(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/

Declared “Sanctuary” for Children Running from ICWA –

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Feb 202017
 
sanctuary

Over the years, we have seen so many distraught families – panicked over what was happening to their children, unsure what to do to protect them, and unable to get help.

Many times, especially in light of the new ICWA rules and guidelines published by the Obama admin in 2016, …there has been little a family could do.

Watching several families struggle at this current time, we have come to a decision:

Whereas, up to half of Americans believe sanctuaries from federal law are a good and reasonable necessity – where people, fleeing oppression from their home nation, can hide from federal law that would send them back to that home nation;

And Whereas; most American citizens believe federal laws that target, isolate, and separate children and families on the basis of heritage are unconstitutional and should not be allowed;

And Whereas, for decades in America, many Christian church buildings have served as sanctuaries, and while there is no law defining a sanctuary or mandating it be respected, the federal government has often declined to enter and forcibly remove people from a declared Christian Sanctuary;

And Whereas, federal authorities have shown their willingness to ignore state and federal law for the last two years when they declined to enter the Cheyenne River Reservation to remove two little girls who were taken from North Dakota by their non-custodial mother when their non-tribal fathers were granted legal custody; and federal authorities have also shown their willingness to ignore federal law in several cases during the 1980’s when Guatemalan illegal-immigrants sought sanctuary in various church buildings around the country;

And Whereas; many children of tribal heritage, even in teen years, have expressed their desire to stay with their chosen families and not be uprooted by tribal governments, but were ignored by tribal, state and/or federal officials;

And Whereas; many birth parents have objected to tribal jurisdiction over, or involvement in, their families, and have made it clear they do NOT want their children on the reservation or their custody case heard in tribal court, but were ignored by tribal, state and/or federal officials;

And Whereas; many extended family, of varied heritages, have had children removed from them by tribal officials for no other reason than that the tribal officials did not like that branch of the family, or the family was non-Indian, or there were friends or family of tribal officials that wanted the child;

And Whereas; there are many documented instances of tribal courts practicing corruption and nepotism in their choice of homes for children, despite clear evidence of harm to children in those homes;

And Whereas; an untenable number of children have been sexually abused, seriously injured or murdered as a result of placement in homes under the Indian Child Welfare Act;

And Whereas; there is solid legal argument concerning the unconstitutionality of the ‘Indian Child Welfare Act,’ and Justice Clarence Thomas intimated as much in his concurrence in the case, “Adoptive Couple vs. Baby Girl;

And Whereas; once a child has been placed in the custody of a tribal government, particularly within reservation boundaries, it can be extremely difficult to remove the child;

The Christian Alliance for Indian Child Welfare does hereby from this day forward declare itself a ‘Sanctuary for Children and Families Threatened by the Indian Child Welfare Act.’

Families will need to show:

1) It is in the child’s clear best interest to remain with them; or that while best interest might yet be unclear, the child needs more time for all aspects to be studied and for true best interest to be made clear; and
2) They are in imminent danger of being forcibly removed by tribal authorities and/or local police under the direction of tribal authorities.
3) They intend to tirelessly work a plan of action to prove and win the best interest of the particular child or children;
4) Understand the CAICW sanctuary they would stay in is a Christian home – where Jesus Christ is Lord.

Lastly, we fully respect President Trump’s position concerning federal funds – and can proudly guarantee we will not be requesting or requiring any federal funds for this Sanctuary.

Families can contact us by messenger or email.

PLEASE – share this message freely.

__________________________________________________

– – Those who object to this and see things from a progressive perspective can explain why they feel it is okay for sanctuaries to shield people of some heritages from some federal laws, but not people of other heritages from other federal laws.

– – Those who see things from a conservative perspective and object to any instance where a person is shielded from federal law… We can only beg your understanding that these children are American citizens, and the federal law in question does not provide equal protection. Please ask your Senators and Congressman to act quickly on repealing this law, so that no child of tribal heritage will need a sanctuary.

Lexi is not alone: New BIA rules ensure many children will be torn from their families

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Jun 112016
 

RE: Lexi, the little girl torn from her family in California after being labeled ‘Indian’ and subjected to a racist law; a law which as of June 8, 2016 – when the BIA published new, stricter rules – has become manifold worse for dissident and even non-Indian families.

Lexi is NOT alone. It is very important you know that. This is happening and has happened to many children across America. Two of our CAICW board members are former ICWA children and have told their story in the hope someone will listen.

This racist law is said to have been enacted to protect children – but we have a long list of testimony from families and former ICWA children stating the contrary.

We strongly believe the real reason for ICWA was never about protecting children – but about the fact that so many tribal members over the decades have taken their families and left the reservation system. According to the last two U.S. censuses – 75% of tribal members DO NOT live in Indian Country. People have been leaving for decades – – many times voluntarily as the incidence of crime and corruption on many reservations has grown.

ICWA, as written, fixes the membership drain – bringing back children and grandchildren of families who had left. It would not have been written to include unenrolled children, or children who have never had connection to Indian Country, if it wasn’t about taking back the children of dissident families. That is why tribal leaders have been so against the “Existing Indian Family Doctrine.” It is all about dissident families who have been deliberately keeping a distance.

Claiming that children have been kidnapped by social services – (while there was some historical truth to this to a certain extent) – has been a talking point meant to pull at the heart strings of America. Far more children have left the reservation system with their parents and extended family than have ever been taken by social services.

And many in our federal govt are helping the tribal leaders do this. The Tribal Justice Dept at the DOJ has made it clear on many occasions that they are not there to help individuals, they are there to support tribal governments. The BIA and the ACF do the same.

It appears the federal government has decided that tribal members themselves are expendable to the larger wishes and demands of tribal leadership. Any child with even a small amount of tribal heritage is less important than children of other heritages. They are deliberately left out of laws that protect other children.

These children apparently exist to be bandied about at the will of strangers within tribal governments – who have been granted the right to claim ownership over any child they choose…

The child’s best interest or feelings in the matter are apparently of no concern to the federal government or tribal leaders, who rake more federal dollars per head.

The new rules published by the BIA on June 8 make it even worse.

Who is factually benefiting from the demand that any child ‘in need of care’ who the tribal government decides to claim should be handed over to them?

The AG for the Cherokee Nation stated in 2012 that they had over 100 attorneys targeting 1500 children across the US – many of whom had less than 25% blood quantum and had never been near the tribe.

Why are they doing this?

Follow the money. Numerous federal agencies dole out funds to tribal governments based on the U.S census counts, tribal enrollment, and what is known as “child counts.”

QUOTE from the Federal Register: May 9, 2001 (Volume 66, Number 90): (Note – this is just ONE example of funding…)

    “Title IV-B 1 funding is a per-capita formula based on Tribal population under 21. Tribal allotments are deducted from the State’s total IV-B 1 allotment for that fiscal year.

    “Title IV-B 2 funding is a 3% set-aside of the total Title IV-B 2 budget for State and Tribes. The formula is based on a ratio of the number of children (under age 21) in the Tribe to the total number of children in all Tribes with approved plans.

    “Why apply? Title IV-B funds are very flexible and may be used to meet the unique child welfare needs of your community. Tribes determine their own priorities in developing goals and strategies.”

…That said… right now – at least 60 tribal governments are considering changing their constitutions to do away with “blood quantum” and go with lineage – so they can grow their numbers as the Cherokee Nation has – claiming children with as little as 1% heritage.

Follow the money.

WHEN we as citizens take our federal government back from those who have been using it as their personal playground and cash machine – can we get some help in ensuring ALL citizens – and children – are able to receive equal protection under the law?

One thing that MUST be done – is to STOP giving tribal leaders money on a ‘per head’ basis. STOP using our children as chattel – and a lot of this problem will go away.

(NOTE: NONE of the treaties promise funds based on number of children. In FACT – Most of the treaties only promised funds for a certain number of years – most often twenty years – and on a depreciating scale, while also providing goods and services during that time to help the reservation develop an economy. There is NO wording that funds will go on as long as the “grass grows.”)

People need to start actually reading the treaties.

FACT: MY children and grandchildren were never a treaty promise to the tribal government.

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.

Aug 132014
 
https://www.youtube.com/watch?v=TEogtESN5Wo

Sage was 4-years-old and one of the first children to be hurt by the Indian Child Welfare Act in 1978. She was 6-years when she and the family she loved went on the run to protect her from the law that intended to force to live with an abusive birth parent. She was 13 when she was finally forcibly taken from her family to be placed on the reservation with the birth mother who had almost killed her.

She tells her story of going on the run with her chosen parents, her trauma of being taken from them, and ultimate relief when she was finally released from the reservation and allowed to return home. To this day, thirty-some years later, she is upset by what the government and ICWA put her through.

– http://youtu.be/TEogtESN5Wo

Mark Fiddler Explains Adoptive Couple vs. Baby Girl

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Jun 032014
 
https://caicw.org

Adoptive Couple V. Baby Girl, State ICWA Laws, and Constitutional Avoidance

By: Mark D. Fiddler (fn 1)~
Minnesota State Bar Association Family Law Forum | Vol. 22 No. 2 | Spring 2014
http://www.mnbar.org/msba-home/msba-news/2014/05/13/family-law-forum-vol.-22-no.-2-spring-2014#.WMkEURsrKyI

One of the thorniest questions facing attorneys who practice adoption law is determining whether and how the Indian Child Welfare Act applies to voluntary adoption proceedings, especially cases where the birth mother, whether Indian or not, wishes to consent to adoption and the father does not otherwise have standing or any rights under state law. A raft of questions arise. Does ICWA apply? Does the unwed father have standing? Does the tribe have the right to notice? Does the father have the right to demand a termination trial and remedial efforts before an adoption may proceed? Does a fit birth mother have the right to place her child with non-Indians? Most of these issues were addressed in Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013), a landmark case decided by the United States Supreme Court on June 25, 2013, which dramatically reshapes adoption practice, and casts new doubt on the constitutionality of states’ laws which attempt to expand ICWA beyond its original reach.

The Facts (fn 2)~

While Birth Mother was pregnant with Biological Father’s child, their relationship ended and Biological Father (a member of the Cherokee Nation) agreed to relinquish his parental rights. Birth Mother put Baby Girl up for adoption through a private adoption agency and selected Adoptive Couple, non-Indians living in South Carolina. For the duration of the pregnancy and the first four months after Baby Girl’s birth, Biological Father provided no financial assistance to Birth Mother or Baby Girl. About four months after Baby Girl’s birth, Adoptive Couple served Biological Father with notice of the pending adoption. In the adoption proceedings, Biological Father sought custody and stated that he did not consent to the adoption.

Following a trial, which took place when Baby Girl was two years old, the South Carolina Family Court denied Adoptive Couple’s adoption petition and awarded custody to Biological Father. At the age of 27 months, Baby Girl was handed over to Biological Father, whom she had never met. The State Supreme Court affirmed, concluding that the ICWA applied because the child custody proceeding related to an Indian child; that Biological Father was a “parent” under the ICWA; that §§ 1912(d) and (f) barred the termination of his parental rights; and that had his rights been terminated, § 1915(a)’s adoption-placement preferences would have applied. In a 5-4 decision, the United States Supreme Court reversed, holding:

(1) the Indian Child Welfare Act (ICWA) section conditioning involuntary termination of parental rights for Indian child on a showing regarding merits of continued custody of child by parent does not apply where Indian parent never had custody;
(2) ICWA section providing that party seeking to terminate parental rights to Indian child under state law shall satisfy court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent breakup of Indian family and that these efforts have proved unsuccessful does not apply where Indian parent abandoned Indian child prior to birth and child had never been in Indian parent’s legal or physical custody; and
(3) ICWA section providing placement preferences for adoption of Indian children does not bar a non-Indian family from adopting an Indian child when no other eligible candidates have sought to adopt the child.

Unpacking Adoptive Couple: when does a “parent” have standing under ICWA?

In adoption proceedings, where paternity timelines in most states are so short to promote early permanence for children, is a “late” custody claimant a “parent” with the full panoply of ICWA rights? Adoptive Couple had argued in the South Carolina Supreme Court that the birth father was not a “parent” with any rights under ICWA. The definition of parent matters, for nearly all of ICWA’s protections hinge on who is and is not a “parent” with standing to assert ICWA rights. Critical in Adoptive Couple was the issue of whether ICWA’s termination of parental rights provision, 25 U.S.C. § 1912 (f), with its stringent requirements of “proof beyond a reasonable doubt”, “qualified expert witness” testimony, and proof of “serious emotional or physical harm”, applies to a putative father who has not timely established paternity under state law.

Under ICWA, “ ’parent’ means any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include the unwed father where paternity has not been acknowledged or established.” 25 U.S.C. § 1903(9). Adoptive Couple argued that by using the terms “acknowledged or established,” Congress intended to defer to state law on paternity establishment since there was no body of federal law on paternity, citing the unanimous view of state courts that such matters are the subject of state law. One state supreme court concluded that Congress intended to exclude from ICWA “unwed fathers who have not taken affirmative steps to ensure that their relationship with their child would be recognized.” In the Matter of the Adoption of a Child of Indian Heritage, 543 A.2d 925, 935 (N.J. 1988).

The definition of “parent” in Adoptive Couple was pivotal, because under South Carolina law, the birth father had not taken the required “affirmative steps” to acquire rights to consent (or to withhold consent and block the adoption). This is because birth father had failed to provide support, which under South Carolina law was defined as a “fair and reasonable sum, based on the father’s financial ability, for the support of the child or for expenses incurred in connection with the mother’s pregnancy or with the birth of the child, including, but not limited to, medical, hospital, and nursing expenses.” S.C. Code § 63-9-310(A)(5)(b). South Carolina’s law may at first blush seem strict, but it is not at all uncommon. Indeed, under Minnesota law, a putative father has no right to notice or consent for failure to provide “substantial support” to the child. Minn. Stat. § 259.49, subd. 1(2). (fn 3) In short, Adoptive Couple argued that if a birth father has no rights under state law, what specifically is it in ICWA that accords him greater federal rights? The South Carolina Supreme Court brushed this argument aside, holding the birth father had “established” paternity through a DNA test — without examining what it means to “establish or acknowledge” paternity.

The United States Supreme Court declined to rule on the issue of whether the birth father had standing as a “parent”, holding, [w]e need not — and therefore do not — decide whether Biological Father is a “parent.” fn 4. Rather, assuming for the sake of argument that he is a “parent,” we hold that neither § 1912(f) nor § 1912(d) bars the termination of his parental rights.” Adoptive Couple, 133 S. Ct. at 2560 (emphasis added). In footnote 4, the Court explained, “if Biological Father is not a “parent” under the ICWA, then § 1912(f) and § 1912(d) — which relate to proceedings involving possible termination of “parental” rights — are inapplicable. Because we conclude that these provisions are inapplicable for other reasons, however, we need not decide whether Biological Father is a “parent.”” Id. at fn. 4. (These “other reasons” are discussed below).

The Court’s decision in Adoptive Couple to pass on determining what makes a father a “parent” under § 1903(9) disappointed many adoption attorneys, as it leaves some critical issues in ICWA practice unresolved — chief among them is whether the birth father has the right to notice in ICWA proceedings. A “parent” is entitled to notice of “involuntary” foster care or termination proceedings under ICWA. 25 U.S.C. § 1912. Does a noncustodial father — who, under Adoptive Couple has no right to a termination trial under 1912(f) — still have the right to notice? Under the Minnesota Fathers Adoption Registry, a putative father must register within 30 days of birth in order to have the right to notice. Minn. Stat. § 259.52. What if the Indian father files late? Does a non-custodial putative “parent” under ICWA have to provide his consent to adoption in court under 25 U.S.C. § 1913? Future litigation may tell.

Adoptive Couple: existing Indian family doctrine left unresolved

Also unresolved in Adoptive Couple is the viability of the “existing Indian family doctrine.” In the South Carolina Supreme Court, Adoptive Couple waived invoking the existing Indian family doctrine, a judicial construction of ICWA which conditions ICWA’s application on the sufficiency of a custodial Indian parent’s ties to his or her tribal heritage. See, e.g., Hampton v. J.A.L., 658 So. 2d 331, 336-37 (La. Ct. App. 1995); In re Adoption of Crews, 825 P.2d 305, 310 (Wash. 1992). Courts that have rejected the existing Indian family doctrine have criticized the propriety of examining whether a preexisting Indian family is “Indian” enough to merit protection under ICWA. In re A.J.S., 204 P.3d 543, 551 (Kan. 2009); In re D.A.C., 933 P.2d 993, 999 (Utah Ct. App. 1997); see also Minn. Stat. § 260.771, subd. 2 (rejecting EIF by statute). Rather than invoking this doctrine, Adoptive Couple simply argued there was no preexisting family, period — consisting of Father and Baby Girl. Thus whether an Indian child would be raised in an “Indian-enough” environment was not relevant. Adoptive Couple did not question the birth father’s cultural ties. Despite not even briefing the Court or arguing the existing Indian family doctrine, the South Carolina Supreme Court rejected it. Adoptive Couple v. Baby Girl, 731 S.E.2d 550, 558 fn 17 (S.C. 2012) reversed on other grounds, Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013).

While the United States Supreme Court failed to rule on the validity of the EIF, which it did not even discuss, the Court did clearly hold that ICWA applied: “Baby Girl is an “Indian child” as defined by the ICWA because she is an unmarried minor who “is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe,” § 1903(4)(b). … It is also undisputed that the present case concerns a “child custody proceeding,” which the ICWA defines to include proceedings that involve “termination of parental rights” and “adoptive placement,” § 1903(1).” Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2557, fn 1 (2013).

Adoptive Couple: when are § 1912(d) active efforts required?

The South Carolina Supreme Court held that Adoptive Couple had failed to provide “active efforts” to the father by “attempting to stimulate Father’s desire to be a parent or to provide necessary education regarding the role of a parent.” Adoptive Couple v. Baby Girl, 398 S.C. at 640, 731 S.E.2d at 563. 25 U.S.C. § 1912(d) provides in part that any party who seeks “a foster care placement” or the “termination of parental rights” to an Indian child must prove that “active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.” Adoptive Couple had argued that since birth father had never had legal or physical custody of the child, he had never parented the child, and there was simply no Indian family to “break up.” They also argued that § 1912(d) by its own terms does not apply in adoptive placement proceedings.

The United States Supreme Court agreed, holding that that the “active efforts” requirement in § 1912(d) applies only in cases where an Indian family’s “breakup” would be precipitated by the termination of the parent’s rights under 1912(f). As Justice Samuel Alito, explained, Justice Alito: “Section 1912(d) is a sensible requirement when applied to state social workers who might otherwise be too quick to remove Indian children from their Indian families. It would, however, be unusual to apply § 1912(d) in the context of an Indian parent who abandoned a child prior to birth and who never had custody of the child.” He added, “[o]ur interpretation of § 1912(d) is also confirmed by the provision’s placement next to § 1912(e) and § 1912(f), both of which condition the outcome of proceedings on the merits of an Indian child’s “continued custody” with his parent. That these three provisions appear adjacent to each other strongly suggests that the phrase “breakup of the Indian family” [within 1912(d)] should be read in harmony with the “continued custody” requirement.” Id. at 2563.

Adoptive Couple: when is a § 1912(f) termination trial required?

Adoptive Couple had also argued that where the father had no established rights under state law, there was no parent-child relationship to be terminated under 25 U.S.C. §1912(f). While birth father had a biological parent-child relationship, that relationship is incapable of severance — and that is not the kind of parent-child relationship ICWA was designed to protect. Rather, Adoptive Couple argued § 1912(f) protects a pre-existing custodial relationship — whether legal or physical — between a parent and child.

The ICWA provides at 25 U.S.C. §1912(f) that no “termination of parental rights may be ordered” unless supported by “evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” The rationale of 1912 (f) is that serious emotional, physical damage to the child will occur if the child is separated unnecessarily from the custodial parent. That § 1912(f) does not create rights out of whole cloth, but instead protects existing custodial rights, is not new or novel under Minnesota case law. The Minnesota Court of Appeals held nearly 20 years ago that § 1912 (f) does not apply to terminate the rights of an Indian father who fails to establish paternity under state law:
“[father’s] paternity action is not an action that can result in the termination of the parent-child relationship. If [father’s] action is unsuccessful, the parent-child relationship between [father] and [child] will not be terminated, it will simply never be established.” J.A.V. v. Velasco, 536 N.W.2d 896 (Minn. App. 1995)(emphasis added), aff’d, Matter of Paternity of J.A.V., 547 N.W 2d 374 (Minn. 1996).

The Supreme Court agreed. Justice Alito wrote, “[u]nder our reading of § 1912(f), Biological Father should not have been able to invoke § 1912(f) in this case, because he had never had legal or physical custody of Baby Girl as of the time of the adoption proceedings. As an initial matter, it is undisputed that Biological Father never had physical custody of Baby Girl. And as a matter of both South Carolina and Oklahoma law, Biological Father never had legal custody either.” Id. As a result, § 1912(f) does not apply in cases where the Indian parent never had custody of the Indian child.” Id. at 2562.

Thus while the Court did not directly address the validity of the existing Indian family doctrine, as discussed above, it did adopt a version of it, albeit “EIF lite” (fn 4), by applying ICWA’s most stringent procedural protections to a father, based not upon the child’s genetic connection to him or the tribe alone, but based upon the father’s actual physical or legal custody of the child.

In this sense, what Adoptive Couple did not get through its first argument — denial of “parent” standing to a father who had stepped forward to establish or acknowledge paternity under state law— it got in its second argument: that regardless of whether the father timely stepped forward and was a “parent”, if the father had never established physical or legal custody, nothing in ICWA would allow him to block an otherwise lawful adoption under state law. This means that a noncustodial putative father is not entitled to a termination trial under ICWA. Thus an adoption proceeding based upon the birth mother’s consent may now be considered a purely voluntary proceeding for which tribal notice is not required under ICWA. See 25 U.S.C. § 1912(a). But see Minn. Stat. § 260.671, subd. 6 (requiring tribal notice in voluntary adoption proceedings). Other provisions of ICWA will apply, however, such as the in-court consent requirements found in 25 U.S.C. § 1913.

Adoptive Couple: but what about those placement preferences?

Adoptive Couple had argued in the South Carolina Supreme Court that once the birth father’s rights were at their end under state law for his failure to provide support, the child was free for adoption. They argued that ICWA’s placement preferences allowed for adoption of an Indian child by non-Indians with the birth mother’s consent. 25 U.S.C. § 1915(a) provides: “[i]n any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.” Adoptive Couple relied on numerous decisions in other states, which hold that a birth parent’s preference is sufficient to establish good cause. See, e.g., In re N.N.E., 752 N.W.2d 1, 7-8 (Iowa 2008) (citing cases). The South Carolina Supreme Court ignored the argument that mother’s preferences may constitute good cause, and instead held that “bonding, standing alone, should [not] form the basis for deviation from the statutory placement preferences.” Adoptive Couple v. Baby Girl, 731 S.E.2d at 657.

The Supreme Court reversed the judgment of the South Carolina Supreme Court on this score as well, holding “§ 1915(a)’s preferences are inapplicable in cases where no alternative party has formally sought to adopt the child. This is because there simply is no “preference” to apply if no alternative party that is eligible to be preferred under § 1915(a) has come forward.” Adoptive Couple, 133 S. Ct. at 2564. The Court noted that neither the birth father, nor any other family members, nor any other Cherokee families had sought to adopt Baby Girl. Id. On remand to the South Carolina Supreme Court, birth father argued he had the right to petition to adopt. The South Carolina Supreme Court rejected this petition and ordered the family court to finalize the adoption by Adoption Couple, holding “[o]ur original and erroneous decision was premised on the applicability of ICWA to the Birth Father. As a result, the Birth Father’s rights, if any, are determined by the law of the state of South Carolina. While this Court was in error concerning the applicability of ICWA, we have consistently held that under state law, the Birth Father’s parental rights (because of his irrefutable lack of support, interest and involvement in the life of Baby Girl) would be terminated. Therefore, under state law, the Birth Father is precluded from challenging the adoption.” Adoptive Couple v. Baby Girl, 404 S.C. 490, 492, 746 S.E.2d 346, 347 (S.C. 2013).

While birth father then sought to bar enforcement of the South Carolina adoption judgment ordered on remand, this legal gambit ultimately failed when the Oklahoma Supreme Court dissolved its stay of enforcement, thus freeing Baby Girl to be returned to Adoptive Couple on September 24, 2014 — this, roughly four years after the child’s birth. See Brown v. DeLapp, 312 P.3d 918 (Okla. 2013).

While the Court’s holding that the preferences are inapplicable might appear a dramatic setback to tribes, the Court’s holding is far more limited — for the fact remains that in voluntary adoption proceedings based upon the consent of a fit parent, under no circumstances may an adoption be granted without the consent of the parent. See, e.g., Minn. Stat. § 259.24, subd.1(a) Therefore, there cannot be a competing adoption petition filed for the simple reason that the birth parent’s consent to specific adoptive petitioners precludes other persons from invoking the preferences. The Court’s holding finally clarifies that a birth parent’s selection of specific adoptive petitioners, whether Indian or not, may no longer be denied by courts under § 1915 as that section is inapplicable.

Some critics of Adoptive Couple note the decision did not address the provision of the Bureau of Indian Affairs’ ICWA Guidelines that requires a diligent national search of potential adoptive families within the preference placement order, or how that requirement would apply in any other case. Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,594, F.3 (a)(iii) (November 26, 1979). Yet the specter of requiring a fit birth parent, or an adoption agency acting on her behalf, to conduct a national search for an Indian adoptive family, when the mother has already selected a couple to her liking, raises troubling due process concerns and ignores the holding of the case. It has long been established that parenthood and child-rearing fall within the most basic and fundamental liberties protected by substantive due process. Troxel v. Granville, 530 U.S. 57, 65-66 (2000). The Court endorsed this argument, holding “[a]s the State Supreme Court read §§ 1912(d) and (f), a biological Indian father could abandon his child in utero and refuse any support for the birth mother — perhaps contributing to the mother’s decision to put the child up for adoption — and then could play his ICWA trump card at the eleventh hour to override the mother’s decision and the child’s best interests… Such an interpretation would raise equal protection concerns.” Adoptive Couple, 133 S. Ct. at 2565 (emphasis added). In the voluntary adoption context, this paternalistic search requirement cannot be applied without trampling on Indian birth parents’ freedom to choose who will raise their children.

Adoptive Couple: straight statutory construction or constitutional avoidance?

Attorneys, judges, and legislators seeking to apply Adoptive Couple — and to know what it permits — first have to know how the Supreme Court got to its result. Thankfully, the Court left a clear trail. Delivering the opinion for the 5-4 majority, Justice Alito wrote,
“[t]he Indian Child Welfare Act was enacted to help preserve the cultural identity and heritage of Indian tribes, but under the State Supreme Court’s reading, the Act would put certain vulnerable children at a great disadvantage solely because an ancestor — even a remote one — was an Indian. As the State Supreme Court read §§ 1912(d) and (f), a biological Indian father could abandon his child in utero and refuse any support for the birth mother — perhaps contributing to the mother’s decision to put the child up for adoption — and then could play his ICWA trump card at the eleventh hour to override the mother’s decision and the child’s best interests. If this were possible, many prospective adoptive parents would surely pause before adopting any child who might possibly qualify as an Indian under the ICWA. Such an interpretation would raise equal protection concerns, but the plain text of §§ 1912(f) and (d) makes clear that neither provision applies in the present context.” Adoptive Couple 133 S. Ct. at 2565 (emphasis added).

This last sentence should give tribal attorneys pause. As a straight matter of statutory construction, the majority arguably could have construed the phrase “continued custody” in 1912(f) to apply to bar the termination of birth father’s parental rights, despite the fact he only had a biological relationship with the child. Indeed, Justice Scalia, dissenting, wrote that “continued” could mean “merely that initial or temporary custody is not “likely to result in serious emotional or physical damage to the child,” but that continued custody is not likely to do so.” Adoptive Couple at 2570-71. But the majority’s finding that such a broader construction would “raise equal protection concerns” could not be a more clear invocation of the doctrine of constitutional avoidance — that the majority saw the equal protection and due process clauses as requiring the Court to hew closely to the plain language of the text. As the United States Supreme Court has held,“[I]t is a cardinal principle” of statutory interpretation … that when an Act of Congress raises “a serious doubt” as to its constitutionality, “this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Crowell v. Benson, 285 U.S. 22, 62, 52 Sc.D. 285, 76 L.Ed. 598 (1932); See Minn. Stat. § 645.17 (3) (presuming the legislature does not intend to violate the Constitution of the United States or of this state).

What are these “equal protection concerns”? The Court did not elaborate in detail, but the parties’ briefs provide helpful context as a guide. In Adoptive Couple, the birth father, Cherokee Nation, Solicitor, and countless amici, argued there were no such concerns. They argued the application of 1912(d) and (f) to the proceedings to block a valid state adoption, based upon the child’s blood connection alone, did not constitute racial discrimination or run afoul of the equal protection clause because the tribe’s designation of who is a member is a political, not racial, distinction. Under Cherokee law, a child is eligible for membership in the tribe if descended from an Indian on the tribe’s enrollment rolls created by the Dawes Commission in 1906. See CONST. OF THE CHEROKEE NATION, art. IV, § 1. In support, they cited Morton v. Mancari, a 1974 United States Supreme Court decision, which upheld a law granting a hiring preference for Native Americans by the Bureau of Indian Affairs. See 417 U.S. 535 (1974). In that decision, the Court stated that “the preference, as applied, is granted to Indians not as a discrete racial group, but, rather, as members of quasi-sovereign tribal entities . . . .” Id. at 554. This Court has upheld preferential treatment for Indians where the differentiation is a consequence of Indians’ unique sovereign status. Morton v. Mancari, 417 U.S. 535, 553 (1974).

Adoptive Couple argued when the preferences under Sections 1912(d) and 1912(f) are construed to protect preexisting connections between an Indian child and her custodial parent, there is at least the possibility that the child could be exposed to Indian culture through her Indian parent. ICWA’s preferences in those circumstances at least plausibly prevent the unwarranted removal of Indian children from their families and safeguard tribal cultural and social cohesion. 25 U.S.C. § 1901.

However, Adoptive Couple argued that such differential treatment predicated solely on “ancestral” classification violates equal protection principles, citing Rice v. Cayetano, 528 U.S. 495 at 514, 517 (2000). Adoptive Couple argued that ICWA’s legitimacy evaporates if unwed fathers with no preexisting substantive parental rights receive a statutory preference based solely on the Indian child’s race. In that circumstance, “[i]f 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.” In re Bridget R., 49 Cal. Rptr. 2d 507, 527 (Cal. Ct. App. 1996). When unequal treatment is predicated on a status unrelated to social, cultural, or political ties, but rather blood lineage, the ancestry underpinning membership is “a proxy for race.” Rice, 528 U.S. at 514.

The Adoptive Couple majority did not hold that Morton constituted a “blanket shield” to any preferential treatment of Indians. Indeed, it never even mentioned the decision. For had the Court found that Morton shielded sections 1912(d) and (f) from equal protection scrutiny — because they were supposedly applied based upon the child’s “political” as opposed to racial status — it would not have found that their application raised any “equal protection concerns.” Conversely, the Court did not suggest in its analysis that Sections 1912(d) and (f) would have raised equal protection concerns when applied to a custodial parent of an Indian child. (fn 6) For in that instance the child’s connection to the tribe would have proved to be more than racial — it would have meant she was enmeshed in a real Indian family with a custodial parent. Thus at a minimum, Adoptive Couple stands as a clear signal from the Court that the application of ICWA, and perhaps other Indian preference statutes, cannot be based merely upon a person’s lineal or blood connection with a tribe. Something more is required. In Adoptive Couple, it was the requirement of parental custody. What that “more” will be in other contexts will no doubt be the subject of further litigation.

Adoptive Couple: impact on state ICWA laws

Many states have adopted laws that purport to expand upon or provide higher protections to Indian parents or custodians than exist under ICWA itself. Indeed, ICWA permits them to do so. Under 25 U.S.C. § 1921, [i]n any case where State or Federal law applicable to a child custody proceeding under State or Federal law provides a higher standard of protection to the rights of the parent or Indian custodian of an Indian child than the rights provided under this subchapter, the State or Federal court shall apply the State or Federal standard.” (emphasis added). Interestingly, in § 1921 the higher standards to be applied must be applied to the parents or custodians of an Indian child — not to the child.

Minnesota adopted the Minnesota Indian Family Preservation Act (MIFPA) in accordance with § 1921. Several provisions of MIFPA raise the same “equal protection concerns” the Supreme Court sought to avoid in Adoptive Couple. For instance, MIFPA defines“ Indian child” as “an unmarried person who is under age 18 and is: ( 1) a member of an Indian tribe; or
 (2) eligible for membership in an Indian tribe. Minn. Stat. § 260.755, subd. 8. By contrast, the federal definition of “Indian child” under ICWA is more restrictive: “Indian child” means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. 25 U.S.C. § 1903(4). It is now clear under Adoptive Couple, that while ICWA in general may apply based upon the child’s eligibility for membership — and being the child of a member — the application of ICWA, in toto, based upon the child’s genetic or racial connection to the tribe alone, forces the same equal protection concerns Adoptive Couple sought to avoid by making its stringent protections applicable to custodial parents who were tribal members.

Likewise, MIFPA makes ICWA’s sections 1912(d) and (f) applicable — irrespective of whether a parent has had custody of an Indian child. Minn. Stat. § 260.771, subd. 2, provides, “[t]his chapter and the federal Indian Child Welfare Act are applicable without exception in any child custody proceeding, as defined in the federal act, involving an Indian child. This chapter applies to child custody proceedings involving an Indian child whether the child is in the physical or legal custody of an Indian parent, Indian custodian, Indian extended family member, or other person at the commencement of the proceedings.” This subdivision thus squarely achieves what the Supreme Court sought to avoid in Adoptive Couple — reaching a result that offends equal protection by making such sections applicable on the basis of race alone. Its constitutional validity is now highly dubious.

Other states, too, have passed laws which grant the noncustodial father the right to ICWA termination trial, purportedly “exempting” them from the reach of Adoptive Couple. See, e.g., California Welfare and Institutions Code Section 224(a) states: (2) (“It is in the interest of an Indian child that the child’s membership in the child’s Indian tribe and connection to the tribal community be encouraged and protected, regardless of whether the child is in the physical custody of an Indian parent or Indian custodian at the commencement of a child custody proceeding, the parental rights of the child’s parents have been terminated, or where the child has resided or been domiciled.”). Application of the heightened procedural protections in Section 1912 to a father who has never had custody or parented the child, and solely on the basis of a child’s racial connection to a tribe, resurrects the grave equal protection concerns the Supreme Court sought to lay to rest in Adoptive Couple by limiting Section 1912’s application to Indian families where a parent had custody.

ICWA was passed in 1978 with a laudable purpose. Congress found that “an alarmingly high percentage of Indian families [were being] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies.” 25 U.S.C. § 1901(4). Under Adoptive Couple v. Baby Girl, the United States Supreme Court has set out some boundary lines as to how far ICWA may be extended before this laudable purpose becomes suspect and ICWA itself undermined. In that sense, the case remains an important reminder that ICWA is not a sui generis body of law, but rather must be understood and construed consistently with equal protection principles, respect for the due process rights of fit birth parents wishing to make decisions about the future care of their children, and ultimately the best interests of Indian children.

1 Mark D. Fiddler was co-counsel to the adoptive couple before the South Carolina Supreme Court and the United States Supreme Court. Editorial assistance provided by Jason Teiken, Esq.

2 Taken verbatim from opinion. Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2554-2555 (2013). No U.S. Reporter citation for this case yet.

3 The United States Supreme Court has been clear that “[p]arental rights do not spring full-blown from the biological connection between parent and child. They require relationships more enduring.” Lehr v. Robertson, 463 U.S. 248, 260 (1983). An unwed father’s parental rights are constitutionally protected only if he has “demonstrate[d] a full commitment to the responsibilities of parenthood by com[ing] forward to participate in the rearing of his child.” Lehr, 463 U.S. at 261 (emphasis added).

5 http://www.scotusblog.com/case-files/cases/adoptive-couple-v-baby-girl/

6 The ICWA defines “Indian child” as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” 25 U.S.C. § 1903(4).

http://www.mnbar.org/msba-home/msba-news/2014/05/13/family-law-forum-vol.-22-no.-2-spring-2014#.WMkEURsrKyI

Who is “Stealing” WHOSE Kids?

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Nov 182013
 
Dorothy, Andrew, and Walter, June 1983

Every now and then, someone accuses us of being an evil adoption org, “stealing” babies from families. I usually delete the remarks because they are off-the-wall – unrelated to and disconnected with what we actually do.

We have already explained off and on over the last few months what we are. There is no desire to further waste time addressing baseless accusations from people who aren’t interested in reading what has already been written.

Nevertheless, it has been suggested that I state it one more time, and then simply cite this page when appropriate.

Alright.

#1) We have never “taken” anyone’s children. We are not a social service, adoption agency, or orphanage. We don’t house children (other than our OWN), transport children, or facilitate any kind of child custody transfer. There isn’t one child we have EVER “taken” – period.

#2) The original goal, way before my husband and I started this org, was to stand up for our OWN rights as parents. I will say it again. I, my husband, and our family and friends stood up to say that we have the right to determine the best interest of our OWN children. This is OUR right – not the right of tribal or federal government.

#3) Like it or not – my husband (100% Minnesota Chippewa heritage) was a Christian. He had visited his cousin, (a tribal member who was an evangelical preacher) and became a Christian in 1988. Months later, he led me to the Lord. He, by the way, also founded this org. So one accusation against CAICW – the talk of “white” people stuffing religion down the throats of tribal members – is both frivolous and, well… racist.

#4) Having seen so much pain inflicted on so many family members … having looked on the battered face of a two-year-old in a casket, chased a drunk off of a 10-year-old, stood in the closet where a beautiful 16-year-old had hanged herself, and much more – We knew we had to do something. Yup. We wanted to rescue family members – of all the terrible things.

Further, knowing first hand the depth of crime, corruption and abuse on my husband’s reservation, we knew we could not raise our own children in Indian Country. If something were to happen to us, we wanted a member of our church and his wife – in fact, a man who happened to be our state representative – to be guardians over our children.

Contrary to the uninformed mantra of some who claim we are fighting to ‘take’ their children – the reality is we’ve been fighting to keep people of their view point away from our own children.

#5) That said – ICWA became a problem. Knowing that ICWA gives tribal governments jurisdiction over our kids if we died, and hearing from people that tribal governments had interfered with placement of children into Christian homes – and knowing that the ICWA mandates that the children be raised in what is said to be the culture of the tribe, whether parents agree or not – we feared that our children could be placed contrary to our wishes. We felt angry that our Congress would pass such an invasive law.

#6) Around 1995 or so, we began writing about the unconstitutionality of the Indian Child Welfare Act (ICWA). People, seeing our writing on the internet, contacted us to ask for help. We were just a couple of regular parents, not trying to get people to contact us. But we listened and cared about their situations. We researched, learned, and grew. The org was born in February, 2004.

#7) The ONLY people we have ever advocated for is families who – because they saw what we have written – CONTACTED US asking for help. We have never gone and pushed ourselves into any situation – unlike some of the tribal governments we kept hearing about, who were pushing themselves into private family situations constantly.

#8) The calls came from people crossing all demographics: different heritages, incomes, backgrounds, ages and locations. We have served birth parents, grandparents, aunts, uncles, siblings, foster parents and adoptive parents. …This includes low-income tribal members living within Reservation boundaries.

Unlike others, we don’t discriminate.

#9) Our membership includes former ICWA children – children who felt abused by the Indian Child Welfare Act and tribal government. Children who were very happy with their foster and adoptive homes, did not want to be placed with relatives on the reservation, and begged their tribe to leave them alone. One example is a girl that 60 Minutes did a story on about twenty years ago during her struggle against ICWA. The Chair of the U.S. Commission on Civil Rights, Dr. William B. Allen, was involved with trying to help her at that time. She joined us in DC last year to tell legislative offices about her ordeal.

#10) The child’s true best interest is priority. – Having been a registered nurse, been a day care provider, raised nine children of heritage and taken care of at least a dozen more at various times – I don’t accept what some tribal governments claim to be needed by kids.
I am not alone. Many tribal members are tired of seeing their families hurt year after year after year and feel let down by both tribal and federal government. They want REAL help and they want it NOW.

#11) Despite what some Congressmen and Tribal leaders say – more money isn’t going to fix things. Action is what is needed. Many tribal members feel that more money will simply add to what is already lining the pockets of corrupt tribal officials.

Stop pushing more “task-forces” or 3 year “Commissions.” Start, instead, with enforcing the law and jailing criminals.

#12) Needless to say, some Tribal leaders don’t want people to talk about the real problems. Real problems are supposed to be covered up and not ever mentioned. So – our talking about real people and real tragedy makes some tribal leaders angry.

#13) We will not stand down. 60 tribal governments are currently considering expanding their membership criteria to include children who are of extremely little heritage and whose families could have disassociated with Indian Country generations ago. The federal government gives tribal leaders full authority to “determine their own membership” – so they can expand membership to include a child despite objection by parents and grandparents.

Further – these same governments have discussed getting rid of the “Supremacy Clause” from their constitutions in order that they not need submit to federal or Supreme courts. This means that tribal members will be without appeal outside of the tribal system. Those who disagree with tribal leaders will be without recourse.

And with laws like the new version of the Violence Against Women Act – which states if either the victim or perpetrator in a crime is tribal, the tribal court has jurisdiction – more and more non-members will find themselves in tribal court without recourse. Mind you – if the perp of a violent act is a tribal member, the victim, whether a member or non-member, is forced into tribal court as well.

Even victims who are tribal members could have good cause not to want to share their pain in tribal court. Imagine if the perp is the son of a tribal official. That’s not an unheard of scenario.

It’s time to see the woods through the trees. For those who think this org and others have “no business” interfering with tribal sovereignty – understand that tribal sovereignty has no business interfering with independent U.S. citizens.

The current trajectory will allow tribal governments to interfere with even more families. If the tribal constitution is changed, the ICWA could apply to our own family for generations. (Kind of the opposite of what my husband and I wanted to see happen.)

Q) Who are the undeclared entities currently “taking” other people’s children across the country?

A) Tribal governments – some of whom are lowering membership criteria and pushing Congress to tighten ICWA to force their jurisdiction on others – including unwed, non-tribal mothers. (Who have been referred to as a “loophole” left open by a June Supreme Court case.)

Q) What was the original agenda of this org’s founders – before the org was started?

A) To demand tribal governments leave our kids alone. To stop Congress from unconstitutionally mandating relationship with tribal government and stop mandating the culture and religion a child has to grow up in.

Q) What is the current agenda of CAICW?

To assist and advocate for children and families in their pursuit autonomy, strength and wholeness – and to do our advocacy in relationship with Jesus Christ, our Lord and Savior.

To show and tell how Jesus Christ saved and changed our lives and the lives of others.

To declare the independence of United States citizens above that of tribal sovereignty.

Or – it could be put this way: To assist and advocate for families in their struggle for life, liberty, and the pursuit of happiness –

Oct 182013
 
Empty Swing

Traveling Thursday, I stopped to visit a couple that first contacted CAICW several years ago.

Parts of their story are common, parts unusual. Fighting for their child for years, they have rarely had foster care status. This means the care they have given their child has been out-of-pocket most of the time.

This – while the tribal government has refused to allow them any legal status, let alone permission to adopt.

The tribal government has retained control without any obligation to provide financially. Instead, they have treated this couple as glorified babysitters – knowing that the love this couple has will not allow them to turn the child away. Emotional blackmail?

Further – the couple’s attorney had not been allowed to practice in tribal court. This is something that happens in many tribal courts but goes completely ignored by our Congress. Tribal leadership has a right to decide which attorneys can practice in their courts and are inclined to only allow attorneys who agree with tribal sovereignty and will not confront blatant civil rights violations.

The fact that an attorney’s ability to practice can be pulled at the whim of the court is strong incentive for an attorney to play by tribal government rules.

That said – a party with an argument against tribal government, who wants to argue their case on the basis of civil rights, will have to appeal out of tribal court into federal court before their attorney can stand and represent them.

Either that, or choose from among the tribal court’s accepted attorneys who could have an interest in protecting the assumed rights of tribal government first and the rights of their client second.

Congress – you continually claim to be protecting tribal members while at the same time laying law upon law forcing tribal members into a box, with no options other than forced submission to a corrupt tribal government.

(Again – the current version of the Violence Against Women Act forces women

    of every heritage

into tribal court where they can be victimized a second time. I will keep saying this until someone wakes up and does something about it.)

All United States citizens are guaranteed Due Process, Equal Protection and Right to Counsel – Unless our Congress has handed jurisdiction of them over to a tribal court.

BTW – just as a reminder: about 60 tribal governments are currently in the process of changing their constitutions to lower the blood quantum necessary for membership. NO one but current tribal members have any say in this decision.

This is likely to happen – and without the personal consent of those who will find themselves caught up in the net.

I don’t know how many individuals these new memberships will affect, but you can imagine the number of children, like Veronica, with less than 5% heritage, who will now fall under ICWA. They will change overnight from being average American citizens with full rights under the United States Constitution, to being defined as “Indian Children” without full protection of U.S. constitutional rights.

I am in Indiana now. I might stop to see my editor today. We’ve worked together for about a year, but haven’t yet met face to face.

Grace be with you –

Lisa

Revealing CAICW’s Sinister Hidden Agenda –

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Sep 142013
 
FAMILY, 2000

I was interviewed this week by an AP reporter.  Wishing to avoid a repeat of the disingenuous interview I had two weeks earlier with the reporter from “Religion” News Service, who did NOT report who did NOT report things as they were actually said, I asked the AP reporter if she wouldn’t mind writing questions down for me.  I told her that I could then either simply write out my answers (ensuring accuracy for both of us) or talk on the phone.

This are my responses to her six questions:

 

1.       Can you talk about the founding of the Christian Alliance for Indian Child Welfare. Why did you and your husband want to start the organization?

This was all explained to the reporter, Angela Aleiss of Religion News Service, as well. None of it was important enough to include in her article.  As you have spent time reporting on things in the Dakotas, I am praying you will be able to see his heart a little easier than this reporter from Los Angeles was able to.

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 early 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.

Roland and his newborn, 1990We 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. (not a total of 13 as stated by the other reporter)  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 (although one was in therapeutic care for a couple years). 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.

The other reporter, despite being told this, chose to make the story about me and MY motivation for getting involved.

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)

Because 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. This can be confirmed by his cousins as well as many others who were around at the time.  He was determined to raise his children Christian and so wanted me to be a Christian as well. He did not want t

Roland and Senator Conrad Burns, 1997

Roland and Senator Conrad Burns, 1997; Click for link to his 1998 Senate Testimony

he 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.  As the Supreme Court of the United States noted, the ICWA should NOT have been used to prevent this adoption. 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 (and SCOTUS) have been ruling on.

2.       What, in your opinion, are the problems with ICWA? Why is it harmful?

We are told time and again that the Indian Child Welfare Act (ICWA) isn’t about race or percentages, but about preserving a dying culture.

There is much benefit in enjoying ones heritage and culture.

Everyone of us has a historical heritage. Some hold great value to it and want to live the traditional culture (to a certain extent. Few try to REALLY live traditional), others only want to dabble for fun – but others aren’t interested at all.

My children have the option of enjoying Ojibwe traditional, German Jewish, Irish Catholic, and Scottish Protestant heritage. We told them as they were growing up that each one of their heritages are interesting and valuable. (While at the same time making it clear that Jesus is the only way, truth and life.)

Most of us whose families have been in America for more than a couple generations are multi-heritage. Even most tribal members are multi-heritage. All individuals have a right to choose which heritage they want to identify with. If one of my children were to choose to identify with his or her Irish heritage, it would be racist for anyone – even a Congressman – to say that their tribal heritage was more important.

Beth, September 1987There are times to speak softly, and other times when people and situations need to be firmly set right.  This is a time for firmness. For those who think I don’t have a right to speak because I am not “native,” think again.  As long as they are claiming multi-heritage children, I have a right to and WILL speak. They are claiming jurisdiction over MY children and grandchildren.

Reality Check: It is up to families and their ethnic communities to preserve traditional culture amongst themselves if they value it. That is the same no matter what heritage is the question.  Many groups do this by living or working in close proximity – such as in Chinatown, or Dearborn, Michigan – or any of the ethnic neighborhoods within large cities. It is a very normal thing for humans to do.

But no other community has asked the federal government to enforce cultural compliance to that community.  The federal government has NO right to be forcing a heritage or culture onto an individual or family.  Contrary to what Congress assumed, my children are NOT the tribal government’s children – nor are they “commerce” under the “Commerce Clause” the ICWA was based on.

To those who constantly parrot that “white people” are “stealing” THEIR children, Wrong:  TRIBAL GOVERNMENTS are currently stealing OUR birth children.

I am NOT comfortable phrasing it that way IN THE LEAST. I try to avoid talking about race in ways that give it any kind of validity.  Tribal governments and the BIA, although claiming to the contrary, are the ones making “race” an issue.

  • There is no gene in our DNA for “race” according to the Genome Project. All there is are genes from familial traits such as color of hair and shape of cheekbones, etc.  In fact, the Genome Project has traced all DNA back to one singular family.
  • Those ‘DNA tests’ for ‘race’ don’t actually test for race. They test for the genes that show up primarily within a people group – in actuality a “family” gene – and the location of that people group is mapped.  The assumption is then made that this is a “racial marker.”
  • There is NO inherent gene in persons of Native American descent that will cause them to have “Split Feather” if not raised within Indian Country. “Specialists” in “Split Feather” simply blame any mental health issue that comes up on this fictitious malady.  The “studies” on “Split Feather” have serious flaws – i.e: taking a small sample of children, some of whom have alcohol related birth defects, who had been abused and neglected by birth parents and then placed in Caucasian foster homes – and blaming ALL later emotional difficulties on the fact that they were in Caucasian homes without any real regard for the precipitating issues.
  • My husband and I did not make race an issue in our multi-heritage home. Although we recognized the treasure in all heritages, we chose to make Jesus the bigger and better focus.

Those who accuse us of genocide for demanding that tribal government keep their hands off our kids need to get something straight.  They are free to raise their children in the manner they see best. They are NOT free to raise MY children in the manner they see best – nor are they free to do so with the thousands of families across the United States who feel the same way that we do.

Targeting other people’s kids to bolster membership rolls might be easier than doing the work necessary to keep one’s own children within the reservation community – but that isn’t something we are standing for anymore.

Reality Check: 75% of tribal members, according to the last two U.S. Census’, do NOT live in Indian Country. Some continue to value the reservation system and culture, but by the admission of tribal leaders who bemoan the loss of tradition – MOST do not.  Individual tribal members are making private and personal choices. To continue blaming it on “white” people is disingenuous.

Our boysPersonal experience: While taking Ojibwe language classes for a year to learn more about my husband’s culture – I attempted to encourage our household to speak it more.  Boy, was I in for a surprise.  My husband who spoke it fluently from birth, wasn’t interested in having the kids learn it. His teenage nephews, who I was raising at the time, weren’t the least bit interested in learning it. And you know what? THAT was their choice! My husband was a man – my nephews were free individuals. No one has a right to force them to conform to what tribal government thinks is best.

If people are leaving Indian Country and turning their backs on culture and the reservation system – that is something Tribal governments are going to have to look inward to resolve.

Reality Check: Tribal members are individuals with their own hearts and minds – not robots ready to be programmed by the dogma spewed in “Indian Country Today.”  Further, they are U.S. Citizens – and many, despite the rhetoric of a few – value being U.S. citizens.

If people are turning their back on traditional Indian culture and embracing American culture — that’s no different than what happens with any heritage in close proximity to other heritages. It’s been a reality to civilizations forever. China tried to prevent it for centuries.  North Korea is trying it today.  But to keep things forever the same – a government has to suppress the rights of the populace – many times with cruelty.  However, no dictatorship has been able to keep it up forever.

Those yelling and screaming about it being the fault of “white” people who adopted babies and the fault of boarding schools from 50 years ago and the fault of everyone else – need to wake up. Free-thinking individuals have been taking their kids and leaving the reservation system in droves for decades. It is no one’s fault. It is life.  It’s probably even the REAL reason ICWA was enacted. (Blaming the exodus on “White” adoptive homes just sounded better – there was more of a hook in it than “our people are simply taking their kids and leaving.”)

Reality Check: Stealing babies won’t solve the problem because many of them will grow up and leave as well.

Extending membership criteria to match that of the Cherokee Nation – as 60 tribal governments are currently considering doing  – won’t solve the problem either. It is only going to further open the eyes of the rest of America, and further anger those of us who do not want oppressive and predatory tribal govt touching our children, grandchildren, or great-great grandchildren.

Tribal leaders can NOT force other families to submit to their value system. That is why ICWA is totally unconstitutional. They are attempting to force many people of heritage to preserve something they have personally decided isn’t of value to them.

Now – I realize that tribal governments will turn that statement around and make it about ME – claiming I am out destroy tribal culture and commit Genocide and again totally ignore the fact that tribal members themselves are fleeing Indian Country.

Nope.  I said you can’t force tribal members who are not interested in preserving the culture to submit to the demands of the few who DO want to preserve it. You are forcing your values down the throats of people who have decided to live differently and have chosen to raise their children differently.

Example. I have a niece that is 50% Native American, 50% African American, who has decided to be Muslim and raise her children Muslim.

That isn’t me doing it.  She knows her Uncle wanted her to know Jesus.  That is an individual making her own decision – no matter how her uncle would feel about it – or how tribal Government feels about it.

 

3.       Some people are surprised that your husband, who was Native American, spoke out about his displeasure with the Act. Why was that?

Just why would a family decide that reservation life is not what they choose for their family? The reasons are many.

Sweet Girl Don't DieWhat cannot be denied is that a large number of Native Americans are dying from alcoholism, drug abuse, suicide and violence. Further, scores of children are suffering emotional, physical and sexual abuse as a result – and the Indian Child Welfare Act is trapping more and more children into this unacceptable system.

While many tribal governments continue to fund congressional candidates who promise to increase tribal sovereignty, the voices of the children who are at the mercy of corrupt government continue to go unheard.  The truth is that some tribal governments are not protecting the children in their “custody.”  Instead, they are gathering children where they can because federal funding allocations are based on the U.S. census and tribal rolls.

Our book, Dying in Indian Country, tells exactly why Roland felt the way he did about ICWA and about tribal sovereignty in general.  It provides a real glimpse into some of the unacceptable conditions his family has lived in – and I am not referring to poverty.  We have been very comfortable with poverty.  Living low income isn’t a bad thing.  But violence, child abuse and child neglect is.  ‘Dying in Indian Country’ tells the story of our family – which after years of alcoholism and pain, comes to realize that corrupt tribal government, dishonest Federal Indian Policy, welfare policy, and the controlling reservation system has more to do with the current despair than the tragedies that occurred 150 years ago.

 “Dying in Indian Country is a compassionate and honest portrayal… I highly recommend it to you.” Reed Elley, former Member of Parliament, Canada; Chief Critic for Indian Affairs in 2000, Baptist Pastor, Father of four Native and Métis children

“He was a magnificent warrior who put himself on the line for the good of all…I can think of no one at this time, in this dark period of Indian history, who is able to speak as Roland has.”  Arlene,Tribal Member

“…truly gripping, with a good pace.” Dr. William B. Allen, -Emeritus Professor, Political Science, MSU and former Chair of the U.S. Commission on Civil Rights (1989)

 

4.       Can you give some examples of how ICWA has, in your opinion, caused problems for individuals or families?

 – This 3-year-old was beaten to death in June, three months ago, after having been taken screaming from the safe, loving home she had been in Bismarck –

https://caicw.org/2013/06/21/a-child-dies-and-dozens-more-remain-in-abusive-homes-ignored-by-the-bia/

Washiington DC, February 2013

Washiington DC, February 2013

 

– Sierra came with us to DC in February, 2013 and told her story to Congressional offices – how she was taken from the only home she loved (albeit Caucasian) and placed with an uncle who she was forced to sleep with at the age of 10.  She begged to be allowed to go “home” to the people who wanted to adopt her.  They would not let her go – until she was 16 and they cut her down from a rope when she tried to hang herself.

http://www.startribune.com/local/190953261.html?refer=y

 – A birth mom stands up for herself:

http://www.xojane.com/issues/my-uterus-will-not-be-used-to-fill-your-tribal-rolls-i-fought-the-icwa-and-won?utm_medium=facebook

 – An official report from Thomas Sullivan, Regional Director of the ACF, Denver office, concerning the abuse at Spirit Lake.  There is a link to his 12th report as well.

https://caicw.org/2013/04/05/13th-mandated-report-re-spirit-lake-child-abuse/

Jose Rodrigues 2005

Removed from Hispanic grandparents home due to ICWA, he was beaten at maternal grandmothers home for speaking Spanish.

 – This family wrote to us recently and asked me to post their story  –

https://caicw.org/2013/09/08/like-veronica-this-child-is-hurt-by-icwa/

 – Rebuttal to the NPR series:

https://caicw.org/2011/11/21/rebuttal-to-nprs-icwa-series-from-the-mother-of-enrolled-children/

 – Other evidence of harm:

http://www.nytimes.com/2013/01/27/us/focus-on-heritage-hinders-foster-care-for-indians.html?_r=2&

 – Two years ago – I had the letters from various families arranged much better on our website. Some people decided to help me with it and it’s not quite as I like it anymore… I still have to find time to arrange it my way again…  But this is a link to many stories…    https://caicw.org/family-advocacy/letters-from-families-2/

There are many, many more.  I think its’ been a good two years since I have been able to put newer letters up.

 

5.        How has the Baby Veronica case shed light on ICWA?

Some wonder why Capobianco supporters don’t side with a father whose child is being taken from him. Some have even questioned the authenticity of Christians who would support the Capobiancos. (Forgetting that even Jesus was raised by an adoptive father.)

One must understand that many Capobianco supporters have been there since the day they first saw, either in person or on video, the horror of not only having one’s child taken, but –

1) taken without the benefit of a caring transition, and –

2) taken solely due to 1% heritage, (as the father’s admitted abandonment of the child would have prevailed otherwise.)

Matt, Melanie & Veronica Capobianco

Matt, Melanie & Veronica Capobianco

Just 1.12% heritage. 

Since then, the Cherokee Nation has put on a show, shaking signs that claim “genocide” and claiming that “white people” are stealing “Indian” babies.

1.12% heritage.

If a C supporter brings up the 1% heritage, their statement is twisted and they are accused of racism – despite that it was the Cherokee Nation that brought the 1% into issue.

1.12% heritage.

As much as the Cherokee Nation, ‘Indian Country Today’, NICWA, NARF, and others want to spin it as a “citizen” issue – it is not spinning. Very few people – including many tribal members in Oklahoma and elsewhere – are falling for the “citizen” claim – especially when “citizenship” is being forced on children.

At 1.12% heritage.

Ardent supporters of the Cherokee Nation, either purposefully spinning for PR or snowed by their own rhetoric, fail to see how disgusted many others are by the claim that “white people” are stealing “Indian” babies.. Many Americans can see that claim for the dishonesty it is – but few have wanted to speak it. While it is okay for a tribal entity to speak in terms of race and percentages, it is deemed “racist” for anyone else to. But I will say what is on the hearts of many. This was no Indian Child being stolen by “White” people.

It was a Caucasian/Hispanic child, stolen by a tribe.

That is the bottom line.

As the Cherokee Nation continues to encourage and assist Mr. Brown in defying state and federal law, it is an overtly obvious fact. And that is why the Cherokee Nation and tribal governments in general aren’t getting the traction on their genocide spin (outside of  ‘Indian Country Today’) that they somehow thought they would.

When you are talking about OUR children – which this child was – NOT an Indian child – you should expect hostility when trying to claim that child as the Tribe’s.

BIA - DCAND if 60 more tribal governments attempt to lower their membership criteria – as 60 are talking about doing – to CN levels and begin to target children of minute heritage – as the Cherokee Tribe has – they should not expect to get sympathy. They should expect a strong push back.

They should expect push back because now, due to the Veronica horror – a whole lot of Americans who would have otherwise remained oblivious to the issue, have woken up to what is happening and are outraged by the ICWA stories they are hearing. Many now want ICWA to be repealed.

Americans’ are not buying the rhetoric that tribal governments should have jurisdiction over children of 1% heritage. It is hard enough to justify ICWA jurisdiction over a child who is 25% tribal heritage – as the child is still 75% another heritage. Even children of a parent who is 100% – such as my own – have a right to be free from tribal government jurisdiction. Even individuals of 100% heritage have a right to be free of tribal government interference in their lives and families – if that is what they choose.

So do we feel angry? Yup.

Is there a Christian purpose and righteousness in that anger? Absolutely.

– “And they were bringing children to him that he might touch them, and the disciples rebuked them. But when Jesus saw it, he was indignant and said to them, “Let the children come to me; do not hinder them, for to such belongs the kingdom of God. Truly, I say to you, whoever does not receive the kingdom of God like a child shall not enter it.” And he took them in his arms and blessed them, laying his hands on them.” (Mark 10:13-16 ESV)

Having raised nine tribal members, five of whom are my birth children, and seen much tragedy, child abuse, sexual abuse, suicide, and other horrors on more than a few reservations – and having an advisory board and membership of parents who have raised, adopted and witnessed the same – we know far too much about tribal governments seeking children for the federal dollars, then showing little or no interest in what happens to them once they have been “retrieved” for the tribe and placed with a member. We won’t be bullied or intimidated.

We have known of far too many kids abused in ICWA homes, and some even murdered.

(Don’t even try to argue that point with me; I had been an ICWA approved home myself for 17 years. I know how little the tribal social services paid attention.)

So, concerning this particular case, in summary – for those who are flabbergasted that we would not be supporting the father – understand this: from the get-go,

1) Mr. Brown has been seen as an extremely selfish man.

2) The Cherokee Nation has been seen as an extremely selfish organization – using this child as a political pawn.

What appalls us is that not only were Mr. Brown and the Cherokee Nation willing to hurt this child deeply the first time a transfer took place – by taking her without any concern for her need of a transition – but even worse, Mr. Brown and the Cherokee Nation are now willing to do it to her a 2nd time.

How in the world are we expected to sympathize with people who do that?

https://caicw.org/2013/09/01/taking-veronica-from-a-loving-father/

 

6.      Anything else you’d like to add?

Mr. James Anaya, the United Nations Special Rapporteur on the rights of indigenous peoples,urges “relevant authorities” to maintain Veronica’s “cultural identity” and “maintain relations with her indigenous family and people.” The fact is that Veronica’s family is primarily of European descent and that is therefore much more of her “cultural identity” then her 1% Cherokee ancestry.

Veronica Capobianco's RightsIf Mr. Anaya  really cared about Veronica’s rights – he would advocate for her right to be an individual with freedom to choose her own identity. But he doesn’t honestly care about Veronica’s rights. He cares only for tribal sovereignty and the “right” of government to subjugate people.

In a press release, Mr Anaya stated,

“Veronica’s human rights as a child and as member of the Cherokee Nation, an indigenous people, should be fully and adequately considered in the ongoing judicial and administrative proceedings that will determine her future upbringing,” Mr. Anaya stressed. “The individual and collective rights of all indigenous children, their families and indigenous peoples must be protected throughout the United States.”

Never mind the “individual and collective rights of all United States citizens.” Never mind the children’s families and equally important heritage.

This is racism at its worst – regardless of the spin about it being about citizenship and political affiliation. Those are just fluff terms to gloss over the racial discrimination evident every time a supporter of tribal sovereignty states that “White people” are stealing tribal children, or that “White people” are guilty of genocide every time they adopt.

The claim that “White people” can’t possibly raise a “Native American Child” is especially offensive – in that most enrollable children are multi-heritage, primarily Caucasian.

Wake up people – hundreds of thousands of “Native American Children” have been and are currently being raised successfully by their own “White” birth parents.

If I can successfully raise my own birth children – so can my sister and my best friend.

You are absolutely right that this is about politics, not “race,” Mr. Arayo. If I had to choose between a friend (no matter the heritage) and someone with your political bias to adopt and raise my children – you lose.

We are not interested in honoring the racial prejudice of the Indian Industry supporters. A stranger from my conservative Church community (no matter the heritage) is preferable to a stranger beholden to Tribal government.

Keep politically biased, predatory, self-serving and profiting hands off of our kids. Period.

 

 

LASTLY – re: All the belly-aching about how “Un-Christian” we are being:

If certain groups want to believe it is “Un- Christian” to side with individuals, families, and human rights over horrific Government oppression – than so be it. I am tired of hearing the accusation that we aren’t being “real” Christians.

  1. Are they suggesting that Jesus threw money-changers out of the temple and called Pharisees “Dogs” because he was timid and didn’t want to offend anyone?
  2. Or that he was hung from the cross because everyone loved hearing what he had to say?

No, actually, this is what being Christian is about:

Ps. 82:3-4 (Psalmist to the kings) ”Defend the cause of the weak and fatherless; maintain the rights of the poor and oppressed. Rescue the week and needy; deliver them from the hand of the wicked.

Prov. 29:7 “The righteous care about justice for the poor, but the wicked have no such concern.”

Prov. 31:8-9 “Speak up for those who cannot speak for themselves, for the rights of all who are destitute. Speak up and judge fairly; defend the rights of the poor and needy.”

Isa. 1:17 “learn to do right! Seek justice, encourage the oppressed. Defend the fatherless , plead the cause of the widow.”

Isa. 10:1-3 (God, through Isaiah, to the Israelites) ”Woe to those who make unjust laws, to those who issue oppressive decrees, to deprive the poor of their rights and withhold justice from the oppressed of my people, making widows their prey and robbing the fatherless. What will you do on the day of reckoning, when disaster comes from afar? To whom will you run for help? Where will you leave your riches?

Jer. 22:16-17 “He defended the cause of the poor and needy, and so all went well. Is that not what it means to know me?’ Declares the Lord, ‘but your eyes are set on dishonest gain, on shedding innocent blood and on oppression and extortion.”

Acts 5:29 “Peter and the other apostles replied: ‘We must obey God rather than men!”

Jn. 15:18-21 “If the world hates you, keep in mind that it hated me first. If you belonged to the world, it would love you as its own. As it is, you do not belong to the world, but I have chosen you out of the world., That is why the world hates you. Remember the words I spoke to you: No servant is greater than his master. If they persecuted me, they will persecute you also. If they obeyed my teaching, they will obey yours also. They will treat you this way because of my name, for they do not know the One who sent me.”

Matt 5:10-12 “Blessed are those who are persecuted because of righteousness, for theirs is the Kingdom of Heaven. Blessed are you when people insult you, persecute you and falsely say all kinds of evil against you because of me. Rejoice and be glad, because great is your reward in heaven, for in the same way they persecuted the prophets who were before you.”

Col. 3:24 “since you know that you will receive an inheritance from the Lord as a reward. It is the Lord Christ you are serving.”

My husband and I prayed for years about what we were saying and doing and long ago came to the solid conclusion that it was the right thing to do before God. This org can’t be bullied about it now.  We are past it.

Roland Preaching a Sermon in Juarez, Mexico

Roland Preaching a Sermon in Juarez, Mexico, June 2003

Baptism in Leech Lake, 2007

Baptism in Leech Lake, 2007

 

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

 

 

 

Sep 042013
 

Father and Daughter

Some wonder why Capobianco supporters don’t side with a father whose child is being taken from him. Some have even questioned the authenticity of Christians who would support the Capobiancos. (Forgetting that even Jesus was raised by an adoptive father.)

One must understand that many Capobianco supporters have been there since the day they first saw, either in person or on video, the horror of not only having one’s child taken, but –

1) taken without the benefit of a caring transition, and –

2) taken solely due to 1% heritage, (as the father’s admitted abandonment of the child would have prevailed otherwise.)

Just 1.12% heritage.

Since then, the Cherokee Nation has put on a show, shaking signs that claim “genocide” and claiming that “white people” are stealing “Indian” babies.

1.12% heritage.

If a C supporter brings up the 1% heritage, their statement is twisted and they are accused of racism – despite that it was the Cherokee Nation that brought the 1% into issue.

1.12% heritage.

As much as the Cherokee Nation, ‘Indian Country Today’, NICWA, NARF, and others want to spin it as a “citizen” issue – it is not spinning. Very few people – including many tribal members in Oklahoma and elsewhere – are falling for the “citizen” claim – especially when “citizenship” is being forced on children.

At 1.12% heritage.

Ardent supporters of the Cherokee Nation, either purposefully spinning for PR or snowed by their own rhetoric, fail to see how disgusted many others are by the claim that “white people” are stealing “Indian” babies.. Many Americans can see that claim for the dishonesty it is – but few have wanted to speak it. While it is okay for a tribal entity to speak in terms of race and percentages, it is deemed “racist” for anyone else to. But I will say what is on the hearts of many. This was no Indian Child being stolen by “White” people.

It was a Caucasian/Hispanic child, stolen by a tribe.

That is the bottom line.

As the Cherokee Nation continues to encourage and assist Mr. Brown in defying state and federal law, it is an overtly obvious fact. And that is why the Cherokee Nation and tribal governments in general aren’t getting the traction on their genocide spin (outside of  ‘Indian Country Today’) that they somehow thought they would.

When you are talking about OUR children – which this child was – NOT an Indian child – you should expect hostility when trying to claim that child as the Tribe’s.

AND if 60 more tribal governments attempt to lower their membership criteria – as 60 are talking about doing – to CN levels and begin to target children of minute heritage – as the Cherokee Tribe has – they should not expect to get sympathy. They should expect a strong push back.

They should expect push back because now, due to the Veronica horror – a whole lot of Americans who would have otherwise remained oblivious to the issue, have woken up to what is happening and are outraged by the ICWA stories they are hearing. Many now want ICWA to be repealed.

Americans’ are not buying the rhetoric that tribal governments should have jurisdiction over children of 1% heritage. It is hard enough to justify ICWA jurisdiction over a child who is 25% tribal heritage – as the child is still 75% another heritage. Even children of a parent who is 100% – such as my own – have a right to be free from tribal government jurisdiction. Even individuals of 100% heritage have a right to be free of tribal government interference in their lives and families – if that is what they choose.

So do we feel angry? Yup.

Is there a Christian purpose and righteousness in that anger? Absolutely.

– “And they were bringing children to him that he might touch them, and the disciples rebuked them. But when Jesus saw it, he was indignant and said to them, “Let the children come to me; do not hinder them, for to such belongs the kingdom of God. Truly, I say to you, whoever does not receive the kingdom of God like a child shall not enter it.” And he took them in his arms and blessed them, laying his hands on them.” (Mark 10:13-16 ESV)

Having raised nine tribal members, five of whom are my birth children, and seen much tragedy, child abuse, sexual abuse, suicide, and other horrors on more than a few reservations – and having an advisory board and membership of parents who have raised, adopted and witnessed the same – we know far too much about tribal governments seeking children for the federal dollars, then showing little or no interest in what happens to them once they have been “retrieved” for the tribe and placed with a member. We won’t be bullied or intimidated.

We have known of far too many kids abused in ICWA homes, and some even murdered.

(Don’t even try to argue that point with me; I had been an ICWA approved home myself for 17 years. I know how little the tribal social services paid attention.)

So, concerning this particular case, in summary – for those who are flabbergasted that we would not be supporting the father – understand this: from the get-go,

1) Mr. Brown has been seen as an extremely selfish man.

2) The Cherokee Nation has been seen as an extremely selfish organization – using this child as a political pawn.

What appalls us is that not only were Mr. Brown and the Cherokee Nation willing to hurt this child deeply the first time a transfer took place – by taking her without any concern for her need of a transition – but even worse, Mr. Brown and the Cherokee Nation are now willing to do it to her a 2nd time.

How in the world are we expected to sympathize with people who do that?

https://caicw.org/2013/09/01/taking-veronica-from-a-loving-father/

Elizabeth Sharon Morris is Chairwoman of the Christian Alliance for Indian Child Welfare, columnist for Women’s Voices Magazine, and author of ‘Dying in Indian Country.’ http://dyinginindiancountry.com a dramatic true story of transformation and hope.

Jun 212013
 

Honorable Senator Hoeven,

A charge has been made in the death of a 3-year-old girl named “Lauryn’ who died last week after she and her twin sister were sent to live on the Spirit Lake Reservation, a community known for widespread violence, crime, tribal government corruption and sexual abuse against children. A member of the family has been arrested and accused of physically abusing the twins as well encouraging her children to beat and kick them.

This child’s death is not isolated. Three other young children have died and countess others have been abused while under the care of Spirit Lake Tribal Services. Thomas Sullivan, Regional Director of the Administration of Children and Families, has documented 40 children living with sex offenders at Spirit Lake after they were removed from safe homes off of the reservation.  His mandated report was given to federal officials overseeing Spirit Lake tribal social services as well as DC officials and U.S. Senators. The Bureau of Indian Affairs (BIA) started overseeing tribal services last year to stop the crime and abuse. Yet, little has been done. Today most of these young children are still living with sex offenders.

One month ago, the twins were healthy and happily living with a foster family in Bismarck, ND, but were moved solely due to the Indian Child Welfare Act. Until this Act is significantly altered, many more children will needlessly suffer and even die. Christian Alliance for Indian Child Welfare (CAICW) is calling for immediate action by Congress to ensure that the lives of children be elevated to higher importance than the demands of tribal government leaders. The Spirit Lake Tribe is not an anomaly. CAICW is frequently contacted by families being hurt by ICWA across the nation.

Our current reservation system rewards dependence on federal government rather than on an individual’s strength and God. It encourages strong people to embrace anger and hide under the mantle of victimhood. A large number of citizens living within Indian Country are dying from alcoholism, drug abuse, suicide, and violence. The prevalence of alcoholism results in a percentage of Fetal Alcohol adults now raising Fetal Alcohol children. While many healthy tribal members move off the reservation to get away from crime, many of the neediest remain. Those who remain submit to a life amid a criminal element that retreats to the reservations to stay out of reach of state law enforcement. Sometimes the criminal element influences, or even becomes, the tribal government. Shockingly, this displays a similar sociological pattern to third world countries or small dictatorships around the globe.

Six months ago, in January 2013, our entire Senate unanimously voted on a resolution calling on Russia to put the best interest of children ahead of politics. The House followed suit with their own resolution.  Why can’t we do the same thing for children who are citizens of the United States?

Further, we are asking you to no longer be taken in by the claims of tribal government that they are only demanding the right to their “own” children.  Tribal overreach has been affecting multi-racial children and families across the nation.  The current case, awaiting ruling by the U.S. Supreme Court, Adoptive Couple vs. Baby Girl, involves a child of 1.12% Cherokee heritage.  Her Hispanic mother had made a decision as to the best interest of her daughter, and our government turned around and robbed her of that decision.

But even parents of 100% tribal heritage have a right to decide to raise their children apart from Indian Country and tribal government. The liberty of parents to direct the upbringing, education, and care of their children is a fundamental right.

We, as an organization, are asking you to be proactive and put an end to this continuing violence against both children and adults.  We are asking you what steps you will be taking to ensure the best interest of children over politics here in America.

 

In re Bridget R.

 Comments Off on In re Bridget R.
Jun 102013
 

THE SUPERIOR COURT OF LOS ANGELES COUNTY

In re Bridget R., et al., Minors, (1996) 41 Cal.App.4th 1483 (Bridget R.).

James R. and Colette R. v. Cindy R.et al.,

January 19, 1996 ,

LLR No. 9601041.CA, Cite as: LLR 1996.CA.41 – “The Pomo Twins”


Contains: Constitutional Limitations upon the Scope of ICWA; Existing Family Doctrine

[1] Filed 1/18/96 Parent and Child, [2]CERTIFIED FOR PUBLICATION

[3] IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

[4] SECOND APPELLATE DISTRICT, [5] DIVISION THREE

[6] In re BRIDGET R., et al., Minors. [7] JAMES R. AND COLETTE R. et al., [8] Petitioners and Appellants, v. [9] CINDY R. et al.,[10] Objectors and Respondents.

[11] DRY CREEK RANCHERIA, et al..,[12] Intervenors and Respondents.

[13] In re BRIDGET R., et al., MINORS. [14] JAMES R. et al.,[15] Petitioners,v. [16] THE SUPERIOR COURT OF LOS ANGELES COUNTY,[17] Respondent;[18] CINDY R., et al., [19] Real Parties in Interest.

[20] B093520 (Super.Ct.No. BN1980 consol. w/BC114849) [21] B093694 [22] APPEAL from an order of the Superior Court of Los Angeles County.

[23] John Henning, Judge. Reversed and remanded with directions.

Counsel

[24] John L. Dodd and Jane A. Gorman for Petitioners and Appellants, the adoptive parents [identified in the opinion as the “R’s”]; Michael F. Kanne for Petitioner and Appellant Vista Del Mar Child and Family Services.

[25] James E. Cohen for Intervenor and Respondent, for Dry Creek Rancheria.

[26] Mitchell L. Beckloff for Respondent Minors, Janette Freeman Cochran, Robert S. Gerstein, for Biological Parents, Farella, Braun & Martel, Norma G. Formanek, Jennifer Schwartz, Joan Heifetz Hollinger, Mark C. Tilden, Alexander & Karshmer, Barbara Karshmer, Sant’Angelo & Trope, Jack F. Trope, Robert J. Miller, Patricia D. Hinrichs, Dunaway & Cross, Michael P. Bentzen, Cary W. Mergele, Wylie, McBride, Jesinger, Sure & Platten, Christopher E. Platten, Marc Gradstein, Mark D. Fiddler, Todd D. Steenson and Randall B. Hicks as Amici Curiae.

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[27] California recognizes the principle that children are not merely chattels belonging to their parents, but rather have fundamental interests of their own. (In re Jasmon O. (1994) 8 Cal.4th 398, 419.) Such fundamental interests are of constitutional dimension. This principle is central to our resolution of the multiple and complex issues presented by this case.

[28] We reverse an order of the trial court made pursuant to sections 1913 and 1914 of the Indian Child Welfare Act of 1978 (25 U.S.C.A. 1901 et seq.; hereafter “ICWA” or “the Act”). The court’s order invalidated a voluntary relinquishment of parental rights respecting Bridget and Lucy R., twin two-year-old girls, and ordered the twins removed from their adoptive family, with whom they have lived since birth, and returned to the extended family of the biological father. The adoptive parents (hereafter the “R’s” or “adoptive parents”) appealed, *fn1 joined by the licensed adoption agency through which the twins were placed. *fn2

[29] The twins are of American Indian descent, and the within dispute over their prospective adoption and custody raises issues concerning the scope of ICWA. Specifically, it raises the question of whether the Act should be limited in its application, as some courts have limited it, to children who not only are of Indian descent, but also belong to an existing Indian family.” (See, e.g., In re Adoption of Crews (1992) 118 Wash.2d 561 [825 P.2d 305]; Matter of Adoption of Baby Boy L. (1982) 231 Kan. 199 [643 P.2d 168].) We conclude that question must be answered in the affirmative.

[30] ICWA was enacted by Congress to protect the best interests of Indian children and promote the stability of Indian tribes and families. (25 U.S.C.A. Section(s) 1902; Mississippi Band of Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 32-37 [104 L.Ed. 2d 29, 109 S.Ct. 1597];

[31] Here, the twins’ biological parents, Richard A. (“Richard”) and Cindy R. (“Cindy”), initially relinquished the twins to appellant Vista Del Mar Child and Family Services (“Vista Del Mar”) pursuant to section 8700 of California’s Family Code for adoption by the R’s, a non-Indian couple. However, Richard and Cindy later purported to withdraw their consent. With the assistance of the Dry Creek Rancheria of Pomo Indians, the federally recognized Indian tribe from which Richard is descended (hereafter, the “Tribe”), they initiated proceedings under ICWA to invalidate their relinquishments of parental rights. It is undisputed that the relinquishments were not executed in the manner required by ICWA. It is also undisputed that Richard and the twins are now recognized by the Tribe as tribal members. However, the record raises substantial doubt as to whether Richard, who, at all relevant times, resided several hundred miles from the tribal reservation, ever participated in tribal life or maintained any significant social, cultural or political relationship with the Tribe.

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[32] Although urged by Vista Del Mar and the R’s to apply the “existing Indian family doctrine” in this case, and uphold the relinquishments of parental rights unless the biological parents established that they were such a family, the trial court declined to apply that doctrine or hold any hearing with respect thereto. The court simply declared the relinquishments invalid as violative of ICWA and ordered the twins placed in the custody of their paternal grandparents, who were appointed temporary guardians. The trial court also dismissed a petition by the adoptive parents to terminate the biological parent’s parental rights on the ground of abandonment. (Fam. Code, Section(s) 7822.) The court found ICWA precluded it from proceeding on that petition.

[33] As we explain, recognition of the existing Indian family doctrine is necessary in a case such as this in order to preserve ICWA’s constitutionality. We hold that under the Fifth, Tenth and Fourteenth Amendments to the United States Constitution, ICWA does not and cannot apply to invalidate a voluntary termination of parental rights respecting an Indian child who is not domiciled on a reservation, unless the child’s biological parent, or parents, are not only of American Indian descent, but also maintain a significant social, cultural or political relationship with their tribe. Because the factual issues raised by such a rule have not been resolved, we reverse the trial court’s order and remand the case for a determination of whether the twins’ biological parents had such a relationship at the time that they voluntarily acted to relinquish their parental rights under California law. In the event that the trial court, after consideration of all the evidence, determines that such a relationship did not exist, then those relinquishments will be valid and binding and ICWA will not bar any pending adoption proceedings. On the other hand, if the trial court finds that the biological parents did have a significant social, cultural or political relationship with the Tribe, and therefore the provisions of ICWA can properly be applied, then a further guardianship hearing will be required to resolve the question of whether the twins should be removed from the custody of the R’s.

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[34] FACTUAL BACKGROUND *fn3

[35] Bridget and Lucy, twin girls, were born on November 9, 1993, in Los Angeles County, California, to Richard and Cindy. He is of American Indian descent, while she is descended from the Yaqui tribe of Mexico. *fn4 Richard is three-sixteenths Pomo and is currently an enrolled member of the Tribe.

[36] The Tribe, which occupies a reservation in Sonoma County, in northern California, has approximately 225 enrolled members, of whom approximately twenty-five live on the reservation. Since 1973, the Tribe has been governed by a set of Articles of Association, which, among other things, establish the qualifications of tribal membership. Under the Articles, such membership includes all persons who

(1) have completed an application for membership, and

(2) are named in a June 4, 1915 Bureau of Indian Affairs census of Indians “in, near and up Dry Creek from Healdsburg” and Indians “in and near Geyserville,” or are descendants of persons in those censuses, or are both California Indians and spouses of tribal members who hold valid assignments of land on the Rancheria. A person who is otherwise qualified to be a member is disqualified if he or she has been formally enrolled in another tribe, band or group, or has received an allotment of land by virtue of an affiliation with such other tribe, band or group. The Tribe’s Board of Directors is responsible for maintaining a current membership roll.

[37] Before the adoption of the Articles of Association in 1973, the Tribe was governed solely by custom and tradition, under which any lineal descendant of a historic tribal member was automatically a member of the Tribe and was recognized as such from birth. Marcellena Becerra, the tribal administrator, testified in the proceedings below that, when the Articles of Association were adopted, it was determined that existing members would continue to be recognized as members without the need to enroll formally. Thus, although his name is not on the Bureau of Indian Affairs’ enrollment list for the Tribe, Richard, who was born in 1972, is recognized as a tribal member according to pre-1973 customs. He became an enrolled member of the Tribe March of 1994, after the present custody dispute began, when his mother, Karen A. (“Karen”), submitted a membership application on his behalf.

[38] In mid-1993, Richard and Cindy discovered that Cindy was pregnant. Richard was then 21 years old, and Cindy was 20. They then lived together with their two sons, Anthony, age two, and Richard Andrew, age one, in the city of Whittier in Los Angeles County, California. However, by August of 1993, Cindy and the children were living in a shelter. Richard and Cindy realized they would not be able care for the expected twins, and so determined to relinquish them for adoption. They consulted Durand Cook, an attorney specializing in adoption, for this purpose.

[39] Richard initially identified himself to Cook as one quarter American Indian. However, when told the adoptions would be delayed or prevented if Richard’s Indian ancestry were known, Richard filled in a revised form, omitting the information that he was Indian.

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[40] During the ninth month of Cindy’s pregnancy, she and Richard met with a social worker from Vista Del Mar. On November 11 and 12 respectively, after receiving counseling concerning the relinquishment and adoption process as required by regulations promulgated pursuant to Family Code section 8621 (Cal. Code Regs., tit. 22, Section(s) 35128 et seq.), Richard and Cindy signed documents relinquishing the twins to Vista Del Mar, with the intent that they would be adopted by the R’s *fn5 . The relinquishments were filed with the state Department of Social Services on November 23, 1993. *fn6 Although the relinquishment documents contained direct queries as to whether either biological parent was of Indian descent, Richard concealed his Indian ancestry and listed his “basic ethnic group” as “white.” A few days after the relinquishments were executed, the R’s returned with the twins to their home in Ohio, where they have lived as a family ever since. On May 4, 1994, the R’s filed a petition in Franklin County, Ohio to adopt Bridget and Lucy. That petition is presumably still pending. *fn7

[41] In December of 1993, Richard told his mother, Karen, about Cindy’s pregnancy, the birth of the twins and their adoption. In early February of 1994, Karen contacted attorney Cook. At approximately the same time, Karen contacted the Tribe. A representative of the Tribe contacted Cook in February or March of 1994. Cook informed the R’s of this communication. On March 4, 1994, Amy Martin, the Tribe’s Chairperson, wrote to the Los Angeles County Children’s Court, stating that the twins were potential members of the Tribe and requesting intervention in any proceedings concerning them. On approximately that same date, Karen submitted tribal enrollment applications for herself, Rchard, the twins, and Richard’s two other children. On March 9, 1994, Amy Martin wriote to Vista Del Mar, stating that the twins were of Indian descent, and Karen, their paternal grandmother, wished them placed within the extended Indian family.

[42] During these weeks and months, the relationship between Richard and Cindy was deteriorating. On April 27, 1994, Cindy obtained a restraining order, which required Richard to remain at least 100 yards from Cindy and their two sons, Anthony and Richard Andrew. In a declaration in support of her application for the restraining order, Cindy related that on numerous occasions during March, Richard hit and kicked Cindy and pushed her down, broke furniture, and abused the one-and two-year-old children by picking them up by the neck and shaking or dropping them, poking them in the face, or hitting them in the head. On at least one of these occasions, Richard was intoxicated. *fn8

[43] On April 22, 1994, Richard sent to Vista Del Mar a letter which stated that Richard wished to rescind his relinquishment of the twins and to have them raised within his extended family. This letter was drafted by Lorraine Laiwa, a member of the Tribe. Laiwa read the letter to Richard over the telephone. After he approved its contents, she mailed it to him for his signature. After signing the letter, Richard sent the original to Vista Del Mar and a copy to his mother. Richard later testified that his intent, when he signed the letter, was to place the twins with his sister.

[44] On June 20, 1994, Richard had a meeting with Elias Lefferman, Ph.D., Director of Community Services at Vista Del Mar, concerning the request to rescind his relinquishment of the twins. During this meeting, Richard acknowledged that he had previously concealed his Indian ancestry. He stated that his decision to rescind his relinquishment of parental rights was prompted by his mother, Karen, so that Richard’s sister could raise the twins. Vista Del Mar denied Richard’s request to withdraw the relinquishments, and the proceedings that are now before us for review followed. *fn9

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[45] CONTENTIONS

[46] On appeal and in their petition for writ of mandate, the adoptive parents contend that:

(1) the trial court erred in failing to recognize the “existing Indian family” doctrine and

(2) ICWA is unconstitutional, unless limited by the “existing Indian family” doctrine, in that it

(a) impedes the exercise of fundamental rights of adopted children and their adoptive families;

(b) creates an impermissible racial classification, and

(c) exceeds the enumerated powers of Congress and violates the Tenth Amendment.

[47] In the alternative, the adoptive parents argue that, even if ICWA is constitutional and is not limited by the “existing Indian family” doctrine, the trial court’s order must be reversed, because:

(1) Richard is not a presumed father,

(2) the Tribe is precluded from retroactively enrolling Richard and the twins as tribal members,

(3) the twins are only 3/32 Indian,

(4) the biological parents, having concealed Richard’s Indian heritage in order to facilitate the adoption, are estopped from invoking ICWA to prevent it and

(5) ICWA’s provisions do not defeat the requirement that a hearing must be held on the issue of whether a change of custody to the extended biological family is in the best interests of the children or will be a detriment to them.

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[48] DISCUSSION

[49] 1. Summary of Relevant Portions of ICWA.

[50] ICWA, enacted by Congress to prevent the further “wholesale separation of Indian children from their families” through state court proceedings, was prompted by studies conducted in the 1970’s which showed that Native American children were being removed from their homes, through both foster care and adoption, in disproportionate numbers. (Mississippi Band of Choctaw Indians v. Holyfield, supra, 490 U.S. at pp. 32-37.)

[51] The Act is broken down into two titles. In this case, we are concerned only with Title I (25 U.S.C. Section(s) 1901 – 1923) which provides for the allocation of jurisdiction over Indian child custody proceedings between Indian tribes and the States and establishes federal standards to protect Indian families. Title II of the Act (25 U.S.C. Section(s) 1931 – 1963) provides for grants to Indian tribes and organizations to operate child and family service programs.

[52] Sections 1901 and 1902 set forth the historical and policy bases of ICWA. The stated policies are to protect the best interests of Indian Children and protect the cultural heritage of Indian nations from destruction through the removal of children from Indian tribes. Section 1903 defines the Act’s operative terms.

An “Indian child” is defined as “any unmarried person who is under age eighteen and either

(a) is a member of an Indian tribe or

(b) is eligible for membership in an Indian tribe and is the biological child of a tribal member.” (25 U.S.C. Section(s) 1903, subd. (4).)

An “Indian tribe is “any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary because of their status as Indians. . . .” (25 U.S.C.A. 1903, subd. (8).)

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[53] Section 1911,

subdivision (a), gives an Indian tribe “exclusive jurisdiction as to any State over any child custody proceeding involving an Indian child who resides on or is domiciled within” the tribal reservation. When an Indian child who is not domiciled on a reservation is the subject of child custody proceedings in a state court, section 1911,

subdivision (b), provides that, absent good cause, jurisdiction shall be transferred to the child’s tribe upon request by either parent or the tribe.

Subdivision (c) provides that an Indian child’s tribe may intervene in any state court custody proceeding affecting the child. Subdivision (d) requires all jurisdictions within the United States to give full faith and credit to the acts of an Indian tribe that are applicable to Indian child custody proceedings.

[54] Section 1912 provides standards for involuntary proceedings respecting the removal of Indian children from their homes. These include a requirement of clear and convincing evidence of a threat of serious harm before an Indian child may be placed in foster care or in the custody of a guardian (Section(s) 1912, subd. (e)), and a requirement of proof beyond a reasonable doubt, supported by the testimony of qualified experts, of a threat of serious harm before parental rights respecting an Indian child may be terminated (Section(s) 1913, subd. (f)).

[55] Section 1913 sets forth standards for voluntary foster care placements and voluntary terminations of parental rights.

Subsection (a) provides that Indian parents who relinquish their parental rights must execute the relinquishments in writing before a judge, who must certify that the proceedings were explained to the parents in a language they understand. Subsection (a) further provides that “Any consent given prior to, or within ten days after, birth of the Indian child shall not be valid.”

Subsection (b) provides that a parent or Indian custodian may withdraw consent to a foster care placement at any time, and upon such withdrawal, the child must be returned.

ubsection (c) provides that a parent or Indian custodian may withdraw consent to termination of parental rights at any time until entry of a final order of adoption or termination, and upon such withdrawal, the child must be returned.

Subsection (d) provides that a final court decree of adoption may be overturned at any time within two years of its entry if parental consent was obtained through fraud or duress.

[56] Section 1914 of ICWA allows any Indian child, parent or Indian custodian from whom a child was removed, and the Indian child’s tribe to petition a court of competent jurisdiction to invalidate a foster care placement or termination of parental rights upon a showing that such action violated any provision of sections 1911, 1912 or 1913.

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[57] 2. The “Existing Indian Family” Doctrine

[58] As noted above, ICWA applies to any child who is either: (1) a member of an Indian tribe, or (2) eligible to be a member, and the biological child of a member of a tribe. (Section(s) 1903, subd. (4).) However, some courts have declined to apply the Act where a child is not being removed from an existing Indian family, because, in such circumstances, ICWA’s underlying policies of preserving Indian culture and promoting the stability and security of Indian tribes and families are not furthered. (In re Adoption of Crews, supra, 825 P.2d 305; Matter of Adoption of Baby Boy L., supra, 643 P.2d 168.)

[59] The earliest case to articulate what later became known as the existing Indian family doctrine was Matter of Adoption of Baby Boy L., supra, 643 P.2d 168. In that case, the Kansas Supreme Court observed that the purpose of ICWA was to maintain family and tribal relationships existing in Indian homes and to set standards for removal of Indian children from an existing Indian environment. (643 P.2d at p. 175.) The court found that the child whose custody was at issue in that case had been relinquished by his non-Indian mother at birth and had never been in the custody of his Indian father. The child thus had never been part of an Indian family relationship. Preservation of an Indian family was therefore not involved in the case; consequently, ICWA did not apply. (643 P.2d at p. 175; see also Matter of Adoption of T.R.M. (Ind., 1988) 525 N.E.2d 298, 303; Claymore v. Serr (S.D., 1987) 405 N.W.2d 650, 654; In the Interest of S.A.M. (Mo., 1986) 703 S.W.2d 603, 609; Adoption of Baby Boy D. (Ok., 1985) 742 P.2d 1059, 1064, cert. den. by Harjo v. Duello (1988) 484 U.S. 1072 [98 L.Ed.2d 1005, 108 S.Ct. 1042].)

[60] While the above cases found ICWA inapplicable because the Indian child himself (or herself) had never lived in an Indian environment, other cases have focused upon the question of whether the child’s natural family was part of an Indian tribe or community or maintained a significant relationship with one. In Matter of Adoption of Crews, supra, 825 P.2d 305, a case involving facts very similar to those before us, the Supreme Court of Washington found ICWA inapplicable to an adoption proceeding where the biological parents had no substantial ties to a specific tribe, and neither the parents nor their families had resided or planned to reside within a tribal reservation, although the birth mother was formally enrolled as a tribal member. In such a situation, the court found the application of ICWA would not further the Act’s policies and purposes and would consequently not be proper. (825 P.2d at pp. 308-310; see also, Hampton v. J.A.L. (La.App., 2 Cir., 1995) 658 So.2d 331, 336, aff’d. by Supreme Court of Louisiana at 662 So.2d 478.)

[61] In California, at least two courts have recognized the existing family doctrine. In In re Wanomi P. (1989) 216 Cal.App.3d 156, the court found ICWA inapplicable by its express terms, because the tribe to which the child’s mother belonged was a Canadian tribe, not a federally recognized tribe, as required by section 1903, subdivision (8) of ICWA. (216 Cal.App.3d at p. 166.) However, the court also observed, in dictum, that regulating the unwarranted removal of children from Indian families by nontribal agencies was among the objectives of ICWA, and no evidence suggested the existence of an Indian family from which the minor was being removed. (Id. at p. 168.) Thus, the court noted that there would be no occasion for an application of ICWA. (Ibid.) In In re Baby Girl A. (1991) 230 Cal.App.3d 1611, the majority found the baby’s tribe had a right to intervene in adoption proceedings. However, the right of intervention existed under state law, independently of ICWA. (230 Cal.App.3d at pp. 1618-1619.) The court found that, upon remand of the action, the preferences for the placement of Indian children in Indian families or settings, which are provided in section 1915 of ICWA, need not be followed if the trial court found the child had no actual Indian family ties. (230 Cal.App.3d at pp. 1620-1621.)

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[62] Two other California courts, however, have refused to apply the existing Indian family doctrine, or at least that version of the doctrine which holds that ICWA applies only if the child himself (or herself) has lived in an Indian family or community. In Adoption of Lindsay C., supra, 229 Cal.App.3d 404, the court characterized the doctrine as follows: “Generally speaking, [the doctrine] hold[s] the Act inapplicable in adoption proceedings involving an illegitimate Indian child who has never been a member of an Indian home or Indian culture, and who is being given up by his or her non-Indian mother.” (229 Cal.App.3d at p. 410.) The Lindsay C. court rejected the doctrine as so characterized. (Id. at pp. 415-416.) The trial court had found the tribe of the child’s unwed father had no right to notice of a pending step-parent adoption affecting the child, because he was the illegitimate child of a non-Indian mother, had always resided with the non-Indian mother, and had never been in the care or custody of the natural father, nor had any connection with Indian culture. Thus, without ever considering whether the natural father had significant ties with an Indian community, which he might one day share with the child if their family ties were not severed, the trial court concluded that no issue of the preservation of an Indian family was involved, as the child had never been a part of an Indian family. (Id. at p. 415.) The Court of Appeal rejected this reasoning and reversed. (Id. at pp. 415-416.)

[63] Likewise in In re Junious M. (1983) 144 Cal.App.3d 786, in a proceeding under (former) Civil Code section 232, the child’s mother informed the court on the third day of trial that she was of Indian descent. (144 Cal.App.3d at pp. 788-789.) The court found the mother’s tribe had a right to notice of the proceedings and a right to intervene, even though the minor had never lived in an Indian environment. “The language of the Act contains no [existing Indian family] exception to its applicability, and we do not deem it appropriate to create one judicially.” (Id at p. 796, citing A.B.M. v. M.H. (Alaska 1982) [64] 651 P.2d 1170, 1173.)” *fn10

[64] 651 P.2d 1170, 1173.)” *fn10

[65] We agree that a rule which would preclude the application of ICWA to any Indian child who has not himself (or herself) lived in an Indian family does not comport with either the language or purpose of the Act. Moreover, the United States Supreme Court has implicitly rejected any such limitation on ICWA. In Mississippi Band of Choctaw Indians v. Holyfield, supra, 490 U.S. 30, the only case in which the federal high court has construed ICWA, application of the Act’s tribal jurisdiction provisions (25 U.S.C.A. Section(s) 1911, subd. (a)) was challenged by the adoptive parents of illegitimate twin babies whose parents were enrolled members of an Indian tribe and were residents of the tribal reservation. (490 U.S. at pp. 37-38.) The babies were born off of the reservation and immediately relinquished to a non-Indian family, who adopted them in the state Chancery court. The birth mother returned home to the reservation after giving birth. On a subsequent motion by the tribe to vacate the adoption on the ground that the tribal court had exclusive jurisdiction over matters affecting the children’s custody, the state court found the children had never resided, or even been physically present, on the reservation, and were thus not domiciled there. Consequently, the court found ICWA did not apply. (Ibid.) The Supreme Court reversed (Id. at p. 41), finding that

(1) a general federal rule of domicile must apply for purposes of determining jurisdiction under ICWA (Id. at pp. 43-45);

(2) under such rule, the children’s domicile at birth followed that of their natural mother, and she was domiciled on the reservation (Id. at pp. 47-49);

(3) therefore, the tribe had exclusive jurisdiction over custody proceedings affecting the children under section 1911, subdivision (a). (Id. at p. 53.)

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[66] Holyfield establishes, by clear implication, that an application of ICWA will not be defeated by the mere fact that an Indian child has not himself (or herself) been part of an Indian family or community. However, it does not follow from Holyfield that ICWA should apply when neither the child nor either natural parent has ever resided or been domiciled on a reservation or maintained any significant social, cultural or political relationship with an Indian tribe. *fn11 To the contrary, in our view, there are significant constitutional impediments to applying ICWA, rather than state law, in proceedings affecting the family relationships of persons who are not residents or domiciliaries of an Indian reservation, are not socially or culturally connected with an Indian community, and, in all respects except genetic heritage, are indistinguishable from other residents of the state. These impediments arise from the due process and equal protection guarantees of the Fifth and Fourteenth Amendments and from the Tenth Amendment’s reservation to the states of all powers not delegated to the federal government. We must, of course, construe the statute to uphold its constitutionality. (Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades Council (1983) 485 U.S. 568, 575 [99 L.Ed.2d 645, 108 S.Ct. 1392]; Adoption of Kelsey S. (1992) 1 Cal.4th 816, 826.)

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[67] 3.

Constitutional Limitations Upon the Scope of ICWA

[68] a. Due Process

The intent of Congress in enacting ICWA was to “protect the best interests of Indian children,” as well as “promote the stability and security of Indian tribes and families.” (25 U.S.C. Section(s) 1902.) These two elements of ICWA’s underlying policy are in harmony in the circumstance in which ICWA was primarily intended to apply — where nontribal public and private agencies act to remove Indian children from their homes and place them in non-Indian homes or institutions. (See 25 U.S.C. Section(s) 1901, subd. (4).) But in cases such as this one, where, owing to noncompliance with ICWA’s procedural requirements, ICWA’s remedial provisions are invoked to remove children from adoptive families to whom the children were voluntarily given by the biological parents, the harmony is bound to be strained. Indeed, in circumstances of this kind, the interests of the tribe and the biological family may be in direct conflict with the children’s strong needs, which we find to be constitutionally protected, to remain through their developing years in one stable and loving home.

[69] An individual’s many related interests in matters of family life are compelling and are ranked among the most basic of civil rights. (Quilloin v. Walcott (1978) 434 U.S. 246, 255 [54 L.Ed.2d 511, 98 S.Ct. 549]; In re Marilyn H. (1993) 5 Cal.4th 295, 306.) The United States Supreme Court has stated that “[t]he intangible fibers that connect parent and child have an infinite variety. They are woven throughout the fabric of our society, providing it with strength, beauty and flexibility. It is self-evident that they are sufficiently vital to merit constitutional protection in appropriate cases.” (Lehr v. Robertson (1983) 463 U.S. 248, 256 [77 L.Ed.2d 614, 103 S.Ct. 985].) The high court has explained that its decisions which accord federal constitutional protection to certain parental rights rest upon “the historic respect — indeed, sanctity would not be too strong a term — traditionally accorded to the relationships that develop within the unitary family.” (Michael H. v. Gerald D. (1989) 491 U.S. 110, 123 [105 L.Ed.2d 91, 109 S.Ct. 2333].)

[70] Family rights are afforded not only procedural but also substantive protection under the due process clause. (Meyer v. Nebraska, 262 U.S. 390, 399-401 [67 L.Ed.1042, 43 S.Ct. 625] [law against teaching foreign languages in elementary schools did not serve sufficiently compelling public purpose to justify infringement of due process rights of students to acquire knowledge and of parents to control their children’s education]; Stanley v. Illinois (1972) 405 U.S. 645, 649 [31 L.Ed.2d 561, 92 S.Ct. 1208] [“[A]s a matter of due process of law, Stanley was entitled to a hearing on his fitness as a parent before his children were taken from him. . . .”]; Santosky v. Kramer (1982) 455 U.S. 745, 753 [71 L.Ed.2d 599, 102 S.Ct. 1388] [“When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.”]; Moore v. East Cleveland (1977) 431 U.S. 494, 502 [52 L.Ed.2d 531, 97 S.Ct. 1932] [local ordinance which limited occupancy of a dwelling unit to members of a nuclear family violated Due Process Clause].) Substantive due process prohibits governmental interference with a person’s fundamental right to life, liberty or property by unreasonable or arbitrary legislation. (Moore v. East Cleveland, supra, 431 U.S. at pp. 501-502; In re David B. (1979) 91 Cal.App.3d 184, 192-193.) Legislation which interferes with the enjoyment of a fundamental right is unreasonable under the Due Process Clause and must be set aside or limited unless such legislation serves a compelling public purpose and is necessary to the accomplishment of that purpose. In other words, such legislation would be subject to a strict scrutiny standard of review. (Moore v. East Cleveland, supra, 431 U.S. at p. 499; Bates v. City of Little Rock (1960) 361 U.S. 516, 524 [4 L.Ed.2d 480, 80 S.Ct. 412]; Sherbert v. Verner (1963) 374 U.S. 398, 406 [10 L.Ed.2d 965, 83 S.Ct. 1790]; see also Poe v. Ullman (1961) 367 U.S. 497, 547 [6 L.Ed.2d 989, 81 S.Ct. 1752], dis. opn of Harlan, J.)

[71] When discussing constitutional protections of family relationships, the courts have focused more often upon the rights of parents than those of children. The United States Supreme Court has declared that the interests “of a man in the children he has sired and raised . . .undeniably warrants deference” (Stanley v. Illinois, supra, 405 U.S. at p. 651; italics added) and that parents’ interest in the “care, companionship, custody and management” of their children has “`a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.’ [Citation.]” (Ibid., italics added; see also Santosky v. Kramer, supra, 455 U.S. at p. 753; Lassiter v. Department of Social Services (1981) 452 U.S. 18, 27 [68 L.Ed.2d 640, 101 S.Ct. 2153].) The California Supreme Court has likewise declared a parent’s interest in the care, custody and management of his or her children to be “a compelling one, ranked among the most basic of civil rights.” (In re Marilyn H., supra, 5 Cal.4th at p. 306; see also Adoption of Kelsey S., supra, 1 Cal.4th at pp. 830-848; In re Angelia P. (1981) 28 Cal.3d 908, 916.)

[72] However, the courts have described the constitutional principles which govern familial rights in language which strongly suggests the Constitution protects the familial interests of children just as it protects those of parents. The federal high Court has said that “the relationship between parent and child is constitutionally protected” (Quilloin v. Walcott, supra, 434 U.S. at p. 255; italics added) and also has “emphasized the paramount interest in the welfare of children and has noted that the rights of the parents are a counterpart of the responsibilities they have assumed.” (Lehr v. Robertson, supra, 463 U.S. at p. 257.) Our own Supreme Court has stated that the right of parents to the care, custody and management of their children, although fundamental, is not absolute, and has stated that “[c]hildren, too, have fundamental rights — including the fundamental right to be protected from neglect and to `have a placement that is stable [and] permanent.’ ” (In re Jasmon O., supra, 8 Cal.4th 398, 419, quoting In re Marilyn H., supra, 5 Cal.4th at p. 306.) “Children are not simply chattels belonging to the parent, but have fundamental interests of their own that may diverge from the interests of the parent.” (In re Jasmon O., supra, 8 Cal.4th at p. 419; italics added.)

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[73] Moreover, as a matter of simple common sense, the rights of children in their family relationships are at least as fundamental and compelling as those of their parents. If anything, children’s familial rights are more compelling than adults’, because children’s interests in family relationships comprise more than the emotional and social interests which adults have in family life; children’s interests also include the elementary and wholly practical needs of the small and helpless to be protected from harm and to have stable and permanent homes in which each child’s mind and character can grow, unhampered by uncertainty and fear of what the next day or week or court appearance may bring. (See generally, In re Jasmon O., supra, 8 Cal.4th at p. 419.)

[74] Cases which hold that deference is to be accorded to parental rights do so in part on the assumption that children’s needs generally are best met by helping parents achieve their interests. (Santosky v. Kramer, supra, 455 U.S. at pp. 759-761; Stanley v. Illinois, supra, 405 U.S. at p. 649; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242,. 253-254; In re Angelia P., supra, 28 Cal.3d at pp. 916-917.) In some situations, however, children’s and parents’ rights conflict, and in these situations, the legal system traditionally protects the child. (Cynthia D. v. Superior Court,, supra, 5 Cal.4th at p. 254; In re Angelia P., supra, 28 Cal.3d at p. 917.)

75] Circumstances in which a parent’s and child’s interest diverge, and the child’s interests are found more compelling, include circumstances where a child has been in out-of-home placement under the jurisdiction of a dependency court for 18 months, and the parent has failed to correct the problems which caused the child to be removed from the home. (In re Jasmon O., supra, 8 Cal.4th at pp. 419-422; Cynthia D. v. Superior Court, supra, 5 Cal.4th at pp. 254-256.) In cases of this kind, the California Supreme court has ruled that a substantial likelihood that the child will suffer serious trauma if separated from the foster family can establish sufficient detriment to overcome the parents’ right to the care, custody and companionship of the child. (In re Jasmon O., supra, 8 Cal.4th at pp. 418-419.) A child’s right to remain in a stable home is also found both to be adverse to and to outweigh a parent’s interests where a natural father failed to show a commitment to the child within a reasonable time of learning of the mother’s pregnancy, but later seeks to assert parental rights and disturb an adoptive placement or step parent family in which the child is secure and thriving. (Lehr v. Robertson, supra, 463 U.S. at pp. 261-262; Quilloin v. Walcott, supra, 434 U.S. at p. 255; Adoption of Michael H., supra, 10 Cal.4th at pp. 1054-1058.) In such cases, the United States Supreme Court has ruled that the parental rights of the natural father are superseded by policies favoring preservation of the child’s existing family unit. (Quilloin v. Walcott, supra, 434 U.S. at p. 255.)

76] Both the California Supreme Court and the United States Supreme Court have also recognized that a person’s interests and rights respecting family relationships do not necessarily depend upon the existence of a biological relationship. (Lehr v. Robertson, supra, 463 U.S. at p. 261; Adoption of Michael H.,(1995) 10 Cal.4th 1043, 1057-1058.) The United States Supreme Court has stated that “[n]o one would seriously dispute” that familial interests and rights may attach to the emotional ties which grow between members of a de facto family. (Smith v. Organization of Foster Families (1977) 431 U.S. 816, 844 [53 L.Ed.2d 14, 97 S.Ct. 2094].) Both high courts have recognized that such interests and rights may outweigh biological relationships under some circumstances. (Lehr v. Robertson, supra, 463 U.S. at p. 261; Quoilloin v. Walcott, supra, 434 U.S. at p. 255; Smith v. Organization of Foster Families, supra, 431 U.S. at pp. 843-844; Adoption of Michael H., supra, 10 Cal.4th at pp. 1057-1058.) *fn12

[77] Here, the biological parents have come before the court after having voluntarily relinquished their twin girls for adoption. The biological parents claim they are entitled to reestablish their relationship with the children, because their relinquishments of parental rights were not executed in accordance with ICWA. However, any claim which they may have under the statute does not necessarily establish a claim to that deference which parental rights are generally accorded under the Constitution. A biological parent’s constitutional rights, like other constitutional rights, may be waived, provided only that the waiver is knowingly and intelligently made (D.H. Overmyer Co., Inc. v. Frick Co. (1972) 405 U.S. 174, 185-186 [31 L.Ed.2d 124, 92 S.Ct. 775]; Tyler v. Children’s Home Society (1994) 29 Cal.App.4th 511, 545), and the counselling which is required by California law before a parent may relinquish a child for adoption has been held to be sufficient to assure that any waiver of parental rights is knowing and intelligent. (Tyler v. Children’s Home Society, supra, 29 Cal.App.3d at pp. 546-547.)

[78] Given the failure to comply with procedural requirements of ICWA, we cannot conclude that there has been a waiver of parental rights in this case. However, as we have observed, prior judicial decisions establish that, where a child has formed familial bonds with a de facto family with whom the child was placed owing to a biological parents’ unfitness (In re Jasmon O., supra, 8 Cal.4th at p. 418) or initial failure to establish a parent-child relationship (Lehr v. Roberston, supra, 463 U.S. at p. 261; Adoption of Michael H., supra, 10 Cal.4th at p. 1057), and where it is shown that the child would be harmed by any severance of those bonds, the child’s constitutionally protected interests outweigh those of the biological parents. (Lehr v. Robertson, supra, 463 U.S. at pp. 261-262; Adoption of Michael H., supra, 10 Cal.4th at pp. 1057-1058; In re Jasmon O., supra, 8 Cal.4th at pp. 418-419.) The rule can logically be no different where children have become bonded to a family in which they were placed after a knowing, intelligent and express relinquishment of parental rights. Inasmuch as children have a liberty interest in the continuity and stability of their homes (In re Jasmon O., supra, 8 Cal.4th at p. 419; In re Marilyn H., supra, 5 Cal.4th at p. 306), where a child’s biological parents knowingly and intelligently relinquish the child to others for the express purpose of giving the child a loving and stable home, the biological parents’ voluntary act constitutes at the very least a voluntary subordination of their constitutional rights to those of the children. The biological parents thus must rely solely upon ICWA for any claim which they might have in this matter.

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[79] The interests of the Tribe in this dispute are likewise based solely upon ICWA. There neither is nor can be any claim that the Tribe’s interests are constitutionally protected. The R’s, as the prospective adoptive parents, similarly have no interests which have been found to enjoy constitutional protection. (Smith v. Organization of Foster Families, supra, 431 U.S. at pp. 838-847.)

[80] However, the twins do have a presently existing fundamental and constitutionally protected interest in their relationship with the only family they have ever known. The children are thus the only parties before the court which have such interests. Therefore, if application of ICWA would interfere with those interests, such application must be subjected to a strict scrutiny standard to determine whether it serves a compelling government purpose and whether it is actually necessary and effective to the accomplishment of that purpose. If not, then ICWA, as so applied, would deprive the children of due process of law. (Moore v. East Cleveland, supra, 431 U.S. at p. 499; Bates v. City of Little Rock, supra, 361 U.S. at p. 524; Sherbert v. Verner, supra, 374 U.S. at p. 406.)

[81] The questions which we therefore must determine are

(1) whether the tribal interests which ICWA protects are sufficiently compelling under substantive due process standards to justify the impact which ICWA’s requirements will have on the twins’ constitutionally protected familial rights, and, if so,

(2) whether application of ICWA, under facts of the kind presented in this case, is necessary to further that interest.

[82] We have no quarrel with the proposition that preserving American Indian culture is a legitimate, even compelling, governmental interest. At the same time, however, we agree with those courts which have held that this purpose will not be served by applying the provisions of ICWA which are at issue in this case to children whose biological parents do not have a significant social, cultural or political relationship with an Indian community. It is almost too obvious to require articulation, that “the unique values of Indian culture” (25 U.S.C. Section(s) 1902) will not be preserved in the homes of parents who have become fully assimilated into non-Indian culture. This being so, it is questionable whether a rational basis, far less a compelling need, exists for applying the requirements of the Act where fully assimilated Indian parents seek to voluntarily relinquish children for adoption. The case for applying ICWA is even weaker where assimilated parents have previously concluded a reasoned and voluntary relinquishment of a child, which was valid and has become final under state law, and the child has become part of an adoptive or prospective adoptive family. In this circumstance, the invalidation of the relinquishment manifestly can serve no purpose which is sufficiently compelling to overcome the child’s fundamental right to remain in the home where he or she is loved and well cared-for, with people to whom the child is daily becoming more attached by bonds of affection and among whom the child feels secure to learn and grow. ICWA cannot constitutionally be applied under such facts.

[83] b. Equal Protection

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[84] ICWA requires Indian children who cannot be cared for by their natural parents to be treated differently from non-Indian children in the same situation. As a result of this disparate treatment, the number and variety of adoptive homes that are potentially available to an Indian child are more limited than those available to non-Indian children, and an Indian child who has been placed in an adoptive or potential adoptive home has a greater risk than do non-Indian children of being taken from that home and placed with strangers. To the extent this disparate and sometimes disadvantageous treatment is based upon social, cultural or political relationships between Indian children and their tribes, it does not violate the equal protection requirements of the Fifth and Fourteenth Amendments. (United States v. Antelope (1977) 430 U.S. 641, 646 [51 L.Ed.2d 701, 97 S.Ct. 1395]; Moe v. Salish Kootenai Tribes (1976) 425 U.S. 463, 480-481 [48 L.Ed.2d 96, 96 S.Ct. 1634]; Morton v. Mancari (1974) 417 U.S. 535, 554 [41 L.Ed.2d 290, 94 S.Ct. 2474].) However, where such social, cultural or political relationships do not exist or are very attenuated, the only remaining basis for applying ICWA rather than state law in proceedings affecting an Indian child’s custody is the child’s genetic heritage — in other words, race.

[85] Equal protection principles regard racial classifications of all kinds as “inherently suspect” (Regents of the Univ. of California v. Bakke (1978) 438 U.S. 265, 289-290 [57 L.Ed.2d 750, 98 S.Ct. 2733] (lead opn. of Powell, J.)), indeed, “odious to a free people.” (Hirabayashi v. United States (1943) 320 U.S. 81, 100 [87 L.Ed. 1774, 63 S.Ct. 1375].) The United States Supreme Court has recently held that “all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests.” (Adarand Constructors, Inc. v. Pena (1995) __ U.S. __ [132 L.Ed.2d 158, 182, 115 S.Ct. 2097] (hereafter “Adarand”; lead opn. of O’Connor, J.); see also Miller v. Johnson (1995) __U.S. __ [132 L.Ed.2d 762, 115 S.Ct. 2475, 2482].) The same principle applies whether the group targeted by a racial classification is burdened or benefited by the classification. (Adarand, supra, 132 L.Ed.2d at p. 179.) The foregoing principles apply to federal legislation affecting Indian affairs. (Delaware Tribal Business Commission v. Weeks (1974) 430 U.S. 73, 84 [51 L.Ed.2d 173, 97 S.Ct. 911].)

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[86] The Tribe and the biological parents argue that ICWA does not create a race-based classification, because application of ICWA is triggered by the child’s membership in a tribe or eligibility for membership, and depends upon the child’s genetic heritage only if the child is merely eligible for tribal membership, in which case the child must be the biological child of a tribal member. This argument is superficially appealing. However, the Tribe and the parents also argue that, under ICWA Guidelines, tribal determinations of their own membership should generally be deemed conclusive. If tribal determinations are indeed conclusive for purposes of applying ICWA, and if, as appears to be the case here, 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. *fn13

[87] For purposes of determining whether a particular application of ICWA creates a racially based classification, it makes no difference that not all tribes recognize as tribal members all blood descendants of tribal members. (See, e.g., Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 52-53 [56 L.Ed.2d 106, 98 S.Ct. 1670] [tribe denied tribal membership to the children of female tribal members who married outside the tribe, but not to the children of similarly situated male tribal members].) As we have observed above, to the extent that tribal membership within the meaning of ICWA is based upon social, cultural or political tribal affiliations, it meets the requirements of equal protection. However, any application of ICWA which is triggered by an Indian child’s genetic heritage, without substantial social, cultural or political affiliations between the child’s family and a tribal community, is an application based solely, or at least predominantly, upon race and is subject to strict scrutiny under the equal protection clause. So scrutinized, and for the same reasons set forth in our discussion of the due process issue, it is clear that ICWA’s purpose is not served by an application of the Act to children who are of Indian descent, but whose parents have no significant relationship with an Indian community. If ICWA is applied to such children, such application deprives them of equal protection of the law.

[88] c. The Indian Commerce Clause and the Tenth Amendment

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[89] Congress’s authority to enact ICWA arises from clause 3 of section 8 of article I of the Constitution, “The Congress shall have power . . . to regulate Commerce . . . with the Indian tribes.” (25 U.S.C.A. Section(s) 1901, subd. (1); In re Wanomi P., supra, 216 Cal.App.3d at pp. 162-163.) This clause grants Congress plenary power over Indian affairs. (United States v. Wheeler (1978) 435 U.S. 313, 318 [55 L.Ed.2d 303, 98 S.Ct. 1079]; Morton v. Mancari, supra, 417 U.S. at pp. 551-552; Worcester v. State of Georgia (1831) 31 U.S. (6 Pet. ) 515, 559 [8 L.Ed. 483].) Indian tribes are deemed to be semi-sovereign nations under the protection of the federal government. Tribes retain attributes of sovereignty over both their members and their territories; such sovereignty is dependent on, and subordinate to, only the Federal Government, not the states. (California v. Cabazon Band of Indians (1987) 480 U.S. 202, 207 [94 L.Ed.2d 244, 107 S.Ct. 1083]; Washington v. Confederated Tribes (1980) 447 U.S. 134, 153-154 [65 L.Ed.2d 10, 100 S.Ct. 2069].)

[90] The principles of tribal self-government, grounded in notions of inherent sovereignty and in congressional policies, seek an accommodation between the interests of the tribes and the federal government on the one hand, and those of the states, on the other. (Washington v. Confederated Tribes, supra, 447 U.S. at pp. 156-157.) Thus, the Supreme Court has held nonreservation Indians are generally subject to nondiscriminatory and generally applicable state laws “[a]bsent express federal law to the contrary.” (Mescalero Apache Tribe v. Jones (1973) 411 U.S. 145, 148-149 [36 L.Ed.2d 114, 93 S.Ct. 1267].) Even on Indian reservations, state laws generally may be applied insofar as they do not interfere with reservation self-government or essential internal tribal affairs, or impair a right reserved by federal law. (Id. at p. 148.)

[91] Jurisdiction over matters of family relations is traditionally reserved to the states. (Rose v. Rose (1987) 481 U.S. 619, 625 [95 L.Ed.2d 599, 107 S.Ct. 2029]; Lehman v. Lycoming County Children’s Services (1982) 458 U.S. 502, 511-512 [73 L.Ed.2d 928, 102 S.Ct. 3231]; In re Burris (1890) 136 U.S. 586, 593-594 [34 L.Ed. 500, 10 S.Ct. 850].) Thus, where it is contended that a federal law must override state law on a matter relating to family relations, it must be shown that application of the state law in question would do “`major damage’ to `clear and substantial federal interests.’ [Citations].” (Rose v. Rose, supra, 481 U.S. at p. 625.)

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[92] Under these principles, ICWA should apply rather than state laws respecting family relations only where such application actually serves the specific purposes for which ICWA was enacted, “to promote the stability and security of Indian tribes and families” (25 U.S.C. Section(s) 1902), or the broader purposes which are served by all authorized exercises of Congressional power under the Indian Commerce Clause, namely, the purposes of acting as a guardian to the Indian tribes, and in so doing, protecting Indian tribal self-government. (Morton v. Mancari, supra, 417 U.S. at pp. 553-554.)

[93] The recent case of United States v. Lopez ___ U.S. ___ [131 L.Ed.2d 626, 115 S.Ct. 1624] is instructive, although that case concerned the powers of Congress under the Interstate Commerce Clause, and the reach of the Indian Commerce Clause is not identical. In Lopez, the United States Supreme Court indicated that Congress’s power under the Interstate Commerce Clause to legislate in areas otherwise reserved to the states will be confined to matters which substantially affect interstate commerce. (115 S.Ct. at p. 1630.) The reasoning of Lopez logically applies with respect to the Indian Commerce Clause, indeed, to any enumerated power of Congress. Congress exceeds its authority when, acting under any of its enumerated powers, Congress legislates in matters generally within the jurisdiction of the states, in the absence of an adequate nexus to the enumerated power under which the legislation is enacted. (Cf. 115 S.Ct. at pp. 1631-1634.)

[94] No such nexus exists respecting application of ICWA to children whose families do not maintain significant relationships with an Indian tribe or community or with Indian culture. Once again, ICWA’s purpose simply is not furthered by an application of the Act to families who are of Indian descent, but who maintain no significant social, cultural or political relationships with Indian community life, and are in all respects indistinguishable from other residents of the state. Thus, if ICWA is applied to such children, that application impermissibly intrudes upon a power reserved to the states.

 

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[95] d. Conclusion

[96] We do not believe ICWA applies only to Indian children who are domiciled on reservations. Indeed, the Act’s express terms provide for application of most of its provisions to reservation-domiciled and nonreservation-domiciled Indians alike. (Section(s) 1911, subds. (b) and (c).) Only the provision for exclusive jurisdiction in the tribal court is restricted to reservation domicilaries. (Section(s) 1911, subd. (a).) However, if the Act applies to children whose families have no significant relationship with Indian tribal culture, such application 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 respecting family relationships; and

(3) on the sole basis of race, it deprives them of equal opportunities to be adopted that are available to non-Indian children and exposes them, like the twin girls in this case, to having an existing non-Indian family torn apart through an after the fact assertion of tribal and Indian-parent rights under ICWA (which rights were, in this case, specifically and intentionally ignored by the biological parents now asserting them). All of this occurs in the absence of even a rational relationship to a permissible state purpose, much less a necessary connection with a compelling state purpose.

[97] We conclude that principles of substantive due process, equal protection and federalism all carry the same implication regarding the proper scope of ICWA — it can properly apply only where it is necessary and actually effective to accomplish its stated, and plainly compelling, purpose of preserving Indian culture through the preservation of Indian families. We agree with those courts which have held that ICWA’s purpose is not served by an application of the Act where the child may be of Indian descent, but where neither the child nor either parent maintains any significant social, cultural or political relationships with Indian life.

 

(See these Constitutional arguments also on our 14th Amendment page – CAICW)

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[98] 4. The Trial Court Must Determine The Question Of Whether There Was An “Existing Indian Family” Which Is The Factual Predicate To The Application Of ICWA

[99] The trial court in this case determined, as a matter of law, that the twins are Indian children, because they are enrolled members of the Tribe, are recognized by the Tribe as members and are the biological children of an enrolled and recognized tribal member. The trial court thus concluded that ICWA applies, and the biological parent’s relinquishment of the twins for adoption was invalid under section 1913 of the Act. However, more is required to justify an application of ICWA than a biological parents’ mere formal enrollment in a tribe, or a self-serving after-the-fact tribal recognition of such a parent’s membership. Such token attestations of cultural identity fall short of establishing the existence of those significant cultural traditions and affiliations which

[100]ICWA exists to preserve, and which are consequently necessary to invoke a constitutionally permissible application of the Act. *fn14

[101] Because the trial court was persuaded that enrollment in the Tribe and tribal recognition of the twins’ tribal membership were enough to trigger the application of ICWA, the court had no occasion to make a further factual determination as to whether the biological parents maintain significant social, cultural or political relationships with the Tribe. The case must therefore be remanded so that such factual determination can be made.

[102] The biological parents (and the Tribe), of course, will bear the burden of proof on this issue. It is they who seek to set aside the relinquishment of parental rights which were otherwise final and binding under California law. To do this they rely on the application of a federal statute. It is they who must prove that the necessary factual basis for the application of that statute is present. (Evid. Code, Section(s) 500.)

[103] Moreover, that determination must focus upon the biological parents’ social, cultural and political relationship with the Tribe, although any relationship between the Tribe and extended family members may well bear on the issue of the biological parents’ relationship. On this point, we agree with the Supreme Court of South Dakota, writing in Claymore v. Serr, supra, 405 N.W.2d 650, one of the early cases to apply the existing Indian family doctrine. The Claymore court observed that ICWA refers in some contexts to “Indian families” and in others, to “extended Indian families,” suggesting that when the former term is used, the nuclear family, “the fundamental social unit in civilized society,” is intended. (405 N.W.2d at pp. 653-654.)

[104] The biological parents and the Tribe contend it would be unfair to focus only upon the nuclear family when assessing an application of ICWA, because such focus would ignore tribal kinship systems, in which the extended family is a fundamental unit. The parents and Tribe argue that one of the primary reasons ICWA was enacted was to combat the adverse effects upon Indian communities of failures by state courts and agencies to appreciate the importance in tribal life of the extended family, as well as other customs and institutions affecting the welfare of Indian children. They thus argue, in effect, that to exclude the extended family from consideration when we determine whether there is an existing Indian family, and hence, whether ICWA applies, would be a mere analytical sleight of hand, by which ICWA’s requirements of giving due consideration to essential tribal relations would be unfairly sidestepped.

[105] After giving this argument long and careful consideration, we are compelled to disagree. First, it implicitly assumes the conclusion that the biological parents did have significant social, cultural or political connections to the Tribe. If they had no such connections, then there would be no real issue of an “extended Indian family” for the court to ignore. Secondly, and more significantly, it must not be forgotten that this case has arisen because the biological parents abjured their Indian heritage when, instead of turning to their extended family for succour and support in anticipation of the twins’ birth, they voluntarily, and for rational and understandable reasons, relinquished those children to strangers. Then, to prevent interference with those relinquishments by the Tribe, they denied their heritage in response to multiple direct inquiries. Having done these things, the biological parents may now justly be required to prove that they themselves have a significant relationship with an Indian community and may be precluded from using cultural ties which may be maintained by their blood relatives to bootstrap themselves into an application of ICWA.

[106] The determination whether the twins were removed from an existing Indian family must also be made as of the time of the relinquishments. There can be no justification or excuse for tearing children from a family to which they are bonded, based upon an ex post facto manufacture of a legal basis for applying ICWA. The R’s urge us to hold that contemporaneous enrollment in the tribal register is necessary to establish that a child’s biological parent is a member of an Indian tribe within the meaning of ICWA. While such a bright-line rule has much to recommend it, we can imagine circumstances in which it would work an injustice, and we decline to announce such a rule. Nevertheless, the circumstance that Richard’s mother Karen — not Richard himself — applied for tribal enrollment for herself, Richard and all his children after the present dispute arose is a circumstance which can be considered in determining whether Richard truly maintained a significant relationship with the Tribe at the time of the twins’ birth.

[107] In considering whether the biological parents maintained significant ties to the Tribe, the court should also consider whether the parents privately identified themselves as Indians and privately observed tribal customs and, among other things, whether, despite their distance from the reservation, they participated in tribal community affairs, voted in tribal elections, or otherwise took an interest in tribal politics, contributed to tribal or Indian charities, subscribed to tribal newsletters or other periodicals of special interest to Indians, participated in Indian religious, social, cultural or political events which are held in their own locality, or maintained social contacts with other members of the Tribe. In this regard, we find particularly significant the fact that in the months preceding the birth of the twins, the biological parents turned not to the Tribe or even to other family members, *fn15 but rather to California’s legal process for the purpose of securing the adoption of the twins by a loving family able to care for them. The biological parents did this voluntarily and for reasons which reflected that their primary concern was for the twins’ future welfare. Moreover, as already noted, in order to facilitate the adoption process the biological parents expressly and intentionally denied their Indian heritage. Such conduct permits a very strong inference to be drawn about the absence of a significant relationship with the Tribe.

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[108] 5.If the Trial Court Finds That ICWA Applies, Then a Further Hearing Must Be Held on Whether a Change of Custody Would Be Detrimental to the Twins.

[109] In anticipation of the possibility that the trial court might, upon remand, conclude that ICWA does apply, the R’s have filed, and there is now pending in the trial court, a petition for their appointment as guardians of the twins. *fn16 The biological parents and the Tribe dispute that such a procedure is appropriate. *fn17 The R’s respond that a hearing on their guardianship petition is required in order to protect the constitutional rights of the twins and, in any event, is not precluded by the provisions of ICWA. *fn18

[110] However, the biological parents and the Tribe contend that, if the trial court ultimately finds that ICWA applies, then

(1) the relinquishments of parental rights would be invalid,

(2) no basis for an involuntary termination of rights would exist and

(3) the twins would have to be returned to the biological parents, without further proceedings. In support of this contention, they cite ICWA sections 1913, subdivision (c), and 1920, as well as Family Code sections 8804 and 8815 and two California cases, In re Timothy W. (1990) 223 Cal.App.3d 437 and In re Cheryl E. (1984) 161 Cal.App.3d 587.

[111] The California authorities cited are inapposite. Family Code sections 8804 and 8815 are part of the statutory scheme governing independent adoptions and have no application outside of that scheme. *fn19 For the same reason, In re Timothy W., supra, has no application to this case. In Timothy W., the court held that under the Civil Code statutes which formerly governed independent adoptions, a parent who withdrew consent to an adoption within six months was entitled to have the child returned without the need for judicial findings on the child’s best interests. (223 Cal.App.3d at p. 441.) In re Cheryl E., supra, is also distinguishable. In that case, the Court of Appeal affirmed a trial court order granting the mother’s petition to rescind her relinquishment of parental rights on the ground of fraud and undue influence (161 Cal.App.3d at p. 594); the appellate court found there was no occasion in the rescission action for the child’s best interests to be considered, and noted that this issue would be addressed in a separate dependency proceeding, which was pending. (Id. at pp. 603-604.)

[112] The contention that ICWA, section 1913, subdivision (c), requires automatic return of the children to the biological parents has somewhat more force. That section provides that “[i]n any voluntary proceeding for termination of parental rights to, or adoptive placement of, an Indian child, the consent of the parent may be withdrawn for any reason at any time prior to the entry of a final decree of termination or adoption, as the case may be, and the child shall be returned to the parent.” (Italics added.) If ICWA applies in this case, then no valid decree or other document effecting a termination of parental rights has been entered, and the biological parents have long since withdrawn their consent. Thus, the Tribe argues, section 1913, subdivision (c), requires the immediate and unconditional return of the children to their biological family.

[113] We disagree. The reach of section 1913 is limited by the twins’ interest in having a stable and secure home which, as we have already concluded, is an interest of constitutional dimension. Inasmuch as an individual’s interests in matters of family life are “compelling and are ranked among the most basic of civil rights” (Quilloin v. Walcott, supra, 434 U.S. at p. 255), and inasmuch as children “are not simply chattels belonging to the parent,” but have fundamental, constitutionally protected interest of their own, including “the fundamental right to . . . have a placement that is stable [and] permanent” (In re Jasmon O., supra, 8 Cal.4th at p. 419), we believe it would constitute a violation of the Due Process Clause of the Fifth and Fourteenth Amendments to remove a child from a stable placement, based upon statutory violations which occurred in making the placement, without a hearing to determine whether the child would suffer harm if removed from that placement. (Stanley v. Illinois, supra, 405 U.S. at p. 649.) Such a constitutional mandate cannot be avoided by reliance on the statutory provisions of ICWA.

[114] However, even under ICWA a change of custody hearing can be justified. Most of its provisions which deal with the custody of children expressly provide that consideration must be given to the child’s interests before any order changing a child’s custody is made. For example, section 1916, subdivision (a), deals with the issue of return of custody in circumstances substantially like those presented here. *fn20 It speaks directly to what happens after “a final decree of adoption of an Indian child has been vacated.” We do not have that precise situation here; however, we do have something very close: the invalidation of a voluntary relinquishment of parental rights. In both situations, custody of the child would in all likelihood have been given over to the prospective adoptive parents prior to any determination of invalidity. If, because of the application of ICWA, a final adoption is invalidated, or, as in this case, made impossible, the problem is the same: what is to be done about custody? Section 1916, subdivision (a), contemplates and provides something very similar to the procedure which we will require here in the event that the trial court finds that ICWA applies to this case.

[115] Two other sections of ICWA also recognize the importance of the child’s interests and needs. Section 1915 provides preferences for the placement of Indian children, but authorizes a different placement if there is good cause and specifically requires that any special needs of the child be considered in making a placement. (Section(s) 1915, subds. (a) and (b).) Section 1915, subdivision (c) authorizes a child’s tribe to specify different preferences, but requires any placement so specified to be “the least restrictive setting appropriate to the particular needs of the child.” Section 1920, which prescribes the consequences of an improper removal of a child from the legal custodian, and which the Tribe and biological parents contend requires automatic return of the child, provides that such return need not be ordered if it would subject the child to substantial and immediate danger, or the threat thereof.

[116] In the context of these express provisions within ICWA for consideration of the child’s interests in making a custody order, it does no violence to the overall statutory scheme to imply such a provision where it is contended that a child’s custody must be changed pursuant to section 1913, subdivision (c), due to a violation of section 1913, subdivision (a). *fn21 This result is not inconsistent with the intent of Congress. The legislative history of ICWA reflects the following comment in the House Report of the Interior and Insular Affairs Committee of July 24, 1978: “[T]he committee notes that nothing in those subsections [referring to the subsections of section 1913] prevents an appropriate party or agency from instituting an involuntary proceeding, subject to section [1912], to prevent the return of the child, but does not wish to be understood as routinely inviting such actions.” (1978 U.S. Code Cong. & Admin. News, at p. 7546; italics added.) *fn22

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[117] Finally, there is significant case authority for such a custody hearing. The R’s and amicus curiae have cited authorities from Colorado, New Jersey and New Mexico, in which the courts recognize that, where an anticipated adoption cannot legally be effected, the child’s interests must nevertheless be considered before custody of the child is returned to the biological parent. (See Matter of Custody of C.C.R.S. (Colo. 1995) 892 P.2d 246, 257-258, cert. denied by C.R.S. v. T.A.M. (1995) ___ U.S. ___ [133 L.Ed.2d 69, 116 S.Ct. 118]; Matter of Adoption of J.J.B. (1995) 119 N.M. 638 [894 P.2d 994, 1008-1009] cert. denied by Bookert v. Roth (1995) ___ U.S. ___ [133 L.Ed.2d 110, 116 S.Ct. 168]; Sorentino v. Family Children’s Soc. of Elizabeth (1976) 72 N.J. 127 [367 A.2d 1168, 1170-1171].) The California Supreme Court has also suggested in dictum that where a parent, having the right to do so, vetoes an anticipated adoption, the question of whether custody of the child should be awarded to the parent is a matter for separate determination. (Adoption of Kelsey S., supra, 1 Cal.4th at p. 851 [“Even if petitioner has the right to withhold his consent (and chooses to prevent the adoption), there will remain the question of the child’s custody”].) The Alaska Supreme Court reached the same conclusion in a case involving ICWA. In A.B.M. v. M.H., supra, 651 P.2d 1170, cert. denied by Hunter v. Maxie (1983) 461 U.S. 914 [77 L.Ed.3d 283, 103 S.Ct. 1893] the adoption of an Indian child was vacated owing to certain statutory violations, and thereafter, the mother petitioned to have the child returned to her custody. (651 P.2d at pp. 1171-1172.) The Alaska Supreme Court held that a hearing on the issue of custody would be required, subject to the provisions of ICWA, section 1912, before a return to the mother could be ordered. (Id. at pp. 1175-1176.)

[118] We therefore hold that, if the trial court determines upon remand that

(1) ICWA applies in this case, and

(2) under ICWA, the voluntary termination of the parental rights of the biological parents is invalid, the court must nevertheless hold a hearing on the question of whether there should be a change of custody. That can best be accomplished in the context of the R’s petition to be appointed guardians of the twins.

[119] California’s guardianship law offers equitable and constitutionally permissible standards for resolving the question of the proper custody of the twins in the event their pending adoption by the R’s fails due to the application of ICWA. These standards look to something more than the twins’ “best interests,” but rather require an examination of whether a custody change will result in detriment to them. These standards are consistent with the statutory preferences for maintaining a child’s custodial ties with the biological parents, but do not require that result if the evidence shows that the child would be harmed if removed from the custody of those persons who have acted as de facto and psychological parents since birth and with whom the child has bonded. *fn23

[120] Such guardianship hearing must be held under the provisions of Probate Code, section 1514, Family Code, sections 3040 and 3041, and ICWA, section 1912, subdivision (e). The burden of proof will necessarily rest upon the R’s. (Evid. Code, Section(s) 500.) The twins shall not be returned to the custody of the biological parents and may instead remain with the R’s if, and only if, the R’s can establish, by clear and convincing evidence, including the testimony of qualified expert witnesses, that a change of custody to the biological parents would be detrimental to the twins, and a grant of custody to the R’s is necessary to serve the twins’ best interests. (Fam. Code, Section(s) 3040, 3041; 25 U.S.C. Section(s) 1912, subd. (e); In re B.G. (1974) 11 Cal.3d 679, 695; In re Phillip B. (1983) 139 Cal.App.3d 407, 421.) *fn24 In making this determination, the court should take into consideration the likelihood, or lack thereof, that the twins will suffer trauma if separated from the R’s. *fn25

[121] The court will not be precluded from granting the guardianship petition because of any alleged failure to provide remedial and rehabilitative services to the biological parents, as provided in ICWA section 1912, subdivision (d). ICWA requires such services “to prevent the breakup of the Indian family.” The only time at which the “breakup” of the twins’ biological family could have been “prevented” was before the voluntary relinquishments which were made in this case. At that time, as we have already noted, the biological parents were counseled as required by California law (Fam. Code, Section(s) 8621 and regulations adopted thereunder [Cal. Code Regs., tit. 22, Section(s) 35128 et seq]), concerning the relinquishment and adoption process, alternatives to adoption, resources for financial assistance, employment resources, child care resources, housing resources and health service resources which were available to them if they determined not to relinquish their children. Despite such counselling, the parents decided, for good and sufficient reasons, to relinquish the children for adoption. We believe these circumstances adequately establish that active efforts were made to prevent the breakup of the family as required by ICWA section 1912, subdivision (d), and that such efforts were unsuccessful.

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[122] CONCLUSION


[123] In this case we have concluded that ICWA cannot be constitutionally applied in the absence of evidence demonstrating that the biological parents had a significant social, cultural or political relationship with the Tribe. On the record before us, we find little or no support for the existence of such relationship. Indeed, the conduct of the biological parents in this matter with respect to the events and circumstances leading up to their relinquishment of the twins strongly suggests that no such relationship existed. However, we cannot conclude, as a matter of law, that the biological parents or the Tribe, upon remand, would not be able to produce additional evidence. Indeed, as a result of the trial court’s ruling, none of the parties had any opportunity to present evidence on this critical issue. Therefore, a hearing in the trial court will be required to determine if there is any factual support to establish that the twins were a part of an existing Indian family so as to justify the application of ICWA. On this question, the burden of proof will be on the biological parents and the Tribe. If the trial court concludes that they have not carried their burden, then judgment shall be entered in favor of the R’s and they will be free to proceed with the adoption proceedings now pending in Ohio. If the trial court finds otherwise, then it will be necessary to conduct a further hearing on the question of whether there should be a change of custody. The pending guardianship petition filed by the R’s would be a proper vehicle to resolve that question. *fn26 With respect to this issue, the R’s will have the burden of proof.

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[124] DISPOSITION

[125] The order to show cause is discharged. The petition for writ of mandate is granted. The order vacating the termination of the parental rights of Richard A. and Lucy R. over the minors Lucy and Bridget R. is reversed. The matter is remanded, and the trial court is

[126] ordered to conduct further proceedings consistent with the views expressed in this opinion. Costs on appeal are awarded to the R’s and Vista Del Mar.

[127] CERTIFIED FOR PUBLICATION

[128] CROSKEY, J.

[129] We concur:

[130] KLEIN, P.J.

[131] ALDRICH, J.

 

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***** BEGIN FOOTNOTE(S) HERE *****

[132] *fn1 A notice of appeal was filed by the R’s on June 14, 1995. On June 15, 1995, they filed a petition for writ of supersedeas or other appropriate stay of the trial court’s order for an immediate transfer of custody. On that same date, we issued a temporary stay.

[133] On June 21, 1995, the R’s filed their Petition for Writ of Mandate, in which they raised the same issues as are raised on appeal. By three separate orders, each entered July 5, 1995, we (1) set a hearing on the petition for writ of supersedeas for July 19, 1995; (2)

rdered proceedings on the petition for writ of mandate to be consolidated with the appeal and ordered the parties to appear before this court on October 18, 1995, to show cause why the writ of mandate should not be granted; and (3) ordered the appeal expedited and propounded questions to be addressed by the parties.

[134] On July 21, 1995, after the hearing of July 19 on the petition for writ of supersedeas, we granted the writ of supersedeas, staying all orders and judgments which are the subject of the appeal.

[135] *fn2 The twins are separately represented and also have filed a responsive brief, in which they support the position of the adoptive parents and the adoption agency. This represents a change of position from the twins’ position at trial. Indeed, the twins have been represented by three different attorneys over the course of these proceedings and have shifted sides in the controversy with each change of attorney. The attorney who originally was appointed to represent the twins filed pleadings on their behalf in which he argued that application of ICWA without holding a hearing on their best interests would deprive them of due process of law. When that attorney subsequently recalled that he had once been consulted by the adoption agency concerning this case, he was replaced by a second attorney, who took the opposite position. Counsel on appeal has returned to the position taken by the twins’ first attorney.

[136] *fn3 The facts we recite are taken from the record of testimony and other evidence presented to the trial court and are substantially undisputed.

[137] *fn4 At the time of oral argument, Cindy’s attorney represented to the court that there is a federally recognized community of Yaqui Indians located in the state of Arizona. However, Cindy does not claim membership in that community.

[138] *fn5 The record indicates that the R’s paid approximately $14,000 to Cook for the birth mother’s expenses, in addition to attorney’s fees.

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[139] *fn6 Since January 1, 1994, the California statutes governing agency adoptions are found in Chapter 2 (Section(s) 8700 et seq.) of Part 2 of Division 13, “Adoption,” of the Family Code. These statutes are substantially identical to statutes in the Civil Code, now repealed, which previously governed the same subject matter. Together with related statutes and regulations, they provide in pertinent part that:

(1) Either or both biological parents may relinquish a child to a licensed adoption agency or the Department of Social Services (Fam. Code, Section(s) 8700, subd. ((a));

(2) the relinquishment must be executed after the child is born and when the birth mother has been released from the hospital or declared competent by her attending physician to execute a valid relinquishment (22 Cal.Code Reg. Section(s) 35139)

(3) each relinquishing parent must also sign, in the presence of an agency representative and two additional adult witnesses, a “Statement of Understanding,” indicating the parent’s clear understanding of the effects of the relinquishment (22 Cal.Code Reg. Section(s) 35149; 35151(a)(2)(a));

(4) when executed in compliance with the above requirements, a relinquishment is final upon filing with the Department, and may be rescinded thereafter only by the mutual consent of the relinquishing parent or parents and the Department or licensed adoption agency (Fam. Code, Section(s) 8700, subd. (d));

(5) the biological parents may designate the prospective adoptive family, and, if the child is not placed with that family, may rescind the relinquishment within 30 days (Fam. Code, Section(s) 8700, subds. (e), (f) and (g));

(6) the filing of the relinquishment terminates all parental rights (Fam. Code, Section(s) 8700, subd. (h));

(7) a child who is relinquished should be placed with a relative, or, if a relative is not available, with a family of the same racial or ethnic background as the child, or, if no such family is available within 90 days of the relinquishment, after a diligent search, with any suitable family (Fam. Code, Section(s) 8708);

(8) the above preferences need not be applied if the birth parents request otherwise (Fam. Code, Section(s) 8709);

(9) a person who has been approved by the Department or a licensed adoption agency to adopt a child may file a petition for adoption in the county where the petitioner resides (Fam. Code, Section(s) 8704, 8714);

(10) if the prospective adoptive parents reside outside of California, they may file a petition for adoption in the state where they reside under the Interstate Compact on the Placement of Children (Fam. Code, Section(s) 7901).

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[140] It is undisputed that, but for the challenged application of ICWA, the biological parents’ relinquishments of parental rights were valid and final under the above statutes as of November 23, 1993, the date when the relinquishments were filed with the Department of Social Services in Sacramento.

[141] *fn7 The adoption of the twins in Ohio, after a relinquishment of parental rights in California, is authorized under the Interstate Compact on the Placement of Children (Fam. Code, Section(s) 7901.)

[142] *fn8 The restraining order is included in the record on appeal, although it was not admitted into evidence in the proceedings below. At the request of the R’s, we have taken judicial notice of the order and supporting documents. (Evid. Code, Section(s) 452.)

[143] *fn9 Such proceedings include:

(1) a petition to declare the twins free of parental custody and control under Family Code section 7822, filed by the R’s;

(2) a motion to intervene, filed by the Tribe;

(3) a complaint for declaratory relief, filed by Vista Del Mar; and

(4) a petition to determine parental rights of alleged natural father under Family Code section 7662, filed by Vista Del Mar.

[144] *fn10 The biological parents argue that an additional California case, In re Crystal K. (1990) 226 Cal.App.3d 655, also declines to apply the existing Indian family doctrine, but that characterization is not entirely accurate. In Crystal K, the court rejected the mother’s contention that her action to terminate the parental rights of her former husband fell under the exception provided under the express terms of ICWA for custody proceedings that are part of a state proceeding for the dissolution of a marriage. (226 Cal.App.3d at p. 663-664.) The closest Crystal K came to rejecting the existing Indian family doctrine was to say that “To the extent Wanomi P. narrowly construes “Indian home” and “removal,” we disagree with that court on the facts before us. . . .” (Id. at p. 665.) Crystal K. found that ICWA applied “even [under] Baby Boy L.’s [643 P.2d 168] characterization of the Act’s purposes. . . .” (Ibid.)

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[145] *fn11 We note in passing that Congress in 1987 failed to approve amendments to ICWA which were described in materials considered by the Senate Select Committee on Indian Affairs as having the effect of precluding application of the existing Indian family doctrine. (See Hearings before the Senate Select Com. on Indian Affairs, United States Senate, 100th Cong., 1st Sess. on Oversight Hearings on the Indian Child Welfare Act, Nov. 10, 1987, Appendix B, pp. 167-171.)

[146] *fn12 In Smith v. Organization of Foster Families, supra, 431 U.S. 816, the Supreme Court declined to find that the plaintiff foster parents had constitutionally protected interests in their relationships with the foster children. (431 U.S. at p. 847.) One determinative factor which prevented such a finding was the fact that a foster parent-foster child relationship is the product of a “knowingly assumed” contractual relationship between the state and the foster parent, in which the foster parent agrees to the essentially temporary nature of the arrangement. (Id. at pp. 845-846.) However, the high court acknowledged that similar relationships may carry constitutional protections in appropriate circumstances. (Id. at p. 844), and the court later cited language from Smith in the course of ruling that a natural parent’s rights do not always take precedence over those of the children and their de facto families. (Lehr v. Robertson, supra, 463 U.S. at p. 261.)

[147] *fn13 There may, of course, be instances in which an Indian tribe admits a non-Indian as a tribal member, and, in such cases, that member’s biological children may fall within ICWA’s definition of Indian children even if they have no Indian blood. However, a grant of tribal membership to a non-Indian would plainly be based upon some social, cultural or political bond which the non-Indian established with the tribe. The decision we must make is whether ICWA is constitutionally overbroad if applied to racially Indian children whose families have no social, cultural or political relationship with a tribal community.

[148] *fn14 This conclusion is consistent with the ICWA regulations and case authority. The “Guidelines for State Courts; Indian Child Custody Proceedings” (“ICWA Guidelines,”) 44 Federal Register, pages 67584 through 67595 (November 26, 1979) suggest that tribal determinations of their own membership are ordinarily deemed conclusive. However, tribal rights under the Guidelines also depend upon the existence of an actual political relationship with the tribe. (44 Federal Register at p. 67587.) Federal cases which generally consider the special rights which arise from a person’s status as an Indian have held that enrollment in, or recognition by, a tribe is not the sole factor in determining Indian status. (See, e.g., Morton v. Ruiz (1974) 415 U.S. 199, 295 [39 L.Ed.2d 270, 94 S.Ct. 1055] [evidence of close economic and social ties to tribe required invalidation of Bureau of Indian Affairs rule which denied federal benefits to Indian family who lived off of the tribal reservation]; United States v. Broncheau (9th Cir. 1979) 597 F.2d 1260, 1263, cert. denied by Broncheau v. U.S. (1979) [62 L.Ed. 80, 100 S.Ct. 123] [enrollment is the common evidentiary means of establishing Indian status for purposes of the Major Crimes Act, but is not the only means and is not necessarily determinative]; Ex parte Pero (7th Cir. 1938.) 99 F.2d 28, 29-31, cert. denied by Lee v. Pero (1939) 306 U.S. 643 [83 L.Ed. 1043, 59 S.Ct. 581][defendant was not an enrolled member of his tribe, but he was nevertheless an “Indian” for purposes of conferring federal criminal jurisdiction, where he lived on the tribal reservation, maintained tribal relations and was recognized as an Indian by the tribe].) Daniel Cohen’s authoritative Federal Handbook of Indian Law (Univ. of New Mexico Press, 1971) (“Federal Handbook”) also expresses the view that tribal membership is best treated “as a relative affair, existing in some cases for certain purposes and not for others.” (Cohen, Federal Handbook at p. 136.)

[149] *fn15 We cannot help but note that Richard’s mother, Karen, who appears from the record to be the prime mover in this matter was never made aware of the fact of Cindy’s pregnancy until nearly two months after the twins were born. This strongly suggests a family relationship which involved very little social contact. A pregnancy involving twin babies would be difficult to disguise. It would appear that this was a matter which Richard intentionally chose not to share with his mother.

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[150] *fn16 At the R’s request and without objection we have taken judicial notice of the pendency of that proceeding.

[151] *fn17 Following oral argument on this matter we invited the parties and amici to address by letter brief the issue of the proper procedure to be followed by the trial court in the event that, upon remand, it was determined that ICWA did apply to this case. We have received and considered such additional briefing.

[152] *fn18 The R’s also contend that they are entitled to a hearing on their claim that the twins were abandoned by their birth parents. While that may be technically true, the undisputed record strongly suggests that no abandonment can be proven.

[153] In order for the R’s to prove abandonment, it would be necessary for them to establish that the biological parents, with the intent to abandon the children, left them in the care of the R’s for a period of six months. (Fam. Code, Section(s) 7822.) Although Richard manifestly began attempting to have the twins returned to him within six months after their birth, the R’s contend he abandoned them within the meaning of the statute, because he did not intend to receive them into his own home, but intended that his sister would raise them. The R’s cite In re Brittany H. (1988) 198 Cal.App.3d 533 for the proposition that a biological parent who consents to an adoption, then attempts to reclaim the child within six months, will still be found to have abandoned the child if the parent’s intent in reclaiming the child was not to parent the child himself (or herself), but to place the child in another adoptive home. (See 198 Cal.App.3d at pp. 550-551.) While Brittany H. does so hold, it is distinguishable in one crucial respect from this case: The mother in Brittany H. attempted to reclaim the child from her adoptive home and place her in the home of other people whom the mother had come to prefer, but who were not biologically related to the child and had no other particular claim to the child. (Id. at p. 550.) Here, Richard sought to reclaim the twins and place them, not with strangers, but with his sister, a person entitled to preference in the placement of Indian children under ICWA. (25 U.S.C. Section(s) 1915.) It would subvert the clear purposes of ICWA if a finding of abandonment could be premised upon the desire of the biological parent of an Indian child to place the child with a member of his extended Indian family.

[154] *fn19 Section 8804 provides manner of determining the custody of a child who has been placed for adoption if the prospecitve adoptive family withdraws the petition for adoption, if a birth parent who did not place the child for adoption does not consent to the adoption, or if a birth parent who placed the child for adoption revokes consent pursuant to section 8814.5. In the latter two circumstances, the child must be returned to the birth parent. Likewise, section 8815 provides for the mandatory return of the child to a birth parent who revokes consent to an independent adoption before the revocable consent becomes permanent.

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[155] *fn20 Section 1916, subdivision (a), of ICWA provides:

[156] “Notwithstanding State law to the contrary, whenever a final decree of adoption of an Indian child has been vacated or set aside or the adoptive parents voluntarily consent to the termination of their parental rights to the child, a biological parent or prior Indian custodian may petition for return of custody and the court shall grant such petition unless there is a showing in a proceeding subject to the provisions of section 1912 of this title, that such return of custody is not in the best interests of the child.”

[157] *fn21 Where the biological parent of an Indian child has validly relinquished parental rights under section 1913, subdivision (a), and all parties to the proceedings understand and agree that the relinquishment may be rescinded for any reason at any time until the termination of parental rights is final, there is a logical reason to provide for automatic return of the child to the biological parent, although changes of custody in all other circumstances contemplated by ICWA are contingent upon findings respecting the child’s best interests and the likelihood of detriment to the child. Moreover, where the risk of removal of the child from a pre-adoptive placement is knowingly and voluntarily assumed by the prospective adoptive family, due process in all likelihood does not require a hearing on the child’s best interests before a removal can be ordered. (Cf. Smith v. Organization of Foster Families, supra, 431 U.S. 816 [“While the Court has recognized that liberty interests may in some cases arise from positive law sources [Citations], in such a case, and particularly where, as here, the claimed interest derives from a knowingly assumed contractual relation with the State, it is appropriate to ascertain from state law the expectations and entitlements of the parties. In this case, the limited recognition accorded to the foster family by the New York statutes and the contracts executed by the foster parents argue against any but the most limited constitutional `liberty’ interest”].) However, the circumstances are different where, as here, an adoption is stymied for reasons that were neither anticipated nor voluntarily agreed upon by the parties, and where the children’s custody status would have been permanently settled, but for the unanticipated obstruction. In such circumstances, the most reasonable course is to make a custody order only after weighing the relative rights and interests of the parties — most particularly those of the children.

[158] *fn22 It cannot be doubted that the R’s, with whom the twins have been living since birth in a wholesome and stable environment, are appropriate parties to pursue a guardianship proceeding regarding the issue of the twins’ furture custody. (See Fam. Code, Section(s) 3040, subd. (a) (2).)

[159] *fn23 We find ourselves entirely in agreement with the comments of counsel for amicus American Academy of Adoption Attorneys who expressed the view that “a custody hearing is required to determine the placement of a child whenever an adoption is dismissed or denied, whatever the applicable law. When a child’s interests and needs are affected detrimentally by a proposed remedy for a wrong inflicted upon a parent or de facto parent, the law must craft a solution that protects the child. Whether denominated an equitable or constitutional remedy, or a statutory solution, as, for example, the guardianship proceedings available under California [] law, it is essential that the Court not automatically `return’ children to individuals who are socially and psychologically strangers to them. This is not an argument for ignoring the rights and interests of any of the adult parties affected by a failed adoption. In cases like this one, a custody hearing will evaluate the affect on all parties, and especially the twins, of having been placed in what was reasonably understood to be a secure, permanent placement, a placement whose future may now depend on whether the twins will be classified retroactively as Indian children for the purposes of ICWA.”

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[160] *fn24 ICWA section 1912, subdivision (e), provides: “No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” (Italics added.)

[161] While this section refers to an order requiring “foster care,” that clearly would encompass a guardianship proceeding. Under ICWA section 1903, subdivision (1), “foster care placement” is defined to include the placement of an Indian child in the home of a guardian. In addition, section 1912, subdivision (e), by its terms, concerns the determination whether the “continued” custody of a child with his or her parent or Indian guardian will cause detriment to the child. However, the governing principles and the burden of proof must necessarily be the same where the child is not in such parent’s or guardian’s custody, and the issue is whether a resumption of custody by the parent or guardin will be detrimental. Thus, the “clear and convincing” standard of section 1912, subdivision (e), is the proper one to be applied here. As already noted, the same evidentiary standard is also imposed by California law. (Fam. Code, Section(s) 3041; In re B.G., supra, 11 Cal.3d at p. 695; In re Phillip B., supra, 139 Cal.App.3d at p. 421.)

[162] *fn25 The R’s argue that this court is authorized by Code of Civil Procedure section 909 to make the requisite determinations regarding the children’s best interests. Although the R’s correctly point out that we have such authority, the needed determinations will require the taking of substantial evidence beyond what is in the existing record, a task which is obviously best undertaken by the trial court.

[163] *fn26 In addition to the major issues on this appeal, the parties raise a number of minor contentions which may be dealt with parenthetically. Neither Richard’s rights nor the Tribe’s rights are affected by the circumstance, even if true, that Richard is not a presumed father. Regardless of state laws affecting the rights of unwed fathers, ICWA applies if a child is the biological child of a member of an Indian tribe. Nor are the rights of any party affected by the circumstance that the twins are only three thirty-seconds Indian. ICWA’s application depends upon tribal membership, including the maintenance of significant contacts with the tribal community. It is not affected by any quantum of Indian blood, although such fact may have evidentiary value on the issue of whether there was an existing Indian family.

[164] We need not address the issue of whether the Tribe should be precluded from invoking ICWA by retroactively enrolling Richard and the twins as tribal members, inasmuch as we have concluded that mere recognition by a tribe is, in any event, not sufficient to establish a significant tribal relationship for purposes of the application of[165]ICWA.

[166] Finally, where the biological parents concealed Richard’s Indian heritage in order to facilitate the twins’ adoption, equity might require that they be estopped from invoking ICWA to prevent it. However, such estoppel can have no practical effect upon the ultimate result in this case, because the Tribe has independent rights to object to the severance of its relationship to tribal children. In Holyfield, supra, 490 U.S. 30, the Supreme Court held that where a birth parent intentionally relinquished an Indian child for adoption, and never renounced or revoked the relinquishment, the Tribe retained its separate rights to have the relinquishment vacated over the birth parent’s express objection. (490 U.S. at pp. 49-53.) A fortiori, if ICWA properly applies in this case, the Tribe has the right under 25 U.S.C. section 1914 to separately petition for vacation of the termination of the parents’ rights, regardless of any estoppel which might operate against the parents, and the effect upon the twins’ custody status will be the same.

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Is the BIA Another Corrupt Bureaucracy?

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Jun 082013
 
Roland and his newborn, 1990

On June 9, 2013, as our family honors the June 9, 2004 anniversary of Roland J. Roland and Heidi, 1990 Morris, Sr.’s passing, I feel called to bring his memory and his brave actions to the attention of our newest members and supporters, many who may be unfamiliar with Roland’s legacy.

Roland and I founded CAICW in February 2004 to fill a critical need for all families affected by the ICWA and the destructive forces of reservation life. In my book, ‘Dying in Indian Country,’ I chronicle our family’s own struggles and losses as a result of Indian policy, our decision to leave and our ultimate redemption through Jesus Christ. Roland and I both believed then, as I still do now, that the solutions to the problems we seek to expose and resolve rest in the hands of God. Even on the hardest days, we must trust Him to provide the direction and the answers to our prayers. In the meantime, CAICW remains committed to our original Christian ministry to share His Word while advocating for families at risk of harm due to the Indian Child Welfare Act (ICWA). Our efforts are judicial and educational, as well as a prayer resource for families and a shoulder to cry on.

Roland, of 100% heritage, spoke Ojibwe as his first language. He was born and raised on the Leech Lake Reservation in Minnesota and spent his entire life watching friends and family die—physically, spiritually and emotionally—from the effects of alcoholism, drugs, violence and suicide. He himself was a survivor of these destructive behaviors and the more he came to know God, the more convinced he became that monumental change was needed to help his people.

He was especially concerned for the children and distressed by the lack of concern he witnessed by many adults within Indian country. He longed for the self-destruction to stop. God led Roland to step out and speak up for change in Indian country. It took great courage to do so then and it still does. Today, nine years after Roland’s passing, instead of hearing about positive change in Indian country, we continue to witness more of the same abuse and neglect, but on a much larger, more evil scale. And yet, tribal and federal government officials continue to turn a blind eye to the situation.

Roland was particularly concerned about the Indian Child Welfare Act (ICWA), whose dictates perpetuate the abuse of children with Indian heritage by entrapping them in corrupt tribal systems. Instead of providing for the best concerns and welfare of children, this law has served to financially prop up corrupt tribal governments, more often serving the best interest of the tribe, social workers and federal officials than the children it is suppose to serve. The most high profile example of the complications and abuse of this law today are exemplified by the “Baby Veronica” case heard in April 2013, by the United States Supreme Court. In Adoptive Couple v. Baby Girl, two-year-old Veronica had been given for adoption as a newborn by her non-Indian mother, only to be later removed from the only home she ever knew on the basis of 1.12% Cherokee heritage.

The U.S. Supreme Court is expected to hand down their ruling this month.

Not long before Roland’s passing, in April 2004, the Minneapolis Star Tribune published a series by Larry Oakes entitled, ‘The Lost Youth of Leech Lake,’ which chronicled many horrific accounts of destruction and despair happening to the children of Leech Lake. While the series initially caused a great stir, in the end it was not enough to bring about any significant change.

One of the victims highlighted in the series became an integral part of CAICW’s continued mission to expose the abuses in Indian country and urge action to bring positive change. Sierra Goodman, who was first given to a man to be used for sex at the age of ten, attempted to run away more than a dozen times to return to the only family she felt loved and safe with—a non-Indian foster family she had initially been placed with then taken away from because of the ICWA. After attempting to hang herself at the age of 16, Sarah was finally allowed to return to the family who loved her. This past February, Sierra joined CAICW in Washington, D.C. to personally tell her story to lawmakers and urge them to make changes to the ICWA by sighting the physical and emotional damage she has suffered as a result of the law.

As Roland spoke out against Indian policy, he appeared in numerous newspaper articles across the country. On May 14, 2004, Washington Times reporter Jennifer Lehner wrote:

“Mr. Morris said that once children are relocated to the reservations, they are subject to the corrupt law of the tribal government. Instead of preserving culture…the tribal leadership uses the ICWA to acquire funds provided through the legislation…ICWA is supposed to help children, but instead it helps tribal governments.”

Nine years later, tribal governments are no less corrupt, and the ICWA has become an integral funding source for all tribal issues. Lawyers, social service programs, social service workers, care providers, grant writers, foundations and tribal leadership are all getting rich as a result of this law. In the meantime, the children continue to suffer. In the past year, people we have seen new voices speaking to these concerns. The New York Times and Frontline’s Kind Hearted Woman documentary revealed these same issues and the abuses taking place on the Spirit Lake Reservation of North Dakota. Thomas Sowell penned the article, “Whose Welfare? The Injustice of the Indian Child Welfare Act,” in a January 2013 National Review Online article, while former Oglala Sioux Tribal Judge Patrick Lee recently wrote about the problems in his article “Why I filed a complaint against the Oglala Sioux Tribal Council.”

After attending a South Dakota conference in May that was aimed at hearing the grievances of reservation tribal members affected by the ICWA, native author David Rooks penned an article in the Rapid City Journal titled, “Rooks: Questions unasked, unanswered.” Rook is brave enough to write,

“Have there been problems with the implementation of ICWA? You bet. But while we’re gathered, let’s ask some additional questions. Questions, perhaps, no one wants to ask, like: Why are so many Native children winding up in foster care?”

He goes on to state,

“If we’re to be honest, we’ll look at each other and ask: What is going on with our families? What really is the problem? How do we restore our own cultural imperatives? How do we—not someone else—mend our own Sacred Hoop? Yes, children are sacred. Why is it so many of ours need to flee our people to be safe?”

Yes, like Roland did, people are finding their voices to bravely speak out and expose the truth, but after 13 Mandated Reports about the abuse of children on the Spirit Lake, ND reservation and NOT ONE SINGLE action being taken is it possible that change will never come to Indian country? Are the problems in Indian country just another long-running scandal the federal government is working 24-7 to keep in the dark? In honor of Roland, and most importantly for the sake of the children, I urge you to continue to vigilantly monitor and speak up about these atrocities. The U.S. Constitution defends the rights of all U.S. citizens and CAICW is calling on our government to equally protect children of all heritages.

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In memory of Minnesota Chippewa tribal member Roland J. Morris, Sr., the Christian Alliance for Indian Child Welfare is sponsoring an essay contest on June 9-15, 2013, to draw attention to the widespread and ongoing physical and sexual abuse of children living within Indian Country. The topic of the contest is ‘Why Children Are More Important Than Politics’ with a subtopic of ‘Why Is Our Federal Government Ignoring Ongoing Child Abuse?

The 800-1500 word submissions can be sent to WriteUs@caicw.org.

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Other Stories:

Native Daughter: The Baby Ashlyn Story

A Tribe’s Epidemic of Child Sex Abuse, Minimized for Years

The Daily Republic: OUR VIEW: State wrongly demonized in ICWA debate

Native Mob takedown: a closer look at the charges [PHOTOS]

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, and 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/

Rep. Kevin Cramer: Gentleman, Hero

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Apr 042013
 
U.S. Rep. Kevin Cramer

U.S. Rep. Kevin Cramer

When an elected official shows not only class and dignity, but a sincere desire to uphold Constitutional rights, some of us tend to feel a little shocked.

Below is the apology delivered by Representative Kevin Cramer following a disagreement at a meeting of the North Dakota Council on Abused Women in late March.

First – from what I understand of what happened, he did not need to apologize. He was standing up for me, my daughters, my granddaughter.  He was standing up for Due Process and our Constitutional rights.  This is exactly what I want him to do.  But he did apologize, even though he didn’t need to, and for that, I think he has class.

———————————————————————-

“I recently met with members of the North Dakota Council on Abused Women Services regarding the new Violence Against Women Act (VAWA) reauthorization, and my passion concerning some of the problems I fear may exist with this legislation. Critics of this Act have expressed due process concerns in regard to some of its provisions.  I therefore voted in favor of an amendment designed to address this potential harm.

Unfortunately, my efforts were not supported by my Congressional colleagues.

Because VAWA protects victims of domestic violence, sexual assault and stalking by streamlining grants, improving investigation, prosecution and victim services, as well as enhancing penalties against offenders, I voted in favor of this legislation. I am quite open about my passion regarding helping those within our society that are exposed to violence. I believe my Congressional floor speech concerning VAWA, in particular, demonstrates my personal connection to this issue, as well as my apprehension in regard to the legislation I helped pass.

Certain statements I recently made regarding my frustrations with VAWA are under scrutiny.  This is deserved as, in hindsight, my tone and rhetoric was better suited for active debate in Congress (or a floor speech) rather than my true intention; requesting guidance from the peers of this important issue. I apologize.

My intent was not to disparage anyone. I want to end violence. I truly appreciate Ms. Merrick’s statements, specifically relating to this issue, because it is a pointed reminder of what I love most about my country; equal protection, balance of power, due process. And, most importantly, unfettered free speech, which is ot only unopposed in its ability to humble its leaders, but its capacity towards inspiring debate.

But, I want to make clear that successful court challenges to all, or parts, of this legislation are always adjudged by our Constitution, notwithstanding the best intentions of its proponents. Overturned convictions will revictimise the very people we are trying to protect. I am encouraged by the considerable energy available to fix the serious, societal problem of violence (against all victims).

It is my hope that improving lives is always our upmost focus.

Since VAWA 2013 is only the beginning, I look forward to working with all stakeholders to improve it“.

______________________________________________

What was most uplifting for me was that Rep. Cramer understands the harm caused by the recently passed version of the Violence Against Women Act, forcing women into tribal court whether they want to be there or not.   Well… actually, the law forces women to choose between asking for justice in front of potentially corrupt tribal courts – or keeping ones mouth closed and not seeking justice at all.

Representative Cramer not only gets it, but it matters to him.  He wants to improve it.

Thank you, Representative Cramer.  We are here to help you do that, anyway that we can.  You are my hero.

 

 

Wake Up & Read It! VAWA Protects Tribal Government rights, NOT women!

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Feb 282013
 

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On February 12, 2013, a horrid violence against women was committed when Mother holding babythe ‘Violence against Women Act’ was passed by the U.S. Senate by a 78-22 vote with all amendments intact.  Women across the nation were thrown under a bus.

On February 28, 2013, the U.S. House repeated the violence with 87 Republicans joining 199 Democrats to pass the bill 286-138. God only knows if this callous assault on women can be stopped. The measure now heads to Obama’s desk.

Obama said in a statement. “Renewing this bill is an important step towards making sure no one in America is forced to live in fear, and I look forward to signing it into law as soon as it hits my desk.”

Does no one actually read these things? We are discussing women and young girls who have been vulnerable and already victimized – being forced into further victimization.  Where is the language in the VAWA that tribal government can only have jurisdiction under informed consent and absent objection of the victim?

If there is none, is this Act protecting the rights of women, or the rights of tribal government?

I asked this question to both Ms. Tracee Sutton and Ms. Gail Hand from Senator Hetkamp’s office. Both were silent in response.

I understand that most of our Congressmen on the Hill have never been in the situation of being a victim within Indian Country. I understand that they might not be aware the ramifications these amendments will have on tribal and non-tribal women.  Reading the recent report by Mr. Thomas F. Sullivan, Administration of Children and Families in Denver of the severe corruption and abuse on the Spirit Lake Reservation might shed some light on the problem. If even a portion of what he is saying is true, our Congress has no right for mandating tribal jurisdiction over U.S. citizens.

Never assume that simply because a woman is of tribal heritage, she wants her case to be heard in tribal court. A person does not know the meaning of “Good ol’ Boy’s Club” until one has dealt with some of the tribal courts.  On top of this, our government has given all tribal courts full faith and credit, meaning once the case is ruled on in tribal court, the victim can’t go to the county or state for justice.

And while many enrolled women will be upset when told their options have been limited, please realize that multi-racial marriages and relationships are very, very common in Indian Country and non-member women are no small number in domestic violence cases within reservation boundaries.

Further, it is interesting that in the language in section 4(A) below, describing under what conditions in which there would be an exception to tribal jurisdiction, the defendant is addressed more than the victim. It doesn’t matter what heritage the woman is – that isn’t the deciding factor for tribal jurisdiction. The language below addresses the perp’s relationship to Indian Country as the deciding factor.

In fact, under this section, ‘victim’ is defined and limited to only women who have obtained a protective order.  In other words, women who DON’T have a protective order would NOT be considered victims under the exception section, and thus, no matter what, are subject to tribal jurisdiction.

FURTHER – the words, “in the Indian country of the participating tribe” are used over and over. Do you know what this means? I will tell you what it doesn’t mean. It DOESN’T mean inside reservation boundaries.  But I can’t tell you what it DOES mean as far as how many miles outside the boundaries it extends – because, apparently, that is up the tribal government and BIA.

Yes, friends.  A woman, off the reservation, who is assaulted by a person whom she might not even be aware is a tribal member (we talked about multi-heritage relationships, right?) might find herself fighting for justice in a tribal court.

… But trying to read the legalese in section 4, I have to ask, if both the victim and perp are non-Indians, but the victim doesn’t have a protective order…? (Who writes this stuff?)

It appears that the language has been written to protect the defendants, specifically enrolled men, from state and federal jurisdiction.  They might come down hard on a non-member, but given the track history of many tribal courts – do not doubt that this bill will end up protecting certain men and further victimizing many women.

This type of language throws women of all heritages under the bus.  Not only could enrolled women be forced into a court predominantly run by her ex’s relatives, but non-tribal women, viewed as outsiders no matter how long they have lived in ‘Indian Country’, could be forced to share their horrific story and plea for justice in a room full of potentially hostile relatives and friends of the defendant.

How many women will simply suffer in silence rather than attempt to be heard in tribal court?  How do laws like this seriously protect an already victimized woman?  What can be done to ensure that victims know they have the option to refuse tribal jurisdiction and seek justice elsewhere?

Further – could you please tell me in what manner women who would be affected by these amendments were consulted?  During the discussion of these amendments, what non-tribal entity or organization represented and advocated for needs of women who live within Indian Country?

 

PLEASE URGE PRESIDENT OBAMA NOT TO SIGN THIS HORRIBLE VERSION OF THE VAWA!

 

`SEC. 204. TRIBAL JURISDICTION OVER CRIMES OF DOMESTIC VIOLENCE.

`(4) EXCEPTIONS-

`(A) VICTIM AND DEFENDANT ARE BOTH NON-INDIANS-

`(i) IN GENERAL- A participating tribe may not exercise special domestic violence criminal jurisdiction over an alleged offense if neither the defendant nor the alleged victim is an Indian.

`(ii) DEFINITION OF VICTIM- In this subparagraph and with respect to a criminal proceeding in which a participating tribe exercises special domestic violence criminal jurisdiction based on a violation of a protection order, the term `victim’ means a person specifically protected by a protection order that the defendant allegedly violated.

`(B) DEFENDANT LACKS TIES TO THE INDIAN TRIBE- A participating tribe may exercise special domestic violence criminal jurisdiction over a defendant only if the defendant–

`(i) resides in the Indian country of the participating tribe;

`(ii) is employed in the Indian country of the participating tribe; or

`(iii) is a spouse, intimate partner, or dating partner of–

`(I) a member of the participating tribe; or

`(II) an Indian who resides in the Indian country of the participating tribe.
Elizabeth Sharon Morris
Chairwoman
Christian Alliance for Indian Child Welfare (CAICW)

Author

Dying in Indian Country
PO Box 253
Hillsboro, ND 58045
administrator@caicw.org
https://caicw.org

Twitter: http://twitter.com/CAICW   ( @CAICW )
Facebook: http://www.facebook.com/fbCAICW.org

 

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.

 

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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