Indian Child Welfare Act – Page 5 – Christian Alliance for Indian Child Welfare

Campbell Brown, you were RIGHT about Leech Lake. Stay Strong!

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Dec 202008

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Campbell Brown, please don’t bow to the negative comments you have been recieving. I am the mother of several enrolled children of the Leech Lake Tribe, and what you said was correct!

However, whenever anyone speaks out against the obvious happening on the reservations, they are tore limb from limb. They are bullied to make them shut up, and that is exactly what is happening to you. I know this because it has has happened me and even to my husband, who was a member of the Minnesota Chippewa Tribe – Leech Lake, born and raised on Leech Lake Reservation. He spoke out because he was tired of watching his friends and relatives die. He knew that it was the reservation system itself that was destructive to them. He took our entire family and moved 1200 miles away and became politically active in an effort to bring change, happiness and hope to the people he loved.

However, getting any word out that is contrary to the image that the tribal government (industry?) chooses to project is very difficult. Although my husband went to Washington DC several times to speak to Congressmen, it was very hard as a small person to combat the lobbying the tribes do. Remember Abramoff?

Senator Burns’ staff, (he was our Senator at the time), told me that the only way he would ever agree to any legislation changing Indian law is if all 500 tribes agreed to it. Never mind what’s constitutional and never mind the civil rights of millions of US citizens. Just please the tribal governments. They pay very well.

And yes, there are many constitutional attorneys and professors that say that much of Indian law is unconstitutional. Please contact me and I can refer you to some.

Look at the last US census and ask yourself why so many enrolled members have moved off the reservation. #1) life is dangerous there. #2) many enrollable people are primarily NON-indian; meaning, their blood quantums are less than 1/2 tribal heritage. They have other lives, other family, and other world views, not always the same as the tribal governents.

However, if they should die, no matter their personal choice, the tribal government has jurisdiction over their children.

Please stay strong in the truth that you spoke! Don’t let them bully you!
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To Clint and Heather Larson

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Dec 192008

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Clint and Heather –
I don’t want to devastate you further. I wish I could assure you that your baby will be okay, but I can’t. The Leech Lake Reservation is so bad, that even my husband, a member of the Minnesota Chippewa Tribe from Leech Lake, took our kids far from it and wrote in his will that he did NOT want the grand kids that he had legal custody of (through ICWA, of course) to go back there when he died.

He passed away four years ago and how I managed to keep his grand kids is still a mystery to us. The Lord definitely had his hand in it. We imagine that the Mpls. Star and Tribe series, “The Lost Youth Of Leech Lake,” which came out just two months before he passed away also brought such bad publicity to the tribe that they simply decided not to fight with us.

I strongly urge you to continue to fight for this little boy. It will be hard enough for him having to deal with the affects of having been born with substances in his system. But being in Cass Lake on top of it….

You said on the news that you want to fight to make sure this doesn’t happen to any more children. We are also trying to fight for the children. I have a grandson now who, at 1/4 blood quantum, is enrollable. If anything should happen to his parents, I WILL fight the tribe tooth and nail and I WILL defy the law if it came down to it.

We would like to work with you in your battle.

Leech Lake Tribal Government Steals Child from Utah Family

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Dec 182008

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On Sunday, December 16, 2008, in South Jordon, Utah, Clint and Heather were forced to give the baby they had adopted and cared for to one of the worst reservations in the United States.

In the Spring of 2004, the Minneapolis Star and Tribune had done a series called the “Lost Youth Of Leech Lake.” In it, the reporter described the horrible environment children are being raised in on that reservation, as well as the treatment of children by tribal social services.

I myself have witnessed first hand plenty the neglectful and downright dangerous treatment and care of children on that reservation, and twenty years ago, my husband, a member born and raised there, made a decision that our children weren’t going to be raised anywhere near it.

It is NOT safe, and the United States Government is CRIMINAL to be forcing children to be raised there when they have the option to live in a safe and loving home.

As a matter of fact, one of the worst cases of the U.S. forcing children out of a good home and into a dysfunctional home in Leech Lake was reported in the series, the “Lost Youth of Leech Lake.” It involved three little girls. That decision by the tribe – as well as every one of our US Congress that voted for this awful ICWA law – resulted in these little girls being placed in an awful home. The final result was a murder and attempted murder. And that isn’t the only tragic story involving ICWA in Leech Lake.

I urge every parent with a conscience to speak up against this law. After all, you never know when it might affect you. We have adoptive families that have written to our organization, in pain and fear because the child they have adopted is being pursued by a tribe, and the child has only a small fraction of blood quantum. in one case, the child is 98% NON-Indian. We also have had birth fathers write to us when they lost custody because they weren’t Indian. We’ve also had grandparents write because they were denied custody because they weren’t Indian.

Please, check out https://www.caicw.org/familystories.html to read many letters from families affected by ICWA.
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Possible Incentives for ICWA –

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Dec 182008

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Congressional Indulgence of Tribal Government?

In 2002, Senator Max Baucus wrote in reference to a bill concerning federal recognition of tribes, “I am forced to disagree…this amendment…requires the implementation of…adversarial hearings at the request of any interested party.”

In other words, Senator Baucus, a top recipient of Indian Gaming funds at the time, wasn’t interested in hearing any point of view other than that of the tribal government.

Two of former Senator Conrad Burns’ aides (R-MT) also stated in meetings a year apart that Senator Burn’s will not change any Indian law unless all 500+ tribes agree to it.

Since that time, it has been discovered that Senator Burns was deeply involved with lobbyist Jack Abramoff and funds coming from tribal entities.

Several other Senators have been linked to Abramoff and/or tribal funds.

Unfortunately, many families affected by ICWA can’t afford to buy themselves a Senator.
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Possible Incentives for ICWA –

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Dec 152008

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Tribal Government Funding?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Dec 122008

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

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

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

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

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

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

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

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

Another Problem with ICWA –

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Dec 092008

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Prevailing social and cultural standards of the Indian community?

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

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

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

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

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

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

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

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

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

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

The problem is that Congress – based on faulty assumptions concerning tribal standards – is mandating that OUR children – who aren’t owned by the tribes – be raised under less than safe conditions if we are no longer able to raise them.

In mandating that the tribes have jurisdiction over OUR children, Congress is mandating that OUR children receive less concern over their best interests, and less child protection than children of other heritages would recieve under the same circumstances.

Adoption Counselor asks a Question –

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Dec 062008

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

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

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

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

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

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

UPDATE

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

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Dec 032008

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

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

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

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

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

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

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

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

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

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

QUESTIONS:

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

Who is the Expert Witness testifying for?

The ICWA has frequently been supported by One-Sided Testimony

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Nov 302008

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

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

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

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

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

Our Rights Don’t Matter.

Please read our “Family Stories“ section to learn more.
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ICWA was originally based on some false assumptions

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Nov 272008

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

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

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

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

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

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Nov 242008

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

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

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

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

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

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

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

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

and

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

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

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

Shouldn’t the parents of tribally enrollable children have that right as well?
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ICWA Has hurt Children and Parents.

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Nov 212008

Federal, State, and Tribal authorities have favored a child’s tribal heritage over that child’s Irish, Afro-American, Scottish, Latino, or Jewish heritage, or any other heritage the child has, no matter the percentages. Whether the child’s heritage is predominately Slavic or Mexican, the only question asked is whether the child is enrollable.
Some Tribal governments have interfered in custody battles between parents, overturned county decisions in favor of the tribally enrolled parent and ignored child abuse, neglect and drug abuse in those decisions.
Some Tribal governments have claimed jurisdiction over children that have little tribal heritage and are not enrollable according to their constitutions.
Contrary to state laws pertaining to the best interest of the child, some Tribal governments have ignored the interaction and relationships children have had with caregivers; the child’s adjustment to home, school, and community; the length of time the child has lived in a stable home, and the permanence of the existing or proposed custodial home.
Many county courts and social services have backed away when ICWA is involved because they do not understand ICWA or can not afford to fight back.
Several State Governments have given “Full Faith and Credit” to tribal courts and will not review or overturn tribal court custody decisions.
…Read their letters

ICWA ‘s Wrong – Kids Have Rights

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Nov 132008

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Deborah Maddox, acting Director of the BIA Office of Tribal Services in 1993, said, “the intent of Congress in passing the Indian Child Welfare Act was to protect Indian children from removal from their tribes and to assure that tribes are given the opportunity to raise Indian children in a manner which reflects the unique values of Indian culture.”

According to West’s Encyclopedia of American Law, the Indian Child Welfare Act (ICWA), “…intended to limit the … removing (of) Native American children from their tribe and family and placing them in a non-Indian family or institution. The act seeks to achieve these goals through…placing children…in a…home that reflects the unique values of Indian culture.”

(ICWA) “seeks to protect the rights of the Indian child as an Indian and the rights of the Indian Community and Tribe in retaining its children in its society.” – House Report on the Indian Child Welfare Act.

But most enrollable children are of mixed heritage. What about the rights of the child of Indian heritage as a Latino, Black, or Italian? And what gives the Tribe the right to claim children who are predominately of another heritage?

Advocates of ICWA point to the devastation suffered by children of tribal heritage when, years ago, they were forcefully removed from the homes they loved and forced to stay at boarding schools. The trauma those children and families expereinced was, indeed, devastating.

However, today, some tribal leaders have been doing the exact same thing when they have removed children from the homes and environments they love, forcing them to live with people they barely know in Indian Country.

There is no inborn difference between persons of tribal heritage and other persons. Any emotionally healthy child, no matter their heritage, will be devastated when they are taken from their familiar homes and forced to live with strangers.

Even children of 100% tribal heritage will be devasted if taken from the only home they know and love, even if it is non-tribal, and placed into a reservation home they know nothing about.

The Full Text of the INDIAN CHILD WELFARE ACT OF 1978 (ICWA):
THE ICWA LAW: PUBLIC LAW 95-608, 25 USC Chapter 21
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Spoke at the Mille Lacs Symposium re: ICWA

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Sep 232008

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I was asked to speak about ICWA at the Mille Lacs Equal Rights Symposium this last weekend. This was, I suppose, a chance for rebuttal to the slander that occurred last year in Mille Lacs under the banner of the Minnesota Human Rights network. However, I never mentioned last years meeting. Others did that plenty.

Dr. William Allen, the former chairman of the U.S Commission on Civil Rights, was the keynote speaker. Dr. Allen was awesome.

We had the privilege of breakfast with Dr. Allen just before the symposium. We stayed with a Mille Lacs county commissioner who has been a friend of ours for years, (prior to him becoming a commissioner.) He invited Dr. Allen to come over for breakfast prior to the meeting. Bill Lawrence, the publisher of the Native American Press/Ojibwe News and a member of the Red Lake tribe, was also there. I’d written for his paper a few times in the 1990’s.

It was incredibly comfortable. Dr. Allen, who is a professor in political science at Michigan State, had some really interesting things to say about the current presidential campaign. I wish I’d taken notes.

Now the Seminar –

I was very nervous. I’ve written a lot and said a few words at a few different places, but I’ve never spoken for 45 minutes before. However, although I’m not the best speaker, the reaction after the meeting was overwhelming. A legislator from Minnesota was there and wanted more information. Others came up to speak to me – all very encouraging. One woman was almost crying! I gave out several of Roland’s videos. A pastor we knew from western Montana was also there – he’d moved several years ago. He wanted us to spend the night with him last night (but we needed to get home)

One man wanted to give me a deer-hide drum he’d made in exchange for two videos. So we traded.

But the reaction to my presentation is nothing compared to the the speech Dr. Allen gave concerning federal Indian policy, ICWA, and the underlying goals and thought processes behind them. His comments were incredibly insightful. ALSO he is interested in writing more on these issues after he’s finished with his current project in January.

Dr. Allen left from the meeting to catch his flight back to Maryland. The girls and I went back to to the Commissioners home, where we spent a couple of hours with him, Bill and their wives sitting on the porch overlooking the lake. Again, I am so grateful for how comfortable the conversation was.

Maybe it’s because we’ve all been attacked together over the years because of our tribal politics. I don’t know. Maybe it’s because they knew and loved Roland. It’s been four years now since he passed, and not everyone we meet knows him anymore.

Somebody wrote this the next day…

Sent: Sunday, September 21, 2008 1:04 PM

Lisa,
,,, I live in Ramsey, MN.
On Saturday, I was at the meeting in Wahkon, MN and heard you speak. You did a marvelous job. I wanted to talk to you but had to leave right before lunch and couldn’t.
I will donate some $ online at your website, but not that I can afford much. But, the work you folks do is wonderful. I don’t think anyone there knew of the issues you brought up. It is disgusting and heart breaking. Hopefully, you folks can make a difference and help the kids out.

Tribal Government shouldn’t have jurisdiction over our kids

1 Response »

May 032008

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Wake up America. Tribal Government’s should not be given jurisdiction over our children simply because they claim the right. I understand that tribal government jurisdiction over Indian children sounds like common sense. It seems like a no brainer when tribal governments approach the federal and state governments and say, “They are our children and we have a right to raise them.” Everyone just nods their head and says, “Sure, no problem!”

Heavens, everyone’s afraid they’ll be accused of racism if they take the time to really think the issue through.

Wake up. These aren’t the tribe’s children. The ones in my home, for example, happen to be MY children, and we have no intention of living within the reservation system. Other parents across the country feel the same. According to the last census, most enrolled tribal members live off the reservation. Many, just like our family, left because they don’t want their children raised amid the dangers and dysfunction on the reservation. As American citizens, we have the right to make that choice for our families. And as well-intended as some in government are, they haven’t the ability to know what is best for my family or for the many other families that have left to live a different life.

Further, MOST children falling under the Indian Child Welfare Act (ICWA) and other tribal jurisdiction laws have relatively small amounts of Indian heritage. Did you read that right?

Tribal governments decide their own membership and most have decided ¼ blood quantum is all that’s necessary. The Cherokee Nation of Oklahoma goes further and claims jurisdiction over any child with ancestry tracing back to the Dawes Rolls no matter how minute the blood quantum.

Now, the ICWA defines an Indian child as any “enrollable” child. Think it through.

Parents can’t avoid ICWA and other jurisdictional laws by not enrolling their children.

Therefore, many children with 1/4 or less heritage and no connection to Indian Country fall under ICWA. And that is actually most of the affected children.

It’s plain as day. Think of a pyramid. Children of 100% heritage are the least common. They are at the tip. The largest number of children are the ones with little heritage. They make up the base. But being of little heritage also means they are primarily non-tribal and have a large percentage of relatives that are also non-tribal.

Don’t misunderstand. I am not noting this because I think the non-tribal heritage is of primary significance. There is no blood quantum of any heritage is of primary importance over another. All of my children’s heritages are interesting and valuable. I hate the idea of referring to a percentage of a child’s heritage in the same way one refers to the pedigree of a dog. How demeaning. Or worse, it is abhorrent to focus a preference on one blood heritage in the same way 1940’s Germany scrutinized the heritages of millions. The only point of noting blood quantum is to note that children with less than 100% heritage have more than one history and more than one set of interesting and important relatives.

What I am pointing out is that ICWA and other jurisdictional laws affect millions of people – and most aren’t even aware of it.

Until something comes up.

January 2008, the Navajo Nation sent for a 6-year-old girl in Texas. The little girl had been living with her father most of her life. Now, the birth mother wanted custody. Normally, there is a hearing, an attorney looking out for the child’s interests, and a transition period if there is to be a change of custody. Normally, both parents get equal opportunity to state their case. But this wasn’t normal, and the Texas County police, thinking the Navajo court order was enough, helped the tribe pick the little girl up from her day care without a Texas Court order. The little girl and her father wept, and then she was gone. He has seen her only once since, at a hearing in Navajo Tribal Court. Again, they held on to each other and wept.

That was in late March. He hasn’t been able to see or speak to her since. He hasn’t been given an address or phone number to contact her and the guardian ad litem hasn’t been able to locate her. He has no money, and the attorney he hired has put him on notice. No funds, no help.

A man in Oklahoma has fought to keep his baby girl. The tribe took custody right after the child’s birth and refused to even tell him her name let alone see her. Two years ago, a tribal court judge told him that because he is white, he had no rights to his baby. At one point he won custody. However, the tribe has appealed it, and his lawyer told him he needs about $30,000 to fight the appeal. He doesn’t have the money.

As unbelievable as it seems, some parents have lost custody of their children because they couldn’t afford a lawyer.

A three year old girl in Oregon hasn’t seen her birth mom in over two years. The last time she saw her mom was when the tribal police took her out of her mother’s arms at a tribal court hearing that was only supposed to be about getting a DNA test. The mom tried to hang on to her, but the judge ordered the police to take the baby by force, so they put pressure on her arms until she let go. Since then, she tried to get her back but couldn’t to find a lawyer to help. In 2007, she wrote:

“… Last year was very hard for me, and the constant let down of not being able to see or speak to my baby has tore me apart. I have spoken to the … father and he informed [me] that it is final that I will never be able to see my little girl again as long he has anything to do with it. So I have taken it very hard. I did write the tribal court judges, and asked for another hearing at least for visitation, and my pleas were denied. …. There is probably not a day that goes by that I don’t cry for my baby. I feel like the life I once had no longer exists.”

She isn’t alone. A mother in Wisconsin is trying to keep her 4-year-old daughter off the reservation. She said she has spoke to dozens of lawyers and can’t find anyone to help her.
ICWA doesn’t apply to custody battles between parents. Nonetheless, many tribal courts claim jurisdiction over all children, even in custody battles. Non-tribal parents with limited knowledge or funds find themselves in situations they can’t do anything about, commonly facing discrimination in the tribal courts.

ICWA does apply in foster and adoptive cases, but the next two stories are examples of how the law can harm even these children. It is also an example of how the law reaches out to affect children with limited tribal heritage.

A Texas fireman and his wife offered to take custody of a baby whose mother was considering abortion. She agreed. Later, after the baby was in their home for several weeks and adoption procedures had begun, the father wrote,

“… it was discovered she [the birthmother] is 1/128th Cherokee. That makes my son 1/256 or .0039% Native American and 99.9961% not…. His mother…was very adamant about the Cherokee Nation NOT raising her child and the court records show this. In April of 2006, we were notified of the Cherokee Nation’s intent to take us to court and remove our son from our home… Since then, we have been in a constant state of panic…”

To this date, in May 2008, this family is still fighting to complete this adoption. They have spent thousands and thousands of dollars on the effort, but will continue to fight to the end because of their love for this little boy.

A couple in Arkansas had custody of two little girls for 5 years. Late one night in February, 2007, as the adoptive parents were getting their two girls ready for bed, police arrived at their door. The 10-year-old twins already were in pajamas, but brandishing a court order, the police took the frightened girls and drove them 60 miles to the home of the other relative. They weren’t able to even tell friends good-bye.

Background: In October, 2002, the birth mother, a distant cousin, had arranged for the couple to adopt the twins. However, after signing the papers, an elderly relative who had four of the twins’ siblings began custody action. Although everyone agrees the adoptive parents kept a loving and stable home, the elderly relative won custody with the Tribe’s support. But within months, all of the children were removed from that home due to neglect. However, the twins weren’t returned to their adoptive parents. All the children were instead places back with the birth mother.

Interestingly, neither the birth mother, the adoptive family, NOR the relative were Indian, so why was the tribe involved?

Because the twins’ natural father is an enrolled member. And although the court said that he had “undisputedly abandoned the children,” his status made him “relevant to this case.” This gave the tribe jurisdiction under the Indian Child Welfare Act (ICWA). The tribe wanted the twins placed with the siblings, “irrespective of the fact that many other full and half-siblings are scattered among several other states.” And irrespective of the children’s other various heritages.

Again, why take children from the only safe, nuclear family they’d ever had, and place them in unstable homes?

Power. Citing a 1974 Congressional hearing statement, “there is no resource … more vital to the continued existence and integrity of Indian tribes than their children…,” an appeals court found that the “best interest” of the child wasn’t the only issue for a court to consider. Citing ICWA, the court found that “maintaining the integrity of the Nation, its culture, its children, and its progression through time not to become extinct” also had to be considered.

In other words – (stop and re-read what this appeals court actually said) this law is for the benefit of the tribal entity and tribal government. It is not designed for the benefit of individuals or families.

Be that as it may, neither the Tribe nor Arkansas explained how moving the girls from the potential adoptive parents and non-tribal home they loved to a foster situation in a non-tribal home they were strangers to would help preserve the tribe.

According to Mississippi v. Holyfield, ICWA’s original goal was to combat “abusive child welfare practices” that took children from tribal communities and placed them in unfamiliar environments with strangers. The trauma that Indian children suffered from, among other things, being forced to enroll in far-off boarding schools is undeniable. But today the reverse is happening. Children that have never been near a reservation are being removed from environments they love and forced to live with strangers chosen by tribes.

Tribal authorities argue they are most qualified to decide the best interest of enrollable children. Are they? Arguments aside as to how ICWA has safeguards to prevent misuse, stories affecting black, Hispanic, Norwegian-American and other families reflect this reality. Letters from birth parents, grandparents, pre-adoptive families, and tribal members themselves can be read at https://www.caicw.org/familystories.html

Three years ago, two boys of 50-50 heritage were taken from their paternal, Mexican grandparents in California and sent to their Ute grandmother in Utah. Their home in California was loving and safe. They were sent to Utah only because social workers decided that ICWA required it. In a matter of weeks, 3-year old Emilio Rodriguez and his brother, Jose, 4-years-old, were beaten so severely that they both suffered severe concussions and Jose ended up in a coma. Why were they beaten? It was reported in the Utah papers that their maternal grandmother didn’t like that they were speaking Spanish.

The boys and their sister are now back with their Mexican grandparents who recently won a million dollar lawsuit against the United States for removing the boys and placing them with the Utah grandmother. The Utah grandmother is in jail.

If there is any case that illustrates just how bad the ICWA is, this one would be it. Wake Up, America. Do away with this law that primarily benefits governments, not people.

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