Oct 142018
 
Empty Swing

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

The story –

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

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

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

Read the communications between them here…

170-appendix Brackeen attorney letter 10-10-18

Oct 042018
 
Destination Heaven

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

ICWA DECLARED UNCONSTITUTIONAL

Among several other requests that were granted –

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

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

Brackeen v Zinke – ICWA UNCONSTITUTIONAL
166_-_order_on_msj

START WRITING YOUR AMICUS BRIEFS

Jun 202018
 
Opening doors. Commission on Native Children

Alyce Spotted Bear and Walter Soboleff Commission on Native Children

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

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

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

We appreciate your prayers for this commission and its work.

Apr 062018
 
ICWA rules, CAICW

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

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

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

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

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

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

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

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

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

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

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

THAT said – one attorney has additional comments concerning it.

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

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

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

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

TO ADDRESS THIS RULE BY APRIL 16th –

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

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

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

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

.

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

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

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

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

BIA taking comments re ICWA data March 2018

Mar 282018
 
ICWA

.

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

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

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

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

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

Mar 282018
 
ICWA

.

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

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

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

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

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

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

Apr 292017
 
Goldwater, ICWA

The Goldwater Institute filed their notice of appeal to the 9th Circuit in the Arizona ICWA class action case.

[gview file=”https://caicw.org/wp-content/uploads/2017/04/Goldwater-notice-of-appeal-April-2017.pdf”]

A.D. v. Washburn (Goldwater Litigation)
Ninth Circuit Court of Appeals Case No. 17-15839

https://turtletalk.files.wordpress.com/2015/09/1-1_scheduling-order.pdf

The parties shall meet the following time schedule.
If there were reported hearings, the parties shall designate and, if necessary, cross designate the transcripts pursuant to 9th Cir. R. 10-3.1. If there were no reported hearings, the transcript deadlines do not apply.
Wed., May 3, 2017 Mediation Questionnaire due. If your registration for Appellate ECF is confirmed after this date, the
Mediation Questionnaire is due within one day of receiving the email from PACER confirming your registration.
Wed., May 24, 2017 Transcript shall be ordered.
Fri., June 23, 2017 Transcript shall be filed by court reporter.
Wed., August 2, 2017 Appellant’s opening brief and excerpts of record shall be served and filed pursuant to FRAP 32 and
9th Cir. R. 32-1.
Fri., September 1, 2017 Appellees’ answering brief and excerpts of record shall be served and filed pursuant to FRAP 32 and 9th Cir. R. 32-1.
The optional appellant’s reply brief shall be filed and served within fourteen days of service of the appellees’ brief, pursuant to FRAP 32 and 9th Cir. R. 32-1.

Failure of the appellant to comply with the Time Schedule Order will result in automatic dismissal of the appeal. See 9th Cir. R. 42-1.
Case: 17-15839, 04/26/2017, ID: 10411309, DktEntry: 1-1, Page 3 of 4
(3 of 17)
FOR THE COURT:
MOLLY C. DWYER
CLERK OF COURT
By: Janne Nicole Millare Rivera
Deputy Clerk
Ninth Circuit Rule 27-7

Apr 142017
 
child abuse

Three-yr-old Lauryn Whiteshield was murdered a little over a month after her arrival to her grandfather’s home in the spring of 2013.
This twenty minute video examines the effect of federal Indian policy on the lives, liberty, and property of U.S. citizens across America.
Although the last two U.S censuses show that 75% of tribal members do not live within Indian Country and many have never had any association with the reservation system, federal policies mandate tribal government jurisdiction over individuals of lineage in several areas.
1) Across America, children who have never been near a reservation nor involved in tribal customs – including multi-racial children with extremely minimal blood quantum – have been removed from homes they love and placed with strangers. Some children have been severely hurt in the process.
2) Women victimized by violence can be denied the option of county court, regardless whether they believe justice cannot be obtained in tribal court.
3) Further, the Department of Interior holds title to the property of millions of individual tribal members. Adult citizens are not allowed to sell or use their property as collateral without permission.
This study looks at the practical impact and documented repercussions of policies that, based solely on a person’s lineage, set limitations on what they may do with their lives, children, and property.

Please share this with your friends.

PLEASE also share with YOUR Congressmen. MANY of them take a stand on all kinds of things – from orphans in Russia to immigrants and refugees from overseas. DEMAND that they take a strong stand for children in the United States – CITIZENS subject to abuse by a law they – Congress – created and MUST remove.

Most especially – share your thoughts on this video with the Chairman of the Senate Committee on Indian Affairs – Senator John Hoeven.

Find your State’s Senator and Congressmen here:
https://www.senate.gov/
https://www.house.gov/

Thank you – and PLEASE Share….

Learn More.

https://DyingInIndianCountry.com

https://www.facebook.com/CAICW.org/