commerce clause – Christian Alliance for Indian Child Welfare

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BRIEF OF CHRISTIAN ALLIANCE FOR INDIAN
CHILD WELFARE AND ICWA CHILDREN AND
FAMILIES AS AMICI CURIAE SUPPORTING
PETITIONERS

Read the entire brief here:
SCOTUS 21-378 21-380 Amici Curie Brief

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/

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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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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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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. “