(Video) The Implications of Native American Heritage on U.S. Constitutional Protections

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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/

Open Letter to Chairman John Hoeven, Feb 8, 2017 –

 Comments Off on Open Letter to Chairman John Hoeven, Feb 8, 2017 –
Mar 092017
 
child abuse

Honorable Chairman John Hoeven,

On June 30, 2014, then U.S. President Barack Obama stated in a letter to Speaker John Boehner that children crossing our southern border are an urgent humanitarian situation and the U.S. has a legal and moral obligation to make sure they are appropriately cared for. Today, Americans across the nation are vilifying President Donald Trump out of concern for refugees across the world.

The federal government, which has claimed Native American children and their parents as wards, has an even greater legal and moral obligation to alleviate the humanitarian crisis within our reservation system. “…there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe…” (Indian Child Welfare Act of 1978)

Many across the world have also been outraged by the legal route chosen for the Dakota Access Pipeline. Despite clear facts outlined in the District Court ruling in September, 2016, an unsettling number of people have protested the danger youth of Standing Rock would face if at some point the water would become polluted.

Yet, most of these people have been silent concerning the number of murdered children on many reservations, as well as the epidemic of teen suicide. Albeit – many do not know about the violence. Much of the media that has been trumpeting unsubstantiated #NoDAPL claims, has ignored the documented reports of child abuse on many reservations.

Very few news outlets have reported on children such as 18-month-old Jastin Ian Blue, who, after having been removed from his mother due to neglect and abuse, was murdered by her in October, 2014, after Standing Rock officials returned him to her.

In 2014, the National Court Appointed Special Advocate Association reported, “… research shows that while the US child mortality rate for children ages 1 to 14 has decreased by 9% since 2000, it has increased by 15% among AI/AN children.” And the Center for Native Youth reported, “Violence, including intentional injuries, homicide and suicide, account for 75% of deaths for AI/AN youth age 12 to 20” (SAMHSA). (Center for Native American Youth 2014). “Types of crimes that Native Americans are likely to be victimized by include: murder, assault, drug trafficking, human trafficking, and gang violence” (Tighe, 2014).(Hyland 2014, 4).

Worse, reservation child abuse is frequently underreported. It is common for those witnessing abuse to say nothing, as illustrated by the seven currently facing federal charges after Pine Ridge law enforcement found two toddlers in November, 2016, weighing 13 pounds each. The girls were so severely malnourished that a pediatrician compared them to World War II concentration camp prisoners. It appears many were aware of the girls’ condition, but said nothing.

There are varied reasons for this. There is a culture of silence on many reservations. You do not turn family in. Other witnesses may be afraid to come forward because they had been complicit or even participatory in the early stages of the abuse. Others say abuse must be kept quiet to prevent challenge to and weakening of tribal sovereignty and the Indian Child Welfare Act.

Whatever the reason, with few seeming to care about the abuse and trafficking on many reservations, children end up feeling trapped and hopeless. A report from President Obama’s office stated, “Suicide is the second leading cause of death—2.5 times the national rate—for Native youth in the 15 to 24 year old age group” (Executive Office of the President 2014, 5), while NICWA reported, “Native teens experience the highest rates of suicide of any population in the U.S.—at least 3.5 times higher than the national average.11 (NICWA, SAMHSA 2014)

Data concerning the extent of child abuse within Indian Country abounds. Some of the reports given by tribal entities and organizations have phrased the data to make it appear that these dangers are connected to heritage. But the data is flawed. There might, in fact, be a higher percentage of children hurt within the reservation system than currently thought, and it is not about heritage. The cited statistics most often include the number of those self-reporting heritage on the U.S. census. But most of those reporting heritage on the census live outside of Indian Country and are not having the same issues those living with reservation boundaries are experiencing.

According to the last two U.S. censuses, 75% of U.S citizens with tribal heritage live outside of Indian Country. This includes persons of 100% heritage who choose not to be involved with the reservation system. Some have moved away to protect their children from the high incidence of crime and corruption. Others have never lived on a reservation. In fact, most enrollable citizens have less than 50% tribal heritage, have mainstreamed, and are well-connected with non-native relatives. Some have not been connected to the reservation system for over two generations.

Further, many dissident families living away from the reservation system may or may not have been experiencing the levels of abuse and violence that children within the reservation system experience. The data on their health doesn’t always make it to the reporters of tribal health and welfare statistics. Some of these families living outside the reservation system may self-report elements of their heritage to the U.S. census, but that does not mean they are eligible for federal Indian benefits, are served by tribal resources, or have any connection with Indian Country. Many of them are uncountable in the statistics gathered by Indian Health Services or other reporters.

The reported data concerning ‘Native American child abuse’ consequently pertains more to children within Indian Country who use the benefits and services and are under the auspices of tribal governments, the federal Administration of Children and Families, the Bureau of Indian Affairs, and other federal ‘help’ agencies – than it does to children in the mainstream who are unconnected to Indian Country.

Clearly – all this considered – emotional and physical dangers for children are much greater within Indian Country than they are without. Violence is higher for many reasons – including (but not limited to) the inability of State law enforcement to make arrests, the prevalence of gang activity, alcohol and drug abuse, and alcohol related birth defects. Yet, despite the many hearings, reports and billions of dollars spent to improve quality of life within the reservation system, the situation appears to be only getting worse.

Unfortunately, ICWA statistics – including how many children are affected by the ICWA every year, what percentage of those affected were taken from long term homes where they felt safe and loved – then placed into tribal foster homes and been hurt, what percentage had never lived within Indian Country or been acquainted with the culture prior to being subjected to ICWA, and what the long-term emotional and physical health outcomes for the children have been – are not readily available. But that doesn’t dismiss the value of common sense and logic.

The theoretical implication of the large amount of available data on Native American child abuse – data that has been reported as true by tribal government entities, their supporters, and the Obama administration – is that children who are taken from homes known and proven to be safe, stable, and emotionally and physically healthy outside of Indian Country, and placed into a home within Indian Country, are more likely to be placed into situations less safe, stable, and emotionally and physically healthy than the home they have been taken from.

Further, these theoretical implications should be obvious to tribal and federal governments as well as organizations servicing Indian Country, as they are the ones reporting the data.

Therefore, children who fall under the jurisdiction of the Indian Child Welfare Act – meaning children who a tribal government has deemed to be members and who have been brought before a judge for a custody hearing, regardless of whether they and their families have been connected to Indian Country – are being consciously placed into potentially dangerous living situations by tribal, state, and/or federal government officials who know – or should know – the potential for harm.

Nevertheless, a concerned community does not wait for additional studies to act on an obvious and immediately known danger. We don’t wait for a study to rush a child out of a burning building. When a child is bleeding to death, we know to immediately put pressure on the wound and get the child to a hospital. Unwillingness to deal effectively with the immediate needs of children suffering extreme physical or sexual abuse from their extended family or neighborhood casts doubt on tribal and federal government assertions that the best interest of the children is of paramount importance.

The real racism – is the attitude that the documented and immediate needs of certain children of a particular heritage can wait a few more years so as to not interfere with the desires and demands of political leadership. While claiming to be “raising the standard” for children of heritage by allowing them to stay in a documented dangerous environment, or to return to a dangerous family setting prematurely, or to take them from an environment known to be safe and deliberately place them in danger – federal and tribal officials have been in fact lowering the standard to the point of cruel negligence. Many children of tribal heritage are, in fact, not being given protection equal to what other children are legally mandated to receive.

https://caicw.org

The twin of murdered toddler Lauryn Whiteshield, is currently threatened with removal from her home in Bismarck – to be placed back on the Spirit Lake reservation where she watched her sister die. We can only imagine the horror the foster parents are feeling right now, not to mention how this now six-year-old will feel when the transfer takes place. In the Spring of 2013, the three-year-old twin sisters were taken from the safe, loving home in Bismarck where they had lived most of their lives. and were placed with their grandfather and his girlfriend, a woman known to have been abusive to children in the past. Lauryn was murdered within a few weeks. This happened during a period when both the BIA and U.S. Attorney’s office had taken over law enforcement and social services on the Spirit Lake Reservation due to a rash of uninvestigated child homicides and were supposedly monitoring placements to prevent further murders. The non-native foster mom the girls were taken from read a victim’s impact statement for the sentencing of the murderer of Lauryn. The federal government, she said, allowed it to happen, and “ICWA can be an evil law when twisted to fit the tribes wants or needs.”

The Goldwater Institute wrote concerning Lauryn, “The forced transfer from a safe, loving foster family to a home that posed great and obvious danger to the girls did not happen in a third-world country but in the United States. It did not happen 40 or 60 years ago but in 2013. And it did not happen because the court ignored the law but because it followed it. Had any of the child custody laws of the 50 states been applied, in all likelihood Lauryn would be alive today. That is because state laws require consideration of the “best interests of the child” in determining termination of parental rights, foster placements, and adoptions. That bedrock rule protects all American children – except children of Native American ancestry, like Lauryn. Although she had never lived on a reservation, because of Lauryn’s ancestry, she was made subject to the Indian tribe’s jurisdiction, which determined it was better to “reunify” her with a grandfather with whom she had never lived instead of the non-Indian foster family who had raised her from infancy and wanted to adopt her.” (Bolick 2015).

While adoption isn’t the only or best answer for every situation in Indian Country, it is notable that on January 1, 2013, the U.S. Senate unanimously passed S. Res. 628, expressing disappointment over the Russian law banning adoption of children by American citizens.

Senator James Inhofe, one of the two Senate Co-chairs of the Congressional Coalition on Adoption, rightly stated, “It is extremely unfortunate and disheartening that the Russian Duma and President Putin would choose to deprive the children, the very children that they are entrusted to care for, the ability to find a safe and caring family that every child deserves…It is nothing more than a political play…that ultimately leads to greater hardships and more suffering for Russian children who will now be denied a loving family.”

The Congressional Coalition on Adoption Members also sent a bi-partisan letter to President Putin urging him to veto the legislation, stating, “…Nothing is more important to the future of our world than doing our best to give as many children the chance to grow up in a family as we possibly can.”

Americans have continually expressed concern over Vladimir Putin’s adoption ban. As recently as in the last couple weeks, evangelical ethicist Russell Moore and Kay Warren, wife of Saddleback Church Pastor Rick Warren, have blasted the ongoing restrictions and called on Christians to pray for abandoned babies and children in that country. It is admirable that Americans feel the pain of Russian children deprived of love and stability and want to help. Americans need to be made aware of children with comparable needs here in America.

The argument against ICWA goes further than just adoption, though. Speaking as the birth mother of several enrollable children – it is also important to recognize that many birth families don’t want tribal governments to have jurisdiction and control over their children.

Children who had never been near a reservation nor involved in tribal customs, some with extremely minimal blood quantum – as well as some with maximum quantum – have been removed from homes they know and love and placed with strangers chosen by tribal social services. Although it is often said that the ICWA has safeguards to prevent misuse, stories concerning the trauma of ICWA on families – including multi-racial families – abound across America. Abuses are rampant on many reservations because the U.S. Government has set up a system that allows extensive abuse to occur unchecked and without repercussion.

It appears some within our federal government have reduced our children to the status of a mere “resource’ – choosing to please political leaders rather than save children’s lives. This, while denying tribal members the right to oversee and manage their own physical property and resources. Children, it seems, are a demanded “resource” – and personal, private property is disregarded and ignored as an economic resource. When one boils down the entirety of federal Indian policy – just how does our federal government view tribal members? Indeed, why are children treated as assets, and adults treated as children?

The ability to use your personal property as leverage – to collateralize your assets – is an important economic principle. Yet this principle is denied to individual tribal members despite the extreme level of poverty within Indian Country. It is undeniably a direct result of the infringement of federal Indian policy on individuality, liberty and property that many tribal members continue to struggle in poverty.

Allowing property rights for individual members – while removing the financial incentive for tribal leaders to use children as property, supporting law enforcement, and upholding full constitutional rights and protections for all citizens – would vastly improve the economy, attract more members back to Indian Country, and potentially lessen the financial incentive for tribal leaders to use children as a financial resource. Allowing individuals to freely use their personal resources as financial leverage would preserve to citizens their God-given right to individuality, liberty, and property.

It’s time to stop listening to those with a vested financial interest in increasing tribal government power. Every time power to tribal leaders is increased, tribal members – U.S. citizens – are robbed of civil freedoms under the constitution of the United States. Equal Protection is a constitutional right. More power given to tribal leaders means less freedom and constitutional rights for tribal members.

This said, we are asking you, Senator Hoeven, to include these issues in the 2017-2018 Senate Committee on Indian Affairs agenda:

A. Guarantee protection for children of Native American heritage equal to that of any other child in the United States.
B. Guarantee that fit parents, no matter their heritage, have the right to choose healthy guardians or adoptive parents for their children without concern for heritage.
C. Recognize the “Existing Indian Family Doctrine” as a viable analysis for consideration and application in child custody proceedings. (See In re Santos Y, In Bridget R., and In re Alexandria Y.)
D. Guarantee that United States citizens, no matter their heritage, have a right to fair trials.

• When summoned to a tribal court, parents and legal guardians will be informed of their legal rights, including USC 25 Chapter 21 1911 (b) “…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…”

E. Include well defined protections for Adoptive Parents.
F. Mandate that a “Qualified expert witness” be someone who has professional knowledge of the child and family – not merely knowledge of the tribe or traditional customs – and is able to advocate for the well-being of the child, first and foremost.
G. Mandate that only parents and/or legal custodians have the right to enroll a child into an Indian Tribe. It is claimed that tribal membership is a political rather than racial designation, therefore, parents, as U.S. citizens, should be the sole decision makers in regard to political affiliation for their families. Political membership should not be forced upon children or families.

• Remove the words “or are eligible for membership in” 1901 (3)
• Remove the words “eligible for membership in” from 1903 (4) (b), the definition of an ‘Indian child’ and replace with the words “an enrolled member of”

H. Secure to all American citizens their individuality, liberty and property. “Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws [for the protection of them] in the first place.” (Frederic Bastiat, The Law, p. 5-6.)

These requests can be summarized as an insistence that all American citizens, no matter their heritage, be allowed full benefit of their constitutional rights. We can expand on any of these points and provide documented reasoning upon request.

In the words of Dr. William Allen, Emeritus Professor, Political Science, MSU and former Chair of the U.S. Commission on Civil Rights, when speaking at the ICWA forum, October, 2011, in the Senate Committee on Indian Affairs chambers:

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

Thank you,

Elizabeth Morris
Chairwoman
Christian Alliance for Indian Child Welfare
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

READERS: Three of the children in this attached photo were murdered after being placed by the Indian Child Welfare Act into homes that were or should have been KNOWN to be very dangerous.

Another child shown here was beaten after being taken from his very safe, loving Latino grandparents and placed with his maternal grandmother on the Ute reservation. The maternal grandmother had a recorded history of child abuse. Her daughter – the mother of this child – was removed from her care due to abuse. That daughter did NOT want her children placed with her mother – she KNEW the children would be abused. The State of California and the Ute reservation did it anyway – resulting in permanent brain damage to one of the children within three weeks.

The fifth child in this photo was taken at the age of six from the only home she knew and loved. She had an extremely small percentage of heritage – but was still considered the property of the tribal government and subject to their abuse of law.

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.

Find your States Congressmen here:
https://www.senate.gov/
https://www.house.gov/

Thank you – and PLEASE Share….

Aug 272015
 

There was a comment on this site last night that most people couldn’t see.

As our followers know, I had banned certain words and names from this site long ago – and we avoid using any child’s real name or location unless the family has chosen to publicly use their names and places. The writer last night tried to use one of the names, thus the site hid her comment.

I pondered whether to open it up for view, as it illustrated the continuing hate and twisting of fact coming from those who demand complete control over our children. I wondered if it might be good for new people to see. What continues to amaze me is the disregard so many have for the rights of children and families to choose not to be involved with tribal governments.

It goes over the writer’s head that tribal members themselves are filing lawsuits against ICWA because they do not want tribal government interfering in their families.

The writer cannot seem to see or accept the rights of individuals and families. Disturbing, as that was the same mindset in 1930’s Germany, where it was honestly believed government had the absolute right to decide all matters for individuals and families – including whether they can marry a person of a different race. That government also claimed ownership over children – as is common in a tyranny. They saw children as government property – the lifeblood of the nation.

Yes… I will make that comparison. I make that comparison because our children are being treated as less than human in matters of law. On the basis of even small amounts of heritage, our children are not allowed protection equal to that of children who have no tribal heritage.

The lack of protection is not because they are not citizens under the law. Under the Indian Citizenship Act of 1924, tribal members are fully United States citizens. Further, it is currently argued that even non-citizens of our country have rights under the United States constitution. Whether or not that is true, it is argued that every human, no matter what their citizenship, deserves equal protection in the United States.

But the fact is, individuals of tribal heritage are not currently afforded equal protection. Local, State and Federal officials continually refrain from ‘interfering’ with tribal government when it comes to our children, and activists for non-citizens do not speak up for the equal protection of our children.

Why? Why do our children not deserve equal protection? Why are our children less important than children – citizens and non-citizens – who have no tribal heritage?

The police went in to Indian Country in 2013 to retrieve one child who had media attention, but won’t go in and rescue two little girls kidnapped from their birth fathers by members of the Cheyenne River Reservation in 2014 – two little girls who haven’t gotten any real media attention.

You won’t hear any of the people who are obsessed with the one little girl and her father stand up for the two little girls and their two fathers – because it goes against the authority of tribal government, which is apparently what these people are truly most concerned with. Our children are being treated as less than human in matters of law and protection. Their ‘best interest’ is irrelevant if in conflict with the wishes of tribal leadership.

I make the comparison with 1930’s Germany because of three children who were handed to a woman at Cheyenne River, who was known to be extremely abusive, but wanted them because of the river money that came out last year. ICWA was used to do this. After many subsequent reports were made of her abusing those kids, they went missing. Their maternal family is still striving to get them back. Our children are being treated as less than human in matters of law and protection.

I make the comparison because of the number of children known to have been taken from safe foster homes – only to die when placed back into situations known to be abusive. A three-year-old at Spirit Lake died within the month of her removal from a safe home, an 18-mo-old at Standing Rock died within a month, a little boy at Cheyenne River died – and the list goes on. Our children are being treated as less than human in matters of law and protection.

I make that comparison because of the Spirit Lake tribal policeman who called to tell us what was really happening – that it was more important to protect tribal sovereignty than it is to protect children, and that is why so many things are hidden and swept under the rug. He provided us with taped conversations between himself and tribal social services. Our children are being treated as less than human in matters of law and protection.

I make that comparison for the young girl in Arizona – now a woman – who was forced against her will by ICWA to return to the mother who had broken her nose before she was five months old – only to suffer more physical abuse until she was able to finally get away again. She now refuses to have anything to do with the reservation. Our children are being treated as less than human in matters of law and protection.

I make that comparison for the young girl at Leech Lake – now a young woman – who tried to run away from her uncle who was raping her every night – walking in the ditches on a rainy night to avoid being seen by tribal police – only to be found and sent back due to ICWA. She eventually tried to hang herself. Our children are being treated as less than human in matters of law and protection.

I make the comparison due to the number of stories we get of severe but ignored sexual and physical abuse that many kids are going through.
I make the comparison because of the number of non-tribal members who are told they have no right to their own children – and who don’t have the money to find a good attorney to help them. They are simply ignored by local, state and federal officials who claim they can’t do anything about it. Our children are being treated as less than human in matters of law and protection.

Bottom line – Congress has decided our children are not as important as tribal sovereignty. What I have mentioned here is just the tip of the iceberg.

Many from the Cherokee Nation call us hateful for reporting all this. They think that because they don’t see it so much in their area of the world, it isn’t factually happening on many real reservations. If they are aware of what is really happening, they apparently won’t admit it. Protection of ‘tribal sovereignty’ is all that really matters.

The obsessive pathology concerning one particular child – who is factually doing very well with her adoptive parents – and the continuing push for complete control over our children against all evidence of the harm ICWA is causing – is not only disturbing, but extremely frightening.

This is not a game. We need our Congressmen to wake up, stand against the BIA on this issue, and factually protect our children.

Our children are human. They are American citizens – with the unquestionable right to equal protection under the United States Constitution.

May 232015
 
Roland and his newborn, 1990

A friend or relative appears to be struggling with the difficulties of parenting and appears to either not understand the needs of children at varied points in their development, or is overwhelmed with inside or outside stress and has been unable to complete certain tasks.

You want to help, but are uncertain how. Should you tell yourself it is none of your business and look the other way, speak to the parents privately and appear to be a busy-body, or anonymously call CPS and let them be the bad guys?

You need to decide what degree of danger the children are factually in and take steps based on that determination.

Wearing the same clothes for two days in a row is not necessarily child neglect. Some parents might simply be good stewards of limited resources. I once knew a wonderful mom who checked the clothes for soil, and if they were fine, hung them up again for use the next day. This family was cutting down not only on laundry expense, but the wear and tear of good clothing (the lint trap in your dryer is evidence of the wear and tear of frequent washing.) This was simply a lifestyle choice.

In fact, there is nothing wrong with living in what others might call “poverty.” Some of our best years as a family were when we lived extremely low income. In rural Montana, out in the middle of a cornfield, we opted to go without government welfare programs, despite the fact we would have easily qualified. Instead, we obtained goats and chickens (most of which were given to us by friends), taught our kids chores, baked bread from scratch, and raised a garden in glorious view of the Mission Mountains.

This was a lifestyle choice – and it was a healthy choice for our family physically, emotionally and spiritually.

Difficulties only arose when we felt compelled to take in extra children after being called by county social workers in accordance with the Indian Child Welfare Act. My husband’s adult children were struggling with addiction, and someone needed to take the grandchildren.

You see, ICWA had no qualms about our “poverty” status. That was a non-issue. However…our inability to handle that many children – theirs and ours – under the age of 8 was also a non-issue. ICWA workers weren’t at all concerned about whether we were capable and didn’t do any kind of home study or background check prior to placing four children with us. The only concern they had was to find a relative home – no matter what condition the home was in.

Twenty years later, after having raised all the children to adulthood, we belatedly know how the situation could have been handled much better for all concerned.

What I will tell you next is how I wish it had been handled and how I now advise others to handle similar situations.

Know this, first off. The placement of a child by tribal social services is not always in the best interest of the child. We have numerous documented accounts of placements made out of expediency for tribal government and tribal social services with little regard for the factual needs of the child. You do not want to take children out of the frying pan and put them into the fire.

There is financial incentive for a tribal government to take jurisdiction over a child. Tribal governments do get more money per head. Federal dollars are tied to tribal rolls and the U.S. census. The fact that a child in question has never been enrolled previously only increases the incentive, as it means an addition of dollars the tribal entity had not had up to that point. The true purpose of ICWA is to protect tribal sovereignty, not children.

For more explanation of this and what has been factually happening to children, Read: – https://caicw.org/2015/05/21/ive-messed-up-and-someone-is-threatening-to-call-cps/#.VWDZE6jlY6k

Second, if a child has even the smallest – or even a suspected – percentage of heritage. social services and court systems of every jurisdiction across the country are advised to contact a tribal government to take jurisdiction if the tribe so chooses. It is a guideline right now, but could become a permanent rule within the year.

What if the family you are concerned with has had no connection to or interest in being associated with tribal government? What if the family has purposefully decided to distance themselves from the reservation system? According to the BIA guidelines, that is irrelevant. The only matter of concern is whether the tribal government wants the child as a member. If they do, no other entity can stand in the way, including the parents.

With all this in mind, you need to decide whether intervention is necessary for the family you are concerned with, and if so, what kind of intervention.

If you decide to speak to the parents directly and offer personal assistance, the following points could help:

#1) Assure the parents that they are capable of raising their child, but simply need some short term guidance and teaching. Many parents respond better if they feel they are respected and not mocked. Assure them that you love them all and want to help before some stranger calls CPS and causes trouble for them.

#2) Determine to help them bond well and stay bonded to their child. If together you decide the child should be moved to your home or the home of another in order to give respite to the parents, make healthy reunification the primary and foundational goal. You do NOT want to raise their child to adulthood.

#3) Understand your own needs and limitations. I did not do this. I did not understand at the time that I was factually a loner who thrives on alone time. I could deal with my own children, but dealing with children I did not know very well almost broke me.

If you are a loner, see if other family or friends might share the responsibility with you. If, for example, you take actual custody, perhaps others can commit to scheduled and consistent respite care for you.

#4) If at all possible, leave CPS out of this, especially if the child has tribal heritage. You want the parents to be successful as a family – not destroyed. While there are many social workers and systems throughout the country that also want the family to be successful, there is no guarantee this will happen once a tribal government intervenes, and the current BIA guidelines can (and the probable rules will) tie the hands of all well-meaning social services and courts.

I am not afraid to make the last statement. Documentation of dangerous placements by tribal courts abound. See ACF Regional Director Tom Sullivan’s whistle blower report as just one example of documented evidence. READ – https://caicw.org/2015/05/10/acf-regional-director-blowing-the-whistle-on-child-abuse/#.VWDZfKjlY6k

#5) The success in helping the family won’t be the result of separating them from their child – but in how patiently and lovingly you can teach the parents to be the best parents they can be….together with how willing and open they are to being taught.

Willingness will have to come from both sides. – they need to be willing to submit to at least weekly hands on teaching in the comfort and care of a child – spending the day with you, if possible – and the more often they do this, the more willing to be taught, the sooner they can resume as an independent family. This doesn’t have to take many weeks. It could end up being just a short time. It will depend on how willing they are to be taught.

#6) Speak the TRUTH – with Love. Yes, the truth can hurt. But outside of the truth, little will change. You will need courage and wisdom to identify the true problem areas and speak about them with gentleness. The parents will need courage and wisdom to accept the truth with humility and deal appropriately with it. God be with you all in the process.

#7) Leave money out of the issue if at all possible. Do not make this about money if you can avoid it. But in your teaching, encourage the parents to take increasing personal financial responsibility for the child’s physical and educational needs.

Take the hit and appear to be a busybody.

The government should be called where children are in danger and there is no other way to protect them.

VERONICA SUPPORTERS – What You Need to Know:

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Sep 262013
 
Flower Planter

Family StoryMany have expressed desire to help stop the harm ICWA has been causing.  These are some specifics of the fight you want to help with, from a mother who has been through it:

“I am sharing some more personal stuff because it is easy for people to focus on Veronica but the reality is, she is one of hundreds needing our help. The toll on the children and families trying to help them is huge!  It is sometimes seen as a grand, wonderful thing to support a cause but the reality is – it is hard and dirty for those on the front lines. I know people are shouting hurray for some of the leaders of Save Veronica -but truly MVERONICA SUPPORTERS – What You Need to Know: and M are the heroes and the attorneys who helped them

–          The work is hard.

–          The financial price is high.

–          The emotional stress is devastating.

–          Saving the children is priceless.

Helping case by case is important but an organized effort to take down the ICWA is essential. If we can get rid of the ICWA the individual cases will decline. We need some heavy hitters to get involved.

I know you know most of this but so many have no idea:

1)      Attorneys won’t work for free….we lost 2 attorneys because we couldn’t pay them. They showed up for court and before they left said it would be the last time they would be representing us. We then had to come up with $5000 to retain a new attorney.

2)      ICWA are specialty cases. You can’t just get any old Joe…we learned this the hard way. Our original attorney said he could do an ICWA case and told us he knew what he was doing and had a friend who could help him if he had questions. This attorney in reality had no idea what he was doing. Before it was over we had 4 different attorneys. Oh, and had 2 judges.

3)      Emotional stress is very high…A person tends to run pretty efficiently when you are fighting but it takes a toll. My husband would head off to work and I would do as much as I could all day while watching the kids, making phone calls and such.  When he got home, he watched the kids and I got busy working on the computer and reading and researching. I would stay up until 2 or 3 every night. There was so much to do and we didn’t have an army to help us.

4)      One has to work hard to guard their children from all of the chaos. We work so hard to keep the kids from the reality of the situation. They did not know they were on TV or that someone was trying to get their brother. This was a daily effort on our part.

5)      Addressing all the struggles he was having because of visitations was huge.  We spoke with a physiologist friend, a few attachment therapists, and did lots of research. We started homeschooling mostly because we knew he couldn’t handle public school at the time. We tried diets, discipline techniques, and medicines.

6)      Our marriage… LOL – Our dates were a meal after court. We couldn’t afford a sitter and we didn’t want to ask my mom to babysit for something that seemed frivolous. She watched the kids for us for every court date, visitation, attorney meeting, therapist meeting, GAL meeting, etc… every time the media would come to interview she would take the kids so they didn’t know what was happening. She helped soooo much.

7)      We had support from our community, family and church but it was still very, very hard.

8)      When the adoption was finally done we went into a mode of relief and relaxation. I remember enjoying lots of bubble baths… LOL – We would stay up and watch TV instead of reading court documents. We made a lot of popcorn at night and both gained about 10 lbs – LOL. We hardly knew what to do…I think we needed the rest but maybe let the pendulum swing to long. There was still much we had to do. Our family needed some repairing and our little boy needed some help but the constant necessity to be driven was over.

9)      Fundraising is so important – It seems there are so many places to give and times are tight right now but this fight takes money. Our case cost over $150,000 and we didn’t even end up going to trial [because the birth mom changed her mind and ended up wanting us to have him.] The bills from our attorneys every month were often bigger than our monthly income. Yes, we would have months when our bill might be $5000. It could be more or less…but just to get an idea.

Some adoptive parents, like us, are required to sign contracts with bio-parents and tribal government. It is unknown whether this was part of the negotiations Matt & Melanie went through. However, these can be hard to deal with as well.

–          We had to sign an agreement with the tribe and bio-mom. The adoption agency contacts me every year to make certain we comply with terms. The tribe has NEVER contacted us.  Only one time when I asked for some information did we hear from them and the effort to fulfill our request was pathetic.

–          The tribe had us sign that we would take trips to the reservation and visit family there and bring the bio-mother with us (she does not live on the reservation.)  Also we are to do things with her and her extended family yearly, like pow-wows, and pick up the bio-mom and transport her there.  (BTW – bio-mom told us she doesn’t believe in pow-wows and such because she is a Christian)

–          We have not heard from our son’s bio mom since Valentine’s Day.  She will do that…then will call a few times a week for awhile, making promises she won’t keep, and then…off the radar for who knows how long.

–          Bio-mom is not required to make any effort. We do all the work. The tribe who fought so hard for him has had nothing to do with him since.

 

Anyway, people need to know this is not a $20,000 regular adoption cost, it is not an easy, happy road.  Like my husband said, when it comes to ICWA cases, logic is gone. You are dealing with illogical thinking from that point on. We found that to be one of the hardest things.

We couldn’t believe how it seemed there was absolutely no common sense involved with the case and decisions.

Christian Ministry

Sep 142013
 
Washington DC, January 2011

Yes, Veronica, there may be no Santa Claus, but there is a God and there is work being done to amend ICWA.

Washington DC, February 2013

Washington DC, February 2013

Some very kind, concerned supporters of justice have begun a petition to amend the Indian Child Welfare Act. We appreciate the effort very, very much.   But after having been urged several times to act on the petition, I need to explain why we an’t work on the petition.

Many of our newer friends are unaware that draft legislation to amend the ICWA has already been written and presented to various Congressmen.   I am a little afraid of possibly a conflict in wording or goals.

This legislation was written by one of the best ICWA attorneys in the nation and introduced by the Coalition for the ‘Protection of Indian Children and Families’ to legislative offices last summer, 2012.  The ICWA attorney based his wording on the primary reasons families are coming to him for help – the most noted issues with how ICWA was hurting children and families.

It has been on somewhat of a hold during the Veronica proceedings.  Well… actually, the hold was only meant to be until the United States Supreme Court had ruled.  Congressmen needed to know what the Justices had to say about the case before they could move forward further with the bill.

The court has ruled – but these last two months have been nuts, taking everyone’s time and energy.  Further, Congress recesses in August.

BUT – it is now September.  Thank you all for the reminder concerning the legislation.  According to attorney’s I have consulted – because no real resources of our organization are being spent or used on the legislation – and because I don’t get paid by CAICW but am entirely volunteer, there isn’t much concern about my discussing it a little bit.

So it is time to get back into the saddle with the legislation. I will be rolling up my sleeves and leaving for DC as soon as I put various things in order here at home – hopefully within the next couple weeks.

For your information, here is the amendment wording as it stood last summer.  There MIGHT be changes made following the Veronica events. I can’t say for certain as I am not an attorney.  But this is what we stood on last summer.

 ICWA Amendments 11-11-12

 

PLEASE join us in urging your Congress members – as well as the President – to change ICWA.

 

Washington DC, January 2011

Washington DC, January 2011

 

 

 

Keep Dissing Non-Indians. It brings more people to our site, frightened for their kids ~

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Sep 132013
 
Beth, September 1987
3 enrollable kids

3 eligible kids, happily living with family outside of control of “Indian Country,” without “Split Feather.”

NEWS FLASH:  MOST children targeted by ICWA are multi-racial. Statements by ICWA supporters that Non-members have NO RIGHT to speak about the Indian Child Welfare Act are born of prejudice and delusion …. and are terrifying people.

These statements are made as if hundreds of thousands of enrollable children across the United States do NOT have  non-member birth parents currently raising them successfully – and non-native extended family.

Hello? EVEN VERONICA was born of a non-member mother.  Hello? Veronica has a maternal grandfather who is 100% Hispanic.  What is he, chopped liver?

IMPORTANTLY – – when people make the statement that non-members have no right to speak – what they are saying is that I don’t have a right to speak up for my own kids.   If people don’t think I have any right to speak up about how ICWA works, despite the rhetoric from their own mouths that any enrollable child is “THEIR” child (which would include my children and grandchildren) – and the Tribal Industry claims of potential jurisdiction over MY OWN KIDS and grandkids – – THINK AGAIN.

Like a mother bear, I become even more determined to fight back against those threatening my family.  I become even more determined to fight back against hate-filled people who assume they know my children better than I do – and more determined to fight to my death (yup) to DESTROY this horrendous, unconstitutional, racist, hateful, prejudice, child-stealing law called ICWA.  It is rhetoric like that that fuels me.

Keep it up!  Keep claiming that birth parents and extended family of hundreds of thousands of enrollable children don’t matter at all.  You are doing my work for me – angering almost every non-native family member across the United States. (excepting for non-native family members who have bought the Tribal Industry rhetoric hook, line and sinker.)

PLEASE – KEEP SAYING THAT A CHILD’S OTHER HERITAGES AND FAMILY DON’T MATTER.   Your honesty is doing amazing press for us.   By blurting out your true bottom line as to how ICWA has been written and why – you are opening eyes that would otherwise never have realized that ICWA could affect their families as well.

It is dawning on people that if they, as parents, got in a car wreck, their extended family might have to fight a tribe for custody of their kids.  Grandparents are realizing that if their son or daughter were in a car wreck, a dishonest tribal court could tell them, as grandparents, that they have no right to raise their grandchildren.

You are terrifying families of eligible children every time you open your mouths and claim their kids as your own – every time you make hateful and racist statements toward family members of kids who could potentially end up targeted by ICWA.

I don’t even have to spend money on press releases – You are doing it for us.

Thank you for being so open as to what you honestly feel about the families of so many of America’s children.

 

Non-member mother with eligible child, January 1983

Non-member mother with eligible child, January 1983

 

 

Mr. Brown’s Testimony in Family Court

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Sep 082013
 
Matt, Melanie & Veronica Capobianco

Matt, Melanie and Veronica Capobianco

 

Mr. Dusten Brown’s personal testimony in the original family court concerning his interest in marrying birth mother Christinna Maldonado and his later abandonment of Veronica Capobianco.

It is good for all supports and detractors to read and consider this full testimony because it reveals points to the story that should give pause to advocates on both sides.  It is important for us all to be able to read, think, and pray about all aspects and know with certainty where we stand on various issues.

While Mr. Brown makes clear that he initially wanted to be married and take care of Christinna and Veronica, there is also an implication that Christinna might have backed away due to weekends he had spent with drinking buddies off base rather than coming home to be with her during the pregnancy.  For any mother who has been in such a position, that is very understandable.

While Mr. Brown’s supporters have shared liberally over the last few weeks the portions of Ms. Maldonado’s testimony that appear to discredit her, it would be good to be able to read the portions of her cross examination that have been held back – those portions which give her testimony explaining her motivation.  I look forward to obtaining that testimony.

Also – I have some discomfort with the assertion that the Capobiancos are “wealthy” and “connected” simply because Mr. Brown said so in his testimony – even if he claims a Guardian ad Litem told his family so.  That doesn’t mean it is was actually said, and even if it was, it doesn’t mean the GAL was correct.  Having known the C’s for a couple years now, I don’t believe those accusations in the testimony are true at all.

I further do not believe that it was the birth mother’s, the C’s, or the states responsibility to contact Mr. Brown and offer visits or pictures. As a man who knew he was a father and admitted in the testimony that he was aware of his obligations as a father – he had a responsibility to “man up” during those months and do what he needed to do.  Many, many service men are fathers – and many are even fathers without custody.  Most find ways to continue to uphold their obligations.

The laws of both Oklahoma and South Carolina agree and were enacted to ensure that men follow through with those obligations if they intend to father their children.  This is why Mr. Brown has been losing legally in both state courts ever since the U.S. Supreme Court ruled that ICWA did not apply.

This testimony also contradicts claims of Brown’s supporters that Mr. Brown himself did not claim to have a Bronze Star.  He is quoted here as saying that he does.

It also contradicts the claim that he had been fighting for custody of Veronica since birth.

Again – my question is, that knowing he was about to be deployed in a few days – and already locked down to base – why he had not made any attempt (by his own admission) to contact Christinna and see Veronica prior to deployment.   He knew that it would be months before  he returned to the states.  At that point, Veronica would have been almost a year old without a father in her life.

The only reason he hired an attorney and began a process in January, 2010, was because he had been served the adoption waiver.  Other than that, he would have left for Iraq without questioning Veronica’s whereabouts, period. 

One can not read his testimony and come to any other conclusion.

When I consider that, it is obvious that Christinna did the right thing – giving Veronica a father from the moment she was born.

From the moment Veronica was born, Matt was there.   While Mr. Brown was nursing the hurt of rejection (understandable) and  justifying his reasons for not making contact (not understandable), Matt was in the birthing room, cutting Veronica’s cord and welcoming her into the world.

Mr. Dusten Brown’s Family Court Testimony, 2011

 

Veronica Capobianco

Veronica Capobianco

Sep 082013
 
Sunset on the Rez

 In response to Lisa’s Open Letter

by Anonymous – received Sat 9/7/2013 10:44 PM

Jeremiah 1In the Woods by the Lake

New International Version (NIV)

The Call of Jeremiah

The word of the Lord came to me, saying,

“Before I formed you in the womb I knew[a] you,
before you were born I set you apart;
I appointed you as a prophet to the nations.”

“Alas, Sovereign Lord,” I said, “I do not know how to speak; I am too young.”

But the Lord said to me, “Do not say, ‘I am too young.’ You must go to everyone I send you to and say whatever I command you. Do not be afraid of them, for I am with you and will rescue you,” declares the Lord.

Then the Lord reached out his hand and touched my mouth and said to me, “I have put my words in your mouth. 10 See, today I appoint you over nations and kingdoms to uproot and tear down, to destroy and overthrow, to build and to plant.

As I read the passage above it occurs to me that like Jeremiah, God had chosen Veronica for this difficult struggle long before he formed her in her mother’s womb. For that matter, Ms. Maldonado, the Cs, the Browns, the attorneys and judges have all been chosen to execute his plan and in the end it will be God’s word and will that will prevail. As Christians this is all we have to understand in order to find comfort and peace as this struggle plays out.

A little over one year ago I too unwittingly joined the crusade to speak out for the injustices and the hurt that ICWA is increasingly causing to good families and helpless children of Native American descent. I feel this story has to be told, because unlike Veronica, it takes place on a reservation and similar stories happen with regularity, but no one ever hears about them. Like Veronica, these children also deserve to live with a permanent, loving family and be afforded all the privileges, rights and opportunities that other children of the United States enjoy as a result of being citizens of the greatest nation on earth.

My intimate struggle with ICWA began years ago when I befriended a Native family living on a reservation. The family was poor, the father having been raised in the bush by people living a very old, sacred traditional life. He came to be raised this way only after being abandoned by his birth parents and spending his earliest years on a work farm where he was physically, emotionally and sexually abused by the church people that ran the farm. As a result, this father never learned to read and write and only learned to speak English in adulthood. The mother of this family grew up on the reservation and experienced the same type of abuse as a child. As a result of their pasts, both of these parents had made a conscious choice not to have children. This was a rare decision indeed. When the wife’s niece and nephew were found to be severely abused in all unthinkable manners by their own parents, grandparents and extended family members, as well as members of the gang their family belonged to, social workers placed the children in this couple’s care. There were no background checks or formal transfer of the children. A year later a drug and alcohol addicted infant came to be in their care through a respite program. Again no background checks. Soon afterwards, the great grandmother of this infant, who was said to have custody of the child, came to them and said for them to raise this child as their own. And they did. In Indian Country, they call this a “traditional adoption.” The only catch was that the grandmother kept the child’s government subsidy. Another common occurrence with Indian foster families. The infant was nurtured and loved as it withdrew from the drugs and the other two children began to make positive progress as a result of the couple’s devotion.

Seven years later, after a long illness, the wife, who was a member of the tribe, passed away. By then, the two older children had been returned to the custody of their father even though he continued to live a bad life. The children were passed to many different caregivers and juvenile programs and most of the good work and progress they had made in the care of my friends soon was lost. The youngest child remained in the custody of the father, while the grandmother continued to receive the child’s check. She did not provide for the child in any way. The man was not a member of the tribe himself so the tribe did nothing to help him support the child. In fact, no tribal members came forward to help him when his wife passed. The father was very worried about how he and the child would make it, so I lent a hand. They both struggled at the loss of the wife/mother.

One year ago, as I was working to set the family up so that they could reside in a safer area of the reservation, the grandmother who had approved the plan, abruptly reclaimed the child who was by now 8 years old. Neither the father or the child wanted to be separated, but the grandmother told the father that he would never get the child back because she would loose her check. Apparently, my involvement and the death of the wife caused a panic.

In the entire 8 years there had never been any social workers involved or background checks or follow up on the well being of the child. That being said, virtually every doctor, teachers, mayors, judges, tribal lawyers, tribal council members and every so called “mandated reporter” knew this child was being raised by the couple and was considered their “legal” child by virtue of the traditional adoption. All of these same people turned a blind eye and refused to help the man and his child. They told him that he had opened a can of worms and to this day father and child are not permitted to see or talk to one another.

Imagine losing the only mother you have ever known and then just a year later being torn from the man you know as your father. What type of cultural was preserved by these actions? Without a question, the child’s best interests were not served. Tribal members burned the man’s property in an attempt to silence him. The man is now homeless and his life and his child’s life will never have the chance to see a happy ending as hopefully Veronica’s will.

When an ICWA injustice is served to you on a reservation, there is little recourse. ICWA children mean a check for the tribe and a check for the caregiver. The tribal government and tribal courts will do ANYTHING to strengthen the ICWA. They do not want stories such as this one (and there are many) to see the light of day because it will expose the uncomfortable truth that even within Indian Country, the ICWA isn’t about preserving culture or serving the best interests of children. The ICWA is the philosophical and financial cornerstone of tribal sovereignty and the fact that children are being sacrificed to further this agenda does not bother those in power.

I witnessed this child being torn from its father, crying “daddy” and trying to cling to him for dear life. The transition time was 3 minutes, not even the hour that the Cs and Veronica were allowed. Shortly after this happened, I found CAICW, and unquestionably, Lisa has been a huge support in a vast sea of people who actively advocate for the ICWA, but many who do so have no idea of what a life confined to a reservation means to a child. There are few if any adults willing or able to speak out against the ICWA. Knowing that regardless of gender, it isn’t a matter of whether a child living on a reservation will be raped, trafficked or abused, but rather when, is a source of constant fear and anxiety for me now because I can do nothing but turn the situation over to our all loving God and trust that He and his angels will see fit to watch over and protect a young child I had come to love and would have gladly offered my life, time, love and financial resources to so that the child could fulfill its full potential.

As the ongoing struggle to return Veronica to her parents continues to unfold, I continue to pray for the right words and the opportunity to speak out for ALL the special children who God has set apart to be his voice in this struggle. I ask all involved, those who support and those who do not support the ICWA, to take time to ask the children how the ICWA is working for them. Why haven’t we asked the children? If this law is meant for them, shouldn’t they have a voice too?

Before my story took place, I knew the ICWA existed and as a self-imposed student of Native American history, I was acutely aware of the historical precedent and destruction of the Native family that was the impetus for the passage of this law. In the past year, as I have struggled and mourned the loss of knowing and communicating with a motherless child, I have followed Veronica’s story, the plight of the children on the Spirit Lake Reservation (which mirrors the stories on the reservation I am intimate with) and I now understand how this law has been corrupted and abused to serve those in power. I have so many beautiful, yet tragic faces of children etched into my memory. I have reached out to some who say they are working to amend the ICWA and asked, “but what about all the kids on the Rez.” One such person told me I was crazy, that it would take a crusade. Well, I’ve been called much worse. I’m happy to be called crazy and to be part of a crusade if it means that just one child will be afforded the same opportunities and love that I have been blessed with in my life.

I thank Lisa and Roland Morris for their EXTREME bravery and courage to do what they felt was right for their family, and for Lisa to speak out about what both she and I know to be true about what it is like to live in Indian Country today. I am so grateful that Lisa is there for so many families struggling with the unintended consequences of this law. I urge people on both sides of this struggle to consider the needs and best interests of the children involved. I pray that we can start an open truthful dialog and that compromises can be reached and political agendas put aside so that THE CHILDREN have some hope for a better future.

In closing, I invite you to join Lisa and CAICW supporters in weekly prayer each Sunday (9 EST, 8 CT, 7 MT, 6 PST) as we pray for ALL children in Indian Country and those to whom their best interest is entrusted. As we pray Ephesians 6, we ask that God’s will be done, in his time and according to his plan. We pray for peace and love to fill the hearts and minds of all those involved in bringing truth, light, justice and permanent families to ALL of God’s children. Amen.

The Armor of God

10 Finally, be strong in the Lord and in his mighty power.11 Put on the full armor of God, so that you can take your stand against the devil’s schemes. 12 For our struggle is not against flesh and blood, but against the rulers, against the authorities, against the powers of this dark world and against the spiritual forces of evil in the heavenly realms.13 Therefore put on the full armor of God, so that when the day of evil comes, you may be able to stand your ground, and after you have done everything, to stand. 14 Stand firm then, with the belt of truth buckled around your waist, with the breastplate of righteousness in place, 15 and with your feet fitted with the readiness that comes from the gospel of peace. 16 In addition to all this, take up the shield of faith, with which you can extinguish all the flaming arrows of the evil one. 17 Take the helmet of salvation and the sword of the Spirit, which is the word of God.

18 And pray in the Spirit on all occasions with all kinds of prayers and requests. With this in mind, be alert and always keep on praying for all the Lord’s people. 19 Pray also for me, that whenever I speak, words may be given me so that I will fearlessly make known the mystery of the gospel, 20 for which I am an ambassador in chains. Pray that I may declare it fearlessly, as I should.

 

A CAICW logo from Veronica

Sep 072013
 
FAMILY, 2000

Julie – my husband was a man of 100% Minnesota Chippewa heritage. He grew up on the Leech Lake Reservation in the 1950’s. He didn’t speak English until he was 5 years old and began kindergarten. His fondest memories were of “ricing season” – the time in the Baptism 1994early fall when the wild rice was ripe on the lake and the community would pitch tents down there and spend a couple weeks “ricing” the traditional way. He said it was like the Christmas Holiday is for us.

We had five children together and raised four of his relatives’ children as well. They were placed with us through ICWA – their parents were addicted to crack. So that was nine kids total. When the four came to stay with us, they were all very young. The youngest was only a year old. I had 8 kids under the age of 8 at the time (and one 12-year-old)

It was, as you can imagine, very difficult. I raised all of the kids to the age of 18. I kept the four even through my husband’s terminal illness. You see, he was very afraid of turning them back to the tribe – even though we were struggling very hard to raise them all. He had seen too many very bad things happen to children in his family. He knew what his extended family was capable of doing to children. We knew of physical abuse, emotional abuse, neglect. I was at the funeral of a 2-yr-old who was beaten to death. I chased a drunk off of a 10-yr-old girl. He didn’t know I was on the bed when he pushed her onto my legs, trying to take her pants off. And there is so much more.

As a man of 100% heritage – my husband had made the decision to raise his kids elsewhere, off the reservation, because of the danger and corruption going on at Leech Lake.

The fact is – he isn’t alone. 75% of tribal members, (according to the last two U.S. censuses) do NOT live on the reservation. Many have left for the same reason he did (not all have left for the same reasons – but many)

Roland & GirlsBecause of his fear of his children ever being raised on the reservation, he feared what would happen if we both died. He had also become a Christian and had led me to the Lord. He was determined to raise his children Christian and so wanted me to be a Christian as well. He did not want the tribe to move the kids to the reservation or place them with relatives. If he died, he wanted one of our Christian friends to finish raising our kids.

So – it is for all these reasons that he disliked the Indian Child Welfare Act and began to speak out against it. This was in the 1990’s. We made a website – and as we wrote about the law, people across the country began to contact him.

You see, at the time, when you would google ICWA – all you would get is all the sites that supported ICWA. Ours was the only one that didn’t. So people began to contact us and ask for help. Tribal members and non-members. Birth parents, foster parents, and adoptive parents.

Their stories broke our hearts. Lots of abuse of children – by tribal governments. But we were just two parents, no different than them. Roland continued to speak up though, and had opportunity to give testimony to the Senate Committee, among other opportunities.

In February 2004, we founded the Christian Alliance for Indian Child Welfare – so we could help other families better. It has been a blessing every time we have been able to help someone – because we are small and simply do the best we can. We give all credit to God for whatever we are able to do.

When Melanie Capobianco first contacted us in July of 2011, we did our best to help her as well. I have found her to be a very sweet, kind, thoughtful, woman. She has been able to back up everything she has said with documentation. According to Oklahoma law, there is only 90 days after birth in which a father can show his interest in paternity. If he does not do this, he loses his right to object to an adoption. He is not considered a legal parent.

Mr. Brown exceeded that. He also exceeded the limits under South Carolina law. He admitted in the first family court – documented on the court record for all to see – that he did not, in truth, make any attempt to contact, inquire about, or provide for this baby in any way, shape or form. By the laws of both states, he had lost his right to object to an adoption. In the meantime, Matt Capobianco was there at the birth and cut the cord. THAT is the fact that the states have been ruling on.

Therefore, when MrChristinna Maldonado & Veronica Capobianco. Brown took the Capobianco’s little girl, without the benefit of any transition, breaking Veronica’s heart for the only parents she had ever known in her 27 months – it was seen by many of us as extremely selfish on the part of Mr. Brown, and that is how our judgment of him has stood. He did not care at all about Veronica’s need for the only parents she had known and was bonded to.

It was also seen as extremely selfish of the tribal government – which cares nothing about Veronica’s majority heritage. No one stops for a moment to consider whether Veronica, as a teen, might prefer to identify with the Hispanic heritage of her birth mother. If she chooses to identify as Hispanic – will she be allowed to? If she would like to meet her birth mother, who she was allowed to see while she was with the Capobiancos, will she be allowed to?

~ Do those who are demanding that she identify as a Native American truly care who she is as an individual with her own mind and heart? Or are they trying to stuff her into a box and make her into who THEY want her to be?

I just wanted you to know all this – as one Christian mother to another – both of us being mother’s in multi-heritage families.

Bless your heart; I am confused as to why you would send unkind emails to other Christian women. In the name of Jesus – please understand that these other women are not evil. They are simply seeing other aspects to this case then you have been seeing.

Father & Daughter: Christian Alliance for Indian Child Welfare (CAICW)http://dyinginindiancountry.com

Court Rules in Adoptive Couple vs. Baby Girl; Clears Way to Finalize Adoption

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Jul 182013
 

By Elizabeth Sharon MorrisAdoptive Couple vs Baby Girl

On June 17, 2013, the South Carolina Supreme Court gave Matt & Melanie Capobianco a victory in Adoptive Couple v. Baby Girl in remanding to Family Court for prompt entry of an order approving and finalizing Adoptive Couple’s adoption of Baby Girl.

The Christian Alliance for Indian Child Welfare is relieved that Veronica will be returned to the parents chosen by her birth mother, who, according to the SCOTUS, was the only legal parent and had sole right to decide her child’s best interest.

SCOTUS has confirmed that State law determining abandonment trumps the Indian Child Welfare Act. In doing this, the Court has slightly limited ICWA. This is a good first step in the effort to stop the hurt ICWA is causing children and families across the United States.

We have a long way to go to unshackle other families begging help. To meet their varied concerns, we need the “best interest of the child,” the rights of non-tribal extended family, the “Existing Indian Family doctrine,” and the wishes of all parents who reject tribal jurisdiction to be held in higher regard than the wishes and demands of governments. Our children are not chattel for tribal government.

CAICW continues to appreciate the June 25th concurring opinion of U.S Supreme Court Justice Clarence Thomas in his citing of the work of Rob Natelson, Senior Fellow in Constitutional Jurisprudence, Independence Institute & Montana Policy Institute, concerning the unconstitutionality of the ICWA.

The Christian Alliance for Indian Child Welfare (CAICW) is both a ministry and advocacy group. CAICW has been advocating since February 2004 for families at risk of harm from the Indian Child Welfare Act (ICWA). Our advocacy has been both judicial and educational, as well as a prayer resource for families and a shoulder to cry on.

Elizabeth Sharon Morris is Chairwoman of the Christian Alliance for Indian Child Welfare and author of ‘Dying in Indian Country.’ http://dyinginindiancountry.com/

UNIFORM CHILD CUSTODY JURISDICTION ACT (UCCJA)

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UNIFORM CHILD CUSTODY JURISDICTION ACT   1997 (UCCJA)

NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS, and by it

APPROVED AND RECOMMENDED FOR ENACTMENT IN ALL THE STATES, at its

ANNUAL CONFERENCE MEETING IN ITS ONE-HUNDRED-AND-SIXTH YEAR IN SACRAMENTO, CALIFORNIA JULY 25 – AUGUST 1, 1997

WITH PREFATORY NOTE AND COMMENTS

Accessed online November 29, 2010 at 11:30 pm from http://www.law.upenn.edu/bll/archives/ulc/uccjea/final1997act.pdf#search=%22UCCJA%22

Approved by the American Bar Association
Nashville, Tennessee, February 4, 1998

UNIFORM CHILD CUSTODY JURISDICTION ACT

THE BELOW IS ARCHIVED 1968 LAW – PLEASE REFER TO PDF ABOVE FOR 1997 UCCJA

The Committee that acted for the National Conference of Commissioners on

Uniform State Laws in preparing the Uniform Child Custody Jurisdiction and

Enforcement Act (1997) was as follows:

MARIAN P. OPALA, Supreme Court, Room 238, State Capitol, Oklahoma City,
OK, 73105, Chair

DEBORAH E. BEHR, Office of Attorney General, Department of Law,

P.O. Box 110300, Juneau, AK 99811

ROBERT N. DAVIS, University of Mississippi, School of Law, University, MS 38677

ROBERT L. MCCURLEY, JR., Alabama Law Institute, P.O. Box 861425, Tuscaloosa,
AL 35486

DOROTHY J. POUNDERS, 47 N. Third Street, Memphis, TN 38103

BATTLE R. ROBINSON, Family Court Building, 22 The Circle, Georgetown, DE 19947

HARRY L. TINDALL, 2800 Texas Commerce Tower, 600 Travis Street, Houston,
TX 77002

LEWIS V. VAFIADES, P.O. Box 919, 23 Water Street, Bangor, ME 04402

MARTHA LEE WALTERS, Suite 220, 975 Oak Street, Eugene, OR 97401

ROBERT G. SPECTOR, University of Oklahoma College of Law, 300 Timberdell Road,
Norman, OK 73019, Reporter

EX OFFICIO

BION M. GREGORY, Office of Legislative Counsel, State Capitol, Suite 3021,
Sacramento, CA 95814-4996, President

DAVID PEEPLES, 224th District Court, Bexar County Courthouse, 100 Dolorosa,
San Antonio, TX 78205, Chair, Division F

EXECUTIVE DIRECTOR

FRED H. MILLER, University of Oklahoma, College of Law, 300 Timberdell Road,
Norman, OK 73019, Executive Director

WILLIAM J. PIERCE, 1505 Roxbury Road, Ann Arbor, MI 48104,

Executive Director Emeritus

Copies of this Act may be obtained from

NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS

676 North St. Clair Street, Suite 1700

Chicago, Illinois 60611

312/915-0195

UNIFORM CHILD CUSTODY JURISDICTION ACT

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PREFATORY NOTE

This Act, the Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA), revisits the problem of the interstate child almost thirty years after the
Conference promulgated the Uniform Child Custody Jurisdiction Act (UCCJA).
The UCCJEA accomplishes two major purposes.

First, it revises the law on child custody jurisdiction in light of federal
enactments and almost thirty years of inconsistent case law. Article 2 of this Act
provides clearer standards for which States can exercise original jurisdiction over a
child custody determination. It also, for the first time, enunciates a standard of
continuing jurisdiction and clarifies modification jurisdiction. Other aspects of the
article harmonize the law on simultaneous proceedings, clean hands, and forum non
conveniens.

Second, this Act provides in Article 3 for a remedial process to enforce
interstate child custody and visitation determinations. In doing so, it brings a
uniform procedure to the law of interstate enforcement that is currently producing
inconsistent results. In many respects, this Act accomplishes for custody and
visitation determinations the same uniformity that has occurred in interstate child
support with the promulgation of the Uniform Interstate Family Support Act
(UIFSA).

Revision of Uniform Child Custody Jurisdiction Act

The UCCJA was adopted as law in all 50 States, the District of Columbia,
and the Virgin Islands. A number of adoptions, however, significantly departed
from the original text. In addition, almost thirty years of litigation since the
promulgation of the UCCJA produced substantial inconsistency in interpretation by
state courts. As a result, the goals of the UCCJA were rendered unobtainable in
many cases.

In 1980, the federal government enacted the Parental Kidnaping Prevention
Act (PKPA), 28 U.S.C. § 1738A
, to address the interstate custody jurisdictional
problems that continued to exist after the adoption of the UCCJA. The PKPA
mandates that state authorities give full faith and credit to other states’ custody
determinations, so long as those determinations were made in conformity with the
provisions of the PKPA. The PKPA provisions regarding bases for jurisdiction,
restrictions on modifications, preclusion of simultaneous proceedings, and notice
2
requirements are similar to those in the UCCJA. There are, however, some
significant differences. For example, the PKPA authorizes continuing exclusive
jurisdiction in the original decree State so long as one parent or the child remains
there and that State has continuing jurisdiction under its own law. The UCCJA did
not directly address this issue. To further complicate the process, the PKPA
partially incorporates state UCCJA law in its language. The relationship between
these two statutes became “technical enough to delight a medieval property
lawyer.” Homer H. Clark, Domestic Relations § 12.5 at 494 (2d ed. 1988).

As documented in an extensive study by the American Bar Association’s
Center on Children and the Law, Obstacles to the Recovery and Return of
Parentally Abducted Children (1993) (Obstacles Study), inconsistency of
interpretation of the UCCJA and the technicalities of applying the PKPA, resulted
in a loss of uniformity among the States. The Obstacles Study suggested a number
of amendments which would eliminate the inconsistent state interpretations and
harmonize the UCCJA with the PKPA.

The revisions of the jurisdictional aspects of the UCCJA eliminate the
inconsistent state interpretations and can be summarized as follows:

1. Home state priority. The PKPA prioritizes “home state” jurisdiction by
requiring that full faith and credit cannot be given to a child custody determination
by a State that exercises initial jurisdiction as a “significant connection state” when
there is a “home State.” Initial custody determinations based on “significant
connections” are not entitled to PKPA enforcement unless there is no home State.
The UCCJA, however, specifically authorizes four independent bases of
jurisdiction without prioritization. Under the UCCJA, a significant connection
custody determination may have to be enforced even if it would be denied
enforcement under the PKPA. The UCCJEA prioritizes home state jurisdiction in
Section 201.

2. Clarification of emergency jurisdiction. There are several problems
with the current emergency jurisdiction provision of the UCCJA § 3(a)(3).

First, the language of the UCCJA does not specify that emergency jurisdiction may be
exercised only to protect the child on a temporary basis until the court with
appropriate jurisdiction issues a permanent order. Some courts have interpreted the
UCCJA language to so provide. Other courts, however, have held that there is no
time limit on a custody determination based on emergency jurisdiction.
Simultaneous proceedings and conflicting custody orders have resulted from these
different interpretations.

Second, the emergency jurisdiction provisions predated the widespread
enactment of state domestic violence statutes. Those statutes are often invoked to
keep one parent away from the other parent and the children when there is a threat
of violence. Whether these situations are sufficient to invoke the emergency
jurisdiction provision of the UCCJA has been the subject of some confusion since
the emergency jurisdiction provision does not specifically refer to violence directed
against the parent of the child or against a sibling of the child.
The UCCJEA contains a separate section on emergency jurisdiction at
Section 204 which addresses these issues.

3. Exclusive continuing jurisdiction for the State that entered the
decree.
The failure of the UCCJA to clearly enunciate that the decree-granting
State retains exclusive continuing jurisdiction to modify a decree has resulted in
two major problems.

First, different interpretations of the UCCJA on continuing
jurisdiction have produced conflicting custody decrees. States also have different
interpretations as to how long continuing jurisdiction lasts. Some courts have held
that modification jurisdiction continues until the last contestant leaves the State,
regardless of how many years the child has lived outside the State or how tenuous
the child’s connections to the State have become. Other courts have held that
continuing modification jurisdiction ends as soon as the child has established a new
home State, regardless of how significant the child’s connections to the decree State
remain. Still other States distinguish between custody orders and visitation orders.
This divergence of views leads to simultaneous proceedings and conflicting custody
orders.

The second problem arises when it is necessary to determine whether the
State with continuing jurisdiction has relinquished it. There should be a clear basis
to determine when that court has relinquished jurisdiction. The UCCJA provided
no guidance on this issue. The ambiguity regarding whether a court has declined
jurisdiction can result in one court improperly exercising jurisdiction because it
erroneously believes that the other court has declined jurisdiction. This caused
simultaneous proceedings and conflicting custody orders. In addition, some courts
have declined jurisdiction after only informal contact between courts with no
opportunity for the parties to be heard. This raised significant due process
concerns. The UCCJEA addresses these issues in Sections 110, 202, and 206.

4. Specification of what custody proceedings are covered. The
definition of custody proceeding in the UCCJA is ambiguous. States have rendered
conflicting decisions regarding certain types of proceedings. There is no general
agreement on whether the UCCJA applies to neglect, abuse, dependency, wardship,
guardianship, termination of parental rights, and protection from domestic violence
proceedings. The UCCJEA includes a sweeping definition that, with the exception
of adoption, includes virtually all cases that can involve custody of or visitation
with a child as a “custody determination.”

5. Role of “Best Interests.” The jurisdictional scheme of the UCCJA was
designed to promote the best interests of the children whose custody was at issue by
discouraging parental abduction and providing that, in general, the State with the
closest connections to, and the most evidence regarding, a child should decide that
child’s custody. The “best interest” language in the jurisdictional sections of the
UCCJA was not intended to be an invitation to address the merits of the custody
dispute in the jurisdictional determination or to otherwise provide that “best
interests” considerations should override jurisdictional determinations or provide an
additional jurisdictional basis.
The UCCJEA eliminates the term “best interests” in order to clearly
distinguish between the jurisdictional standards and the substantive standards
relating to custody and visitation of children.

6. Other Changes. This draft also makes a number of additional
amendments to the UCCJA. Many of these changes were made to harmonize the
provisions of this Act with those of the Uniform Interstate Family Support Act.
One of the policy bases underlying this Act is to make uniform the law of interstate
family proceedings to the extent possible, given the very different jurisdictional
foundations. It simplifies the life of the family law practitioner when the same or
similar provisions are found in both Acts.

Enforcement Provisions

One of the major purposes of the revision of the UCCJA was to provide a
remedy for interstate visitation and custody cases. As with child support, state
borders have become one of the biggest obstacles to enforcement of custody and
visitation orders. If either parent leaves the State where the custody determination
was made, the other parent faces considerable difficulty in enforcing the visitation
and custody provisions of the decree. Locating the child, making service of
process, and preventing adverse modification in a new forum all present problems.

There is currently no uniform method of enforcing custody and visitation
orders validly entered in another State. As documented by the Obstacles Study,
despite the fact that both the UCCJA and the PKPA direct the enforcement of
visitation and custody orders entered in accordance with mandated jurisdictional
prerequisites and due process, neither act provides enforcement procedures or
remedies.

As the Obstacles Study pointed out, the lack of specificity in enforcement
procedures has resulted in the law of enforcement evolving differently in different
jurisdictions. In one State, it might be common practice to file a Motion to Enforce
or a Motion to Grant Full Faith and Credit to initiate an enforcement proceeding. In

another State, a Writ of Habeas Corpus or a Citation for Contempt might be
commonly used. In some States, Mandamus and Prohibition also may be utilized.
All of these enforcement procedures differ from jurisdiction to jurisdiction. While
many States tend to limit considerations in enforcement proceedings to whether the
court which issued the decree had jurisdiction to make the custody determination,
others broaden the considerations to scrutiny of whether enforcement would be in
the best interests of the child.

Lack of uniformity complicates the enforcement process in several ways:

(1) It increases the costs of the enforcement action in part because the services of more
than one lawyer may be required – one in the original forum and one in the State
where enforcement is sought;

(2) It decreases the certainty of outcome;

(3) It can
turn enforcement into a long and drawn out procedure. A parent opposed to the
provisions of a visitation determination may be able to delay implementation for
many months, possibly even years, thereby frustrating not only the other parent, but
also the process that led to the issuance of the original court order.

The provisions of Article 3 provide several remedies for the enforcement of
a custody determination.

First, there is a simple procedure for registering a custody
determination in another State. This will allow a party to know in advance whether
that State will recognize the party’s custody determination. This is extremely
important in estimating the risk of the child’s non-return when the child is sent on
visitation. The provision should prove to be very useful in international custody
cases.

Second, the Act provides a swift remedy along the lines of habeas corpus.
Time is extremely important in visitation and custody cases. If visitation rights
cannot be enforced quickly, they often cannot be enforced at all. This is
particularly true if there is a limited time within which visitation can be exercised
such as may be the case when one parent has been granted visitation during the
winter or spring holiday period. Without speedy consideration and resolution of the
enforcement of such visitation rights, the ability to visit may be lost entirely.
Similarly, a custodial parent must be able to obtain prompt enforcement when the
noncustodial parent refuses to return a child at the end of authorized visitation,
particularly when a summer visitation extension will infringe on the school year. A
swift enforcement mechanism is desirable for violations of both custody and
visitation provisions.

The scope of the enforcing court’s inquiry is limited to the issue of whether
the decree court had jurisdiction and complied with due process in rendering the
original custody decree. No further inquiry is necessary because neither Article 2
nor the PKPA allows an enforcing court to modify a custody determination.

Third, the enforcing court will be able to utilize an extraordinary remedy. If
the enforcing court is concerned that the parent, who has physical custody of the
child, will flee or harm the child, a warrant to take physical possession of the child
is available.

Finally, there is a role for public authorities, such as prosecutors, in the
enforcement process. Their involvement will encourage the parties to abide by the
terms of the custody determination. If the parties know that public authorities and
law enforcement officers are available to help in securing compliance with custody
determinations, the parties may be deterred from interfering with the exercise of
rights established by court order.

The involvement of public authorities will also prove more effective in
remedying violations of custody determinations. Most parties do not have the
resources to enforce a custody determination in another jurisdiction. The
availability of the public authorities as an enforcement agency will help ensure that
this remedy can be made available regardless of income level. In addition, the
public authorities may have resources to draw on that are unavailable to the average
litigant.

This Act does not authorize the public authorities to be involved in the
action leading up to the making of the custody determination, except when
requested by the court, when there is a violation of the Hague Convention on the
Civil Aspects of International Child Abduction, or when the person holding the
child has violated a criminal statute. The Act does not mandate that public
authorities be involved in all cases. Not all States, or local authorities, have the
funds necessary for an effective custody and visitation enforcement program.

UNIFORM CHILD CUSTODY JURISDICTION ACT

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SECTION 1. [Purposes of Act; Construction of Provisions.]

(a) The general purposes of this Act are to:

(1) avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being;

(2) promote cooperation with the courts of other states to the end that a custody decree is rendered in that state which can best decide the case in the interest of the child;

(3) assure that litigation concerning the custody of a child take place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state;

(4) discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child;

(5) deter abductions and other unilateral removals of children undertaken to obtain custody awards;

(6) avoid re-litigation of custody decisions of other states in this state insofar as feasible;

(7) facilitate the enforcement of custody decrees of other states;

(8) promote and expand the exchange of information and other forms of mutual assistance between the courts of this state and those of other states concerned with the same child; and

(9) make uniform the law of those states which enact it.

(b) This Act shall be construed to promote the general purposes stated in this section.

Comment

Because this uniform law breaks new ground not previously covered by legislation, its purposes are stated in some detail. Each section must be read and applied with these purposes in mind.

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SECTION 2. [Definitions.]

As used in this Act:

(1) “contestant” means a person, including a parent, who claims a right to custody or visitation rights with respect to a child;

(2) “custody determination” means a court decision and court orders and instructions providing for the custody of a child, including visitation rights; it does not include a decision relating to child support or any other monetary obligation of any person;

(3) “custody proceeding” includes proceedings in which a custody determination is one of several issues, such as an action for divorce or separation, and includes child neglect and dependency proceedings;

(4) “decree” or “custody decree” means a custody determination contained in a judicial decree or order made in a custody proceeding, and includes an initial decree and a modification decree;

(5) “home state” means the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least 6 consecutive months, and in the case of a child less than 6 months old the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the 6-month or other period;

(6) “initial decree” means the first custody decree concerning a particular child;

(7) “modification decree” means a custody decree which modifies or replaces a prior decree, whether made by the court which rendered the prior decree or by another court;

(8) “physical custody” means actual possession and control of a child;

(9) “person acting as parent” means a person, other than a parent, who has physical custody of a child and who has either been awarded custody by a court or claims a right to custody; and

(10) “state” means any state, territory, or possession of the United States, the Commonwealth of Puerto Rico, and the District of Columbia.

Comment

Subsection (3) indicates that “custody proceeding” is to be understood in a broad sense. The term covers habeas corpus actions, guardianship petitions, and other proceedings available under general state law to determine custody. See Clark, Domestic Relations 576-582 (1968).

Other definitions are explained, if necessary, in the comments to the sections which use the terms defined.

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SECTION 3. [Jurisdiction.]

(a) A court of this State which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:

(1) this State

(i) is the home state of the child at the time of commencement of the proceeding, or

(ii) had been the child’s home state within 6 months before commencement of the proceeding and the child is absent from this State because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this State; or

(2) it is in the best interest of the child that a court of this State assume jurisdiction because

(i) the child and his parents, or the child and at least one contestant, have a significant connection with this State, and (ii) there is available in this State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or

(3) the child is physically present in this State and

(i) the child has been abandoned or

(ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected [or dependent]; or

(4)

(i) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this State is the more appropriate forum to determine the custody of the child, and

(ii) it is in the best interest of the child that this court assume jurisdiction.

(b) Except under paragraphs (3) and (4) of subsection (a), physical presence in this State of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this State to make a child custody determination.

(c) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.

Comment

Paragraphs (1) and (2) of subsection (a) establish the two major bases for jurisdiction. In the first place, a court in the child’s home state has jurisdiction, and secondly, if there is no home state or the child and his family have equal or stronger ties with another state, a court in that state has jurisdiction. If this alternative test produces concurrent jurisdiction in more than one state, the mechanisms provided in sections 6 and 7 are used to assure that only one state makes the custody decision.

“Home state” is defined in section 2(5). A 6-month period has been selected in order to have a definite and certain test which is at the same time based on a reasonable assumption of fact. See Ratner, Child Custody in a Federal System, 62 Mich.L.Rev. 795, 818 (1964) who explains:

“Most American children are integrated into an American community after living there six months; consequently this period of residence would seem to provide a reasonable criterion for identifying the established home.”

Subparagraph (ii) of paragraph (1) extends the home state rule for an additional six-month period in order to permit suit in the home state after the child’s departure. The main objective is to protect a parent who has been left by his spouse taking the child along. The provision makes clear that the stay-at-home parent, if he acts promptly, may start proceedings in his own state if he desires, without the necessity of attempting to base jurisdiction on paragraph (2). This changes the law in those states which required presence of the child as a condition for jurisdiction and consequently forced the person left behind to follow the departed person to another state, perhaps to several states in succession. See also subsection (c).

Paragraph (2) comes into play either when the home state test cannot be met or as an alternative to that test. The first situation arises, for example, when a family has moved frequently and there is no state where the child has lived for 6 months prior to suit, or if the child has recently been removed from his home state and the person who was left behind has also moved away. See paragraph (1), last clause. A typical example of alternative jurisdiction is the case in which the stay-at-home parent chooses to follow the departed spouse to state 2 (where the child has lived for several months with the other parent) and starts proceedings there. Whether the departed parent also has access to a court in state 2, depends on the strength of the family ties in that state and on the applicability of the clean hands provision of section 8. If state 2, for example, was the state of the matrimonial home where the entire family lived for two years before moving to the “home state” for 6 months, and the wife returned to state 2 with the child with the consent of the husband, state 2 might well have jurisdiction upon petition of the wife. The same may be true if the wife returned to her parents in her former home state where the child had spent several months every year before. Compare Willmore v. Willmore, 273 Minn. 537, 143 N.W.2d 630 (1966), cert. denied 385 U.S. 898 (1966). While jurisdiction may exist in two states in these instances, it will not be exercised in both states. See sections 6 and 7.

Paragraph (2) of subsection (a) is supplemented by subsection (b) which is designed to discourage unilateral removal of children to other states and to guard generally against too liberal an interpretation of paragraph (2). Short-term presence in the state is not enough even though there may be an intent to stay longer, perhaps an intent to establish a technical “domicile” for divorce or other purposes.

Paragraph (2) perhaps more than any other provision of the Act requires that it be interpreted in the spirit of the legislative purposes expressed in section 1. The paragraph was phrased in general terms in order to be flexible enough to cover many fact situations too diverse to lend themselves to exact description. But its purpose is to limit jurisdiction rather than to proliferate it. The first clause of the paragraph is important: jurisdiction exists only if it is in the child’s interest, not merely the interest or convenience of the feuding parties, to determine custody in a particular state. The interest of the child is served when the forum has optimum access to relevant evidence about the child and family. There must be maximum rather than minimum contact with the state. The submission of the parties to a forum, perhaps for purposes of divorce, is not sufficient without additional factors establishing closer ties with the state. Divorce jurisdiction does not necessarily include custody jurisdiction. See Clark, Domestic Relations 578 (1968).

Paragraph (3) of subsection (a) retains and reaffirms parens patriae jurisdiction, usually exercised by a juvenile court, which a state must assume when a child is in a situation requiring immediate protection. This jurisdiction exists when a child has been abandoned and in emergency cases of child neglect. Presence of the child in the state is the only prerequisite. This extraordinary jurisdiction is reserved for extraordinary circumstances. See Application of Lang, 9 App.Div.2d 401, 193 N.Y.S.2d 763 (1959). When there is child neglect without emergency or abandonment, jurisdiction cannot be based on this paragraph.

Paragraph (4) of subsection (a) provides a final basis for jurisdiction which is subsidiary in nature. It is to be resorted to only if no other state could, or would, assume jurisdiction under the other criteria of this section.

Subsection (c) makes it clear that presence of the child is not a jurisdictional requirement. Subsequent sections are designed to assure the appearance of the child before the court.

This section governs jurisdiction to make an initial decree as well as a modification decree. Both terms are defined in section 2. Jurisdiction to modify an initial or modification decree of another state is subject to additional restrictions contained in sections 8(b) and 14(a).

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SECTION 4. [Notice and Opportunity to be Heard.]

Before making a decree under this Act, reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated, and any person who has physical custody of the child. If any of these persons is outside this State, notice and opportunity to be heard shall be given pursuant to section 5.

Comment

This section lists the persons who must be notified and given an opportunity to be heard to satisfy due process requirements. As to persons in the forum state, the general law of the state applies; others are notified in accordance with section 5. Strict compliance with sections 4 and 5 is essential for the validity of a custody decree within the state and its recognition and enforcement in other states under sections 12, 13, and 15. See Restatement of the Law Second, Conflict of Laws, Proposed Official Draft sec. 69 (1967); and compare Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965).

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SECTION 5. [Notice to Persons Outside this State; Submission to Jurisdiction.]

(a) Notice required for the exercise of jurisdiction over a person outside this State shall be given in a manner reasonably calculated to give actual notice, and may be:

(1) by personal delivery outside this State in the manner prescribed for service of process within this State;

(2) in the manner prescribed by the law of the place in which the service is made for service of process in that place in an action in any of its courts of general jurisdiction;

(3) by any form of mail addressed to the person to be served and requesting a receipt; or

(4) as directed by the court [including publication, if other means of notification are ineffective].

(b) Notice under this section shall be served, mailed, or delivered, [or last published] at least [10, 20] days before any hearing in this State.

(c) Proof of service outside this State may be made by affidavit of the individual who made the service, or in the manner prescribed by the law of this State, the order pursuant to which the service is made, or the law of the place in which the service is made. If service is made by mail, proof may be a receipt signed by the addressee or other evidence of delivery to the addressee.

(d) Notice is not required if a person submits to the jurisdiction of the court.

Comment

Section 2.01 of the Uniform Interstate and International Procedure Act has been followed to a large extent. See 9B U.L.A. 315 (1966). If at all possible, actual notice should be received by the affected persons; but efforts to impart notice in a manner reasonably calculated to give actual notice are sufficient when a person who may perhaps conceal his whereabouts, cannot be reached. See Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950) and Schroeder v. City of New York, 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d 255 (1962).

Notice by publication in lieu of other means of notification is not included because of its doubtful constitutionality. See Mullane v. Central Hanover Bank and Trust Co., supra; and see Hazard, A General Theory of State-Court Jurisdiction, 1965 Supreme Court Rev. 241, 277, 286-87. Paragraph (4) of subsection (a) lists notice by publication in brackets for the benefit of those states which desire to use published notices in addition to the modes of notification provided in this section when these modes prove ineffective to impart actual notice.

The provisions of this section, and paragraphs (2) and (4) of subsection (a) in particular, are subject to the caveat that notice and opportunity to be heard must always meet due process requirements as they exist at the time of the proceeding.

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SECTION 6. [Simultaneous Proceedings in Other States.]

(a) A court of this State shall not exercise its jurisdiction under this Act if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this Act, unless the proceeding is stayed by the court of the other state because this State is a more appropriate forum or for other reasons.

(b) Before hearing the petition in a custody proceeding the court shall examine the pleadings and other information supplied by the parties under section 9 and shall consult the child custody registry established under section 16 concerning the pendency of proceedings with respect to the child in other states. If the court has reason to believe that proceedings may be pending in another state it shall direct an inquiry to the state court administrator or other appropriate official of the other state.

(c) If the court is informed during the course of the proceeding that a proceeding concerning the custody of the child was pending in another state before the court assumed jurisdiction it shall stay the proceeding and communicate with the court in which the other proceeding is pending to the end that the issue may be litigated in the more appropriate forum and that information be exchanged in accordance with sections 19 through 22. If a court of this State has made a custody decree before being informed of a pending proceeding in a court of another state it shall immediately inform that court of the fact. If the court is informed that a proceeding was commenced in another state after it assumed jurisdiction it shall likewise inform the other court to the end that the issues may be litigated in the more appropriate forum.

Comment

Because of the havoc wreaked by simultaneous and competitive jurisdiction which has been described in the Prefatory Note, this section seeks to avoid jurisdictional conflict with all feasible means, including novel methods. Courts are expected to take an active part under this section in seeking out information about custody proceedings concerning the same child pending in other states. In a proper case jurisdiction is yielded to the other state either under this section or under section 7. Both sections must be read together.

When the courts of more than one state have jurisdiction under sections 3 or 14, priority in time determines which court will proceed with the action, but the application of the inconvenient forum principle of section 7 may result in the handling of the case by the other court.

While jurisdiction need not be yielded under subsection (a) if the other court would not have jurisdiction under the criteria of this Act, the policy against simultaneous custody proceedings is so strong that it might in a particular situation be appropriate to leave the case to the other court even under such circumstances. See subsection (3) and section 7.

Once a custody decree has been rendered in one state, jurisdiction is determined by sections 8 and 14.

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SECTION 7. [Inconvenient Forum.]

(a) A court which has jurisdiction under this Act to make an initial or modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.

(b) A finding of inconvenient forum may be made upon the court’s own motion or upon motion of a party or a guardian ad litem or other representative of the child.

(c) In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:

(1) if another state is or recently was the child’s home state;

(2) if another state has a closer connection with the child and his family or with the child and one or more of the contestants;

(3) if substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available in another state;

(4) if the parties have agreed on another forum which is no less appropriate; and

(5) if the exercise of jurisdiction by a court of this state would contravene any of the purposes stated in section 1.

(d) Before determining whether to decline or retain jurisdiction the court may communicate with a court of another state and exchange information pertinent to the assumption of jurisdiction by either court with a view to assuring that jurisdiction will be exercised by the more appropriate court and that a forum will be available to the parties.

(e) If the court finds that it is an inconvenient forum and that a court of another state is a more appropriate forum, it may dismiss the proceedings, or it may stay the proceedings upon condition that a custody proceeding be promptly commenced in another named state or upon any other conditions which may be just and proper, including the condition that a moving party stipulate his consent and submission to the jurisdiction of the other forum.

(f) The court may decline to exercise its jurisdiction under this Act if a custody determination is incidental to an action for divorce or another proceeding while retaining jurisdiction over the divorce or other proceeding.

(g) If it appears to the court that it is clearly an inappropriate forum it may require the party who commenced the proceedings to pay, in addition to the costs of the proceedings in this State, necessary travel and other expenses, including attorneys’ fees, incurred by other parties or their witnesses. Payment is to be made to the clerk of the court for remittance to the proper party.

(h) Upon dismissal or stay of proceedings under this section the court shall inform the court found to be the more appropriate forum of this fact or, if the court which would have jurisdiction in the other state is not certainly known, shall transmit the information to the court administrator or other appropriate official for forwarding to the appropriate court.

(i) Any communication received from another state informing this State of a finding of inconvenient forum because a court of this State is the more appropriate forum shall be filed in the custody registry of the appropriate court. Upon assuming jurisdiction the court of this State shall inform the original court of this fact.

Comment

The purpose of this provision is to encourage judicial restraint in exercising jurisdiction whenever another state appears to be in a better position to determine custody of a child. It serves as a second check on jurisdiction once the test of sections 3 or 14 has been met.

The section is a particular application of the inconvenient forum principle, recognized in most states by judicial law, adapted to the special needs of child custody cases. The terminology used follows section 84 of the Restatement of the Law Second, Conflict of Laws, Proposed Official Draft (1967). Judicial restrictions or exceptions to the inconvenient forum rule made in some states do not apply to this statutory scheme which is limited to child custody cases.

Like section 6, this section stresses interstate judicial communication and cooperation. When there is doubt as to which is the more appropriate forum, the question may be resolved by consultation and cooperation among the courts involved.

Paragraphs (1) through (5) of subsection (c) specify some, but not all, considerations which enter into a court determination of inconvenient forum. Factors customarily listed for purposes of the general principle of the inconvenient forum (such as convenience of the parties and hardship to the defendant) are also pertinent, but may under the circumstances be of secondary importance because the child who is not a party is the central figure in the proceedings.

Part of subsection (e) is derived from Wis.Stat.Ann., sec. 262.19(1).

Subsection (f) makes it clear that a court may divide a case, that is, dismiss part of it and retain the rest. See section 1.05 of the Uniform Interstate and International Procedure Act. When the custody issue comes up in a divorce proceeding, courts may have frequent occasion to decline jurisdiction as to that issue (assuming that custody jurisdiction exists under sections 3 or 14).

Subsection (g) is an adaptation of Wis.Stat.Ann., sec. 262.20. Its purpose is to serve as a deterrent against “frivolous jurisdiction claims,” as G.W. Foster states in the Revision Notes to the Wisconsin provision. It applies when the forum chosen is seriously inappropriate considering the jurisdictional requirements of the Act.

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SECTION 8. [Jurisdiction Declined by Reason of Conduct.]

(a) If the petitioner for an initial decree has wrongfully taken the child from another state or has engaged in similar reprehensible conduct the court may decline to exercise jurisdiction if this is just and proper under the circumstances.

(b) Unless required in the interest of the child, the court shall not exercise its jurisdiction to modify a custody decree of another state if the petitioner, without consent of the person entitled to custody, has improperly removed the child from the physical custody of the person entitled to custody or has improperly retained the child after a visit or other temporary relinquishment of physical custody. If the petitioner has violated any other provision of a custody decree of another state the court may decline to exercise its jurisdiction if this is just and proper under the circumstances.

(c) In appropriate cases a court dismissing a petition under this section may charge the petitioner with necessary travel and other expenses, including attorneys’ fees, incurred by other parties or their witnesses.

Comment

This section incorporates the “clean hands doctrine,” so named by Ehrenzweig, Interstate Recognition of Custody Decrees, 51 Mich.L.Rev. 345 (1953). Under this doctrine courts refuse to assume jurisdiction to reexamine an out-of-state custody decree when the petitioner has abducted the child or has engaged in some other objectionable scheme to gain or retain physical custody of the child in violation of the decree. See Fain, Custody of Children, The California Family Lawyer I, 539, 546 (1961); Ex Parte Mullins, 26 Wash.2d 419, 174 P.2d 790 (1946); Crocker v. Crocker, 122 Colo. 49, 219 P.2d 311 (1950); and Leathers v. Leathers, 162 Cal.App.2d 768, 328 P.2d 853 (1958). But when adherence to this rule would lead to punishment of the parent at the expense of the well being of the child, it is often not applied. See Smith v. Smith, 135 Cal.App.2d 100, 286 P.2d 1009 (1955) and In re Guardianship of Rodgers, 100 Ariz. 269, 413 P.2d 744 (1966).

Subsection (a) extends the clean hands principle to cases in which a custody decree has not yet been rendered in any state. For example, if upon a de facto separation the wife returned to her own home with the children without objection by her husband and lived there for two years without hearing from him, and the husband without warning forcibly removes the children one night and brings them to another state, a court in that state although it has jurisdiction after 6 months may decline to hear the husband’s custody petition. “Wrongfully” taking under this subsection does not mean that a “right” has been violated – both husband and wife as a rule have a right to custody until a court determination is made – but that one party’s conduct is so objectionable that a court in the exercise of its inherent equity powers cannot in good conscience permit that party access to its jurisdiction.

Subsection (b) does not come into operation unless the court has power under section 14 to modify the custody decree of another state. It is a codification of the clean hands rule, except that it differentiates between (1) a taking or retention of the child and (2) other violations of custody decrees. In the case of illegal removal or retention refusal of jurisdiction is mandatory unless the harm done to the child by a denial of jurisdiction outweighs the parental misconduct. Compare Smith v. Smith and In Re Guardianship of Rodgers, supra; and see In Re Walter, 228 Cal.App.2d 217, 39 Cal.Rptr. 243 (1964) where the court assumed jurisdiction after both parents had been guilty of misconduct. The qualifying word “improperly” is added to exclude cases in which a child is withheld because of illness or other emergency or in which there are other special justifying circumstances.

The most common violation of the second category is the removal of the child from the state by the parent who has the right to custody, thereby frustrating the exercise of visitation rights of the other parent. The second sentence of subsection (b) makes refusal of jurisdiction entirely discretionary in this situation because it depends on the circumstances whether non-compliance with the court order is serious enough to warrant the drastic sanction of denial of jurisdiction.

Subsection (c) adds a financial deterrent to child stealing and similar reprehensible conduct.

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SECTION 9. [Information under Oath to be Submitted to the Court.]

(a) Every party in a custody proceeding in his first pleading or in an affidavit attached to that pleading shall give information under oath as to the child’s present address, the places where the child has lived within the last 5 years, and the names and present addresses of the persons with whom the child has lived during that period. In this pleading or affidavit every party shall further declare under oath whether:

(1) he has participated (as a party, witness, or in any other capacity) in any other litigation concerning the custody of the same child in this or any other state;

(2) he has information of any custody proceeding concerning the child pending in a court of this or any other state; and

(3) he knows of any person not a party to the proceedings who has physical custody of the child or claims to have custody or visitation rights with respect to the child.

(b) If the declaration as to any of the above items is in the affirmative the declarant shall give additional information under oath as required by the court. The court may examine the parties under oath as to details of the information furnished and as to other matters pertinent to the court’s jurisdiction and the disposition of the case.

(c) Each party has a continuing duty to inform the court of any custody proceeding concerning the child in this or any other state of which he obtained information during this proceeding.

Comment

It is important for the court to receive the information listed and other pertinent facts as early as possible for purposes of determining its jurisdiction, the joinder of additional parties, and the identification of courts in other states which are to be contacted under various provisions of the Act. Information as to custody litigation and other pertinent facts occurring in other countries may also be elicited under this section in combination with section 23.

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SECTION 10. [Additional Parties.]

If the court learns from information furnished by the parties pursuant to section 9 or from other sources that a person not a party to the custody proceeding has physical custody of the child or claims to have custody or visitation rights with respect to the child, it shall order that person to be joined as a party and to be duly notified of the pendency of the proceeding and of his joinder as a party. If the person joined as a party is outside this State he shall be served with process or otherwise notified in accordance with section 5.

Comment

The purpose of this section is to prevent re-litigations of the custody issue when these would be for the benefit of third claimants rather than the child. If the immediate controversy, for example, is between the parents, but relatives inside or outside the state also claim custody or have physical custody which may lead to a future claim to the child, they must be brought into the proceedings. The courts are given an active role here as under other sections of the Act to seek out the necessary information from formal or informal sources.

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SECTION 11. [Appearance of Parties and the Child.]

[(a) The court may order any party to the proceeding who is in this State to appear personally before the court. If that party has physical custody of the child the court may order that he appear personally with the child.]

(b) If a party to the proceeding whose presence is desired by the court is outside this State with or without the child the court may order that the notice given under section 5 include a statement directing that party to appear personally with or without the child and declaring that failure to appear may result in a decision adverse to that party.

(c) If a party to the proceeding who is outside this State is directed to appear under subsection (b) or desires to appear personally before the court with or without the child, the court may require another party to pay to the clerk of the court travel and other necessary expenses of the party so appearing and of the child if this is just and proper under the circumstances.

Comment

Since a custody proceeding is concerned with the past and future care of the child by one of the parties, it is of vital importance in most cases that the judge has an opportunity to see and hear the contestants and the child. Subsection (a) authorizes the court to order the appearance of these persons if they are in the state. It is placed in brackets because states which have such a provision – not only in their juvenile court laws – may wish to omit it. Subsection (b) relates to the appearance of persons who are outside the state and provides one method of bringing them before the court; sections 19(b) and 20(b) provide another. Subsection (c) helps to finance travel to the court which may be close to one of the parties and distant from another; it may be used to equalize the expense if this is appropriate under the circumstances.

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SECTION 12. [Binding Force and Res Judicata Effect of Custody Decree.]

A custody decree rendered by a court of this State which had jurisdiction under section 3 binds all parties who have been served in this State or notified in accordance with section 5 or who have submitted to the jurisdiction of the court, and who have been given an opportunity to be heard. As to these parties the custody decree is conclusive as to all issues of law and fact decided and as to the custody determination made unless and until that determination is modified pursuant to law, including the provisions of this Act.

Comment

This section deals with the intra-state validity of custody decrees which provides the basis for their interstate recognition and enforcement. The two prerequisites are (1) jurisdiction under section 3 of this Act and (2) strict compliance with due process mandates of notice and opportunity to be heard. There is no requirement for technical personal jurisdiction, on the traditional theory that custody determinations, as distinguished from support actions (see section 2(2) supra), are proceedings in rem or proceedings affecting status. See Restatement of the Law Second, Conflict of Laws, Proposed Official Draft, sections 69 and 79 (1967); and James, Civil Procedure 613 (1965). For a different theory reaching the same result, see Hazard, A General Theory of State-Court Jurisdiction, 1965 Supreme Court Review 241. The section is not at variance with May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953), which relates to interstate recognition rather than in-state validity of custody decrees. See Ehrenzweig and Louisell, Jurisdiction in a Nutshell 76 (2d ed. 1968); and compare Reese, Full Faith and Credit to Foreign Equity Decrees, 42 Iowa L.Rev. 183, 195 (1957). On May v. Anderson, supra, see comment to section 13.

Since a custody decree is normally subject to modification in the interest of the child, it does not have absolute finality, but as long as it has not been modified, it is as binding as a final judgment. Compare Restatement of the Law Second, Conflict of Laws, Proposed Official Draft, section 109 (1967).

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SECTION 13. [Recognition of Out-of-State Custody Decrees.]

The courts of this State shall recognize and enforce an initial or modification decree of a court of another state which had assumed jurisdiction under statutory provisions substantially in accordance with this Act or which was made under factual circumstances meeting the jurisdictional standards of the Act, so long as this decree has not been modified in accordance with jurisdictional standards substantially similar to those of this Act.

Comment

This section and sections 14 and 15 are the key provisions which guarantee a great measure of security and stability of environment to the “interstate child” by discouraging relitigations in other states. See Section 1, and see Ratner, Child Custody in a Federal System, 62 Mich.L.Rev. 795, 828 (1964).

Although the full faith and credit clause may perhaps not require the recognition of out-of-state custody decrees, the states are free to recognize and enforce them. See Restatement of the Law Second, Conflict of Laws, Proposed Official Draft, section 109 (1967), and see the Prefatory Note, supra. This section declares as a matter of state law, that custody decrees of sister states will be recognized and enforced. Recognition and enforcement is mandatory if the state in which the prior decree was rendered 1) has adopted this Act, 2) has statutory jurisdictional requirements substantially like this Act, or 3) would have had jurisdiction under the facts of the case if this Act had been the law in the state. Compare Comment, Ford v. Ford: Full Faith and Credit to Child Custody Decrees? 73 Yale L.J. 134, 148 (1963).

“Jurisdiction” or “jurisdictional standards” under this section refers to the requirements of section 3 in the case of initial decrees and to the requirements of sections 3 and 14 in the case of modification decrees. The section leaves open the possibility of discretionary recognition of custody decrees of other states beyond the enumerated situations of mandatory acceptance. For the recognition of custody decrees of other nations, see section 23.

Recognition is accorded to a decree which is valid and binding under section 12. This means, for example, that a court in the state where the father resides will recognize and enforce a custody decree rendered in the home state where the child lives with the mother if the father was duly notified and given enough time to appear in the proceedings. Personal jurisdiction over the father is not required. See comment to section 12. This is in accord with a common interpretation of the inconclusive decision in May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953). See Restatement of the Law Second, Conflict of Laws, Proposed Official Draft, section 79 and comment thereto, p. 298 (1967). Under this interpretation a state is permitted to recognize a custody decree of another state regardless of lack of personal jurisdiction, as long as due process requirements of notice and opportunity to be heard have been met. See Justice Frankfurter’s concurring opinion in May v. Anderson; and compare Clark, Domestic Relations 323-26 (1968), Goodrich, Conflict of Laws 274 (4th ed. by Scoles, 1964); Stumberg, Principles of Conflict of Laws 325 (3rd ed. 1963); and Comment, The Puzzle of Jurisdiction in Child Custody Actions, 38 U.Colo.L.Rev. 541 (1966). The Act emphasizes the need for the personal appearance of the contestants rather than any technical requirement for personal jurisdiction.

The mandate of this section could cause problems if the prior decree is a punitive or disciplinary measure. See Ehrenzweig, Inter-state Recognition of Custody Decrees, 51 Mich.L.Rev. 345, 370 (1953). If, for example, a court grants custody to the mother and after 5 years’ of continuous life with the mother the child is awarded to the father by the same court for the sole reason that the mother who had moved to another state upon remarriage had not lived up to the visitation requirements of the decree, courts in other states may be reluctant to recognize the changed decree. See Berlin v. Berlin, 21 N.Y.2d 371, 235 N.E.2d 109 (1967); and Stout v. Pate, 120 Cal.App.2d 699, 261 P.2d 788 (1953); Compare Moniz v. Moniz, 142 Cal.App.2d 527, 298 P.2d 710 (1956). Disciplinary decrees of this type can be avoided under this Act by enforcing the visitation provisions of the decree directly in another state. See Section 15. If the original plan for visitation does not fit the new conditions, a petition for modification of the visiting arrangements would be filed in a court which has jurisdiction, that is, in many cases the original court. See section 14.

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SECTION 14. [Modification of Custody Decree of Another State.]

(a) If a court of another state has made a custody decree, a court of this State shall not modify that decree unless (1) it appears to the court of this State that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this Act or has declined to assume jurisdiction to modify the decree and (2) the court of this State has jurisdiction.

(b) If a court of this State is authorized under subsection (a) and section 8 to modify a custody decree of another state it shall give due consideration to the transcript of the record and other documents of all previous proceedings submitted to it in accordance with section 22.

Comment

Courts which render a custody decree normally retain continuing jurisdiction to modify the decree under local law. Courts in other states have in the past often assumed jurisdiction to modify the out-of-state decree themselves without regard to the preexisting jurisdiction of the other state. See People ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133 (1947). In order to achieve greater stability of custody arrangements and avoid forum shopping, subsection (a) declares that other states will defer to the continuing jurisdiction of the court of another state as long as that state has jurisdiction under the standards of this Act. In other words, all petitions for modification are to be addressed to the prior state if that state has sufficient contact with the case to satisfy section 3. The fact that the court had previously considered the case may be one factor favoring its continued jurisdiction. If, however, all the persons involved have moved away or the contact with the state has otherwise become slight, modification jurisdiction would shift elsewhere. Compare Ratner, Child Custody in a Federal System, 62 Mich.L.Rev. 795, 821-2 (1964).

For example, if custody was awarded to the father in state 1 where he continued to live with the children for two years and thereafter his wife kept the children in state 2 for 61/2 months (31/2 months beyond her visitation privileges) with or without permission of the husband, state 1 has preferred jurisdiction to modify the decree despite the fact that state 2 has in the meantime become the “home state” of the child. If, however, the father also moved away from state 1, that state loses modification jurisdiction interstate, whether or not its jurisdiction continues under local law. See Clark, Domestic Relations 322-23 (1968). Also, if the father in the same case continued to live in state 1, but let his wife keep the children for several years without asserting his custody rights and without visits of the children in state 1, modification jurisdiction of state 1 would cease. Compare Brengle v. Hurst, 408 S.W.2d 418 (Ky.1966). The situation would be different if the children had been abducted and their whereabouts could not be discovered by the legal custodian for several years. The abductor would be denied access to the court of another state under section 8(b) and state 1 would have modification jurisdiction in any event under section 3(a)(4). Compare Crocker v. Crocker, 122 Colo. 49, 219 P.2d 311 (1950).

The prior court has jurisdiction to modify under this section even though its original assumption of jurisdiction did not meet the standards of this Act, as long as it would have jurisdiction now, that is, at the time of the petition for modification.

If the state of the prior decree declines to assume jurisdiction to modify the decree, another state with jurisdiction under section 3 can proceed with the case. That is not so if the prior court dismissed the petition on its merits.

Respect for the continuing jurisdiction of another state under this section will serve the purposes of this Act only if the prior court will assume a corresponding obligation to make no changes in the existing custody arrangement which are not required for the good of the child. If the court overturns its own decree in order to discipline a mother or father, with whom the child had lived for years, for failure to comply with an order of the court, the objective of greater stability of custody decrees is not achieved. See Comment to section 13 last paragraph, and cases there cited. See also Sharpe v. Sharpe, 77 Ill.App. 295, 222 N.E.2d 340 (1966). Under section 15 of this Act an order of a court contained in a custody decree can be directly enforced in another state.

Under subsection (b) transcripts of prior proceedings if received under section 22 are to be considered by the modifying court. The purpose is to give the judge the opportunity to be as fully informed as possible before making a custody decision. “One court will seldom have so much of the story that another’s inquiry is unimportant” says Paulsen, Appointment of a Guardian in the Conflict of Laws, 45 Iowa L.Rev. 212, 226 (1960). See also Ehrenzweig, the Interstate Child and Uniform Legislation: A Plea for Extra-Litigious Proceedings, 64 Mich.L.Rev. 1, 6-7 (1965); and Ratner, Legislative Resolution of the Interstate Custody Problem: A reply to Professor Currie and a Proposed Uniform Act, 38 S.Cal.L.Rev. 183, 202 (1965). How much consideration is “due” this transcript, whether or under what conditions it is received in evidence, are matters of local, internal law which are not affected by this interstate act.

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SECTION 15. [Filing and Enforcement of Custody Decree of Another State.]

(a) A certified copy of a custody decree of another state may be filed in the office of the clerk of any [District Court, Family Court] of this State. The clerk shall treat the decree in the same manner as a custody decree of the [District Court, Family Court] of this State. A custody decree so filed has the same effect and shall be enforced in like manner as a custody decree rendered by a court of this State.

(b) A person violating a custody decree of another state which makes it necessary to enforce the decree in this State may be required to pay necessary travel and other expenses, including attorneys’ fees, incurred by the party entitled to the custody or his witnesses.

Comment

Out-of-state custody decrees which are required to be recognized are enforced by other states. See section 13. Subsection (a) provides a simplified and speedy method of enforcement. It is derived from section 2 of the Uniform Enforcement of Foreign Judgments Act of 1964, 9A U.L.A. 486 (1965). A certified copy of the decree is filed in the appropriate court, and the decree thereupon becomes in effect a decree of the state of filing and is enforceable by any method of enforcement available under the law of that state.

The authority to enforce an out-of-state decree does not include the power to modify it. If modification is desired, the petition must be directed to the court which has jurisdiction to modify under section 14. This does not mean that the state of enforcement may not in an emergency stay enforcement if there is danger of serious mistreatment of the child. See Ratner, Child Custody in a Federal System, 62 Mich.L.Rev. 795, 832-33 (1964).

The right to custody for periods of visitation and other provisions of a custody decree are enforceable in other states in the same manner as the primary right to custody. If visitation privileges provided in the decree have become impractical upon moving to another state, the remedy against automatic enforcement in another state is a petition in the proper court to modify visitation arrangements to fit the new conditions.

Subsection (b) makes it clear that the financial burden of enforcement of a custody decree may be shifted to the wrongdoer. Compare 2 Armstrong, California Family Law 328 (1966 Suppl.), and Crocker v. Crocker, 195 F.2d 236 (1952).

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SECTION 16. [Registry of Out-of-State Custody Decrees and Proceedings.]

The clerk of each [District Court, Family Court] shall maintain a registry in which he shall enter the following:

(1) certified copies of custody decrees of other states received for filing;

(2) communications as to the pendency of custody proceedings in other states;

(3) communications concerning a finding of inconvenient forum by a court of another state; and

(4) other communications or documents concerning custody proceedings in another state which may affect the jurisdiction of a court of this State or the disposition to be made by it in a custody proceeding.

Comment

The purpose of this section is to gather all information concerning out-of-state custody cases which reaches a court in one designated place. The term “registry” is derived from section 35 of the Uniform Reciprocal Enforcement of Support Act of 1958, 9C U.L.A. 61 (1967 Suppl.) Another term may be used if desired without affecting the uniformity of the Act. The information in the registry is usually incomplete since it contains only those documents which have been specifically requested or which have otherwise found their way to the state. It is therefore necessary in most cases for the court to seek additional information elsewhere.

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SECTION 17. [Certified Copies of Custody Decree.]

The Clerk of the [District Court, Family Court] of this State, at the request of the court of another state or at the request of any person who is affected by or has a legitimate interest in a custody decree, shall certify and forward a copy of the decree to that court or person.

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SECTION 18. [Taking Testimony in Another State.]

In addition to other procedural devices available to a party, any party to the proceeding or a guardian ad litem or other representative of the child may adduce testimony of witnesses, including parties and the child, by deposition or otherwise, in another state. The court on its own motion may direct that the testimony of a person be taken in another state and may prescribe the manner in which and the terms upon which the testimony shall be taken.

Comment

Sections 18 to 22 are derived from sections 3.01 and 3.02 of the Uniform Interstate and International Procedure Act, 9B U.L.A. 305, 321, 326 (1966); from ideas underlying the Uniform Reciprocal Enforcement of Support Act; and from Ehrenzweig, the Interstate Child and Uniform Legislation: A Plea for Extralitigious Proceedings, 64 Mich.L.Rev. 1 (1965). They are designed to fill the partial vacuum which inevitably exists in cases involving an “interstate child” since part of the essential information about the child and his relationship to other persons is always in another state. Even though jurisdiction is assumed under sections 3 and 7 in the state where much (or most) of the pertinent facts are readily available, some important evidence will unavoidably be elsewhere.

Section 18 is derived from portions of section 3.01 of the Uniform Interstate and International Procedure Act, 9B U.L.A. 305, 321. The first sentence relates to depositions, written interrogatories and other discovery devices which may be used by parties or representatives of the child. The procedural rules of the state where the device is used are applicable under this sentence. The second sentence empowers the court itself to initiate the gathering of out-of-state evidence which is often not supplied by the parties in order to give the court a complete picture of the child’s situation, especially as it relates to a custody claimant who lives in another state.

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SECTION 19. [Hearings and Studies in Another State; Orders to Appear.]

(a) A court of this State may request the appropriate court of another state to hold a hearing to adduce evidence, to order a party to produce or give evidence under other procedures of that state, or to have social studies made with respect to the custody of a child involved in proceedings pending in the court of this State; and to forward to the court of this State certified copies of the transcript of the record of the hearing, the evidence otherwise adduced, or any social studies prepared in compliance with the request. The cost of the services may be assessed against the parties or, if necessary, ordered paid by the [County, State].

(b) A court of this State may request the appropriate court of another state to order a party to custody proceedings pending in the court of this State to appear in the proceedings, and if that party has physical custody of the child, to appear with the child. The request may state that travel and other necessary expenses of the party and of the child whose appearance is desired will be assessed against another party or will otherwise be paid.

Comment

Section 19 relates to assistance sought by a court of the forum state from a court of another state. See comment to section 18. Subsection (a) covers any kind of evidentiary procedure available under the law of the assisting state which may aid the court in the requesting state, including custody investigations (social studies) if authorized by the law of the other state. Under what conditions reports of social studies and other evidence collected under this subsection are admissible in the requesting state, is a matter of internal state law not covered in this interstate statute. Subsection (b) serves to bring parties and the child before the requesting court, backed up by the assisting court’s contempt powers. See section 11.

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SECTION 20. [Assistance to Courts of Other States.]

(a) Upon request of the court of another state the courts of this State which are competent to hear custody matters may order a person in this State to appear at a hearing to adduce evidence or to produce or give evidence under other procedures available in this State [or may order social studies to be made for use in a custody proceeding in another state]. A certified copy of the transcript of the record of the hearing or the evidence otherwise adduced [and any social studies prepared] shall be forwarded by the clerk of the court to the requesting court.

(b) A person within this State may voluntarily give his testimony or statement in this State for use in a custody proceeding outside this State.

(c) Upon request of the court of another state a competent court of this State may order a person in this State to appear alone or with the child in a custody proceeding in another state. The court may condition compliance with the request upon assurance by the other state that state travel and other necessary expenses will be advanced or reimbursed.

Comment

Section 20 is the counterpart of section 19. It empowers local courts to give help to out-of-state courts in custody cases. See comments to sections 18 and 19. The references to social studies have been placed in brackets so that states without authorization to make social studies outside of juvenile court proceedings may omit them if they wish. Subsection (b) reaffirms the existing freedom of persons within the United States to give evidence for use in proceedings elsewhere. It is derived from section 3.02(b) of the Interstate and International Procedure Act, 9B U.L.A. 327 (1966).

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SECTION 21. [Preservation of Documents for Use in Other States.]

In any custody proceeding in this State the court shall preserve the pleadings, orders and decrees, any record that has been made of its hearings, social studies, and other pertinent documents until the child reaches [18, 21] years of age. Upon appropriate request of the court of another state the court shall forward to the other court certified copies of any or all of such documents.

Comment

See comments to sections 18 and 19. Documents are to be preserved until the child is old enough that further custody disputes are unlikely. A lower figure than the ones suggested in the brackets may be inserted.

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SECTION 22. [Request for Court Records of Another State.]

If a custody decree has been rendered in another state concerning a child involved in a custody proceeding pending in a court of this State, the court of this State upon taking jurisdiction of the case shall request of the court of the other state a certified copy of the transcript of any court record and other documents mentioned in section 21.

Comment

This is the counterpart of section 21. See comments to sections 18, 19 and 14(b).

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SECTION 23. [International Application.]

The general policies of this Act extend to the international area. The provisions of this Act relating to the recognition and enforcement of custody decrees of other states apply to custody decrees and decrees involving legal institutions similar in nature to custody institutions rendered by appropriate authorities of other nations if reasonable notice and opportunity to be heard were given to all affected persons.

Comment

Not all the provisions of the Act lend themselves to direct application in international custody disputes; but the basic policies of avoiding jurisdictional conflict and multiple litigation are as strong if not stronger when children are moved back and forth from one country to another by feuding relatives. Compare Application of Lang, 9 App.Div.2d 401, 193 N.Y.S.2d 763 (1959) and Swindle v. Bradley, 240 Ark. 903, 403 S.W.2d 63 (1966).

The first sentence makes the general policies of the Act applicable to international cases. This means that the substance of section 1 and the principles underlying provisions like sections 6, 7, 8, and 14(a), are to be followed when some of the persons involved are in a foreign country or a foreign custody proceeding is pending.

The second sentence declares that custody decrees rendered in other nations by appropriate authorities (which may be judicial or administrative tribunals) are recognized and enforced in this country. The only prerequisite is that reasonable notice and opportunity to be heard was given to the persons affected. It is also to be understood that the foreign tribunal had jurisdiction under its own law rather than under section 3 of this Act. Compare Restatement of the Law Second, Conflict of Laws, Proposed Official Draft, sections 10, 92, 98, and 109(2) (1967). Compare also Goodrich Conflict of Laws 390-93 (4th ed., Scoles, 1964).

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[SECTION 24. [Priority.]

Upon the request of a party to a custody proceeding which raises a question of existence or exercise of jurisdiction under this Act the case shall be given calendar priority and handled expeditiously.]

Comment

Judicial time spent in determining which court has or should exercise jurisdiction often prolongs the period of uncertainty and turmoil in a child’s life more than is necessary. The need for speedy adjudication exists, of course, with respect to all aspects of child custody litigation. The priority requirement is limited to jurisdictional questions because an all encompassing priority would be beyond the scope of this Act. Since some states may have or wish to adopt a statutory provision or court rule of wider scope, this section is placed in brackets and may be omitted.

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SECTION 25. [Severability.]

If any provision of this Act or the application thereof to any person or circumstance is held invalid, its invalidity does not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

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SECTION 26. [Short Title.]

This Act may be cited as the Uniform Child Custody Jurisdiction Act.

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SECTION 27. [Repeal.]

The following acts and parts of acts are repealed:

(1)

(2)

(3)

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SECTION 28. [Time of Taking Effect.]

This Act shall take effect . . . . . . . .

 

 


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The following is a discussion concerning the UCCJA in relationship to the Indian Child Welfatre Act ( ICWA), from

IN RE MARRIAGE OF SHANE COLIN SKILLEN

IN THE SUPREME COURT OF THE STATE OF MONTANA

No. 96-520, 1998 MT 43, Decided: March 3, 1998,

APPEAL FROM:   District Court of the Sixteenth Judicial District,In and for the County of Rosebud, The Honorable Joe L. Hegel, Judge presiding. Justice Terry N. Trieweiler delivered the Opinion of the Court.

 

¶24  The purposes of the UCCJA are, in part, to:

(a) avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being;  . . . .

(c) assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available and that courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state;

(d) discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child; . . . .

Section 40-7-102(1), MCA (emphasis added).  As a California case stated, “the UCCJA seeks to limit jurisdiction rather than encourage or condone its proliferation.”  In re Marriage of Hopson (Cal. Ct. App. 1980), 168 Cal. Rptr. 345, 356, 110 Cal. App. 3d 884, 899.

¶25  Likewise, the PKPA, which focuses primarily on custody modification, attempts to isolate jurisdiction in the one court which is best able to determine the best interests of the child.  The Congressional Findings and Declaration of Purpose for the PKPA state that:

(c) The general purposes of . . . this Act . . . are to:

(1) promote cooperation between State courts to the end that a determination of custody and visitation is rendered in the State which can best decide the case in the interest of the child;

. . . .

(4) discourage continuing interstate controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child;

(5) avoid jurisdictional competition and conflict between State courts in matters of child custody and visitation which have in the past resulted in the shifting of children from State to State with harmful effects on their well-being; . . . .28 U.S.C. _ 1738A (emphasis added).

¶26  The two laws make clear that jurisdictional disputes over custody are not in the best interest of the child.  Furthermore, as will be explained more fully below, the laws seek to certify the single “state” to which the child’s best interest is connected.  Finally, they emphasize how important the initial determination of custody jurisdiction is, as subsequent changes in custody jurisdiction run counter to the purpose of the laws and are, therefore, presumptively disfavored.

¶27  …As such, it becomes imperative that the original determination of custody jurisdiction be the correct one.

¶29  The UCCJA permits a court to assert jurisdiction for reasons other than the child’s residence, based on the child’s best interests.  Section 40-4-211(1)(b), MCA, sets out when it would be in the child’s best interests for the state to assume jurisdiction:

  • the child and the parents or the child and at least one contestant have a significant connection with this state; and
  • there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;

However, it explicitly prohibits a state from claiming jurisdiction where only the physical presence of the child would confer jurisdiction, except in limited situations of abuse or abandonment.  See § 40-4-211(2), MCA.  If no other state has jurisdiction, or where another state has declined to exercise jurisdiction, the state may then assert jurisdiction if it is in the best interest of the child.  See § 40-4-211(d), MCA.


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Contact us at

Christian Alliance for Indian Child Welfare

PO Box 253, Hillsboro, ND 58045 – 0253

administrator@caicw.org

Jun 092013
 

Forlorn home #2On the same day of the same year that Roland J. Morris, Sr. passed, a drug and  alcohol addicted infant was born from the same reservation that Roland called home. The biological parents of this infant wanted nothing to do with it. Just as with the many previous babies that they had created, this baby was “claimed” by a blood relative who wanted the baby for the welfare check to support it.

A few months later, the relative “gave” this baby to a couple to “raise as their own.” All of this took place WITHOUT THE TRIBE OR A SOCIAL WORKER INVOLVED and the blood relative kept the check. On the reservation this is a common practice. It is called “a traditional adoption,” and they say, “what we do with our children is no one else’s
business.”

The baby was loved and tenderly cared for while experiencing withdrawals from the drugs and alcohol it was subjected to in utero. The new parents taught the child the Ojibwe language and culture. No social workers ever checked on the child and the blood relative continued to get the check. All was well. This child was very well loved. And the child adored her traditionally adopted parents.Child

But one day eight years later, the blood relative became frightened that if this illegal situation was exposed the check might be lost, so the child was unwillfully abducted and returned to the blood relative. Now the child is not allowed to see or speak to the adoptive family and the tribal government supports the blood relative. The adoptive parents and the child suffer to this day.

In honor of Roland, on the birthday of this child, let us pray.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

 

PLEASE pray with us Sunday evening at 9pm ET, 8pm CT, 7pm MT, and 6pm PT – This Sunday on our minds:

  • remembering Roland’s passing and the children he left behind,
  • a little girl struggling on his reservation,
  • another little girl fighting to stay with the only family she feels safe with,
  • a little girl caught in the middle of a Supreme Court fight,
  • ….and hope for God’s redemption in Indian Country.

If you feel led, please join us every Sunday evening, each of in our own space, praying for help, healing, and Ephesians 6: 10-20.

Please share this with others who may be interested in helping.

https://caicw.org/2013/05/05/please-pray-with-us-every-sunday-9pm-et-8pm-ct-7pm-mt-6pm-pt/

 

 

ANOTHER SPIRIT LAKE DOCUMENT: from Dr. Tilus to HHS, Mar 3, 2012-

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Feb 242013
 

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Letter of Grave Concern, Dr. Tilus, March 3, 2012 –

 

ANOTHER SPIRIT LAKE DOCUMENT:  From Dr. Tilus to HHS, Mar 3, 2012-

“..children removed from successful..foster care off reservation and brought back to an unsafe, substance abusing, violent environment because the Director said all the kids need is here on the rez”…  read more…

Letter of Grave Concern, Dr. Tilus, March 3, 2012

 

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Horrible Child Abuse STILL Happening on Spirit Lake Reservation!

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Feb 222013
 

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A HORRIFIC report just leaked to us:  Thomas Sullivan, Regional Administrator of the Denver Office submitted this to the DC office of Administration of Children and Families just this morning –    

++++++++++++++++++++++++++++++++++++++++++

This is my Twelfth Mandated Report concerning Suspected Child Abuse on the Spirit Lake Reservation. It is being filed consistent with the Revised Guidelines approved by the Attorney General.

It has been more than 8 months since I filed my first report. In that time neither my sources nor I have seen any evidence the more than 100 children cited in these reports have been moved into safe placements. Most of those children remain in the full time care and custody of known sex offenders, addicts and abusive families.

Nor have we seen any indication of any effort by law enforcement to investigate, indict or prosecute the adults who have been credibly accused of being physically and sexually abusive to more than two dozen children.

In these 8 months I have filed detailed reports concerning all of the following:

  1. The almost 40 children returned to on-reservation placements in abusive homes, many headed by known sex offenders, at the direction of the Tribal Chair. These children remain in the full time care and custody of sexual predators available to be raped on a daily basis. Since I filed my first report noting this situation, nothing has been done by any of you to remove these children to safe placements.

 

  1. The 45 children who were placed, at the direction of Tribal Social Services (TSS), BIA social workers, BIA supervised TSS social workers and the BIA funded Tribal Court, in homes where parents were addicted to drugs and/or where they had been credibly accused of abuse or neglect. Since I filed my first report noting these placements, nothing has been done to remove these children to safe placements. I trust the Tribal Court, with the recent resignation of a judge who failed a drug test, will begin to be responsive to the children whose placements they oversee.

 

  1. The 25 cases of children most of whom were removed from physically and sexually abusive homes based on confirmed reports of abuse as well as some who still remain in those homes. Neither the BIA nor the FBI have taken any action to investigate or charge the adults in these homes for their criminally abusive acts. Many, of the adults in these homes are related to, or are close associates of, the Tribal Chair or other Council members.

Since I filed my first report detailing these failures to investigate, charge, indict, prosecute those adults, my sources and I have observed nothing to suggest this has changed. Those adults remain protected by the law enforcement which by its inaction is encouraging the predators to keep on hunting for and raping children at Spirit Lake.

When was the last time the US Attorney indicted a child rapist at Spirit Lake? How many child rape cases from Spirit Lake has he declined to prosecute during the last 18 months? How many Spirit Lake child rape cases have been prosecuted during those same 18 months?

 

  1. Several years ago several former Tribal employees (including Tribal judges, TSS staff and Tribal elders) filed a formal complaint about TSS and the Spirit Lake BIA when they met with BIA’s Regional Director in Aberdeen, SD. The Regional Director was provided with substantial documentation of the bases for their complaint against the BIA’s Spirit Lake Superintendent.

A week after returning from Aberdeen they saw this documentation in its original unopened package on the desk of the Spirit Lake BIA Superintendent. It remained there, unopened, unread and uninvestigated for several months before it was shredded.

Similar delegations met with the leadership of the state Department of Human Services, its Child Welfare Agency, as well as with the FBI. In each case comparable packages of documentation were delivered. Since nothing ever came of these efforts to correct the situation at Spirit Lake, it can only be assumed that this documentation sat on desks somewhere, unopened, unread and uninvestigated until it too was shredded.

Since I filed my first report detailing these efforts on the part of several concerned citizens to correct the situation at Spirit Lake, to stop the abuse of children several years before I filed my first report, nothing has been done to investigate the clear malfeasance of so many high level state and federal officials. This failure to act, to correct this situation allowed the rape and abuse of children at Spirit Lake to persist for years beyond when it should have been stopped.

 

  1. I believe the highest obligation and priority for every public official involved in this situation is to insure the safety of those children who were abruptly removed from safe, off-reservation placements and returned to on-reservation placements in many cases to the full time care and custody of known sex offenders where they were available to be raped daily as well as those children placed in unsafe homes in the care of addicts and abusers as a result of decisions made by BIA, TSS and the Tribal Court.

I have been instructed by the leadership of my agency that my beliefs do not reflect the policy position of either my agency or my department.

From what my sources and I have been able to observe the highest priority of the state, the FBI, BIA as well as other federal agencies has been to silence us, to label us as liars, as incompetents not qualified to identify the abuse of a child, to minimize the seriousness of this situation with their fabricated,  self-serving claims. Among these claims are, “It’s a new problem”; “This problem arose because the Tribe lost the person responsible for filing their forms”; “If those whistleblowers would shut up everything would be fine”; “Everything is fine”; “They are making great progress”; “You are expecting too much progress too quickly”; “They are working hard.”;“It’s all fixed.”; “We’re doing a great job for kids” “You are not a subject matter expert”.

If that attitude was held by those who served on the Grand Jury that indicted Jerry Sandusky on 45 counts of child sexual abuse, there would have been no indictments. It would have been decided that neither McQueary, the janitors nor any of those victims were credible because Jerry would have told them that all of those witnesses were lying and they would have believed him.

If just a bit of the energy devoted to trashing us was used to assist the children of Spirit Lake, all of the 100 plus children might be in safe placements now. But it appears that agencies and those involved have taken a different path for reasons known only to them and their agencies leaving these children in the care and custody of addicts and predators. These actions track the same path followed by the leadership of both Penn State and the Catholic Church when these organizations sought to protect their institution’s reputation by covering up the rape of children.

 

  1. The BIA Senior Criminal Investigator (CI) at Spirit Lake is a thug who should be in prison if the domestic violence allegations made by his wife and other eyewitnesses are to be believed. Because none of you, not even those in the highest levels of BIA law enforcement in Washington, DC, have investigated his wife’s complaint, sought to speak either with her or those eyewitnesses, he walks free, a fine example of the integrity and professionalism of BIA. How will BIA comply with OPM’s recent directive on Domestic Violence when it is shielding a Domestic Violence thug from investigation and prosecution?

 

  1. There are an unknown number of undocumented children (it is estimated by knowledgeable sources that there are more than 40 children who are trapped in this situation) who are being cared for by Foster Parents who are not being paid for their care. For most, if not all, payment is not an issue. However, without birth certificates, court orders and other documentation these children cannot be enrolled in Head Start, pre-school, school or qualified for Medicaid. Neither the state, county social services, BIA nor TSS have been willing to assist these foster parents in obtaining the necessary documentation. Since the Tribe placed all of these children with these Foster Parents, it is especially disturbing that now they deny any responsibility for them. Why is the BIA collaborating with the Tribe in this abuse of power?

 

  1. On September 29, 2012 a 13 year old little girl was raped in her home by a 37 year old man. Law enforcement was called. The name and a description of the rapist was provided. No rape kit was collected. More than three weeks elapsed  before the alleged rapist was interviewed. The little girl’s mother was told over the phone by FBI Agent Cima that the FBI had turned the case over to the BIA.

The BIA Senior Criminal Investigator (CI) called the mother to tell her that he had spoken with the alleged rapist who told him, “That girl wanted to have sex with me. What was I supposed to do?” The BIA CI then said, “Since the sex was consensual, there was no crime here and there will be no prosecution. This little girl contracted gonorrhea as a result of this rape.

It seems strange to me that the BIA CI ruled out the possibility of statutory rape in this case when the girl was so young and her rapist was almost 25 years older. It is even stranger that all of you accept without question the self-serving tale of a 37 year old rapist, “She wanted to have sex with me. What was I supposed to do?” Surely all of you have more brains than to accept that line.

 

  1. On September 27, 2012 I filed a formal complaint against FBI Special Agent Bryan Cima due to his interference with my responsibilities as a Mandated Reporter of child abuse This filing was done consistent with instructions we received from the Grand Forks, ND FBI office. Since I have not been contacted by anyone asking for additional information concerning my formal complaint, I can only assume, given their complete disregard for this complaint, that the USDOJ and FBI view it as even less important than the eleven mandated reports I have filed.

 

10. The BIA, for several years, has been conducting annual reviews of the Spirit Lake TSS with each succeeding review producing lengthier and lengthier lists of deficiencies requiring correction. The last one completed almost a year ago, produced a list of 75 deficiencies, most so serious they required immediate correction according to the BIA reviewers. To my knowledge none have been corrected.

 

11. Five months ago on September 20, 2012, Hankie Ortiz, Deputy Bureau Director of BIA’s Office of Indian Services was quoted in the NY Times article about Spirit Lake saying, “the news media and whistleblowers had exaggerated the problem. This social services program has made steady progress.” Since I specifically asked Ms. Ortiz in my Sixth Mandated Report on October 30, 2012 to provide detail about how those of us who have been speaking out about the epidemic of child sexual abuse at Spirit Lake have “exaggerated the problem”, she has provided nothing to substantiate her lying, self-serving claims.

Apparently she has now taken a vow of silence. That vow makes good sense because six weeks after she was quoted in the NY Times, the Tribal Chair directly contradicted her fabricated defense of BIA. The Tribal Chair in a General Assembly meeting said in response to questions from an enrolled member that there were no lies in my reports and that he could not document any improvement in the condition of the children I had cited in my reports. Now, five months after her claim of “steady progress” neither my sources nor I have seen anything that would pass for “progress”.

 

12. A little girl, who on the first day of pre-school gave an aide an accurate and detailed description of what was involved in giving a blow job, was removed from her home due to  physical abuse. When evaluated at the Children’s Advocacy Center in Grand Forks, ND, the specialist there determined that she had also been sexually abused and required immediate intensive therapy.

Since the Tribe would be required to pay for the therapy the Foster Parents had to get approval from TSS. They were turned down initially and at least once a month for the last six months because as the TSS case worker said, “If I approve this request for therapy, I will be fired in the morning as soon as the Tribal Council learns of it.” (The Catholic Archdiocese in Los Angeles, CA followed a similar policy not so long ago so that pedophile priests were not allowed by the Church to go to therapists who were required by law to report the sexual abuse of children by their clients to law enforcement).

This little girl is the granddaughter of a convicted sexual offender who also serves on the Tribal Council. Since the BIA has taken over all responsibility for TSS activities at Spirit Lake, why is BIA preventing this little girl from getting the therapy she desperately needs? How many other Spirit Lake children is the BIA preventing from receiving the therapeutic services they need in order to recover from the abuse they have suffered?

 

13. I understand two young children (two and three years of age) who had been removed from their homes in late December, 2010 and were evaluated at the nationally recognized Fetal Alcohol Spectrum Disorder Center at the University of North Dakota School of Medicine in Grand Forks, ND during the late winter of 2011 and were diagnosed with severe developmental delay – they did not and could not speak, they did not understand simple words, they acted as though they had never seen a toy and had no idea what to do with them. Their only form of interaction was to hit each other and fight.

The Founder and Executive Director of the Center evaluated these children. His expert recommendation,  provided in a written report, was that these children should never be returned to the home they came out of, that it would be a crime if they were ever placed back in that home.

The TSS Director ignored this expert evaluation and recommendation and placed these children back in that home shortly after he received that written report. They are still there suffering ever more developmental delay with every passing day.

TSS and BIA staff have been reviewing and correcting any problems with paperwork for most of the last several months. Why has this expert recommendation been overlooked? This is just one more example of the continuing, grotesque failure of the BIA to protect the children of Spirit Lake.

 

14. A few weeks ago I was informed about a case that is well known to you, Ms Settles, because you intervened to assist a concerned adult. This adult was concerned for the welfare of a foster child who had confided to her about his abusive home life, the refusal of the foster parent to spend money received for this child on this child as well as other examples of abuse and neglect. This child’s mother took her own life. This child attempted suicide a year ago. He has for some time been demonstrating profound depression. When a BIA social worker was assigned to his case, she closed it without even speaking with this child. When this adult spoke with Marge Eagleman, BIA Supervisor of Social Services, she was told, “well the investigator has done her job and the case is closed.” When this adult spoke with Rod Cavanagh, BIA Superintendent at Spirit Lake he said, “the investigator has a Master of Social Work degree and I trust she did her job.”

When this adult spoke with you, Ms. Settles, you ordered the case reopened. Unfortunately, it has been more than two weeks since you took that action and no one has yet spoken with that little boy. I trust all of us understand how those mindless decisions and failures to follow up can turn a difficult situation into a tragic one.

 

15. The adult mentioned in # 14 is a Mandated Reporter of suspected child abuse since they are on the staff at the Four Winds School. This adult has received a letter of reprimand from the Superintendent of the school system because of their efforts on behalf of this little boy. Their son was fired from his position at the same school because of his efforts on behalf of this boy. Since you have known about these efforts to silence, intimidate and retaliate against two Mandated Reporters for more than two weeks, Ms. Settles, what have you done to correct this situation? If you have done nothing, would you please explain the rationale for your inaction?

Mr. Purdon, what will you be doing to protect the rights of these two Mandated Reporters?

The Sandusky scandal horrified the nation resulting in a widespread outcry against those who had facilitated his continuing rape of young boys by keeping silent about what they knew. He assaulted and raped one boy at a time. At Spirit Lake there are many sexual predators who have been given free rein to rape at will. Hundreds of children have been exposed to conditions that place them at risk of being raped daily at Spirit Lake.

Sandusky’s abuse became public when he was indicted. The failure of law enforcement at all levels to investigate, charge and indict is a key factor in the continuation of the epidemic of child sexual abuse at Spirit Lake. When was the last time the US Attorney for North Dakota indicted a sexual predator for his rape of a child at Spirit Lake? When was the last time the Tribal Prosecutor filed a charge of child rape against a predator in Tribal Court?

It is my understanding that some believe my Tenth Mandated Report, filed on January 2, 2013, lead to the indictment of the father described in that report on charges of Gross Sexual Imposition (a Class 2 Felony) In Ramsey County, ND. If that is true, the county attorney in Devils Lake, with that indictment, has done far more to protect the children of Spirit Lake than any of those who have received these reports and have done nothing but fabricate excuses for their inaction.

The predators have been defended by the actions of the Spirit Lake Tribal Chair and council. The state, TSS, FBI, BIA and other federal agencies’ leadership by their failure to investigate complaints, made several years ago, about such abuse have facilitated this abuse. By their delay in effectively responding to these Mandated Reports, these organizations and their leaders have extended the reign of terror inflicted on the children of Spirit Lake.

A child at Spirit Lake will be raped today because little or nothing has been done to correct the heinous conditions I have identified in these Reports. Tomorrow another child will be raped at Spirit Lake due to this inaction. And the day after that another child will be raped at Spirit Lake because of this inaction. And so on, and so on and so on, until that fateful day when the decision is made to protect the children of Spirit Lake from rape and abuse.

Thomas F. Sullivan

Regional Administrator, ACF, Denver

Washington D.C. Feb 4-8, 2013: Lawmakers—The Good, The Bad and What Can You Do Next

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Feb 102013
 

by Elizabeth Sharon Morris

The dust is just beginning to settle from our most recent trip to Washington, D.C., Feb 4-8, 2013, where we spent five days visiting lawmakers to talk about the Indian Child Welfare Act and how it infringes on the rights of children and parents across our nation. Five CAICW members, all of whom have been affected by the Indian Child Welfare Act (ICWA), joined me to share their stories and to advocate for positive changes to this law.

Our group met up in Washington on February 4 eagerly prepared to attend the 20 or more appointments that I had arranged prior to our departures. During the week we also managed to squeeze in a number of drop-in visits. As expected, our message was met with a range of responses.

We want to thank all of the lawmakers and their staffs for taking time to listen to our message. We met with at least 55 offices—35 Representatives and 20 Senators. We had meetings with the staff of 9 of the 14 members of the Senate Committee on Indian Affairs and with staff of the two ranking leaders of the House Indian Affairs and the Senate Indian Affairs committees, as well as 3 of the 4 co-chairs of the adoption caucus. For those of you interested, a complete list of offices we visited and their general reaction to our positions can be provided in a chart by request.

What We Shared

In connection to the necessary changes to the ICWA, we talked about several serious matters that impact families and children in Indian Country. We brought attention to the recent BIA takeover of children’s services on the Spirit Lake Reservation after the murder of 2 children exposed serious deficiencies in the tribal child welfare system and rampant child abuse. We pointed out that these problems are not isolated to this reservation, and that like Spirit Lake, many tribal governments and agencies are totally unequipped to handle these problems. We also brought attention to the Native Mob gang and the current trial taking place, as well as other organized gangs that are active on reservations in five states. Gang activity has rapidly increased over the past decade and it has a direct impact on all tribal members, but mostly on the young people who seek out gangs as a replacement for the families they do not have. Gangs are now well organized crime operations that are responsible for much of the violence, drug trafficking and use, gun running, and sexual recruitment of children and women.

We also discussed the serious implications of the Violence Against Women Act. While many only understand the impact of the ICWA on adoption cases in this country, more and more people are beginning to understand that the ICWA also contributes to much larger and much more serious problems affecting Indian Country.

Trapping more and more children and families in the dangerous confines of reservation life is doing nothing to serve the best interest or welfare of the children, their families or to preserve traditional culture. It is vital that we all come together and talk as a community.

As in the past, we started our presentations by sharing stories of families that have been hurt by the ICWA. We pointed out that even parents of 100% tribal heritage have the right to determine where their children should be placed as long as the home is safe—and heritage is simply a data point, not a definition of who you are. An increasing number of individuals and families of tribal heritage are voicing reluctance to live within reservation boundaries. Many are opposed to overreaching laws, which interfere with private family affairs, such as the ICWA and other laws being written into new tribal constitutions. The ICWA and the Native Nation Building Movement, which encourage and promote individual tribal constitutions over the U.S. constitution, interfere with basic U.S. Constitutional rights of U.S. citizens who also happen to have tribal heritage.

We stressed to lawmakers that the ICWA works more to promote the tribe then the best interests of children. We urged everyone we visited with to take up these discussions and to work to seek positive reforms to protect and strengthen families across the nation.

Sierra Shares Lessons on Indian Adoption

The Campbell family, Carol, Gene and Sierra bravely shared their heartbreaking and dramatic story. Sierra and her adopted parents openly spoke about how Sierra was abused and used sexually as a child. Sierra recounted how she was first given to a man at the age of ten and how her younger sister was used in the same manner. Sierra explained how she attempted to run away over a dozen times and begged to be returned to the only family she ever felt safe with and knew she was loved—the Campbells. She told how while in a tribal foster home she was ultimately cut down from a rope she used in attempt to hang herself.

Jon Tevlin of the Star Tribune recounts Sierra’s dramatic story and covers her family’s recent trip to Washington to advocate for changes to the ICWA in an article that can be read at: http://www.startribune.com/local/190953261.html?refer=y

Steps You Can Take to Bring Positive Change to Indian Country

Contact your representatives in the Congress and Senate and encourage them to take action in regards to amending the ICWA and bringing serious changes to Federal Indian Policy. It is especially important to contact lawmakers who serve on the Senate Committee on Indian Affairs.

  • URGENT: Contact your senators and ask them to contact Paul Wolf in Senator Cantwell’s office to request that the ICWA be placed on Senator Cantwell’s agenda for this session. The agenda is being prepared and set NOW. If the ICWA is not put on her agenda for this session it will not come up for discussion this year nor probably next.
  • Urge your senator to contact Paul Wolf in Senator Cantwell’s office to press for hearings on the Spirit Lake Reservation and other reservations where child abuse and child sexual abuse is rampant.
  • Inform your neighbors, friends and families of the importance of bringing POSITIVE CHANGE to Indian Country. Many U.S. citizens have no idea how the ICWA, the Violence Against Women Act and issues of tribal sovereignty impact all of us as U.S. citizens.
  • Continue to pray for everyone negatively affected, intentionally or non-intentionally by the ICWA, Violence Against Women Act and Federal Tribal Policy. Especially pray for the children who have no voice or representation in their own well being. And please pray for us as we work to bring these issues forward.

 

Feb 062013
 

Where to begin? We met with staff members from seven DC Senate offices on Monday. We had come to talk about the Indian Child Welfare Act and how it infringes on the right of children and parents.

But sitting next to this young woman, who comes from the same reservation as my husband… I realized there is so, so much more we all need to talk about.

She told how she was abused and used sexually as a child. She said she was first given to a man at the age of ten. Her sisters were also given to men. She told how she begged to be allowed to return to the only family she had ever felt safe with – the foster family that the tribe, through ICWA, had taken her from. She told how she tried to run away over a dozen times – to get back to the foster home where she knew she was loved. She told how the home where the tribal govt placed her made her destroy pictures of the family she loved, and how they had cut a rope to save her when she had tried to hang herself. It was only then that they finally allowed her to return to her true home.

The feeling in Congress and across much of America is that the tribal leaders can’t be messed with. Don’t you dare step on their toes.

Holy cow. I mean, literally, ‘holy cow.’

Enough with the trepidation about messing with tribal sovereignty. I told our family’s story in the book “Dying in Indian Country” – and apparently, I didn’t even tell the half of it. I knew that things had gotten worse to an extent – but I had no idea how really, really bad it was now. The prostitution of young girls has become common place. You want to talk about sex-trafficking? Don’t forget to look at many of the reservations as well. I should say – don’t be AFRAID to look at many of the reservations as well.

Have you heard yet that the BIA had to go in and take over children’s services on the Spirit Lake Reservation?

– Have you heard about the “Native Mob” now active on reservations in three states?

One of the Senate staff members said her Senator would like to do hearings concerning Spirit Lake. I would love to see that happen – as well as inquiries into the gang activity and harm to children occurring on many reservations. Spirit Lake is not isolated. Leech Lake, Red Lake, White Earth, Pine Ridge – and more.

PLEASE CONTACT your Senators and encourage/support them in taking action. Many Senators are very afraid of stepping on the toes of tribal government – but while they cringe, girls as young as ten are being prostituted.

What this girl said today matches what I was told by another Leech Lake family last week. What they shared with us is horrific.

We NEED to let our Senators know that this is not OK in America. They MUST make is stop!

Children need to be protected. For our family, that also means getting rid of ICWA. You might not want to take that drastic a stand on the ICWA – but our family must. But at the very least – please press your Senator for hearings on the issue of child welfare and protection in Indian Country.

Please – especially press your Senator to do this if he/she is on the Senate Committee on Indian Affairs.

1) ASK YOUR SENATOR to contact Senator Cantwell’s office – to tell Senator Cantwell that ICWA needs to be on her agenda for this session. They are preparing and setting this sessions agenda RIGHT NOW. If ICWA is NOT put on her agenda for the session – it will not be discussed for changes this year nor probably next. WE NEED AS MANY SENATORS AS POSSIBLE – ALL OF THEM – TO CALL SENATOR CANTWELL and ask that ICWA be on Senator Cantwell’s Indian Affairs Committee agenda!

2) ASK YOUR SENATOR to contact Senator Cantwell’s office and press for hearings on Spirit Lake and other reservations were abuse of children is rampant!

3) PLEASE CONTINUE TO PRAY FOR THE CHILDREN, FOR US – AND FOR THE WORK IN FRONT OF US!

 

Dr. Phil Show Spurs Controversy–Sheds Light on the Negative Effects of ICWA

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Dec 312012
 

by Elizabeth Sharon Morris

“They just took my baby after 3 years…her sobbing is forever etched in my soul. She wanted us to save her and we couldn’t. Devastated.”

An adoptive mother contacted CAICW on Facebook with this message at 1 am on Saturday, November 20, 2010, just hours after losing her little girl.  CAICW cried with her.  Why was this little girl, who screamed for her adoptive father to help her, taken – while he collapsed on the lawn, sobbing in grief?

Because she had tribal heritage.

While many argue that it is right and good that children of Native heritage be removed from non-Indian homes and turned over to tribal governments, many others question the policy. In this case, just five months after the little girl was taken, social services called the adoptive parents and asked if they would come and get her—immediately.  Apparently the home she had been taken to “didn’t work out,” so now it was OK for her to return to the home they had torn her from just a few months prior. Of course, her parents immediately dropped everything to drive the two hours to get their little girl. When she saw them, the little girl threw herself into their arms and asked if she could finally “go home.”

On Friday, October 19, 2012, Indian Country Today (ICT) reported on the “Veronica” episode of a Dr. Phil Show that had aired the day before. ICT claimed that the show “attacked the ICWA, and undermined the significance of Native children remaining in their tribe and being immersed in their culture.”  It also announced a grassroots Facebook campaign to boycott the “Anti-Native American” Dr. Phil Show. The mission of the campaign ICT says, “is to hold Dr. Phil McGraw accountable by boycotting until he agrees to have a show where QUALIFIED experts discuss ICWA’s importance.”

This is an interesting demand, considering the fact that there were two qualified “experts” on the set that day: Cherokee Nation Attorney Chrissi Nimmo and Judge Les Marston. Furthermore, Terry Cross of the National Indian Child Welfare Association (NICWA) had been invited too, but declined to appear.

As a birth mother to children who are 50 percent tribal, I flatly refute claims by the tribal establishment that every single child of heritage “needs them.”  No “tribal expert” knows our family or can speak for us. It is a myth that all tribal members want or need to be a part of Indian Country. Tribal members are individuals with their own minds and hearts.

The U.S. census shows that 75 percent of tribal members live off reservation.  Some remain connected to Indian Country, but many extended families mainstreamed a long time ago. Many reject reservation life for the same reason our family does: it isn’t a safe place. Even though we love our extended family that live on the reservation, we choose not to live under a corrupt tribal government in a tract house surrounded by drugs, alcohol and violence. Not every Native person wants to live in or have their children exposed to these conditions.

Furthermore, most “enrollable” children have more than one heritage. This means that they have more than one family, more than one traditional culture, multiple people who love them, and no heritage is more or less important than another.

Tribal governments are now using the ICWA as a weapon to steal the rights and best interests of children, women and families across this country. Make no mistake—the Cherokee Nation alone has more than 100 attorneys targeting 1500 children across the United States who are in the process of being adopted. Many of these children, like Veronica, have less than 5 percent Cherokee heritage. Even that small heritage in many cases comes from families who at some point made deliberate CHOICES to leave Indian Country.

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ICWA is the REAL War on Women

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Dec 192012
 

As demonstrated by the “Save Veronica” case, this REAL War on Women comes in the form of the Cherokee Nation’s affirmation that single mothers of all heritages must fear tribal interference if they give a child up for adoption without knowing for certain whether the birth father has even a single drop of Cherokee blood.

During the Thursday, October 18, 2012 segment of the Dr. Phil show, Cherokee Nation attorney Chrissi Nimmo refused to admit Veronica had only a drop of Cherokee blood, but she also didn’t deny it. She did not answer this question because she is well aware of the implications…she knows people will be stunned at the realization. Instead, Ms. Nimmo tried to make the argument that the issue is not about blood quantum or how a child looks, but that they have a right to be part of the Cherokee tribe. The real issue is the fact that with the help of the ICWAthis “right” is being forced on not only this child, but also many children and families all across the U.S.

This argument, and the law, ignores many basic Constitutional rights. Not all enrollable individuals WANT their children to be forced into political affiliation with tribal government, and not all enrollable or enrolled parents want their children to be raised on or near a reservation. In fact, manyenrolled fami-
lies have purposefully made a choice to raise their children outside the reservation. Is it the tribe’s right, or the individual parent’s right to choose where to live and raise their children?

The following example illustrates how the ICWA is negatively affecting the
decisions and rights of enrolled tribal members. At a home for unwed mothers in Bismarck, South Dakota, several enrolled women told State Representative Lee Kaldor that even though they wanted to give their babies up for adoption, they were afraid that tribal government would interfere. Although they honestly didn’t feel they were able to properly raise and nurture their babies, they decided against adoption because they wouldn’t have the right to make decisions on behalf of their unborn babies. With adoption not an option, some of them contemplated abortion.

Interestingly enough, tribal governments don’t interfere in a mother’s decision to have an abortion, but they are increasingly interfering in the rights of a mother tochoose adoption, and placement of their children.

Ms. Nimmo’s argument also ignores the rights of the Latino birth mother in question, and ANYmother of any race who chooses adoption for their child. While it’s bad enough that enrolled Indian mothers don’t feel a freedom of choice in deciding what is best for their children, the Veronica case illustrates how a Hispanic mother, who was carrying a child with only a tiny percentage of
tribal heritage, had her rights and wishes superseded by a tribal government.

What a nightmare for any pregnant single mother contemplating adoption—a minute amount of known, or potentially unknown, Indian heritage gives a tribal government the legal right to interfere.

A further example of how the ICWA is negatively affecting women’s rights is the increasing trend of tribal governments moving to exercise their right to adjudicate in custody hearings.  Because of the ICWA, a tribe has the right to have representation at all custody hearings involving offspring of children of enrolled members, even if the child is not enrolled, or only has a small
percentage of Native blood. In many cases, the custody hearings are required to be held in tribal court, even at some distance from where the child is currently residing. The non-Indian parent is stripped of their rights to an unbiased hearing because they are not permitted access to council of
their choice. In at least one case, a non-Indian mother was threatened with bodily harm by the tribal judge and police, and by order of the judge, her young daughter taken from her and placed with an abusive father.

Congress passed the ICWA in 1978 in response to the alarmingly high number of Indian children being removed from their homes by both public and private agencies. The intent of Congress under the ICWA was 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). ICWA sets federal requirements that apply to state child custody proceedings involving an Indian child who is a
member of, or eligible for membership in, a federally recognized tribe.
The real question now is whether the ICWA is really working to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families,” or whether the law is being abused to protect ONLY the best interest of tribes, and in doing so is denying both children and adults equal protection and representation as provided under the U.S. Constitution.