d 786, 193 Cal.Rptr. 40
In re Kahlen W. (1991) 233 Cal.App.3d 1414, 285 Cal.Rptr. 507
In re Krystle D. (1994) 30 Cal.App.4th 1778, 37 Cal.Rptr.2d 132
In re Larissa G. (1996) 43 Cal.App.4th 505, 51 Cal.Rptr.2d 16
In re Laura F. (2000) 83 Cal.App.4th 583, 99 Cal.Rptr.2d 859
In re Letitia V. v. Superior Court (2000) 81 Cal.App.4th 1009, 97 Cal.Rptr.2d 303
In re Levi U. (2000) 78 Cal.App.4th 191, 92 Cal.Rptr.2d 648
In re Marinna J. (2001) 90 Cal.App.4th 731, 109 Cal.Rptr 2d 267
In re Matthew Z. (2000) 80 Cal.App.4th 545, 95 Cal.Rptr.2d 343
In re Michael G. (1998) 63 Cal.App.4th 700, 74 Cal.Rprt.3d 642
In re Pedro N. (1995) 35 Cal.App.4th 183, 41 Cal.Rptr.2d 507
In re Pima County Juvenile Action (Ariz. 1981) 635 P.2d 187
In re Richard S. 54 Cal.3d 857, 2 Cal.Rptr.2d 2
In re Riva M. (1991) 235 Cal.App.3d 403, 286 Cal.Rptr. 592
In re Robert T. (1988) 200 Cal.App.3d 657, 246 Cal.Rptr. 168
In re Santos Y. (2001) 92 Cal.App.4th 1274, 112 Cal.Rptr.2d 692, review denied (Feb. 13, 2002)
In re Wanomi P. (1989) 216 Cal.App.3d 156, 264 Cal.Rptr. 623
In re William G., Jr. (2001) 89 Cal.App.4th 423, 107 Cal.Rptr.2d 436
Mississippi Choctaw Indian Band v. Holyfield (1989) 490 U.S. 30, L.Ed.2d 29
Morton v. Mancari (1974) 417 U.S. 535
Native Village of Venetie I.R.A. Council v. State of Alaska (9th Cir. 1991) 944 F.2d 548
Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49
Slone v. Inyo County (1991) 230 Cal.App.3d 263, 282 Cal.Rptr. 126
State Ex Rel. Juvenile Dept. of Lane County v. Shuey (Ore.1993) 850 P.2d 378

Cases (de-published or partially unpublished on ICWA issue):
In re Adam N. (2000) 101 Cal.Rptr.2d 181
In re Bettye K.(1991) 285 Cal.Rptr. 633
In re Carlos G. (1999) 88 Cal.Rptr.2d 623
In re Jacqueline L. (1995) 39 Cal.Rptr.2d 178
In re Santos Y. (2001) 110 Cal.Rptr.2d 1
In re Se.T. (2002) 115 Cal.Rptr.2d 335

Statutes and Other Authority (Specific to Indians):
Indian Child Welfare Act of 1978, 25 U.S.C. §§1901 et seq.
Indian Child Welfare Act Regulation, 25 C.F.R. Part 23.
Indian Child Welfare Act, Legislative History, H.R. Rep. 95-1386, 95th Cong.2d Sess. 22, 1978 U.S. Code Cong. & Admin. News 7530.

Bureau of Indian Affairs Guidelines for State Courts: Indian Child Custody Proceedings, 44 Fed.Reg. 67584 (Nov. 26, 1979)
California Family Code
Section 7810 [Calif. declaration of policy, existing Indian family doctrine abrogated.]
California Welfare and Institutions Code
Section 305.5 [Transfer to Tribe after reassumption of exclusive jurisdiction.]
Section 360.6 [Calif. declaration of policy, existing Indian family doctrine abrogated.]
Section 11401(e) [AFDC-FC for Indian placements.]
Section 10553.1 [Director’s delegation agreement with Indian Tribe.]

Cal. Rules of Court
Rule 1410 – Persons present.
Rule 1412 (I) – Tribal representatives.
Rule 1439 – Indian Child Welfare Act.
Manual of Policies and Procedures, California Department of Social Services, §31-515 et seq – Indian Child Welfare Act.
Manual of Policies and Procedures, California Department of Social Services, §45-101; §45-202, §45-203. [Implementing section 11401(e).]
SDSS All County Letter No. 89-26, Procedures for Certifying Indian Blood for Children in Adoption Planning.
SDSS All County Letter No. 95-07, AFDC-FC Program Eligible Facility Requirements.
Appeal of William Stanek, 8 Indian L.Rep.5021 (April 1981)(decision of the Commissioner of Indian Affairs.) [p. 3.]
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Original Meaning of the Indian Commerce Clause

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Apr 292010
 

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Contrary to the belief of those that want control over our children, the Indian Commerce Clause did not give Congress the right to enact a law giving those entities that control.

Professor Rob Natelson, Constitutional Law Professor at the University of Montana, Missoula, researched the issue in 2007. The results of his study were documented in a lead article published in vol 85 page 201 of Denver University Law Review (85 Denv. U. L. Rev. 201 (2007)

According to Professor Natelson, “the U.S. Constitution gives Congress only limited powers, and it says nothing about legislating for “Indian child welfare.”

So what gives Congress the power to pass a law like the ICWA?

Some say the Founding Fathers intended to give Congress that power by a section in the Constitution allowing Congress to “regulate Commerce with the Indian Tribes.” But is that true? Are laws like ICWA really constitutional as regulating “Commerce with the Indian Tribes?”

His answer: Absolutely not.

Professor Rob Natelson is one of the country’s top experts on the original meaning of the Constitution. He concluded that the purpose of the section giving power to Congress to regulate commerce with the Indian tribes was to allow Congress to regulate trade between Indians and whites – no more. Foster care, adoption, parental rights, etc. were be governed by state law, not federal law.

Professor Natelson documented his findings in a lead article published in Denver University Law Review. He also examined other claimed bases for laws like the ICWA, including the “Indian trust doctrine” – and he found they didn’t have any merit, either.

“There is not much doubt on the question,” he said. “At least according the Founding Fathers, Congress had absolutely no authority to adopt the ICWA. Eventually, the courts may see their error and strike it down as unconstitutional.”

This article – and some of Professor Natelson’s other research – can be found at www.umt.edu/law/faculty/natelson.htm

The Original Meaning of the Indian Commerce Clause – 85 Denv. U. L. Rev. 201 (2007)

The Legal Meaning of “Commerce” In the Commerce Clause – 80 St. John’s L. Rev. 789 (2006)
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Treaties that don’t Exist

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Jul 062009
 

From http://electriccityweblog.com/?p=4202#more-4202
June 30th, 2009 by Rob Natelson

“Government agencies and pressure groups campaigning for more taxpayer money can create a fictitious “history” almost overnight. First, they make some claim about how something has been recognized since (whenever), and before you know it, journalists are uncritically repeating it, and it is plastered all over the Internet.

“Recently I’ve seen a burst of allegations that the U.S. government assumed a treaty obligation in 1787 to provide reservation Indians with free health care. If you Google “health care treaty Indian 1787,” you will find a long list of sources – including supposedly objective news stories – making that assertion. Here’s a sample from Montana’s Lee newspapers: “A treaty dating to 1787 requires the government to provide tribal members living on reservations with free health care.”

“Now when presented with such a claim, a journalist’s crap-o-meter should start sounding like a fire alarm, because the claim is so inherently improbable. First, the reservation system as we know it didn’t exist in 1787. Second, the cash-strapped Confederation Congress would not have had the resources to meet such a commitment. (Remember that shortage of funds was one reason Congress called the constitutional convention.) Third, a treaty is a bilateral document – even if the Confederation Congress had committed itself to provide health care to the Delaware tribe, for example, it wouldn’t follow that the government had committed itself to provide health care to all Indians for all time.

“So I checked into the claim and found that — sure enough — it is flatly false. Here are some details:
* According to Charles Kappler’s authoritative collection of treaties between the U.S. Government and Native American tribes, there was no such treaty in 1787. In fact, 1787 was a year in which no U.S.-Indian treaties were signed at all!

* There were over 20 U.S.-Indian treaties before 1800, but none obligated the federal government to provide Indians with health care, free or otherwise.

* The last U.S.-Indian treaty was signed in 1868. Some of the later ones provided that the government would pay annuities to some Indians – but often even this term was left discretionary with the government. Neither my own search nor the Kappler index of all treaties disclosed any reference to a treaty obligation to provide free (or any) health care.

We can’t blame the myth wholly on activists and inattentive journalists, however — the U.S. Government bears some responsibility as well. The journalist who authored the story quoted above referred me to a PR webpage from the U.S. Indian Health Service. It states: “The provision of health services to members of federally-recognized tribes grew out of the special government-to-government relationship between the federal government and Indian tribes. This relationship, established in 1787, is based on Article I, Section 8 of the Constitution, and has been given form and substance by numerous treaties, laws, Supreme Court decisions, and Executive Orders.”

Now, this statement certainly does not say that any treaties created an obligation to provide free health care. But it has problems of its own. It repeats the false 1787 date. And by stating that the Indian-federal “relationship” has been “given form and substance” by . . . treaties,” it implies that treaties created an obligation to provide health care, although they have not.

The website refers to Article I, Section 8, a part of the Constitution that creates congressional powers (not treaty obligations). Clause 3 of that section provides in part that “The Congress shall have Power . . . to regulate Commerce . . . with the Indian tribes.” It is true that Congress claims this “Indian Commerce Clause” gives it plenary authority to regulate Indian affairs. But as I have shown elsewhere, the only authority this provision actually granted to Congress was a power to regulate trade between tribes and non-Indians. It certainly did not confer authority to turn tribes into wards, to meddle in internal tribal affairs, or to put tribal members on the federal dole.

This entry was posted on Tuesday, June 30th, 2009 at 1:56 pm and is filed under Blogging. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site. “

States Not Complying with ICWA – for Good Reason

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Jun 152009
 

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The Second Appellate Court in California issued a partially published opinion in Justin L. v. Superior Court, and stated in part;

“We are growing weary of appeals in which the only error is theDepartment’s
failure to comply with ICWA. (See In re I.G. (2005) 133Cal.App.4th 1246,
1254-1255 [14 published opinions in 2002 through 2005, and72 unpublished cases
statewide in 2005 alone reversing in whole or in part fornoncompliance with
ICWA].) Remand for the limited purpose of the ICWAcompliance is all too common.
(Ibid.) ICWA’s requirements are not new. Yetthe prevalence of inadequate notice
remains disturbingly high.”

Perhaps compliance is difficult because the law itself is unjust, and caring people don’t like to see children subjected to not only unjust, but dangerous law.

And under the single criterion that a home be ICWA eligable, kids are continually being placed into horrible situations with the blessing of both the federal and tribal governments.

And not just kids of tribal heritage – but children of every heritage, because a child doesn’t need to be 100% tribal to for a tribe to have jurisdiction over them through ICWA. Most tribes require only 1/4 blood quantum, meaning the child has an even greater heritage somewhere else. Some tribes require even less to claim a child. For example, a child in Texas has less than 2% tribal heritage, but the tribe is trying to claim him.

The law itself is a crime, and as long as it stays that way, there will be difficulty in getting compassionate people to comply.
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Tell Your Representatives to Make These Legislative Changes! Part Three

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Jan 032009
 

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7. Finally, if tribal membership is a political rather than racial designation, (as argued) than is it constitutional for the definition of an Indian child to include “enrollable” children, rather than “enrolled” children?

25 USC Chapter 21 § 1903. Definitions: (4) ”Indian child” means any unmarried
person who is under age eighteen and is either:
(1) member of an Indian tribe or
(2) is eligible for membership in an Indian tribe and is the biological child of
a member of an Indian tribe;

However;

a) Tribal governments have been given the right as sovereign entities 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.

b) ICWA does not give Indian children or their legal guardians the choice whether to accept political membership in the tribe. Legal guardians have the right to make that choice for their children, not governments. (ftn11)

c) Non-member relatives are being told that these children are now members of an entity that the family has had no past political, social or cultural relationship with.

d) So IS it then the blood relationship that determines membership? Bridget R., (ftn6) stated, “If tribal determinations are indeed conclusive for purposes of applying ICWA, and if, … a particular tribe recognizes as members all persons who are biologically descended from historic tribal members, then children who are related by blood to such a tribe may be claimed by the tribe, and thus made subject to the provisions of ICWA, solely on the basis of their biological heritage. Only children who are racially Indians face this possibility.” Isn’t that then an unconstitutional race-based classification?

e) Keeping children, no matter their blood quantum, in what the State would normally determine to be an unfit home on the basis of tribal government claims that European values don’t 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. (ftn5)

f) Even with significant relationship with Indian tribal culture, forced application of ICWA runs afoul of the Constitution in three ways: (1) it impermissibly intrudes upon a power ordinarily reserved to the states, (2) it improperly interferes with Indian children’s fundamental due process rights; and (3) on the sole basis of race, it deprives them of equal opportunities to be adopted that are available to non-Indian children.

PLEASE PRESS YOUR LEGISLATORS TO CHANGE ICWA LAW

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Tell Your Representatives to Make These Legislative Changes!

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Jan 012009
 

Protecting children and the families they love…

1. Children of tribal heritage should be guaranteed protection equal to that of any other child in the United States. (ftn4) (ftn5)

a) Children should never be moved suddenly from a home that is safe, loved, and where they are emotionally, socially and physically comfortable simply because their care-givers are not of a certain heritage. The best interest of the child should be considered first, above the needs of the tribal community.
b) State health and welfare requirements for foster and adoptive children should apply equally to all. If there is proven evidence of emotional and/or physical neglect, the state has an obligation to that child’s welfare and should be held accountable if the child is knowingly or by Social Service neglect left in unsafe conditions. (ftn5 – Title 42 U.S.C 1983)

2. Fit parents, no matter their heritage, have the right to choose healthy guardians or adoptive parents for their children without concern for heritage and superseding wishes of tribal government. US Supreme Court decisions upholding family autonomy under 5th and 14th Amendment due process and equal protection include Meyer vs. Nebraska (ftn8), Pierce v. Society of Sisters (ftn9), and Brown v. Board of Education (ftn10).

3. The “Existing Indian Family Doctrine” must be available to families and children that choose not to live within the reservation system.

a) In re Santos Y, (ftn5) the court found “Application of the ICWA to a child whose only connection with an Indian tribe is a one-quarter genetic contribution does not serve the purpose for which the ICWA was enacted…” Santos y quoted from Bridget R.’s due process and equal protection analysis at length. Santos also states, Congress considered amending the ICWA to preclude application of the “existing Indian family
doctrine” but did not do so.”
b) In Bridget R., (ftn6) the court stated, “if the Act applies to children whose families have no significant relationship with Indian tribal culture, such application runs afoul of the Constitution in three ways:

– it impermissibly intrudes upon a power ordinarily reserved to the states,

– it improperly interferes with Indian children’s fundamental due process rights respecting family relationships; and

– on the sole basis of race, it deprives them of equal opportunities to be adopted that are available to non-Indian children and exposes them…to having an existing non-Indian family torn apart through an after the fact assertion of tribal and Indian-parent rights under ICWA”.

c) In re Alexandria Y. (ftn7), the court held that “recognition of the existing Indian family doctrine [was] necessary to avoid serious constitutional flaws in the ICWA” and held that the trial court had acted properly in refusing to apply ICWA “because neither [child] nor [mother] had any significant social, cultural, or political relationship with Indian life; thus, there was no existing Indian family to preserve.” Question: If current ICWA case law includes many situations where existing Family Doctrine has already been ignored, then have serious constitutional flaws already
occurred?

More to come…

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Campbell Brown, you were RIGHT about Leech Lake. Stay Strong!

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Dec 202008
 

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Campbell Brown, please don’t bow to the negative comments you have been recieving. I am the mother of several enrolled children of the Leech Lake Tribe, and what you said was correct!

However, whenever anyone speaks out against the obvious happening on the reservations, they are tore limb from limb. They are bullied to make them shut up, and that is exactly what is happening to you. I know this because it has has happened me and even to my husband, who was a member of the Minnesota Chippewa Tribe – Leech Lake, born and raised on Leech Lake Reservation. He spoke out because he was tired of watching his friends and relatives die. He knew that it was the reservation system itself that was destructive to them. He took our entire family and moved 1200 miles away and became politically active in an effort to bring change, happiness and hope to the people he loved.

However, getting any word out that is contrary to the image that the tribal government (industry?) chooses to project is very difficult. Although my husband went to Washington DC several times to speak to Congressmen, it was very hard as a small person to combat the lobbying the tribes do. Remember Abramoff?

Senator Burns’ staff, (he was our Senator at the time), told me that the only way he would ever agree to any legislation changing Indian law is if all 500 tribes agreed to it. Never mind what’s constitutional and never mind the civil rights of millions of US citizens. Just please the tribal governments. They pay very well.

And yes, there are many constitutional attorneys and professors that say that much of Indian law is unconstitutional. Please contact me and I can refer you to some.

Look at the last US census and ask yourself why so many enrolled members have moved off the reservation. #1) life is dangerous there. #2) many enrollable people are primarily NON-indian; meaning, their blood quantums are less than 1/2 tribal heritage. They have other lives, other family, and other world views, not always the same as the tribal governents.

However, if they should die, no matter their personal choice, the tribal government has jurisdiction over their children.

Please stay strong in the truth that you spoke! Don’t let them bully you!
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