Native American Indian Reservation – Page 3 – Christian Alliance for Indian Child Welfare

Case Law for Existing Indian Family Doctrine

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.”

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. “

ICWA Reaks. Reservation is Worst Place for Many Kids

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Jun 132009

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Children messed up by drugs and alcohol need a safe, stable, therapeutic home – The LAST thing they need is placement back into the very garbage that they came out of.

Two days ago I sat in the front seat of an ambulance transporting my 14-year old, unresponsive “son” (placed by ICWA) to the ER. His blood alcohol level was .35.

We were not a bad home. But we were not a therapeutic home. The four children placed with us thirteen years ago, solely because my husband was their grandfather, did not get what they needed.

We were a good home, but we were not educated in the needs of the kids and were never truly inspected by Leech Lake or any other social service. We could have done anything and no one would have known or cared. All they cared about was that we met the criteria for an ICWA placement. And under that single criterion, 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.

But as I said, the LAST thing kids of ANY heritage need is placement back into the very garbage that they came out of. Children messed up by drugs and alcohol need a safe, stable, therapeutic home – heritage isn’t even an issue.

The bottom line is that this isn’t just about keeping them off the Rez. We don’t live on the Rez. It’s about placing them in an appropriate home.

I was too overwhelmed – with five birth children and these four legal custody, as well as my husband dying of cancer. Any sane social service person should have seen that this can’t work. But they didn’t care. And I couldn’t bring myself to give up and have them sent to Cass Lake. I’ve seen how kids are being raised there with our relatives. That place is absolutely horrid and dangerous for children. I could not kick them out of my home and make them live there. So I kept them and ended up doing an inadequate job, not only for the four, but for my birth children and husband as well.

With diagnosis’ of FAS, ADHD, Attachment Disorders and/or Oppositional Disorders, these kids – from the very beginning – needed more help than I could give.

After having the two oldest turn 18 and proceed into the same dysfunctional lifestyle that we had supposedly rescued them from, I am today trying to get the third one into some type of therapeutic treatment. Simply taking them out of the circumstances – or even showing them a totally different way to live – didn’t change the way their bodies, already affected by alcohol, worked.

Further – the tribe’s choice exposed my birth children to harm. A truth I am only in the last few weeks realizing – is that the oldest of the four legal custody, now 20 yrs, old – is a con man. We had various struggles with him through his teen age years, but he was so charming and always seemed so cooperative, even when it came to discipline. Now I am finding out all the damage that had been done. Several of my birth children were affected – very negatively. He encouraged at least five of the other children to drink and or smoke weed with him – one of the kids being as young as ten when this happened.

I am only now thinking – We know that Al-anon exists because of the tremendous emotional difficulties of living with an alcoholic. Why did we not consider this in terms of the birth children living with FAS in all four?

We were not prepared to deal with the many issues. I neglected my own children in many ways. I was focused so much on correcting the behavior of the four that I totally missed so much that was going on with my own. I put my birth children in danger. This was not an appropriate home. The only reason they were placed here was because of ICWA. At the time were the healthiest part of the extended family that there was. We were the only healthy family within the extended family.

At least at the time. I no longer categorize us as a healthy family.

Children messed up by drugs and alcohol need safe, stable, therapeutic homes. It’s the only chance they have. Anything less, and they will not be able to cope any better than their parents did. Fifteen years later, you will have another generation of babies needing special care.

Stop it now. Let the kids get real help.

Stop listening to most of the tribal governments on this issue. They get more money from the federal government per head. This is not really about the best interest of kids, no matter what they try to claim. They are all about money and control. The kids are pawns.
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Tribe pretends to care about buried little boy

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May 262009

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Make me sick. A stupid, selfish mother suffocated her baby, not once, but twice, because she didn’t want to take care of him. Forget any of the excuses she or the tribe tries to give for what happened. This horrible woman purposeflully suffocated her baby – twice.

Coincidentally, her little baby has the same name as my 2-year old grandson; Ty.

Now the tribal government is standing up and using this poor baby for another propoganda opportunity. Tribal Gov. Ivan Pino said the tribe wants baby Ty’s body to be returned to the pueblo for burial. People living near the park raised about $4,000 for a funeral for the boy, but he says, “Let the Pueblo of Zia go through its healing process right now. Give us the respect to go through our mourning at this point.”

Now I’m going to throw up. The people living near the park cared enough to raise $4000 from their own pockets, and were interested in mourning the little boy as a community – which would include everyone and anyone that cared to show up. The tribe, on the other hand, will use government money for the burial, and are trying to exclude people that care. Why does Gov. Ivan Pino not want anyone else around to mourn the baby? What’s up with that? I’ve been to plenty of tribal funerals. I’ve never heard of people being excluded before.

And give them respect to bury the baby? Why? Where were they when the little boy was homeless? What are they currently doing about any of the other homeless children enrollable with their tribe? Do they even keep track of them? What about the ones that are being abused? Or the children that are left alone all night while their parents are partying?

I once chased a guy off a ten-year old girl while I was visiting on one rez. I’ve found many children in many horrible situations. What do I see the tribe doing about it? Nothing. Why should tribes that turn their backs on enrollable children be given any kind of respect?

Claiming to want “respect to go through our mourning” is just another tribal government power push, and it has nothing at all to do with actually mourning this little guy. It’s all about showing who’s the boss – who’s in control again. They are in control, but that doesn’t mean that they are doing anything with that control to actually help their membership.

Reality – Kids are being put just anywhere –

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Apr 022009

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Several of the tribes don’t really care whether they place the kids in bad homes. They do it all the time.

You can’t tell me any different – I’ve seen it first hand. I wouldn’t leave my dog in some of the homes I’ve seen the tribe place children in.

Further, they placed four children with us for a good year or more before they bothered to come out and do a home visit. They never once even spoke to us prior to or during the interim before that one visit. They didn’t bother to ask any other social services to check on us. They had no clue how we were handling the kids, and they really didn’t care.

Finally, they came out for a visit. The two social workers flew in because we were in a different state. They were supposed to be there for a two day visit. They spent about an hour or so with us. We talked in the Upholstery shop. They walked through the first floor of our apartment. Didn’t look at any bedrooms. Didn’t talk to any kids. Then they asked us where to go in the valley for sight seeing. That was the last we saw of them for that two day visit.

And we’ve never had a social worker come visit again. That was 12 years ago. We still have two of the kids in our home, and the tribe still has no clue how we’re handling them.

Fortunately, we are a good home. But I have seen so many bad homes in our extended family that it’s sickening.

Those that say that kids of heritage are better off within the tribal system simply because they have a small amount of heritage, or even if they are 100% tribal, are nothing but racists more concerned about tribal funds then they are about the kids.

And that’s reality.
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