Iowa Supreme Court Tossed “Indian Child” Definition

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May 032010
 

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From:

Jennifer Delgado – The Daily Iowan
Issue date: 12/11/07 Section: Metro

The Iowa Supreme Court ruled Nov. 30 (2007) that the state’s definition of an “Indian child” is an ethnic classification breaking the 14th Amendment equal-protection clauses in both state and federal Constitutions.

In the future, Iowa will have to come up with a new definition of what constitutes an “Indian child” – one that could possibly be based on tribal membership, UI law Professor Ann Estin said.

The decision comes after a custody case that began in Woodbury County, Iowa, involving two children born in Sioux City. The state removed the children from their home because of their parents’ record of substance abuse. Their mother is a member of the Winnebago tribe; their father is white.

The Winnebago tribe, located in northeastern Nebraska, tried to intervene in the custody proceedings, claiming the children fit the definition of “Indian child” under Iowa law and should be returned to the tribe. But because of this new ruling, the tribe cannot legally get involved in the custody battle.

In the Winnebago tribe, children of members are only eligible for membership if they have at least one-fourth degree Winnebago blood – the two children are only one-eighth degree.

In 2004, the Winnebago tribe passed a resolution stating that the offspring are seen as “children of the Winnebago tribal community” because their mother is a member.

“The Winnebago tribe tried to establish this definition, but the court won’t let it fly,” said Estin, who teaches Indian law.

According to the Iowa Indian Child and Welfare Act, any unmarried Indian who is under the age of 18 or a child who is under 18 that an Indian tribe identifies as a child of their community. Enacted in 2003, its purpose is to clarify state procedures and policies for the federal act. Estin said she believes this ruling is not a step backwards because the federal legislation is still in place, which trumps the state legislation. The 1978 federal law is similar to the Iowa statue but includes Indians who are eligible for membership and who are biological children of a tribal member.’ Estin said a law based on ethnicity is difficult to uphold, and the Iowa statute has gone beyond the federal law.

“The biggest problem is Iowa’s definition of an Indian child is it turns on the child’s ethnicity,” she said. “If Iowa wants to revise the Iowa Indian Child and Welfare Act, it has a clear signal from the Supreme Court that it’s going to have to have some tie to tribal membership.”
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ICWA Case Law & other Authority

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May 012010
 

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

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

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

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

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

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Apr 292010
 

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

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

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

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

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

His answer: Absolutely not.

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

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

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

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

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

The Legal Meaning of “Commerce” In the Commerce Clause – 80 St. John’s L. Rev. 789 (2006)
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Definition of Indian Child Welfare Act

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Jul 042009
 

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To all the Congressmen and State legislators that believe the Indian Child Welfare Act is a “no-brainer” good thing:

The Indian Child Welfare Act (ICWA) is

1) Making it harder for families of heritage to choose to keep their children off the reservation.

2) Selling out my children and grandchildren to tribal government.

3) An anti-family, pro-government justification for the taking of children for the sole purpose of maintaining the power a select group has come to enjoy.

And no – my birth children have never been in subjected to any custody battle. However, the potential was there if my husband and I should pass away. Now, my husband has passed, and I’m all that’s left to keep them out of the hands of tribal government,

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States Not Complying with ICWA – for Good Reason

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Jun 152009
 

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

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

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

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

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

The law itself is a crime, and as long as it stays that way, there will be difficulty in getting compassionate people to comply.
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Two more families ask for help

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Jun 082009
 

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We recieved two more letters this last week asking for help.

One is from an aunt of an enrollable child. The other is a foster / pre-adoptive home. They both need lots of prayer and good legal advice.

I am still having trouble finding time to update our website with letters. I don’t think I’ve updated it in a year. But that doesn’t mean the letters have stopped coming. It just means I’m overwhelmed with the children in my home, and trying to provide for everyone.

The problems with ICWa continue to exist and are hurting children across the country.

I pray for time to update the many letters we’ve recieved.
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Reality of Taking in Kids With FAS

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Jun 052009
 

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To the Foster and Adoptive Parents who are loving and in love with babies exposed to alcohol:

Yes, all children need love and being loved does make a huge difference in the life of every human being.

However, if you have other children in your home, you need to think this through very carefully. Especially if the children are around the same age.

All the love you can give the child affected by alcohol and drugs will not necessarily erase all the damage done in utero. Yes, we can pray and God does heal. But God is also sovereign and has the right to decide to allow some afflictions to continue and exist.

I had been raising four affected children for the last 13 years, along with five of my birth children. The two oldest have become adults and are no longer in the home. The two that were babies when I recieved them are still in the home.

I do believe the oldest of the four was a terrible, terrible influence on several of my children. Looking back, remembering how he was giving the younger boys weed when they were only 10 and 11 years old while at the same time appearing to be so charming and cooperative – one can see now that he was a master at being two different people.

People without a conscience have the ability to be appear completely charming and innocent because they have no conscience or guilt.

I was talking to someone the other day and began remembering all the different things; not just drug and alcohol abuse, but sexual issues, lying, stealing, conning, attempting to break into someone’s home, trashing another home, and much more. We had been fighting his worst behavior for seven or more years, but kept giving him more chances – keeping him in the home and around other children – because he was so convincing about being sorry or even innocent. There were also many things I didn’t find out about until much later.

Now I am looking around and seeing the fruit of that 13 years of work. Not only have the two oldest returned to their birth families and are abusing drugs and alcohol, (the oldest to the worst degree, as if he had never been raised any other way) I am also expriencing deep issues with most of my birth children.

Remember that group called Al-anon? That group exists because of the universal emotional hardship of living with someone that is an alcoholic. Living with and loving a person that is dishonest, manipulative and has the ability to make you believe that everything wrong is your fault takes a huge emotional toll.

Do not fool yourself into thinking that your birth children will not be affected by living with someone that has fetal alcohol issues. Children with fetal alcohol struggle with understanding cause and effect. They tend to think of things in terms of immediate gratification, are very self-oriented, and they frequently lack what we call a conscience.

I am now left wondering if what one pastor had told me is true – that I sinned when I took in extra children and neglected my own.

I had one of the two boys that are still in my home taken to a facility two nights ago, and a doctor there is recommending and in-patient treatment for him. We are still waiting to see if Medicaid will pay for it. I might have to bring him home again tonight if we don’t get a response from Medicaid today. If Medicaid doesn’t okay the treatment, I’m not sure what my next step will be. I’ve got to begin thinking about my two birth children who are also still home and start making them a priority – for the first time.
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ICWA steals adoption option from Young Mother

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May 282009
 

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My teenager is pregnant. Freshly graduated from high school, she had planned to go on to college in the fall. There is no argument, from her or me, that she made plenty of foolish decisions over the winter. But here we are, and what do we do now.

We love children, and we love this child. We won’t allow it to be hurt in any way. Abortion isn’t even a consideration. It’s not gonna happen.

But neither is adoption an option. The Indian Child Welfare Act would kick in if we tried it. But it would be over my dead body, literally, that I sit back and allow the tribe to have anything to do with the care and custody of my grandchild.

Too many childen on the reservation, under the “care” of tribal governments, are being raised amid poverty, violence, and alcohol, drug & sexual abuse. Tribal leaders claim that this is the best interest of the child. Bull.

The only ones benefiting from this set up are the tribal leaders themselves – and the money and power they have aquired by having a certain number of tribal members under their thumbs.

Quit blaming rotten reservation life on what happened 150 years ago, 100 years ago, 50 years ago, or even 5 days ago to this or that tribe or tribal member. It has to do with adults making rotten choices, same as my daughter (and I) have done. Plain and simple, everyone needs to grow up and take responsiblity for their lousy lives. And quit subjecting innocent children to the garbage they’re being subjected to.

We are faced then with only one choice – my daughter keeps custody and lets go of many the plans she had for the future, or at the very least, greatly adjusts those plans.

I will do all that I can to help her get through some type of schooling and care for her child. If I have to take physical care of my grandchild, I will do it without going to court for legal custody. I’ve seen too many grandparents robbed of their grandchildren by the tribe to want to mess with it.

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Another Win Against ICWA

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May 152009
 

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A child and his family won in court at 2 pm Friday May 8, 2009. The child won the right to be adopted by the family his birth parents had chosen. The tribe lost. Praise God.

The child’s grandmother by birth wrote, “Thanks to everyone for all the prayers and support during the past two years. It has been quite the battle and I know this is but one small victory over ICWA. Thanks again.”

This may seem like a small victory to this humble grandmother, but for the child, it is a huge victory. Again, Praise God.
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ICWA Continues to hurt Famlies

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Apr 132009
 

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We get at least three letters a month at http://www.CAICW.org from families that need help. The Indian Child Welfare Act is hurting them and their kids. But we don’t have much for staff at CAICW. It’s a volunteer org made up of busy parents. We care, we pray, we encourage, we tell our stories. We try to connect people that can help each other.

But the Tribes have the money and attorneys. Tribal government leaders want our children to bolster their memberships, bring them more money, and help them to keep their little kingdoms. They don’t really care about what’s good and right for our kids. All our kids are to them is warm bodies that bring federal dollars.

And what would the BIA be if all tribal members left the tribal system? The BIA doesn’t want to lose its purpose – and people that work for the BIA don’t want to lose their government jobs.

Lord Please help us. It’s a tribal industry and our kids are pawns in a game.
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Tell Your Representatives to Make These Legislative Changes! Part Three

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Jan 032009
 

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

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

However;

a) Tribal governments have been given the right as sovereign entities to determine their own membership at the expense of the rights of any other heritage or culture as well as at the expense of individual rights.

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

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

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

e) Keeping children, no matter their blood quantum, in what the State would normally determine to be an unfit home on the basis of tribal government claims that European values don’t apply to and are not needed by children of tribal heritage is racist in nature and a denial of the child’s personal right to life, liberty and the pursuit of happiness. (ftn5)

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

PLEASE PRESS YOUR LEGISLATORS TO CHANGE ICWA LAW

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Tell Your Representatives to Make These Legislative Changes! Part Two

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Jan 022009
 

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4. United States citizens, no matter their heritage, have a right to fair trials.

a) When summoned to a tribal court, parents and legal guardians, whether enrolled or not, have to be told their rights, including 25 USC Chapter 21 § 1911. (b)
“Transfer of proceedings [to tribal jurisdiction] …in the absence of good cause to the contrary, [and] objection by either parent…” (ftn5)
b) The rights of non-member parents must be upheld: for example; 25 USC Chapter 21 § 1903. Definitions “Permanent Placement” (1) (iv) “shall not include a placement based … upon an award, in a divorce proceeding, of custody to one of the parents. (ftn5)
c) Non-members have to be able to serve county and state summons to tribal members within reservation boundaries and must have access to appeal. (ftn5)

5. Adoptive Parents need well defined protections. These are the citizens among us that have been willing to set aside personal comforts and take in society’s neediest children. Adoptive parents take many risks in doing this, the least of which is finances. People build their lives around family. Adoptive parents risk not only their own hearts, but the hearts of any birth children they have as well as the hearts of their extended family. These parents have an investment in the families they are building and have a right to know that they can put their names on the adoption paper with confidence. If we, as a society, continue to abuse these parents, we will find fewer people willing to take the risk of adoption and more and more children will languish in foster homes.

6. A “Qualified expert witness” should be someone who is able to advocate for the well being of the child, first and foremost: a professional person who has substantial education and experience in the area of the professional person’s specialty and significant knowledge of and experience with the child, his family, and the culture, family structure, and child-rearing practices the child has been raised in.

Last Part coming…
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Grandparents, Hurt by ICWA, write:

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Dec 242008
 

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“We are in a situation where we have a daughter-in-law who is 1/8 (tribal) —and one grandchild 1/16 (not eligible per blood quantum), who have been become part of the Department of Human Services system.

We are the closest blood kin, as paternal grandparents, and want to provide for our 10 month old granddaughter while our son and his wife meet the requirements and hopefully reunite their family in 3 to about 9 months.

I say “hopefully” now that the… (tribe) has become involved. They say they have “rights” based upon the Indian Child Welfare Act based upon descendancy!”

… 3 years later

…We paid over $55,000 of our retirement monies because of the tribe and ICWA–

…. We had to help our daughter-in-law in the same fashion as our son, because her family/tribe did nothing but put their full force into destroying the family, and using ICWA did irraparable damage to our families in composition, financially, emotionally.

We firmly believe that when our son and wife try to begin another family, the tribe will find them and destroy whatever peace they might achieve, inventing whatever lies they might to achieve their own ends. Do I sound bitter? You bet. I need to do something constructive, but with our own situation, with illness, and now, having much less financial resources, must first try to keep our own heads above the financial waters. …

Sincerely, (name), former grandparents of (child’s name)
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Possible Incentives for ICWA –

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Dec 152008
 

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Tribal Government Funding?

Ms. Scott Kayla Morrison, a member of the Mississippi Choctaw Tribe as well as an attorney specializing in Indian law, wrote in 1998, “ICWA is a money-driven program for the tribes from three perspectives: 1) federal funds generated by tribal membership; 2) federal income to fund program jobs; and 3) federal funds to administer courts adjudicating ICWA cases.

– “First, each tribal member generates $5,000 (1992) for the tribal administration from the thirteen federal agencies funding Indian programs. The more members, the more federal funds. With no blood quantum [required], [some tribes allow] a person with as little as 1/2000th (to) be enrolled as an Indian. If an Indian child is adopted by non-Indians, the tribe loses $5,000 a year for the lifespan of the child.

– “Second, federal dollars fund the ICWA program for the tribe. This generates jobs for tribal administration directly through program funds and indirectly through administrative costs. Of every federal dollar allocated by Congress, 89 cents goes to administer the Bureau of Indian Affairs. The remaining 11 cents goes to tribal administration. The Choctaw administration is allowed to take 46%, almost half or 5.5 cents, for administrative indirect costs. The remaining 5.5 cents are used to administer programs like ICWA. The more membership to serve, the more money the tribe requests that generates more jobs and more indirect costs. Allowing adoption outside the tribe cuts into the pocketbook of tribal administration.

– “Third, one purpose of a tribal court or a Code of Federal Register (CFR) Court is to adjudicate ICWA cases. The amount of federal funds allocated to the court is based on the number of cases served by the ICWA
program. The court program funds generate indirect costs and jobs.”

Ms. Morrison was correct. As a matter of fact –

– According to ACF Administration For Children and Families, U.S. Department of Health and Human Services, May 9, 2007, Child Care Bureau, Office of Family Assistance –

“Tribal Child Counts: For funds that become available in FY 2008, ACF will calculate grant awards based on the number of children under age 13. A Tribe must submit a self-certified Child Count Declaration for children under age 13 (not age 13 and under), in order to receive FY 2008 CCDF funds.

“ – Tribal Lead Agencies are reminded that CCDF funds are allocated based on child counts of children from Federally recognized Indian Tribes, consistent with the Child Care and Development Block Grant Act’s definition of Indian Tribe.”

– According to Aneva J. Yazzie, Chief Executive Officer, Navajo Housing Authority
In her testimony before the Committee on Indian Affairs, United States Senate, on Reauthorization of the Native American Housing Assistance and Self-Determination Act, July 18th, 2007, Washington, DC

“The most contentious issue facing Indian housing in the last few years has been the use of Census data to determine funding allocations. NHA has been heavily involved in this discussion because we believe this is not just a debate about how funds are allocated; it is fundamental to NAHASDA and to all Indian programs. Tribal housing must remain for tribal members and tribal members should be counted when determining funding allocations.

“…We support the use of tribal enrollment data, not Census data, to determine need under NAHASDA. Until terms of verifiable enrollment data can be agreed upon by federal government and tribal representatives, NHA urges a return to the use of single-race Census data because, while imperfect, it is the better approximation of tribal enrollment numbers.

(NOTE from Blog Author: Census data shows that NOT ALL ENROLLED MEMBERS are LIVING on the RESERVATION. Tribes would only recieve funds for members actually living on the reservation. Therefore, Tribes perfer Enrollement Numbers because THEY INCLUDE MANY WHO HAVE MOVED AWAY and who, like our family, have NO INTEREST in using tribal funds or programs.)

“… One change in federal law we would like the Committee to consider would be the elimination of the prohibition from using Indian Health Service funds in concert with NAHASDA funds… The concern that the lack of available funds means we should keep these funding streams separate may be well-intended, but it flies in the face of
Tribal self-determination.”

– According to the 2003 DOI-BIA Indian Population and Labor Force Report, mandated by order of Public law 102-477, “The Indian Employment, Training, and Related Services Demonstration Act of 1992:

– Total number of enrolled tribal members and members from other tribes who live on or near the reservation and are eligible to use the tribe’s Bureau of Indian Affairs funded services – Total 2003 Tribal enrollment – 1,923,650. 5.9% increase from 2001 labor force report, 34.7% from 1995. The 2003 increase is attributed to updated tribal rolls, improved record keeping procedures, and revisions to tribal enrollment criteria.
– Total 2003 Service population 1,587,519. 4.2% increase from 2001 labor force report. 26.0% from 1995. It is also a 216% increase over the Total Service Population reported in 1982. The 2003 Service Population increase is attributed to increased record keeping and improved data collection methods, as well as eligible Indian individuals and families who came to reside in the tribe’s service area to benefit from opportunities and services unavailable to them in off-reservation
communities.
– 562 Federally recognized tribes

– Several corporate and “at-large” Alaska tribal entities formed by the 1971 ANCS Act.

– From Indianz.com, “House panel boosts funds for Indian Programs”, Monday, June 11, 2007. accessed Aug. 30, 2007 –

– Indian Education, urban health clinics, law enforcement, and language preservation will see boosts in funding under bills advanced by the House Appropriations committee last week.
– At a markup on Thursday, the committee approved 5,7 billion for Indian programs at the Interior Department and related agencies, including the Indian Health Service….
– The bill “honors our obligations to Native American communities, making investments into better education and healthcare,” the committee said of the overall $27.6 billion package, an increase of 4.3 percent over current levels.”

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ICWA is nothing but “Routine Cruelty” – by Professor Thomas Sowell

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Dec 122008
 

October 30, 2001
– Mr. Sowell is currently a senior fellow at the Hoover Institute in Stanford, California.

In a world where the media are ready to magnify innocuous remarks or a minor problem into a trauma or a disaster, there is remarkably little attention being paid to cruelties routinely inflicted on children by our laws and our courts. That cruelty is ripping children away from the only home they have ever known, to be sent away — often far away — to be raised by strangers.
Such drastic action may be necessary when children have been abused or neglected, but kids have been seized from loving homes where there has never even been an accusation of abuse or neglect. As with so many irrational acts, race and political correctness are involved. One of the children who is currently being threatened with this fate is a little boy in California named Santos, who may be sent off to live on an Indian reservation in Minnesota, among people he has never known, speaking a language he does not understand. Moreover, the single woman who is trying to adopt him there has said that she plans to put him in day care, which he has never been in before. He has been cared for at home by a married couple since he was 3 months old. He will be 3 years old on Nov. 25.

How could such an insane situation have arisen? Easy. It is called the Indian Child Welfare Act. And it began, like so many catastrophes, with good intentions. Back in 1978, Congress passed the Indian Child Welfare Act to prevent Indian children from being removed from their families and tribes by outside know-it-alls and social engineers. So far, so good. But, once a law is on the books, it means whatever the lawyers and the courts say it means. That is how little Santos got trapped in a nightmare.

Santos is part Indian, but neither he nor his biological parents lived on a reservation or among an Indian tribe. When he was born and began suffering withdrawal because of his mother’s cocaine addiction, the authorities took custody of him. He was put into a foster home with a Spanish-speaking couple whom he now regards as his parents and who want to adopt him. Santos’ biological mother has shown very little interest in him — and even that little bit of interest has not been reciprocated by Santos. He has hung up on her when she phoned and cried when she visited. The woman on an Indian reservation did not even know of Santos’ existence until informed by the tribal council, which wants to claim him under the Indian Child Welfare Act. Six months later, she saw the little boy for the first time.

It gets worse. Two psychologists have become involved in the case. Shrink A has “spent approximately 10 minutes alone” with Santos, according to the California Court of Appeal in its ruling this past Oct. 19. She did not interview the couple with whom he has been living all this time, even though a Spanish-speaking social worker was available to enable her to converse with the boy’s foster parents. Nevertheless, Shrink A has decided that Santos would be better off being “moved to be with his tribe and his family” on a reservation in Minnesota. This strained definition of “family” is based on the fact that the woman on the reservation is a distant relative of his mother. Incidentally, Shrink A has never interviewed this distant relative either.

Undaunted, Shrink A has said that Santos would not be “catastrophically damaged” by the change because Santos has not “bonded” with his foster parents, but has “bonded to his birth mother, who is unable to care for him.” This strained definition of bonding is based on counting the time spent in his mother’s womb, as well as the 9 days he spent with her after birth. A second psychologist based his conclusions on what he had actually seen, rather than on such speculations. What he saw was that little Santos clings to his foster mother and became distressed when his foster father was asked to leave the room, crying “papa, papa.” At another time, when Santos was with his foster father and Shrink B wanted to see the little boy alone, Santos became “clingy” with his foster father and “hugged him tightly while exclaiming ‘papa, papa.'” Little Santos has not yet been sent to Minnesota. The appellate court said that the “matter is remanded for further proceedings,” which means a continuing cloud of uncertainty hanging over a little boy who has become a little pawn. How could anyone do this to him? Tragically, it has happened to many others.

– Sowell, Thomas, Routine Cruelty, October 30, 2001. Online document, available from http://www.townhall.com/columnists/thomassowell/ts20011030.shtml Accessed Monday, May 31, 2004. Reprinted with permission.

Update: Santos was legally adopted in 2003 by the foster parents who had cared for him most of his life. Their attorney was Native American.
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Another Problem with ICWA –

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Dec 092008
 

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Prevailing social and cultural standards of the Indian community?

Exclusive jurisdiction by the tribe is scary enough for many foster and adoptive parents, but imagine how it feels for birth parents, both tribal and non, that have chosen to raise their children outside of the tribe.

If these parents should unexpectedly die, ICWA requires that “the prevailing social and cultural standards of the Indian community in which … extended family resides…” be applied in placement preferences.” 25 USC 1915(d). There is no other race in the United States who are denied parental right of choice in this way.

The question arises, “What is referred to by social and cultural standards?”

If it is referring to traditional Indian Spirituality, the 1st Amendment of the Bill of Rights states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

If it is traditional culture that is being referred to, such as language and food gathering methods, many elders, but fewer young people, practice these on the reservations today. Many teenagers are simply not interested enough to work at the language, and few honor ancient ways of hunting, fishing or harvest that was traditionally considerate and took only what was needed for the family. Does social and cultural standards refer to a romantic image or reality?

This is not to say that there are no tribal members that practice tradition. There are. But tradition is not the current standard on most reservations. There is still interest in art and craftwork, both traditional and modern approaches, but this interest in Indian art crosses racial lines and is enjoyed all over the world. Is it for art that we are placing children under tribal jurisdiction?

If the above isn’t “prevailing social and cultural standards, then what is?

Sadly, the current cultural and social standards of many reservations (not all) include gambling, gang activity, promiscuity, drug and alcohol abuse, crime, unwed pregnancies, violence in and out of the homes, and child neglect. On top of all that, there is epidemic corruption within many tribal administrations.

This is not to say that reservations alone have problems of alcoholism and corruption. All of these problems can be found in any neighborhood, anywhere. But it does appear that on some reservations, these problems are a prevailing cultural and social standard.

So just what is Congress mandating when it states that social and cultural standards of the reservation be applied?

The problem is that Congress – based on faulty assumptions concerning tribal standards – is mandating that OUR children – who aren’t owned by the tribes – be raised under less than safe conditions if we are no longer able to raise them.
In mandating that the tribes have jurisdiction over OUR children, Congress is mandating that OUR children receive less concern over their best interests, and less child protection than children of other heritages would recieve under the same circumstances.

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Adoption Counselor asks a Question –

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Dec 062008
 

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“I am an adoption counselor at a private agency. I am working with an expectant mother who has chosen to place her baby for adoption with our agency. She and the birth father have found a family they want to raise their son and their adoption will be open. The birth mother is ¼ Native American and not an enrolled member and the birth father has no heritage. The birth mother placed two other children for adoption in the past with the tribes blessing. Now, the tribe has said they have chosen a family on the reservation to adopt this baby and they will not budge. We thought that the child had to be an enrolled member or one of the birth parents in order for a tribe to take a child – especially in a voluntary relinquishment. Do you have any information that would help us? Thank you.”

Response – Disclaimer –I’m not an attorney, and the only advise I can give the couple is to get a good attorney as soon as possible. Too many families don’t get an attorney right away, thinking this isn’t a big deal, and it really is. They need to find a GOOD attorney that knows the law well and is able to fight for the family’s rights. Encourage them not to settle with an attorney that is going to roll over for the tribe – afraid to stand up and demand that the law be followed. Too many tribes, having more money and access to attorney’s than many of the low-income families in situations such as this – can be somewhat bullying, and sometimes push for their will even if it has nothing to do with the law.

…. as I understand it, one parent to another – If the mother isn’t enrolled – the tribe shouldn’t be able to usurp the birth family’s wishes. Again, I’m NOT an attorney and am NOT giving legal advice. That’s just what it seems it says – (1903 (4)

……get an attorney right away, try to keep in county or state court rather than tribal court, and if your attorney agrees, make it clear from the start that this is NOT an ICWA case, as the mother is not enrolled. Keep that mantra up. This is NOT an ICWA case. Get that nipped in the bud right away in order to get this over with quickly – with the least amount of cost.

Further – 1911 (b) “absent objection by either parent” – It seems to me that this is saying that the tribe can transfer the case to tribal court, unless one of the parent’s objects. Again, I’m not an attorney – but I would tell the state court, if it were me, that I strongly object to any type of transfer.

And don’t forget to pray – we’ve see amazing answers to prayer.

UPDATE

“Thank you so much for your quick reply. Your information has helped me understand the ICWA law. We have contacted a very good attorney.
It is clear by this tribe’s own membership code that the child must be ¼ blood quantum and have a biological parent who is a member in order to be eligible. This child is 1/8. Although I think the adoptive parents would most likely win this case, the cost of litigation (financially and emotionally) has to be seriously considered. It is so sad that the birth parents may not get their first choice in families because of this. The family has to be willing to endure thousands in court costs. Thank you so much for the work that you do. Blessings,”
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One Problem With ICWA – Qualified Expert Witness

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Dec 032008
 

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According to Chief Judge-Sisseton-Wahpeton Sioux Tribal Court, Director-Northern Plains Tribal Judicial Institute-University of North Dakota Law School, three stages of ICWA contain a requirement of qualified expert testimony to support state court action
– foster care placement,
– termination of parental rights and
– deviating from the foster care and adoptive placement preference due to the extraordinary needs of the child. (25 U.S.C. SS1912(e); 1912(f), BIA Guidelines, F. 3 at 67594.)

The failure to produced qualified expert witness testimony may vitiate any proceedings held in state court. See In re. K.H., 981 P.2d. 1190 (Mont. 1999); Doty-Jabbar v. Dallas County, 19 S.W.3d 870 (Tex. App. 5th Dist. 2000).

The ICWA does not define, “Qualified Expert Witness.”

However, IN THE MATTER OF THE ADOPTION OF H.M.O. , No. 97-262, MT 175, (1998), it is stated “the Guidelines for State Courts; Indian Child Custody Proceedings (the Guidelines)”, defines expert witnesses for ICWA purposes. Matter of M.E.M. (1981), 195 Mont. 329, 336, 635 P.2d 1313, 1318.

The Guidelines: D.4. Qualified Expert Witnesses
(a) Removal of an Indian child from his or her family must be based on competent testimony from one or more experts qualified to speak specifically to the issue of whether continued custody by the parents or Indian custodian is likely to result in serious physical or emotional damage to the child.
(b) Persons with the following characteristics are most likely to meet the requirements for a qualified expert witness for purposes of Indian child custody proceedings:

(i) A member of the Indian child’s tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization and childbearing practices.
(ii) A lay expert witness having substantial experience in the delivery of child and family services to Indians, and extensive knowledge of prevailing social and cultural standards and childbearing practices within the Indian child’s tribe.
(iii) A professional person having substantial education and experience in the area of his or her specialty.

44 Fed.Reg. 67584, 67593 (1979).

Despite the third category, H.M.O goes on to say:

33. ..” courts have held that social workers must have qualifications beyond those of the normal social worker to be qualified as experts for the purposes of the ICWA. See, e.g., In re Elliott (Mich. Ct. App. 1996), 554 N.W.2d 32, 37 (citation omitted); Matter of N.L. (Okla. 1988), 754 P.2d 863, 868 (citations omitted). Those courts based their conclusions on the legislative history of the ICWA which requires “expertise beyond the normal social worker qualifications.” See In re Elliott, 554 N.W.2d at 37 (citation omitted); Matter of N.L., 754 P.2d at 868 (citations omitted); see also House Report for the Indian Child Welfare Act, H.R. 1386, 95 Cong., 2d Sess. 22, reprinted in 1978 U.S.C.C.A.N. 7530, 7545. Based on these cases and legislative history, we hold that a social worker must possess expertise beyond that of the normal social worker to satisfy the qualified expert witness
requirement of 25 U.S.C. § 1912(f).

34 As discussed above, Jackman’s report contains no substantive information regarding her qualifications and experience other than that she was a social worker employed by the Department. On the basis of the record before us, we hold that the District Court abused its discretion in concluding that Jackman was a qualified expert witness for ICWA purposes.

QUESTIONS:

  • If a child is 1/2 Hispanic and has been raised in a Hispanic community, speaking Spanish, does the prevailing social and cultural standards of the tribal community still take precedence in the placement of that child?
  • What if the child is 9/10 tribal, but his parents simply chose to raise him in an alternate community with alternate standards and customs?
  • What is the “tribal community?” If the child lives in an inner city tribal Community, would that then be the child’s tribal community? Does an inner city tribal community have the same customs, cultural standards and child rearing practices as a closed reservation does?
  • Wouldn’t a witness be more qualified and expert in the well being of the child if the witness understood the community in which the child has been raised and the community within which the family exists, rather than the community in which the tribe exists?

Who is the Expert Witness testifying for?

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The ICWA has frequently been supported by One-Sided Testimony

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Nov 302008
 

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The Montana Supreme Court noted in Skillen v. Skillen, No. 96-520, MT 43, (1998) that “after extensive hearings” Congress found the ICWA was necessary.

But what is meant by an “extensive” hearing? Most Americans would assume it means “far-reaching,” “thorough,” all-embracing,” and “evenhanded.”

However, the 1978 testimony was NOT fully representative of the people the Act affects.

  • Were representatives of enrolled parents or non-enrolled parents invited to speak?
  • Did anyone speak for non-enrolled parents?
  • Were tribal members that enjoy living within the dominant American culture invited to say so?
  • Were people that were happy with the non-tribal foster homes they were raised in represented?
  • Were parents notified that tribal lawyers, adoption agencies, and politicians were discussing a law affecting their rights and the best interests of their children?
  • If these people were not represented, was the 1978 testimony fully thorough?

In 1996, an aide to Senator Max Baucus (D-MT) stated that parents and caregivers weren’t invited to Senate ICWA Hearings because the Senators had already chosen who they want to hear, and they already had a full panel.
That panel consisted of tribal leaders, adoption agencies, social workers, and lawyers representing the tribal governments. There was no one there to speak for opposing families.
The aide, mentioning Rosy Parks and the number of people that participated in civil rights marches, went on to say that unless we could come up with a large number of people wanting ICWA changed, they had no interest in hearing what we had to say.

Our Rights Don’t Matter.

Please read our “Family Stories“ section to learn more.
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Kids Dress Up for Thanksgiving Pageants – Good for All

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Nov 292008
 

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Claremont kindergartners, who for years have celebrated Thanksgiving by dressing up as pilgrims and Native Americans sharing a feast, are no longer allowed. Michelle Raheja, the mother of a kindergartner , has said it’s demeaning.

Jennifer Tilton, assistant professor of race and ethnic studies at the University of Redlands and a Claremont parent, said, “Its always a good thing to think about, critically, how we teach kids, even from very young ages, the message we want them to learn, and the respect for the diversity of the American experiences.” Tilton opposes the costumes.

Right. We should think critically about how we teach the kids. Therefore, as the mother of nine enrolled members of the Minnesota Chippewa, I have no problem with Thanksgiving pageants. In fact, PLEASE. PLEASE let us have more of that type of thing! Are you kidding me? After the hate-filled campagin season we just had – listening to people drag Sarah Palin through the mud just because they didn’t agree with her, as well as all the other increasingly nasty aspects of our society …Here we have an annual lesson in cooperation, thankfulness and love using fun, creative methods to teach the kids with. It gives the kids a history lesson while showing them how different groups can get along and enjoy each other, even if they don’t agree on all aspects of life. And the left wants to take that away? Seems to me we should be increasing this type of teaching. Maybe have some parents dress up and play like they are walking in someone else’s moccassins as well.

This lesson teaches that it’s possible to set aside differences and enjoy each other. And Kids have fun doing it! And yet, the intolerant, self-righteous thought police, bent on causing division and anger in their ever nasty pursuit of what they perceive as tolerance and love, have found another community event to shut down.

What’s wrong with kids learning that their father’s ancestor’s might have sat down with their mother’s ancestors and had a great meal? I think it’s an awesome thing to think about! (MOST tribally enrollable children are less than 100% Native American today. Most are in fact less than 50% Native American.)

Even if the story isn’t completely historical, the fact is that it did happen – they did sit down together and celebrate. I say all those anal people that want this type of pageant to stop should pull their kids out of public school and homeschool them. Leave everyone else alone.
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ICWA was originally based on some false assumptions

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Nov 272008
 

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– The first assumption is that values within the Indian culture are unique, and the culture of non-Indian relatives and society is of less value. The Truth is – there are no unique value systems within Indian Country. There is nothing new under the sun. In addition, the value systems of all cultures, and every facet of a child’s heritage, are valuable.

– The second assumption, that tribal governments can retain “their” children, supposes that tribal governments have sovereign ownership of individuals, and that these individuals need to be under the jurisdiction of tribal government in order for traditional culture to carry on. The Truth is – Tribal governments do not own our children. Tribal members are American citizens, entitled to life, liberty and the pursuit of happiness. Whether we are 100% Native American or 100% not, we parents should not be forced to make important life decisions based on what is best for tribal government. Additionally, tribal culture, or any culture, will exist as long as the people who love it carry it in their hearts and pass that love to their children. Government force does not preserve tradition; families do.

– The third assumption is that all families and individuals of Native American heritage think, feel and desire the same things, and any person with a small amount of heritage is automatically better off within the Indian community. ICWA requires that “the prevailing social and cultural standards of the Indian community in which … extended family resides…”be applied in placement preferences.” But not only where a third cousin might reside, the act states, “or with which …extended family members maintain social ties…,” further degrading the parents right to choose where and how they want their children raised.

The Truth is – Humans desire choice and have time and again fought for the freedom to make those choices. That is just as true today as it has been any other time in the history. In America, we are proud of our democracy, equality, and the right all citizens have to make individual choices and live life to their fullest.

We try to help other countries achieve the same. Are Native American citizens allowed less?
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ICWA has interfered with Parental Rights

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Nov 242008
 

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In 1989, the US Supreme Court declared in Mississippi Band of Choctaw Indians v. Holyfield that tribal jurisdiction preempted both state authority and the wishes of parents. The Court concluded an Indian tribe and an Indian child have an interest in maintaining ties independent of the interests of birth parents, and thus, “Congress determined to subject (voluntary) placements to the ICWA’s jurisdiction …because of concerns going beyond the wishes of individual parents.”

They then made the chilling statement, “These concerns demonstrate that Congress could not have intended to enact a rule of domicile that would permit individual Indian parents to defeat the ICWA’s jurisdictional scheme simply by giving birth…off the reservation.”

Therefore, whether a parent is four-quarter Indian or totally non-Indian, ICWA states, “… the Indian tribe shall retain exclusive jurisdiction…” and if a tribal entity requests, “…the (State) court…shall transfer … to the jurisdiction of the tribe…”

In essence, Congress has consigned our children to tribal government, and opting out is not an option. We could refuse to enroll our children into the tribe, but a child does not need to be enrolled in order for ICWA to apply. ICWA pertains to any child the tribe deems enrollable.

Thus, many more children and families are affected than even realize it. Tribal governments have the right to define their membership. This means they have a right to decide the percentage of blood needed for enrollment. Most tribal constitution require one-quarter blood quantum for membership, but some allow membership with as little as 1/64 blood quantum.

Therefore, up to 3/4 or more (in some cases 63/64!) of a child’s non-Indian heritage can be legally ignored by the courts, and tribal governments have been allowed jurisdiction over children with the smallest amounts of Indian blood.

The truth is, many tribaly enrolled parents have left the reservation because they don’t feel it is the best place to raise their children. (According to the US census, almost 80% of those classifying themselves as Indians live off reservations.)

Steve Moore, a Staff Attorney with Native American Rights Fund, estimated that 1.96 million people of Indian ancestry live off the reservations. He said that puts the tribal courts at a disadvantage in custody cases. Turning a blind eye to individual rights, he further stated,
“There’s been an obvious effort by state court judges to create loopholes and exemptions to the point that I believe Congress needs to take the matter up again.”

and

“The bottom line is Indian children are the lifeblood of Indian tribes as a population base diminishes due to these cases.”

There is no mention in the article as to why 1.96 million persons of tribal heritage have chosen to live off the reservation.

Most people in America enjoy the freedom to raise their children as they see fit, even if it is contrary to the way their extended family is raising children. Those parents also have the right to name a guardian for their children who will raise them in the manner they desire. They can put that choice in their will and have those wishes honored.

Shouldn’t the parents of tribally enrollable children have that right as well?
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