Spirit Lake

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Mar 132014
 
Spirit Lake Reservation, North Dakota

February 2013, CAICW attended a Spirit Lake town hall meeting where one member after another stood up to tell the panel of tribal and federal officials tragic stories of how they tried to get the tribal police, BIA and U.S Attorney to help. But criminals continue to roam unchallenged. As tribal members told of continuing abuse of children, officials claimed everything that can be done has been done. “Investigations take time” U.S. Attorney Tim Purdon said over and over.

Tom Sullivan, Regional Administrator of the Administration of Children and Families in Denver, had written report after report to DC detailing the abuse and number of children who’d been removed from safe homes off reservation and placed into dangerous homes – even homes of sexual offenders – at Spirit Lake. At the town hall meeting, Purdon claimed Tom Sullivan “misrepresented the facts.

Yet, while Spirit Lake was under oversight of the BIA, FBI, and Purdon in 2012 and 2013:
• An elder witnessed two young boys doing something unspeakable on her lawn, but despite her many attempts to report it – it was ignored by tribal & federal authorities. The boys are related to a councilman.
• 3-year-old Laurynn Whiteshield was placed in a relative’s home where she was beaten to death in June, 2013.
• Roland Morris’s grandson was shot and left for dead at Spirit Lake in July 2013. No one has been charged, though it is common knowledge he was shot over drugs by relatives who are part of a Minneapolis gang.
In Tom Sullivan’s 12th Mandated Report to the ACF office in DC, February 2013, (https://caicw.org/wp-content/uploads/Twelth-Mandated-Report-Concerning-Suspected-Child-Abuse-on-the-Spirit-Lake-Reservation.htm). he stated:

“In these 8 months I have filed detailed reports concerning all of the following:
– The almost 40 children returned to on-reservation placements in abusive homes, many headed by known sex offenders… These children remain in the full time care and custody of sexual predators available to be raped on a daily basis. Since I filed my first report noting this situation, nothing has been done by any of you to remove these children to safe placements.
– The 45 children who were placed, at the direction of Tribal Social Services (TSS), BIA social workers, BIA supervised TSS social workers and the BIA funded Tribal Court, in homes where parents were addicted to drugs and/or where they had been credibly accused of abuse or neglect…
“…Those adults remain protected by the law enforcement which by its inaction is encouraging the predators to keep on hunting for and raping children at Spirit Lake.

Spirit Lake Child Abuse: Feb. 11 Letter from Sullivan to McMullen

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Feb 112014
 
Lauryn Whiteshield, July 19, 2010 - June 13, 2013

Tom Sullivan’s response to offensive, child-endangering letter by his Washington DC superior, Ms. Marrianne McMullen

February 11, 2014

Ms. McMullen:

Thank you for sending me a copy of your response to Spirit Lake Chairman McDonald’s letter to me dated January 26, 2014. Tom Sullivan - Regional Administrator ACF

Your email is heavy on conclusions but light on any rationale to support those conclusions.

1. You wrote, “ACF does not have the authority or expertise to conduct investigations of suspected child abuse, and thus Tom Sullivan will not undertake such an investigation at Spirit Lake.”

The latest version of the Administration for Children and Families 2014 Strategic Plan overcomes the “authority” issue you raise. Mr. Murray, in your presence, characterized this Plan version as just about final and did not think we would get far trying to revise it during the conference call with all the Regional Administrators earlier on the afternoon of February 5, 2014. The very same day you responded to the Chairman’s letter. The 2014 Plan states in its Introduction, “we seek to support national, state, tribal and local efforts to strengthen families and communities and promote opportunity and economic mobility.”

Later in that same section the 2014 Plan states, “we seek to advance a set of key goals” followed by a listing which includes, “Promote Safety and Well-being of Children, Youth and Families;” It is difficult for me to understand how we can do any of this if we are unwilling to address and seek to stop the mental, physical and sexual abuse of children, especially when we are being informed on a daily basis about such abuse.

You have from our first meeting sought to defame me, belittling my education, experience and skills. After more than 45 years of broad-based, senior work in the design, development, management and evaluation of health and human service programs at the highest levels in both the public and private sectors all across this country. I have an established reputation for both accomplishment and integrity that will be minimally influenced by your sniping.

I will let the testimony of those who have had an opportunity to observe my work all across this Region, especially in Indian Country, and who have taken the time to speak with me about my concerns for abused children and the lifetime burden they bear due to their abuse address the issue of my expertise in these matters. On March 12, 2013, Ms. Diane Garreau, an enrolled member of the Cheyenne River Sioux Tribe, the Tribe’s ICWA Director and Founding Board Member of the ICWA Directors of the Great Sioux Nation, representing the nine South Dakota federally recognized tribes, called me and said, “I need to get someone who can speak as an expert on child abuse and neglect of American Indian kids at our Summit in a couple of months. You are the most knowledgeable person about this stuff who I know. But I also know that you have a big gag stuck in your mouth by your Agency’s leadership when it comes to speaking about this stuff. So, who would you recommend, if I cannot get you?”

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Ms. Suzanna Tiapula is an attorney and long-time Executive Director of the National Center for the Prosecution of Child Abuse (NCPCA) who said on November 6, 2013, “I am really disappointed you have been denied permission to participate as faculty in our upcoming train the trainer course in Santa Fe, NM. We will not be as effective as we hoped because our best, you, will not be there.” This program,
as you know, was specifically focused on the development of a cadre of trained individuals from Indian Country who could go back to their homes and begin to address more effectively the epidemic of child abuse raging in their communities. This epidemic of child abuse has grown to its current size because our bureaucratic predecessors chose to ignore it.

This Santa Fe training was one of 11 three-day sessions which NCPCA had agreed to provide in Indian Country for essentially the same purpose all across this country as a result of my work with them. These sessions were provided at no cost to program participants, ACF or DHHS.

It has been clear to me that you have never wanted to admit that I had any expertise. You hoped that view would go unchallenged if you never allowed me to venture into the real world where children are being abused daily, available to be raped daily. Is that why you prevented me from making six trips last year, all into Indian Country and all dealing with these issues? Your actions facilitated the libel and slander of my sources and I by the criminally corrupt.

2. You also wrote, “Currently, the BIA is managing the investigations of incidents of suspected abuse at Spirit Lake and has referred some incidents to the Federal Bureau of Investigation”

My sources began reporting their concerns about Spirit Lake children more than seven years ago to the state, the BIA, FBI and US Attorney. Their reports were ignored. The documentation they provided went unread and then was shredded.

Is there something new to suggest these organizations will be any more responsive now? It seems clear to me that all law enforcement at Spirit Lake is engaged in the same do-nothing approach to their work as evidenced by the following five examples.

When a non-custodial father reported the suspected (she told him she was being sexually molested by a Level 3 offender living in her home) molestation of his 13 year old daughter to Tribal Social Services, Tribal Council and the BIA, the best any of them could do was to promise that the BIA would attempt to begin an investigation in 30 days. That was 60 days ago. It is not clear, after 60 days, that any investigation has even begun.

There have been three rapes of young ladies on the Reservation during the last three months. BIA law enforcement was notified in each case. In each case the young woman said she wanted to press charges against her rapist. This will be difficult because no victim statement was taken in any of these three cases.
There was no rape kit prepared in any of these three cases. No pictures of the bruises on the bodies of each of these women were taken. The FBI has, I understand refused to intervene and take responsibility for these three felonies. Each of these women is an enrolled Tribal member as are their rapists, The rapes occurred within the geographic confines of the reservation.

In the last 8 months there has been one serious beating of a young nurse who lives on the Reservation, allegedly by two female relatives of the former Tribal Chair. This victim too wants this case prosecuted and her attackers sent to prison. She has given the FBI and BIA law enforcement a statement describing her attack and providing the names of her attackers, pictures of the bodily damages she suffered and the names of several eyewitnesses to this attack. Nothing is apparently being done by anyone in the BIA or FBI to bring indictments in this matter. Both the victim and her alleged assailants are enrolled Tribal

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members. The assault took place within the geographic confines of the reservation.

The BIA knew the placement of those almost three year old twins in the home of their grandfather and step-grandmother in early May, 2013, was placing them in grave danger. This was proven less than 30 days later, on June 13, 2013, when one of the twins turns up dead, murdered by her step-grandmother. Despite knowing their own biological children had been removed from their care and custody, that they both had been charged with and convicted of child abuse of their own children, the BIA authorized the placement of these children in their full-time, unsupervised care and custody.

The BIA has apparently done nothing to insure the safety of that suicidal little boy who I brought to your attention on September 23, 2013. You assured me at that time that “Marilyn Kennerson with the Children’s Bureau is working with the BIA and the tribe to make sure that all appropriate measures are taken to assure the child’s safety.” Subsequent events made clear your words were hollow, The BIA has
also apparently done nothing for the two sisters who are placed in a foster home where “discipline” is administered by stripping these girls to their panties, duct-taping their hands in front of them and forcing them to sit on a stool in an uninsulated attic for hours at a time. The same can be said for the 13 year old
girl who told her Dad that she was being sexually molested by a Level Three sex offender. I gave Ms. Kennerson the names of these children as well as other relevant information about their placement more than three weeks ago during a meeting with her. It is hard to see how anything could have been done for these children if those who were supposed to be providing that help did not even know their names.

A few weeks after that meeting with Ms. Kennerson I requested an update on the condition of these children from her and have received nothing. It seems that if you have done nothing to protect children in these circumstances, the best strategy is to remain mute.

Tolerating such ineptitude from the BIA, FBI and other law enforcement especially when it results in a multi-generational failure to prosecute is troubling in light of a joint statement published on February 6, 2014 in the White House Blog by Lynn Rosenthal, White House Advisor on Violence Against Women, Jodi Gillette, Senior Advisor for Native American Affairs in the White House Domestic Policy Council and Raina Thiele, Associate Director White House Office of Governmental Affairs where
they wrote, “Improving the safety of our tribal communities is a priority of President Obama and his Administration….These important provisions remind us all that a victim is a victim, and that everyone is entitled to protection against any perpetrator.”

Attorney General Eric Holder in an article by Sari Horowitz entitled “New Law Offers Protection to Abused Native American Women” in the February 9, 2014 issue of the Washington Post is quoted as saying, “The numbers are staggering…It’s deplorable. …this is an issue that we have to deal with. I am simply not going to accept the fact it is acceptable for women to be abused at the rates they are being abused on native lands.”

If there is so much high level support for the thesis that all crime victims in Indian Country should be protected by aggressive prosecution of their assailants, why is so little occurring in Indian Country communities like Ft. Totten and St. Michael?

3. You also wrote, “The role of the Immediate Office of the Regional Administrator (IORA) is to provide leadership for ACF’s cross-cutting initiatives, emergency preparedness and response and administrative and communications support for ACF.”

On a conference call on February 5, 2014, just a few hours before you sent the response to Chairman McDonald you effectively endorsed the following language as part of or as an adjunct to the 2014 ACF

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Strategic Plan. Your endorsement was understandable since you wrote out the listing of the five functions of every IORA. That page and one-half started with: “Regional Administrators represent the ACF Assistant Secretary in the region, providing leadership, cross-program strategy and coalition building on the regional, state and local levels across government and advocacy centers. As a team they and their staff fill five distinct functions;”

“Function 1: Regional ACF Leadership
Regional Administrators maintain high-level relationships with state, tribal, territory and local government partners as well as university, philanthropic and other community partners and alert the Immediate Office of the Assistant Secretary if there are issues of concern in the states. They are the point of contact for State Commissioners/Secretaries, Governor offices; state Congressional and Legislative representatives. They represent ACF in regional, Federal Executive Boards, are ACF’s representative with the Regional Director’s office, other Federal Agency leadership, and they provide office based leadership through State Team coordination and coordination of other ACF-wide activities.”

“Function 2: Initiative Leadership
IORA lead high priority, cross-cutting program initiatives such as the Affordable Care Act, Hispanic outreach, efforts to combat human trafficking and homelessness and a number of other cross-program initiatives that do not belong to any single ACF program……..”

It is difficult to reconcile your description of the limited functions of a Regional Administrator in your letter to Chairman McDonald with your description of far more expansive functions discussed during that conference call and outlined in that page and one-half that you composed.

I recall when you stormed out of my conference room on the morning of Friday, June 14, 2013 abruptly breaking off a conversation about how best to address the issues I had been raising at Spirit Lake. You were clearly dis-satisfied with my response to the effect that such an effort would not be easy but was doable, would require the active participation of a broad coalition of Tribal, state, federal and local
organizations to begin to effectively address these issues and was consistent with the kind of efforts I had lead in the past. At a minimum I told you that every one of ACF program components had to be involved, not just Child Welfare, and that we had to partner with the Indian Health Service, the Office of the Assistant Secretary for Health, the Substance Abuse and Mental Health Services Administration, Health Resources and Services Administration, Departments of Justice, Interior, Education, Labor, HUD and the Small Business Administration. These agencies and departments represented only the federal; side of the collaboration which would be necessary.

You had a far more negative perspective, apparently frustrated in your efforts to convince me that the problems were unsolvable and were quite displeased to hear my positive recommendations on how to proceed.

4. You also wrote, “We understand that reporting of alleged abuse through non-official channels has contributed to unnecessary confusion and delay. We will continue to encourage official reporting through appropriate channels in order to ensure timely and professional investigations to protect the children of Spirit Lake.”

Since I have been the only person, other than my sources, who has been reporting suspected child abuse at Spirit Lake, I can only assume this is a not so subtle swipe at me.

Before I filed a single Mandated Report I asked our Regional Counsel where I should file them. He responded that they should be filed with the US Attorney for the District where I suspected child abuse was occurring. I did.

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All of my Thirteen Mandated Reports and supporting documentation were filed directly with the US Attorney for the District of North Dakota and with the individual the US Attorney identified for me at BIA. When Acting Assistant Secretary Sheldon prohibited me from filing those Mandated Reports, I had no choice but to file information I received from my sources with him or his designee. That is exactly what I have done. I have no control over what you do with them.

It is clear based on the case of the suicidal boy who I brought to your attention on September 23, 2013, that some, if not all, of those reports were never forwarded to anyone despite your assurances that the boy’s safety was assured due to the efforts of the BIA, the Tribe and the Children’s Bureau’s Ms. Kennerson. The fact that Ms. Kennerson had to ask me for the child’s identity three weeks ago, four months after my email from you on September 23, 2013, convinced me that your words were hollow, that you had done nothing to protect this child from self-injury or abuse at the hands of his abusive foster parents. You did not even know who this child was and neither you, nor BIA, nor the Children’s Bureau nor Ms. Kennerson did anything to determine his identity. What callous dis-regard for the safety of this suicidal little boy!

I will leave it for the citizens of Spirit Lake to inform you how ineffective it is to attempt to use the telephone numbers or resources you have identified in your letter. They can describe the number of hours, days, months, and years they have spent waiting for police to respond to a call, to answer a call so they may report a crime or for the return of indictments in especially vicious crimes.

I am attaching with this email a brief, three page write-up of a graduate of the Spirit Lake foster home system. It is entitled, “My Story”. Read it and understand the despair this now strong, resilient young woman felt as her reports of abuse, rape and neglect were ignored by those who were running the system then, when she was 5, 6 and 7 years of age. She went into the system between the ages of 4 and 5. She left it at 18. Now she is in her early 20s, an alcoholic with three children of her own and two step-sons. If she is able to achieve some level of normalcy in her life, it will be a remarkable achievement. If she can keep herself and her kids on the straight and narrow, avoiding having to put her kids into the care of
others, exposing them to the abuse she lived with as a child, she will be a great success. She recognizes the pitfalls she confronts on a daily basis and works harder than any of us to avoid them. The inter- generational abuse fostered by the corrupt criminals who must be removed cannot be allowed to continue. If it does, what this young lady has written will continue to be repeated many times over.

In one home where she was placed for several years, she was raped daily. No social worker looked in to check on her welfare during those years. What were those federal staff from BIA doing while this child was being raped daily? What kind of oversight did ACF’s Children’s Bureau provide? What kind of supervision did the state provide? Why did all of these adults allow this child to be raped daily?

If this or any other young woman slips up and has their children removed from their custody temporarily, why can’t they count on their kids being placed in a loving foster home where they will not be abused or neglected?

Thomas F. Sullivan

Regional Administrator, ACF, Denver

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Letter to McMullen 021114.docx

Mr. Sullivan Calls Superiors Out for Treating Kids Like Chattel

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Dec 212013
 
Lauryn Whiteshield, July 19, 2010 - June 13, 2013

Mr. Sullivan’s most recent letter to his superiors in Washington DC… please spread far and wide –

———- Forwarded message ———-
From: Sullivan, Thomas (ACF) Date: Thu, Dec 19, 2013 at 2:53 PM
Subject: Spirit Lake
To: “Mcmullen, Marrianne (ACF)” , “Greenberg, Mark (ACF)”
Cc: “Chang, Joo Yeun (ACF)” , “McCauley, Mike (ACF)” , “Murray, James (ACF)”

December 19, 2013

In my First Mandated Report of suspected Child Abuse on the Spirit Lake Reservation in North Dakota, filed more than 18 months ago, I wrote, “The children of the Spirit Lake Reservation are being subjected to actual abuse or the threat of such abuse due to the actions and inactions of adults who have responsibility to protect them from such abuse. These adults include their parents, neighbors, community leaders, Tribal program staff and directors, Tribal Council members, federal and state program leaders who have been notified and allowed the following conditions to persist. Thus, due to their inaction and excuses in some cases they have played an active role in fostering the development of conditions here.”

Testifying about child abuse

Testifying about Child abuse before Senator Dorgan’s committee, December 9, 2013


My fervent hope was that such a Report would lead to the development of a broad-based collaborative effort of tribal, state and federal agencies working with Spirit Lake community members as well as the private sector for the purpose of addressing the specific issues I had identified as well as all others that would emerge as we moved these Spirit Lake children to safety.

A collaborative effort did emerge not for the purpose I had expected but in defense of the status quo. That collaboration has devoted its’ energies against those of us who have spoken up about the problems at Spirit Lake. My sources and I have been subjected to an unremitting campaign of lies and threats. We have been treated as pariahs, outcasts, unfit to be heard or seen in polite society, fair game for whatever outrageous lies our opponents wish to spin. Those responsible for this campaign have tried to remain anonymous, relying on the spoken word in most cases, but some few have had the courage to emerge from the shadows and reveal themselves

All of our allegations have been in writing submitted through formal channels. The lies and threats have been, in most cases, made verbally and have been dropped into conversations so as to poison the minds of those who know little about conditions in Indian Country or Spirit Lake and who are too busy/lazy to dig into the facts of this case. These lies and threats have been calculated in every case to minimize the impact of the detailed factual Reports we have placed on the record. In practically every case when a source of these false statements has been publicly identified, I have written to them requesting a copy of their documentation of my “errors” so that I might correct the public record. None have been provided even though up to 16 months have elapsed since those requests were first made. This is quite surprising since I have made these written requests to the former TSS Director, BIA spokeswoman Darling, former Tribal Chair Yankton, US Attorney Purdon, former ACF Acting Assistant Secretary Sheldon and ACF Deputy Assistant Secretary for External Affairs Mcmullen.

Why should I risk my well-known reputation for integrity and accomplishment built over more than 45 years of service in the public and private sectors by lying about conditions at Spirit Lake?

I am deeply committed to seeing the unspeakable child abuse at Spirit Lake stopped. That is my only motivation.

As a result of these efforts to minimize the impact of our reports more than 100 American Indian children at Spirit Lake remain in the full time care and custody of sexual predators, available to be raped daily.

Who, among you, wants that crime to continue?

If you want it to stop, why are you establishing committees and study groups, delaying the movement of these children to safety for years?

If you want to stop it, just stop it!

There are an extraordinary number of contradictory statements made by those who oppose our efforts to assist the children of Spirit Lake to get into safe homes. There are essentially two types of contradiction in the following 9 examples. First, where two senior leaders of an agency or of different agencies take positions that are diametrically opposed to one another (Items # 1 and 4 fall into this category). Second, when agency leadership claims in broad general terms that everything has been solved and, by the way, many of those allegations were just exaggerations and an enrolled member or other informed citizen objects and factually challenges these claims (Items #2, 3 and 5-9 fall into this second category). The following brief examples outline these nine contradictions:

    1. On October 11, 2012 Acting Assistant Secretary Sheldon was in Denver for a brief visit to the Region. He spent a great deal of time telling me that I was being too hard on all those involved with the Spirit Lake Tribal Social Services program and that he had been assured by the Washington, DC leaders of the BIA and the Children’s Bureau that great progress had been made since I filed my first report, four months earlier. During that conversation, I responded to Mr. Sheldon’s claims with half a dozen examples of egregious systemic failures at Spirit Lake in the two weeks prior to his visit where children were being endangered by placing them in the care and custody of abusive parents or foster parents. He was unmoved by my examples that came directly from my sources living and working on Spirit Lake.

    On November 5, 2012, less than 4 weeks after that discussion with Mr. Sheldon, then Spirit Lake Tribal Chair Roger Yankton was asked, during a General Assembly, by an enrolled member of the Spirit Lake Nation, “Are there any lies in Mr. Sullivan’s Reports?” Mr. Yankton’s response was, “No, there are none.” He was then asked, “Do you have any proof that the conditions those children are living in and which are cited by Mr. Sullivan have improved?” Mr. Yankton’s response to this question was, “No, there has been no change.” Chairman Yankton’s statements were made almost five full months after I started filing my Mandated Reports, after seven of my Reports had been submitted. These seven Reports contained 90 – 95% of an unduplicated count of the factual allegations I have made.

    I reported this exchange at the General Assembly to Mr. Sheldon but never received any word from him indicating he had changed his mind from what he had expressed on October 11, 2012. To most readers, however, the contradiction should be obvious.

    2. In the November 4, 2012 issue, the Fargo Forum quoted BIA spokeswoman, Nedra Darling as saying, “The BIA is working hard to ….protect the youngest and most vulnerable members of Indian Country.”

    How does that statement square with Spirit Lake Tribal Chairman Yankton’s statement one day later that he knew of no change in the conditions about which I had been complaining in my Reports during the prior five months?

    A recent article from the October 28, 2013 issue of the Grand Forks Herald is even more damning of the BIA’s failures at Spirit Lake, “Lolly Diaz, a former member of the Spirit Lake social services board said there is little evidence of improvement since the BIA took the lead on child protection and foster placement. ‘Nothing has changed from putting it over to the BIA’, Diaz said. ‘There really isn’t any difference in my opinion. They’re on a revolving door basis’, she added, referring to BIA staff brought in to help. ‘We don’t have anybody permanent here.’

    In the last few days the following situation has been brought to my attention by a former TSS staff member who lives in close proximity to the Spirit Lake Reservation: a 13 year old little girl is staying with her grandmother approximately 80% of the time. Another relative an adult male also lives with the grandmother. This male is a registered, violent sex offender. The conduct of the 13 year old has been regressing and she has apparently told her non-custodial father that she is being sexually abused by this registered sex offender. The father has gone to BIA, TSS, Tribal Court and the Tribal Chair to complain about his daughter’s placement. He has been told by the BIA that it will be at least 30 days before they can even initiate an investigation.

    How many of us would be satisfied with Ms. Darling’s “working hard” when we understood it really meant at least a 30 day delay before any action would be taken to protect our 13 year old little girl from a vicious sexual predator?

    3. Ms. Darling in her November 4, 2012 comments to the press is quoted as saying, “The BIA maintains standards of professionalism and public safety…..” and “the highest levels of integrity and accountability of its employees.”

    Despite these claims the BIA ignored the domestic violence of their senior criminal investigator at Spirit Lake for more than a year even though during this time he mercilessly beat his wife on several occasions. Each of these occasions was public, known all across the Reservation and known to the former BIA Superintendent as well as to his Deputy (the current BIA superintendent). None of these people did anything to protect this defenseless woman from these beatings. When a friend of mine placed the victim’s affidavit into the hands of the number 2 person in BIA Law Enforcement in Washington, DC, BIA still did nothing.

    How do these actions up and down the chain of command in BIA contribute to the “highest levels of integrity and accountability of its employees”?

    4. Acting Assistant Secretary Sheldon in his April 15, 2013 letters praised both the BIA and DOJ for their efforts to address the situation at Spirit Lake and essentially condemned me for incorporating my “… own personal views” and that “those views might be misinterpreted or misreported as those of the Administration for Children and Families (ACF) or the Department of Health and Human Services.” Mr. Sheldon went on, “after evaluating your reports, the Department does not share your view that the Bureau of Indian Affairs or the United States Attorney’s Office have (sic) been derelict in their duties….. We know that improvements have been made.”

    In mid-August, 2013, you, Ms. Mcmullen, in a telephone conversation with one of my sources, Ms. Betty Jo Krenz, who was complaining about ACF’s refusal to allow me to attend a meeting in Bismarck, ND later that week said, “I don’t understand what could be gained by another meeting. We’ve been in meetings at Spirit Lake for two years and have seen little or no progress.” When I asked for a clarification four months ago, in late August, 2013, of the contradiction between these two positions, I was greeted with total silence.

    When I asked both the Acting Assistant Secretary and you, Ms. McMullen for the factual basis for those April 15 letters, I have been stonewalled. Nothing has been provided. Perhaps that is because there is no factual basis for those conclusions. Given the facts on the record, however, most readers will agree there is a basic contradiction between what you said in August to Ms. Krenz and the letters, Acting Assistant Secretary Sheldon sent to me, Ms. Settles and Mr. Purdon on April 15, 2013, a contradiction that ACF leadership seems unwilling or unable to explain, despite my continuing requests for an explanation.

    5. On June 19, 2012 in response to my First Mandated Report, Mr. Purdon, the US Attorney for North Dakota wrote, “the United States Attorney’s Office in North Dakota shares your concern for the safety of Native children as can be seen in our strong track record of prosecuting and convicting the hands-on perpetrators of abuse and neglect on the reservations in North Dakota.” When I read those words I was impressed and hopeful

    Hopeful, that is, until I reviewed the record of charges filed, indictments sought, plea deals made, trials and convictions for child sexual abuse originating from the Spirit Lake Reservation and could find only 2 cases in the last 25 months. I have been told that in most recent years there have been on average 50 cases of child sexual abuse per year reported, investigated and confirmed by child protection workers on Spirit Lake and referred to the FBI or US Attorney’s office for criminal investigation and prosecution.

    That dismal record of only two cases of child sexual abuse from Spirit Lake in a 25 month period can be explained best, I believe, by the alleged rape of a 12 year old little girl who had just turned 13 on September 29, 2012, who was home alone when a 38 year old male friend of her mother’s stopped by and raped her. (This account of what happened to this little girl was provided by an enrolled member of the Spirit Lake Nation.) She called the police who, when they responded were given the alleged rapist’s name, address and physical description. BIA police did not take a rape kit. BIA police did not question the suspect for three weeks at which time he told them that, “She wanted to have sex with me. What was I supposed to do?” It was bad enough that the BIA police swallowed this line but so did the FBI and US Attorney Purdon. When statutory rape occurs in this manner with such an age discrepancy and these are the standards applied to determine whether to prosecute or not, it is remarkable that any child sexual abuse cases made it into Court during the last 25 months.

    On February 27, 2013 US Attorney Purdon made the following statement, as told to me by an enrolled member of the Spirit Lake Nation who attended that Hearing, in a public meeting on the Spirit Lake Reservation, “Many of Sullivan’s allegations are just false.” Since he had never communicated such a view to me or to my sources, I immediately, that day, requested by email that he give me the courtesy of identifying which of my allegations were, in his words, “just false”. Now almost ten months later I await the documentation of his otherwise slanderous, self-serving characterization of my Reports.

    6. Both the BIA and US Attorney claim in many public statements that every allegation I have surfaced has been investigated. When I use the term “investigated” here, I assume this means that interviews with complainants and witnesses have been conducted, evidence has been gathered, reports filed with an appropriate supervisor and a determination made, based on that record, whether to recommend further legal action. I also assume that records of each investigation would be available for review by an appropriate independent, properly qualified reviewer.

    I have listed below ten possible crimes reported to the BIA and US Attorney which, if they have been investigated, that has been done privately without the benefit of interviewing those who were responsible for filing those complaints.

    Why has there been no investigation of my 14 month old complaint filed against FBI Special Agent Cima?

    Why has there been no investigation of the 15 month old charges of Domestic Violence against BIA’s Senior Criminal Investigator at Spirit Lake by his wife?

    Why has there been no investigation into the destruction of the Incident Report completed by the CI’s wife in the Devils Lake Mercy Hospital Emergency Room after a particularly vicious beating at the CI’s hands in mid-August, 2012 by the former Director of the Spirit Lake Victim Assistance Program?

    Why has there been no investigation of the complete and total failure of the state, FBI and BIA to investigate charges that were credibly brought several years ago against each of these entities?

    Why has there been no investigation into the withholding of critically needed intensive rehabilitative services from several Spirit Lake children who have been sexually abused and severely beaten? If the purpose of preventing these children from gaining access to this therapy is to prevent the names of their predators who damaged these children from being revealed to professionals who have a legal obligation to make this information known to law enforcement, is this obstruction of justice? If it is, the entire leadership of the BIA Strike team should be indicted.

    Why has there been no investigation into the Spirit Lake school system’s retaliatory actions against two mandated reporters – firing one and giving the other a letter of reprimand, simply because they were attempting to help a young child having difficulties in his foster home placement?

    The Tribal Elder who observed two little boys engaging in anal sex in her yard called police immediately when she observed this behavior. No one in law enforcement took her statement. She tried to tell her story at the February 27, 2013 Hearing but she was shushed by US Attorney Purdon, the BIA leadership and all those on the platform. The US Attorney did say publicly he would speak to her privately after the Hearing concluded. He did not. Nor did anyone from his office take her statement. Why has there been no investigation into this complete failure of law enforcement in this particular case at Spirit Lake?

    One day later, on February 28, 2013, these same two boys were observed by two little girls engaging in oral sex on a Spirit Lake School Bus. The little girls reported this to the bus driver, their teachers and the school principal. All of these supposedly responsible people said and did nothing about this incident. None of them filed a Form 960 as required. Why has there been no investigation into the failures of these adults to fulfill their responsibilities? What else are they failing to do?

    Why has there been no investigation of the decision to place a four month old, previously meth-addicted infant in the unsupervised full time care and custody of her meth-addicted mother. The mother had been required to complete a lengthy drug treatment program with periodic, unannounced testing to make sure she was still not using. She never completed that treatment program and refused to take any tests during it. Despite these facts this infant was returned to her full time care and custody by the Tribal Court.

    Why has there been no investigation of the unexplained removal of a child from her mother’s home without cause in December, 2012, the perjured, sworn testimony of the BIA Social Worker self-identified as Gabrielle who swore that she had sought kinship care but could not find any kin willing to take this child. This child’s aunt is Ms. Molly McDonald, former Tribal Judge and one of my sources, and her grandfather is Leander McDonald, current Tribal Chair. Neither was contacted by this or any other BIA social worker. When this child was finally returned in April, 2013 her mother was told that she was prohibited from speaking to her aunt, my source, Ms. Molly McDonald. Why is the BIA resorting to such tactics? Is there some fear that the truth might emerge?

    All of the information in these accounts of possible criminal activity which has not been investigated at Spirit Lake have been provided by sources who are enrolled members or former employees with close ties to a large number of enrolled residents of Spirit Lake.

    The bias reflected in all of these non-investigations at Spirit Lake may well rise to the standard set by the Ninth Circuit Court of Appeals in their decision in the Oravec case.

    7. On June 27, 2013, a meeting was convened in Bismarck, ND in the offices of Scott Davis, Indian Affairs Commissioner for the state of North Dakota. The meeting was attended by Mr. Davis, congressional staff from the offices of the two senators and one representative and a delegation of enrolled members from the Spirit Lake Nation, including several Elders, former Tribal Judges, a former Tribal Chair and several former Council members.During the meeting Mr. Davis made several derogatory remarks about me and the Reports I had been filing. Mr. Davis has never made any attempt to me to speak with me or to discuss my Reports with me.

    Ms. Molly McDonald, a former Spirit Lake Tribal Judge challenged Mr. Davis on his derogatory remarks about me. She said, “I have never met Tom Sullivan but he is the only fed we trust. After more than five years of complaining about conditions at Spirit Lake to tribal, state and federal government officials who did nothing in response to our complaints, he is the only one who returned our calls. What is in his reports are our stories told to him by us, faithfully recorded and reported by him. Tom Sullivan is the only one we trust in government at any level.” I am not aware of any response from Mr. Davis to Ms. McDonald.

    Mr. Davis is a good example of those who have libeled and slandered me. They have never met me and apparently have not read my on-line bio available at the ACF Region 8 web site. Clearly most have done little more than skim thru my 13 Reports about Spirit Lake, if they have done even that. None have sought me out to discuss the basis for my strongly held opinions about the unacceptable treatment of so many Native American children at Spirit Lake. For many, like Mr. Davis, those children seem to be an after-thought.

    8. I believe the highest obligation for every adult, whether working for government or not, who is aware of this situation is to insure the safety of those children who were abruptly removed from safe, off-reservation placements and returned to on-reservation placements in many cases to the full-time care and custody of known sex offenders where they were available to be raped daily as well as those children placed in unsafe homes in the care of addicts and abusers as a result of decisions made by BIA, TSS and Tribal Court.

    The leadership of my agency has instructed me that my belief that the safety of those children is paramount in this matter does not reflect the policy position of either my agency or my department. Despite my request for the Agency’s and Department’s policy in these circumstances, no one in that leadership has provided any information on what that is.

    From what my sources and I have experienced during the last 18 months the highest priority of the state, the FBI, BIA as well as other federal agencies has been to silence us, to label us as liars, as incompetents not qualified to identify the abuse of a child, to minimize the seriousness of this situation with their fabricated, self-serving claims. Among those claims are, “It’s a new problem.”; “This problem arose because the Tribe lost the person responsible for filing their forms.”; “If those whistleblowers would shut up everything would be fine.”; “Everything is fine.”; “They are making great progress.”; “You are expecting too much progress too quickly.”; “They are working hard.”; “it’s all fixed.”; “We’re doing a great job for kids.”; “You are not a subject matter expert.”

    None of these claims were true when spoken. None are true now.

    If that self-serving approach were held by those who served on the Grand Jury that indicted Jerry Sandusky on 45 counts of child sexual abuse, there would have been no indictments. It would have been decided that none of the witnesses against Sandusky were credible because Jerry would have told the Grand Jury all of those witnesses were lying and they would have believed him.

    Are the children of State College, PA more deserving of protection from child rape than the American Indian children of Spirit Lake, ND? If not, why the lengthy delay in rescuing the children of Spirit Lake from their rapists?

    It appears that every agency involved with Spirit Lake has elected to follow a path that leaves young, defenseless children in the full-time care and custody of addicts and sexual predators rather than getting these children into safe homes as quickly as possible. In doing this, these agencies and their actions track the same path followed by the leadership of both Penn State and the Catholic Church when these organizations sought to protect their institution’s reputation by covering up the rape of children. I believe such an approach is wrong, disastrous for those children and with the capacity to do significant long term damage to the reputation of the agencies involved.

    If your son or daughter were in the full time care and custody of known addicts and rapists and had been for more than a year, would you agree with those public agencies which wished to study the issue to determine what course of action to follow, knowing the study would take another year? Or would you demand that your children be removed immediately from the care and custody of addicts and rapists and that those same addicts and rapists be indicted for their crimes?

    9. Almost a month ago a good friend and supporter of mine sent me an email recounting a conversation she had just had with a congressional staff member by the name of Kenneth Martin who works for the Senate Indian Affairs Committee. Apparently, Mr. Martin had a quite strong reaction when my name came up during their meeting. I understand Mr. Martin to have said, “He no longer has that job.” “It would be illegal to prohibit him from filing Mandated Reports.” “Mr. Sullivan is a liar and that would be proven in a hearing.”

    Mr. Martin has never attempted to speak with me. He has never sent me any written inquiries about my Reports. If he has copies of them, I doubt that he has spent much time in reviewing them. I can only assume his comments were driven by prior conversations with Washington, DC staff from BIA, DOJ or my own agency. Wherever they come from, he has made slanderous statements about me.

    I still work for ACF as Regional Administrator in Denver.

    I also believe prohibiting me from filing Mandated Reports is an illegal act. I trust he has initiated a congressional oversight investigation into this matter to determine whether there is a factual basis to proceed to indictments.

I would be pleased to appear before the US Senate Indian Affairs Committee if I were subpoenaed, placed under oath and asked to answer any questions about conditions at Spirit Lake. Then we would know who the real liars are.

Thomas F. Sullivan
Regional Administrator, ACF, Denver

###

Panel hears testimony about native children exposed to violence

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Dec 132013
 
Suffer the Children. Sexual Abuse of kids on the Spirit Lake Reservation

Forum News Service Dec 10, 2013 8:41am
By Mike Nowatzki

BISMARCK – Dressed in dark slacks and a light blue shirt and tie, Lenny Hayes looked every bit his adult self on Monday in the Ramkota Hotel ballroom.Testimony at Senator Dorgan's hearing Bismarck Dec 9, 2013

But as he leaned into the microphone and began to speak, he became the scared, helpless 6-year-old boy in the corner being groped and traumatized by sexual abuse.

“How do I say ‘stop?’ I close my eyes and my tears begin to flow. I go to a faraway place with my mind … a safe place, a happy place, a place where I don’t have to feel what my body is experiencing,” he said. “After it’s over, I am lifeless, and I begin to come back to my body once again.”

Such accounts are all too common in Indian Country, and tribes desperately need more resources to protect children from abuse and neglect, tribal officials and experts testified Monday during the first public hearing of U.S. Attorney General Eric Holder’s Advisory Committee on American Indian/Alaska Native Children Exposed to Violence.
The advisory panel also will hold public hearings in Arizona, Florida and Alaska and make policy recommendations for Holder by the end of October.

Former U.S. senator Byron Dorgan of North Dakota, the advisory panel’s co-chairman, said he hopes the effort will be the catalyst “that finally unlocks the determination of all Americans” not to allow violence against native children to continue.

Dorgan, who also is chairman of the board of advisors for the Center for Native American Youth at the Aspen Institute, said rape and abuse cases have too often been declined by federal prosecutors and put in the “back room” of too many U.S. attorneys’ offices. He said he has seen loving families on reservations but also “the most unbelievable despair,” telling of one 12-year-old girl who had been sexually abused in two foster homes and found refuge at a homeless shelter which then had its budget cut as a result of sequestration.

“That is defined as ignorance where I come from,” he said, his voice rising almost to a yell. “We know this is happening, and we know how to address it if we just have the will.”

U.S. Sen. Heidi Heitkamp, D-N.D., who recently co-sponsored bipartisan bills to create a Commission on Native Children and provide increased protection to victims of human trafficking, said policymakers must do more than just gather data.

“We can’t just build the case and keep talking about this. We have got to change outcomes,” she said.
The magnitude of the problem in Indian Country is just beginning to be understood, said Lonna Hunter, project coordinator for the Minneapolis-based Council on Crime and Justice and a survivor of childhood abuse.
“Lack of research has directly delayed our response to the crisis,” she said.

The belief system that made protecting native children the responsibility of the entire tribal community has been lost amid the historical trauma of being displaced, assimilated and institutionalized and having their culture and language suppressed – factors that contribute to child mistreatment, said Sarah Hicks Kastelic, deputy director of the National Indian Child Welfare Association.

Child victims of maltreatment and abuse are more likely to have mental health and substance abuse problems, perform more poorly in school, have early pregnancies, get in trouble with the law and perpetuate violence against others, “creating a cycle of violence that is difficult to break,” Kastelic said.

Associate Attorney General Tony West said “the scars of violence run deep and have impacts that can seep from one generation to the next.”

Other witnesses lamented the lack of Bureau of Indian Affairs officers to conduct investigations and Indian Health Service employees who either don’t live in the communities they serve and or are hamstrung by government red tape hen they try to tackle problems.

At the same time, several said answers must come from within the tribes.
“It needs to be grassroots. It must be run by native people,” said Barbara Bettelyoun, a psychologist with the Rosebud Sioux Tribe in South Dakota.
The recent controversy over child protection at North Dakota’s Spirit Lake Nation also was addressed, with several members of the tribal council in attendance.
Spirit Lake Chairman Leander “Russ” McDonald testified that the May 2011 murder of a brother and sister on the reservation and the death of a 2-year-old girl who was shoved down an embankment by her step grandmother last June indicated the “critical need” to prioritize resources and lay the foundation “for a system that is clearly broken.”
However, he said “not much has changed” since complaints prompted the Bureau of Indian Affairs to assume control of child protection services on the reservation on Oct. 1, 2012. The tribe is working with state and federal officials on an action plan for child protective services, he said, again stressing that change from come from the tribe.
On a day filled with moving testimony, Hayes, an enrolled member of the Sisseton-Wahpeton Oyate and now a psychotherapist with the Shakopee (Minn.) Mdewakanton Sioux Community, delivered an especially powerful first-person account of abuse and healing.
Even at 45 years old, sharing the story is still painful, he said. He still struggles with his past, and he said more “two-spirited” survivors like himself need to stand up and be heard. He and others said the current culture that often ostracizes abuse victims who come forward needs to change.
“We need to be accepted back into our communities,” he said. “We need to be heard. We need to be listened to.”

Letter’s from George Sheldon say “Ignore Tom.”

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Dec 042013
 

 

George Sheldon, Former Director of the Administration for Children and Families (ACF), made it clear in April, 2013, that the ACF does not want to hear about atrocities occurring at Spirit Lake. He further stated the ACF stands firmly behind the behavior of the BIA, FBI and US Attorney at Spirit Lake – despite numerous reports from Spirit Lake residents as well as ACF’s own Regional Director, Tom Sullivan, that horrific child abuse has been ignored by the federal agencies.

The horrific child abuse that Mr. Sullivan reported to Mr. Sheldon in 2012 and 2013 was supported by a recent CNN segment (Oct, 1013) entitled “Sexual Abuse Rampant on Indian Reservation.”

Further, had Mr. Sheldon listened to Mr. Sullivan, toddler Lauryn Whiteshield might be alive today.

Capitol Hill

Dec 032013
 
Corruption at the U.S. Capitol, Washington, DC

In October, CNN did a segment called “Sexual abuse rampant on Indian Reservation.” Questions were raised as to how and why our federal government could be turning its back on children on reservations across the country. Tom Sullivan, Regional Administrator for the federal ACF, had been telling his superiors about the horrific handling of children for over a year. We now have documents between Tom Sullivan and his superiors.

Had the ACF listened to him and done its job, toddler Lauryn Whiteshield would be alive right now.

Our children have been viewed as collateral damage in DC’s ongoing political games for far too long.

An email from Tom Sullivan to his superiors is below. More documents to follow.

—————————————————-

Congressman Issa,

Thursday morning, Mr. Kenneth Martin, senior aide to Senator Cantwell, Chair of the Indian Affairs Committee, made several disparaging remarks concerning ACF Regional Administrator, Thomas Sullivan and suggested a hearing would reveal lies.

What Mr. Sullivan had been pointing out in a series of mandated reports is that the ACF, BIA, FBI and US attorney have not been doing their jobs on the Spirit Lake Reservation. In fact, what many Spirit Lake tribal members have been saying is that our federal government is allowing tragedy to occur despite the pleas of people living there.

We want that hearing Mr. Martin suggested. We need our government to investigate Mr. Sullivan’s claims – and we need our government to investigate similar situations on other reservations.

Read the emails:

———- Forwarded message ———-

Lauryn Whiteshield, July 19, 2010 - June 13, 2013

Lauryn Whiteshield, July 19, 2010 – June 13, 2013

From: “Elizabeth Morris”
Date: Nov 22, 2013 10:16 AM
Subject: Re: Mr. Tom Sullivan’s email concerning Spirit Lake
To: “Martin, Kenneth (Indian Affairs)”
Cc: “Thompson, Mariah (Indian Affairs)”

Thank you for your note, Mr. Martin. I appreciate it.I hope you will also concede at some point that we are not “cherry picking.” It is time to admit the depth of what is happening on many reservations. No more playing politics with the lives of a vulnerable community – let alone vulnerable children.

My sisters-in-law, brothers-in-law, nieces, nephews – at the very least – are worth much more than that, (if I can speak personally. It is after all, for personal reasons that my husband and I began this work in the first place.)

But I will not stop with just our extended family. Too many people have come asking for help.

We insist that the facts Mr. Sullivan and others have presented be acted upon.

Thank you again for your response.

—————

On Fri, Nov 22, 2013 at 8:31 AM, Martin, Kenneth (Indian Affairs) wrote:

Ms. Morris,

Thank you for the email. I apologize as I must have misspoke, as I have no information on the issues surrounding Mr. Sullivan and did not intend to insinuate otherwise. Thank you for the opportunity to clarify.

Kenneth Martin

—————-

From: Elizabeth Morris [mailto:administrator@caicw.org]
Sent: Thursday, November 21, 2013 8:15 PM
To: Thompson, Mariah (Indian Affairs); Martin, Kenneth (Indian Affairs)
Subject: Mr. Tom Sullivan’s email concerning Spirit Lake

Ms. Thompson and Mr. Martin

Shortly after our conversation concerning Mr. Tom Sullivan of the ACF, I received this email. It appears to address some of the very issues we had discussed.

Mr. Martin, you had suggested that a hearing would prove Mr. Sullivan had lied. I wonder if it might come to that.

I would appreciate your comments concerning the below. Thanks –

—————————————-

Begin forwarded message:
From: “Sullivan, Thomas (ACF)”
Date: November 21, 2013 1:45:05 PM EST
To: “Mcmullen, Marrianne (ACF)”
Cc: “Chang, Joo Yeun (ACF)” , “McCauley, Mike (ACF)” , “Greenberg, Mark (ACF)”

Subject: Spirit Lake

Marrianne:

In the early evening of October 21, 2013, CNN broadcast a detailed and substantive report entitled “Sex Abuse Rampant on Indian Reservation” about the epidemic of child sexual abuse on the Spirit Lake Reservation. That broadcast ran a little more than 6 months after former Acting Assistant Secretary Sheldon’s April 15, 2013 letter to me prohibiting me, in my official capacity as Denver Regional Administrator for the Administration for Children and Families (ACF), from filing any more Mandated Reports about child sexual abuse at Spirit Lake. Since that policy applied only to me, I believed it was retaliatory and discriminatory.

Your refusal to announce this new policy with any of the other 1500 ACF employees across this country is a clear signal to me that I have been singled out for this retaliatory and discriminatory action which, because of your silence, continues to this very day.

Your continuing exclusion of me from any participation in efforts to address the problems at Spirit Lake is further evidence of retaliation and discrimination.

Mr. Sheldon’s letter to me was accompanied by letters to the BIA’s Ms. Settles and US Attorney Purdon. Unlike his letter to me, his letters to them were full of high praise for their efforts in addressing the epidemic of child sexual abuse at Spirit Lake..

Since I had no contact with Mr. Sheldon after October 11, 2012 and since at that time he had made clear his displeasure with my Mandated Reports, and since I had responded to that displeasure with extensive factual documentation of conditions at Spirit Lake, I was surprised by his letter to me. His unqualified endorsement of the efforts of Ms. Settles and Mr. Purdon was and still is shocking, lacking, as it did, any factual basis for the high praise heaped on them. This contrasted sharply with the factual detail provided in my Mandated Reports.

Believing that Mr. Sheldon must have had some factual basis for the position detailed in his letters to Ms. Settles and Mr. Purdon, I have asked twice for those facts. None have been provided. My emails have been ignored by both you and Mr. Sheldon. I can only presume there are no facts available to justify your position.

My sources have been complaining to Tribal, state and federal agency leadership for more than five years about conditions at Spirit Lake and the maltreatment of children there. Their complaints have been ignored and continue to be ignored. Their documentation unread and then shredded.

I have filed 13 Mandated Reports. All have been ignored or characterized as rumors or exaggerations by Tribal, state, BIA, DOJ as well as other federal agencies. Facts and truth mean little to those charged with defending both the status quo at Spirit Lake and themselves. More importantly the safety of abused American Indian children at Spirit Lake appears to have meant even less. As a result of their misleading puffery more than 100 children remain in the full time care and custody of sexual predators available to be raped daily.

On September 23, 2013, I sent an email to Mr. Sheldon concerning the situation with a young suicidal boy who had fled his foster home. You responded that “Marilyn Kennerson is working with the BIA and tribe to make sure all appropriate measures are being taken to assure this child’s safety.” My sources inform me that nothing has changed for this young boy.

Claims have been made that every allegation in my Mandated Reports have been investigated. Many of my sources say otherwise because they have not been interviewed by anyone in law enforcement. This claim becomes even harder to believe when the US Attorney for North Dakota has indicted, sought a plea deal or prosecuted only one case of child sexual abuse originating on the Spirit Lake Reservation in the last 25 months. I have been told by experienced child protection workers from Spirit Lake that in a typical year there are, on average, 50 cases of child sexual abuse reported, investigated, confirmed and referred for prosecution. Why has the US Attorney prosecuted only one case of child sexual abuse from Spirit Lake in the last 25 months, a case where the actual sexual abuse occurred between 2007 – 2009. Just learned the US Attorney for North Dakota has filed one more charge of child sexual abuse in the last few days, doubling his numbers for the prior 24 months.

Law enforcement at every level at Spirit Lake, including the FBI, BIA, Tribal police and the US Attorney have allowed the Tribal Council to determine which criminal activities will be investigated and prosecuted. For confirmation of this fact please review the last page of the Spirit Lake Tribal Council Meeting Minutes for September 27, 2013, attached for your convenience.

The apparent unwillingness of government at any level to protect the children at Spirit Lake from abuse creates the impression there is a large, unannounced experiment being conducted at Spirit Lake to determine what harm, if any, would be done to abused children who are returned to the care of either their abusive biological parents or abusive foster parents before these parents have completed their court-ordered rehabilitation therapy. But in order for such an experiment to be conducted there would have to be a rigorous research design, with control groups, opportunities for informed consent and extensive data collection. No such safeguards are apparent but children continue to be placed with abusive adults. How strange, all we have is abused children being returned to abusive parents with none of the other elements required for a legitimate research project. Why is such experimentation on these children being tolerated?

Certainly, no one can claim the hypothesis that abused children can be returned to their abusive homes without harm to those children has been proven. Who is responsible for attempting to prove it at Spirit Lake?

A perfect example of this experimentation and the Tribal Council’s control of criminal investigation and prosecution at Spirit Lake is the Tribal Court order from 5 – 6 months ago returning to a biological mother her children even though she has been charged with and convicted in Tribal Court of sexual abuse of her children – she was discovered by police in bed having sex with a male friend while all her children, one of them totally naked, were in the same bed.

The biological mom lives with her children’s grandfather. The children were recently evaluated at the Red River Advocacy Center (RRAC) and it was determined that two of the girls, ages 6 and 7, were being sexually abused by that very same grandfather. The recommendation of the RRAC was that these children were “not to be left alone with the grandfather”. There is a young teenage son in this family who attempted suicide three times before his 14th birthday. The grandfather who has never been charged or prosecuted for his criminal sexual assaults on his granddaughters is the uncle of a Tribal Council member. There is no indication that anyone from law enforcement has launched an investigation of the grandfather’s alleged sexual abuse. It is likely that Council Member would oppose any Council Motion to refer this situation for criminal investigation of his uncle.

The father of these children has petitioned Tribal Court to assume custody. I understand his petitions have been routinely dismissed even though he is ready, able and willing to assume responsibility for his children, caring for them in a safe home. The mother of these children is an enrolled Tribal member. Their father is not.

Conducting an assessment at this point after more than five years of complaints from my sources and after my 13 Mandated Reports seems to simply delay the desperately needed corrective action to get those 100 children to safety. As one of my sources recently wrote, “…when will the government realize we are serious about this….kids are being raped and nobody in law enforcement gives a damn”.

Natalie Stites, an enrolled member of the Cheyenne River Sioux Tribe, and former Project Coordinator in the Attorney General’s office on the Rosebud Reservation writing in LastRealIndians.com in December, 2011 speaks words that need to be considered here, “There are thousands of Lakota, Dakota and Nakota children experiencing abuse and neglect….. Over a third of women raped today were sexually assaulted as children. Sadly all too often abused and neglected children become perpetrators themselves as adolescents and as adults……..There are many complex reasons for the conditions facing the children today: lack of compassion, colonization, epigenetics, grief, violence, the feminization of poverty, the school-to-prison pipeline, organized sexual abuse, unemployment, mental illness, addiction, racism, cultural oppression. These are the roots of our current situation…………….

However, try explaining this to the 5 year old boy who hasn’t eaten a meal in two days, or a beaten 8 year old girl caring for an infant and a toddler like she’s the parent, or a 15 year old youth who faces and eventually joins his addicted parents and the drunken strangers they bring home to party every night. Try explaining to these children why family members, social workers, policy makers, police, courts, schools, health care providers cannot protect them, even after their own parents fail them, or abandon them, or hurt them. Who takes responsibility for this? We must.”

When will we take responsibility?

After your assessment? How long will that take?

How many more months will the Tribe allow this experimentation with their children to continue?

Have a great Thanksgiving.
Thomas F. Sullivan
Regional Administrator, ACF, Denver

———————————————-

From: Mcmullen, Marrianne (ACF)
Sent: Friday, November 01, 2013 6:22 AM
To: Sullivan, Thomas (ACF)
Cc: Chang, Joo Yeun (ACF/ACYF) (ACF); McCauley, Mike (ACF)
Subject: Spirit Lake

Good morning Tom: Attached and below is a memo about ACF’s work on Spirit Lake moving forward.

Tom, as a courtesy based on your expressed interest in matters at Spirit Lake, I wanted to let you know that Children’s Bureau has been actively working with the Spirit Lake tribe on improving their child protection services.

Currently, the National Resource Center for Child Protective Services, funded by CB, is conducting an assessment of Spirit Lake social services. As you may know, numerous assessments have been started over the past 18 months, but leadership changes have stalled and ultimately stopped these processes. Now, however, the new Tribal chair and the new social services director are moving forward with the assessment. Once this assessment is complete, it will provide a roadmap for the policies, practices, procedures and staffing levels that the Tribe needs to establish a successful agency. The Children’s Bureau will work hand-in-hand with the Tribe to follow that map and to ensure that all available resources are brought to bear for the Tribe to be successful in better protecting its children.

I want to be clear with you that the Children’s Bureau is leading this effort for ACF and will manage work with both the Tribal leadership and the Tribal social services staff moving forward. The Children’s Bureau will also be the principal liaison with the state of North Dakota, the Bureau of Indian Affairs and the Dept. of Justice to address child protective issues at Spirit Lake.

As the Immediate Office of the Assistant Secretary, the Children’s Bureau, and the Administration for Native Americans have worked to address concerns at Spirit Lake over the past year, it has become clear that Region 8 IORA involvement has damaged some of the most critical relationships needed for achieving progress for the children and families of Spirit Lake. It is our full intention to rebuild these relationships and move forward in a collegial and productive direction.

Tom, I know you share ACF’s goal of establishing a strong social service system at Spirit Lake that can act quickly and effectively to protect children who may be in danger. It is my expectation that you will refer all future inquiries to the Department concerning Spirit Lake to the Children’s Bureau and respect the Bureau’s role in leading and coordinating the Department’s efforts to achieve the goal of protecting Spirit Lake’s children.

————————————————————

### END FORWARDED MESSAGE

Oct 242013
 
CAICW Donate Christian Alliance for Indian Child Welfare

Additional Clarification: This article was not about the gathering mentioned. No one there was fixated or glamoring on her as she played happily with her friends. Mentioning it was merely a context with which to express thoughts I had concerning I – MYSELF – being a stranger to her. I – MYSELF – thought it best not to approach her, and didn’t. Point in Fact – the article addresses the obsession some very sick online forums continue to have for her, including a site called “Standing Ground for Veronica Brown” which promotes nonsensical protests and discussions on non-existent conspiracies and litigation. THOSE PEOPLE are, indeed, scary and behaving very creepy.

10/27/2013 – Another note – it wasn’t a “CAICW Fundraiser” as a couple people have foolishly proclaimed to others. If it was – I would have been a HOST, not a guest.
It was neither a CAICW event, nor a fundraiser.

Hello? The case has been over for a month now. No one is fundraising for it. Believe it or not – gatherings occur for myriad reasons – most of which have nothing to do with money.

THIS assumption and obsessive gossip is an example of how creepy some wigged out strangers have been. It is truly disconcerting the crazy things they come up with and encourage each other in.

They continue to scrutinize and demonize every normal, average, mundane thing they find concerning this finished case; ignoring common sense and twisting facts to justify their conspiracy theories.

Did the leaders of these forums get relish from the attention they received over the months, and are now reluctant to let that attention go?

There is great comfort in knowing that law enforcement is keeping an eye on the sites and insane chatter. All too often, this kind of crazy talk has turned into tragedy.

God be with and protect the family.

————————

ORIGINAL ARTICLE:

An additional note concerning a gathering Saturday night: I didn’t mention Veronica much in the post. This is why –

She was there – playing in the pool with other children. I decided not to approach her. I feel sick about the number of non-family members who have pawed over her these last 20 months and I don’t want to be one of them. I am a stranger to her, and she doesn’t need another stranger.

The number of people who continue to be obsessed with her – even now, after all is done – is both scary and creepy. There is no point to rehashing everything over and over.

It is especially creepy when people who have never interacted with her on anything more than a superficial level – let alone those who have never even met her – are pretending to know what she thinks and feels.

From a distance of four feet, without speaking to her, Veronica seemed happy and well. That’s all I can say. I have no right to suppose anything deeper. As a mother and grandmother, I venture to guess she will be even more happy and well once this is all finally put behind and the Capobiancos can move forward, living as normal a family life as can be possible.

It is time to move on and leave Veronica Capobianco with those who know and love her – and who she seems to not only know and feel very comfortable with – but loves in return.

Veronica is no longer in need – but we know several other children who are. They need help now, today.

The Legal Fund has been very successful this last month. In the case of the grandmother fighting to keep custody of her 7-year-old grandson – it was especially evident the tremendous difference the counsel they received made. They could not afford a local attorney at all. So the $300 they received from our legal fund – for counsel with a very good ICWA attorney – was all that they had. They went forward in court as their own counsel.

That was the best $300 we have ever spent. The outcome was tremendous. The family was able to refute not only County and tribal social services, but the misinformation concerning ICWA that even the District Attorney was espousing. And the judge listened!

It isn’t all finished yet, but it appears that the little boy will be able to stay with his grandmother.

THANK YOU DONORS! To date we have helped FIVE families.

PLEASE consider additional donations to the fund. We have more families needing it.

Revealing CAICW’s Sinister Hidden Agenda –

 Comments Off on Revealing CAICW’s Sinister Hidden Agenda –
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 092013
 
Sweet Girl Don't Die
Baptism in Leech Lake, 2007

Baptism in Leech Lake, 2007

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.

There 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 you are claiming multi-heritage children, I have a right to and WILL speak.

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 even ethnic neighborhoods within a large town. 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.

To those who are accusing us of genocide for demanding that tribal government keep their hands off our kids – get something straight, you are free to raise your children in the manner you see best. You are NOT free to raise MY children in the manner you see best.

Targeting other people’s kids to bolster membership rolls might be easier than doing the work necessary to keep your 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 your own admission – with your own statistics, such as losing 4 Indian languages a year – that is individual tribal members choosing NOT to speak the language. To continue blaming it on “white” people is disingenuous.

How can that I say that?  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 sharing 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 YOU 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 life.  (Go ahead and screen shot that and share it with your friends. They need to wake up to reality as well.)

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.

You can NOT force other families to submit to your value system. That is why ICWA is totally unconstitutional. You 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 you are going to 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.

Please note what I factually said. 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.

 

If you 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.

Are you 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?

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

 

 

Sep 072013
 
FAMILY, 2000

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Aug 222013
 
Suffer the Children. Sexual Abuse of kids on the Spirit Lake Reservation

In June, 3-year old Laurynn and her twin sister were thrown down an embankment, then kicked in the head while their care-giver stood aside, smoked a cigarette and watched.  Laurynn isn’t the first child to be murdered at Spirit Lake in the last two years. Several have been killed. Other children are being physically and sexually abused as you read this.

Yet federal and state bureaucrats continue to act as it this is a non-issue. Despite numerous pleas for help, the BIA, FBI and U.S. Attorney feign assistance while the abuse continues. When an official actually WANTS to do something to help, like the man below, permission is refused…

IMMEDIATE ACTION: NORTH DAKOTA BUREAUCRAT AND DC SHUT DOWN EFFORT TO HELP SPIRIT LAKE KIDS –“““““““““““““““““““““““““““““““““““““““““““““““`

A gov’t official who has CARED about the deaths at Spirit Lake and sent documented report to DC calling for change has been DENIED permission to participate in a fact-finding meeting this week in ND. Please read the bureaucratic garbage he was sent in the letter below.

Further – while Rep. Kevin Cramer was willing to participate in the meeting and Senator Hoeven’s office was sending a rep, Senator Heitlkamp was not sending anyone – and Scott J. Davis, Commissioner, ND Indian Affairs, said he wasn’t going to show unless Senator Hoeven and Heitkamp were there as well! WHY are our state & federal gov’ts NOT addressing the severe abuse occurring on many reservations? Why does DC continue to set up roadblocks. We will NOT stand by and allow this to continue. Below is the letter in full.

It bloviates that a meeting is possible – but whether or not anyone makes any real effort to gather “leaders from multiple ACF offices – when it has been so clear that the DC office has ignored every single report that Mr. Sullivan has sent – is another question. Mr. Sullivan holds a non-refundable plane ticket to Bismarck this next week.

PLEASE CALL ASAP: Please ask these people to allow Tom Sullivan to travel to Bismarck next week to get documentation about the child abuse at Spirit Lake!

George Sheldon: Acting Director of ACF ~ 202-401-5383
MaryAnn: Travel Clerk – 202-401-9216

PLEASE insist that he be allowed to listen to the average people who want to speak to him, that Heitkamp’s office do their job and listen – and that the ND official get off his lazy butt and participate…

A couple more officials below as well….

From: Murray, James (ACF)
Sent: Thursday, August 22, 2013 10:11 AM
To: Sullivan, Thomas (ACF); Delgado, Carol (ACF); Rogers, Thomas (ACF); Ross, Sharon (ACF)
Subject: RE: Itinerary for THOMAS FRANCIS SULLIVAN on 8/27/13 to Bismarck (IGTOZC)

Tom,

Thanks for your patience. ACF’s response to the concerns at the Spirit Lake Nation will have to be generated through a collaborative effort by leaders from multiple ACF offices. Representatives from those offices will have to be included along with you in meetings like the one proposed below, to maximize ACF’s response. Your leadership will be critical in the work of the larger ACF group to address the issues. That being said, I have to deny the travel request at this time. We can revisit the topic once ACF has a chance to mobilize the larger leadership group to begin moving things forward. Let me know if you’d like to discuss it further and I can set up a conference call for tomorrow or early next week.

Sincerely,

James Murray || Acting Director || HHS/ACF/ORO || Desk: (202) 401-4881 || BlackBerry: (202) 253-0217 || Fax: (202) 401-3449 || Email: james.murray@acf.hhs.gov

LETTER RE: Scott Davis:

> From: “Sullivan, Thomas (ACF)
> Date: August 22, 2013, 7:57:01 AM CDT
> To: “Davis, Scott J.” <sjdavis@nd.gov>
> Subject: RE: meeting
>
> Scott:
>
> Thank you for your email.
>
> It seems that both your tone and attitude have changed dramatically in the last 24 hours. It is almost like you have been told to cancel our meeting and are searching for a way to make me pull that trigger so you don’t have to. That is troubling.
>
> I see nothing in my emails to you suggesting anyone interested in helping improve conditions at Spirit Lake should be excluded from this scheduled meeting. Who they are invited by is irrelevant as long as they are at the table.
>
> In my long career I have come to despise those who seek to create a straw man in order to achieve something they are unwilling to place their own hands on. Such folks, I have found, lack both courage and integrity.
>
> I have no idea why someone would wish to cancel this meeting which is being convened, as I understand, solely to discuss how we all might work cooperatively to improve conditions at Spirit Lake. It is hard for me to believe that any responsible person wishes to stop our meeting from occurring, effectively maintaining the status quo.
>
> All the best
>
> Tom
>
> —–Original Message—–
> From: Davis, Scott J. [mailto:sjdavis@nd.gov]
> Sent: Wednesday, August 21, 2013 4:20 PM
> To: Sullivan, Thomas (ACF)
> Subject: Re: meeting
>
> Tom,
>
> No that is not acceptable.
>
> As I said I am happy to meet with all of the stakeholders at the table.
>
> It is important to me to have everyone (federal agencies) who has a role in the solutions to these problems at such a meeting.
>
> Please let me know when you can confirm you have everyone lined up to attend.
>
> Thank you.
>
> Scott J. Davis
> Commissioner
> ND Indian Affairs

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

 Comments Off on Court Rules in Adoptive Couple vs. Baby Girl; Clears Way to Finalize Adoption
Jul 182013
 

By Elizabeth Sharon MorrisAdoptive Couple vs Baby Girl

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

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

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

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

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

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

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

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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Jun 092013
 

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

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

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

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

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

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

 

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

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

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

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

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

 

 

Apr 142013
 

Baby VeronicaChristinna Maldonado chose Matt and Melanie Capobianco to love, nurture, and raise her soon-to-be-born child. The Capobiancos had long wanted to be parents and after seven failed in vitro fertilization attempts, made the decision to enter into an “open adoption” of Baby Veronica. On all accounts. Veronica was a happy, thriving, child residing in a stable, nurturing environment. To this day, Maldonado remains committed to her choice.

On or around Jan. 4, 2010, Dusten Brown, the biological father, signed away custody of his daughter in exchange for not having financial responsibility. Brown later changed his mind and sought custody of Veronica. Initially, due to South Carolina law, he was denied standing because he was considered an absentee father.

However, because he was 3/128th Cherokee heritage, the Cherokee Nation intervened in the adoption proceedings and argued that this happy, healthy two-year-old be transferred to Brown under the 1978 Indian Child Welfare Act.  Baby Veronica, only 1.12% Cherokee heritage, was ordered removed from the Capobianco’s care and placed in Dusten Brown’s custody. On Dec. 31, 2011, despite abundant evidence from child psychologists and attachment experts that removing toddlers from care-givers they’ve bonded to could cause long-lasting psychological damage, Veronica was handed over to her biological father.

Though supporters of ICWA say it has safeguards to prevent misuse, Veronica and numerous other multi-racial children across the U.S have been hurt by it – many of whom have never been near a reservation nor involved in tribal customs. Some opponents of ICWA question the motivation for seeking after children whose families have chosen to be disconnected from Indian Country. The Cherokee Nation alone had over 100 attorneys targeting some 1,500 children across the country in 2012. 

Now Veronica’s case has reached the highest level.  On February 26, 2013, the Christian Alliance for Indian Child Welfare filed an amicus brief with the United States Supreme Court in support of Matt, Melanie and Veronica. SCOTUS will hear testimony of the case on April 16th and will make a ruling by the end of the term in June 2013.

CAICW is asking the Supreme Court to reverse the decision made by the high court of South Carolina and return Baby Girl Veronica to the Capobiancos, family chosen for her by her birth-mother. The statutory and constitutional issues addressed in this case impact the equal protection, due process, liberty, and state rights provisions of children in need of care. A child’s best interests should be considered in every child custody determination.  There is no presumption that residing with members of a child’s tribe is in the child’s best interests, particularly when the child is lives off the tribe’s reservation. Further, tribal governments lack inherent jurisdiction over nonmembers. Application of the federal ICWA to cases involving the parents who are not tribal members violates the equal protection provision of the U.S. constitution, even if a non-member parent lives within reservation boundaries.

If you have any doubts to the how justice should rule in this case – consider Christinna, who is 50% Hispanic (if her heritage isn’t important, but another persons supposed minute heritage is, isn’t that….racism?

SHE was the one in the position of being an unwed mother – told by the biological father that he was not going to help support the baby she was carrying. No one else in this case was in that position. (But if what she went through isn’t important, but the father’s belated “pain” is, isn’t that….sexism?)

Then imagine if this had been your daughter, sister, or niece who had made the mistake of sleeping with a man who later refused to help with a child.  Now pay attention.  This man appeared to be Caucasian.  So at some point he mentioned that he has Cherokee ancestry. However, in the time your daughter was with him, he never made an issue about being Indian, practiced anything traditional, or gave any cause to assume he was anything other than the myriad other Caucasians across the United States who claim to have Cherokee blood. Yes, those people of minute heritage who many tribal members of significant heritage mock  as “wannabe” Indians.

Now, imagine you and the rest of your family had supported her decision to move ahead with adoption and helped her find a good home for this child.  Then imagine a tribal government coming in weeks, months or years later, and telling the courts that this man has 3/128th heritage, and based on this tiny bit of blood quantum, this man many tribal members would have mocked if it weren’t for Veronica –  is now “Indian” and they are there to invalidate the decision your family had made.

What the Cherokee Nation is pushing for and the South Carolina Supreme Court erroneously overlooked – is that any woman, of any heritage, who sleeps with any man of any apparent heritage – even a one night stand – CANNOT go ahead with an adoption without somehow ensuring that this man does not have a smidgen of tribal heritage.

WHAT does this kind of ruling do for the rights of women – of unwed mothers?  What kinds of hoops will teenage girls now have to go through if the Supreme Court rules for the tribal governments? Where is the outrage from women’s groups over this case?

And yet – no one would say a thing of she opted to abort her baby instead.  The tribal government wouldn’t – couldn’t stop her from doing that.   Just consider the ramifications of a tribal government victory in this case.

Our Families are NOT Chattel for tribal governments – no matter how many claim them to be.  As parents, we will continue to fight for full rights and freedom for our families – every one of whom is a United States Citizen – even if this Supreme Court makes the wrong decision.

In the words of Dr. William Allen, former Chair, US Commission on Civil Rights (1989) & Emeritus Professor, Political Science MSU, “… we are talking about our brothers and our sisters. We’re talking about what happens to people who share with us an extremely important identity. And that identity is the identity of free citizens in a Republic…”

 

PLEASE REMEMBER TO PRAY NOW THROUGH TUESDAY – for Veronica, her parents, and all involved with this important decision.

 

Elizabeth Sharon Morris is Chairwoman of the Christian Alliance for Indian Child Welfare and author of ‘Dying in Indian Country: A Family Journey From Self-Destruction To Opposing Tribal Sovereignty.”

Apr 052013
 

Senator Hoeven,   

Spirit Lake Town Meeting, Feb 27 2013

Spirit Lake Town Meeting, Feb 27 2013

Thank you again for your concern for the vulnerable in our state. I have received a copy of the 13th mandated report from Mr. Thomas Sullivan of the Denver office of Administration for Children and Families. I have attached a copy.

According to Mr. Sullivan, the situation remains the same on the Spirit Lake Reservation and children continue to be abused while perpetrators go free. Further, he reports that we were lied to by the U.S. attorney on February 27 when those gathered at the Spirit Lake town hall meeting were assured that he was going to speak to the elderly woman who stood up last to tell her story. Mr. Larson will remember her, I am sure. She tried very hard to speak at that meeting but wasn’t allowed to. Tragically, because of the neglect of her story, the two children she tried to talk about – who obviously, desperately, need to be taken from that home immediately and given intense counseling, have been observed continuing the same behavior and another child was hurt. May God be with us – how is it that we as a state and nation allow this to continue?

It has also been inferred that Mr. Sullivan could lose his job if he continues to stand up for the families and children.

Lastly, this report supports and affirms Representative Cramer’s assertion that justice in the Spirit Lake tribal court is far from assured. I applaud Rep. Cramer for his courage.

Please insist on hearings as to how Spirit Lake is being handled. Please also protect Mr. Sullivan to the extent that you can, and continue to stand up for all of us.

If our opponents believe we will sooner or later get tired and go away, they are wrong. We will not. I have been trying to bring attention to these types of things since 1996 and it has only gotten worse. I am not going away.

Thank you.

Elizabeth Sharon (Lisa) Morris
Chairwoman
Christian Alliance for Indian Child Welfare (CAICW)
https://caicw.org

———————– Page 1———————–

     March 29, 2013

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

The two weeks following the submission of my Twelfth Mandated Report on February 22, 2013 were marked by a remarkably intense Public Relations campaign by both the Department of Justice and the Bureau of Indian Affairs. They sought to convince all that the children of Spirit Lake were safe, that all of the problems at Spirit Lake were well on the way to being fixed, that all allegations had been or were being investigated, witnesses had been interviewed and statements taken. The facts, however, do not support their misleading PR puffery.

Their puffery campaign took several different approaches, all calculated to raise questions about the credibility of my Reports:

1. Public statements were made that many of the allegations contained in my Reports were false. There are two problems with those self-serving statements. Even though innocent citizens of Spirit Lake have been beaten, raped and required hospitalization to recover from their wounds you folks claim there has been no crime because the investigation was done so unprofessionally, there was no investigation or the paperwork has been “lost”. When this occurs once or twice, it is an unfortunate error. When it occurs routinely as it does at Spirit Lake, it is nothing short of a corrupt abuse of power which DOJ and BIA apparently endorse since there appear to be no limits to their praise for Spirit Lake law enforcement..

Second, all of you ignored the statement of Tribal Chair Roger Yankton made on November 5, 2012 in a Tribal General Assembly, “I know of no lies in Sullivan’s Reports.” When Mr. Yankton made that statement I had filed Seven Mandated Reports containing 90 – 95% of the specific, unduplicated allegations I have made. The Tribal Chair was honest. The best that can be said of the DOJ and BIA leadership is that they were self-serving.

2. Another attempt to diminish the credibility of the allegations contained in my Reports was to refer to them as “second or third hand”. While I have not personally witnessed any of the incidents I have been reporting, they ———————– Page 2———————–

have been witnessed by Tribal Elders, a Nun, a former Tribal Judge, foster parents, parents, all enrolled members of the Spirit Lake Nation. None of these people have any reason to lie about what they were reporting on their Reservation. Some allegations come from individuals who are not enrolled members but who are former long term employees of the Tribe who have been reporting Tribal wrongdoing for years to the state, DOJ and BIA .

All of these sources, both enrolled Tribal members and non-enrolled, are furious their allegations have been ignored for years exposing the children of Spirit Lake to continued abuse and neglect. They believe even now they are still being ignored for the benefit of the addict, the predator and the corrupt.

All of my sources have been threatened by the supporters of the Tribal Council with loss of employment, jail, as well as physical harm to themselves or their families. While I have not been directly threatened, I have been told my persistence in this matter places me at the same risk as my sources. I am deeply offended that all of you refuse to defend the innocent of Spirit Lake when my sources and I are placing our physical safety on the line. Your cavalier dismissal of my reports which accurately reflect the stories of my sources is especially troubling.

3. Within this context it is hypocritical for the leaders of DOJ and BIA to now tell tribal members that “the most important thing they can do to protect children is to immediately report any criminal activity to law enforcement.”

The twelve year old who had just turned thirteen and was raped on September 29, 2012 by a 37 year old man reported the rape to police immediately. The name address and a description of the rapist were provided to the responding officers. No rape kit was collected. No charges were filed because the BIA/FBI decided the sex was consensual, in the 37 year old rapist’s words, “She wanted to have sex with me. What was I supposed to do?”  How naïve do you think we are that you believe we will swallow such patent nonsense? How does this decision protect children?

The Tribal Elder who observed two little boys engaging in anal sex in her yard did call police immediately. No one in law enforcement took her statement. She tried to tell her story at the February 27, 2013 Hearing but she was shushed by the US Attorney, the BIA leadership and all of those

———————– Page 3———————–

on the platform. The US Attorney did say publicly that he would speak to her privately after the Hearing concluded. He did not. Nor did anyone from his office take her statement. How did these actions protect children?

One day later, on February 28, 2013, these same two boys were observed by two little girls engaging in oral sex on a Spirit Lake school bus. The little girls reported this to the bus driver, their teachers and the school principal.

All of these responsible people kept quiet about this incident. None filed a Form 960 as required. How do these actions protect children?

On March 14, 2013 law enforcement went to the home of these two boys because one of them tried to sexually assault a three year old female neighbor who is developmentally delayed.

Police were called last summer when adults and very young children observed a 15 year old boy having intercourse with a 10 year old girl on the steps of the church in St. Michaels at mid-day. No one responded to the call. How did this non-response protect children?

How long must this horror continue? How many more children will be raped before one of you decides to do your job and protect these children? To carry out your sworn responsibility to enforce the law and to get these children the intensive therapeutic services they so desperately need?

4.  The US Attorney spoke in glowing terms about the high quality of law enforcement working on the Spirit Lake Reservation even though they routinely fail to conduct investigations, do lousy investigations and “lose” reports of investigations.  Is there anyone working for BIA on that Reservation who does not have a record of Domestic Violence?

Why has there been no  investigation of  my six month old complaint against  FBI Special Agent Cima?

Why has there been  no investigation of the seven month old charges of Domestic Violence against BIA’s Senior Criminal Investigator (CI) at Spirit Lake by his wife?

———————– Page 4———————–

Why has there been no investigation into the destruction of the Incident Report completed by the CI’s wife in the Devils Lake Mercy Hospital Emergency Room after a particularly vicious beating at the CI’s hands in mid-August 2012 by the current Director of Spirit Lake Victim Assistance?

Why has there been no investigation of the complete and total failure of the state, FBI and BIA to investigate charges that were credibly brought several years ago against each of these entities?

Why has there been no investigation into the withholding of critically needed intensive rehabilitative services from several Spirit Lake children who have been sexually abused and severely beaten? If the purpose of preventing these children from gaining access to this therapy is to prevent the names of those predators who damaged these children from being revealed to professionals who have a legal obligation to make this information known to law enforcement, is this obstruction of justice? If it is, the entire leadership of BIA’s Strike Team should be indicted.

Why has there been no investigation into the Spirit Lake school system’s retaliatory actions against two mandated reporters – firing one and giving the other a letter of reprimand, simply because they were attempting to help a young child having some difficulties in his foster home placement?

The bias reflected in all of these non-investigations and highly unprofessional investigations conducted by law enforcement at Spirit Lake may well rise to the standard set by the Ninth Circuit Court of Appeals in their decision in the Oravec case.

5.  The US Attorney in a televised interview on Grand Forks television station, WDAZ, spoke about the fine job he and his office were doing protecting all North Dakota children especially those at Spirit Lake and said that the press releases on his website contained all of the information on every case he had brought to trial or conclusion during his tenure in office.

I could only access the last 15 months of these releases. They were quite informative. There were only two cases in which sexual assault was charged. Both of the victims were adult women. None were children.

On the Spirit Lake Reservation it has been credibly claimed there have been, on average 50 reported, investigated and confirmed cases of child

———————– Page 5———————–

sexual abuse or statutory rape annually in each of the last several years. These confirmed cases are routinely referred to the US Attorney for investigation and prosecution. Within this context it is troubling that the US Attorney has apparently not brought a  single case of child sexual abuse/statutory rape in the last 15 months.

If the residents of Spirit Lake report criminal activity when they see it, what good does it do if the US Attorney will not bring a case to court for prosecution?

6.  Most Registered Sex Offenders when they are released from prison are required by law to keep a specified distance from children. The Tribal Chair said on November 5, 2012 there were no lies in my reports and the placement of children  in the full time care and custody of known sex offenders was a major point in my First Report, filed more than nine months ago, well before that November 5, 2012 statement.

Why has the US Attorney failed to direct his crack FBI and BIA agents to investigate and charge those sex offenders and have them returned to prison for violating this provision of their release and have the children placed in safe foster homes?

7.  There are credible allegations that the Tribal Court decisions favor the addict and the sexual predator in practically every case brought before it. I have multiple examples of the Tribal Court’s bias in favor of the addict and predator. I will use only two here.

The placement of a four month old infant who was born addicted to meth and who had to remain in the hospital for one month after birth in order to shed all traces of that drug is a good example of this Tribal Court’s bias in favor of the addict and the predator. This infant was returned to the full time care and custody of his mother even though she had not completed the required, Tribal Court ordered drug treatment program.

The decision of the Court to return three children to the full time care and custody of their biological father who just a few months previously had beaten them with electric cords, choked them, raped them and made his children available to his friends for their sexual pleasure even though there was an outstanding criminal charge against him is another example of the Tribal Court’s bias in favor of predators. Their father is a close relation of the Tribal Chair.

———————– Page 6———————–

Why has none of this been investigated by either the BIA or FBI?

Why have no federal charges been filed against the father for his extraordinary abuse of his children? They have spoken about their abuse to therapists. Have these therapists failed to notify law enforcement about what they have  learned? Or is law enforcement ignoring these reports again?

Why is that infant still in the unsupervised care of his meth addict mother? How much damage has her neglect done to this child in the few months she has had full time care and custody of him?

Why has Tribal Court been allowed to endanger the children of Spirit Lake with impunity? What has law enforcement done to protect these children from the Tribal Court’s malfeasance?

The good people of Spirit Lake have every reason to believe that society has abandoned them when government leaders spend their time attempting to shore up their own reputations while refusing to protect those who are being raped and abused. Your persistent efforts at PR puffery, essentially denying the plain facts at Spirit Lake, betray your unwillingness to fulfill your sworn obligation to protect and defend. Your record of non-investigation and non-prosecution is now in the spotlight. What will you do?

Thomas F. Sullivan
Regional Administrator, ACF, Denver

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

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Dec 312012
 

by Elizabeth Sharon Morris

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

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

Because she had tribal heritage.

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

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

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

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

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

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

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

Has God used CAICW to impact you or a loved one in 2012?

Consider impacting someone else by giving a gift

ICWA is the REAL War on Women

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Dec 192012
 

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

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

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

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

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

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

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

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

Congress passed the ICWA in 1978 in response to the alarmingly high number of Indian children being removed from their homes by both public and private agencies. The intent of Congress under the ICWA was to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families” (25 U.S.C. § 1902). ICWA sets federal requirements that apply to state child custody proceedings involving an Indian child who is a
member of, or eligible for membership in, a federally recognized tribe.
The real question now is whether the ICWA is really working to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families,” or whether the law is being abused to protect ONLY the best interest of tribes, and in doing so is denying both children and adults equal protection and representation as provided under the U.S. Constitution.

Washington DC, July 11, 2012 – BEST ICWA MEETINGS EVER!

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Jul 262012
 

Dr. William B. Allen and Sage I apologize that it took over a week for me to get this letter out to you. The meetings we had in DC this month were the best ever . I want to tell you that so much prayer went into this – and the answers to prayer were amazing. Not only did God give Grace for the compelling and intelligent discussions we were able to have, but He provided for so many to be able to come. Even when I felt discouraged and reluctant to go, God wouldn’t allow me to stand in the way of what he has put together. He is truly worthy of praise in this.

Further, I give credit and am so grateful for the many people who have come on board in the last six months, concerned about what happened to little Veronica and not wanting it to happen again to any other child. We mourn the horrific abduction that our government allowed to happen to a defenseless two-year-old – and are amazed by the attention it has brought to this insanity called the Indian Child Welfare Act. Veronica is not alone. As you and others have talked about her – other parents have come forward and told how the same thing has happened to them. Further, the Cherokee Nation has admitted that they have over 100 attorneys targeting 1500 children this year.

Further, – the New York Times published a horrific story about the Spirit Lake Reservation just two weeks ago. A few days later, another story, this time involving the death of an infant

While not every reservation handles their children in the way that Spirit Lake has, way too many do. Nothing in that story surprised me – it echoed the many things I myself have seen on my husband’s home reservation.

ABOUT DC:

 

Attorney Mark Fiddler gave a powerful presentation on the ICWA law and how and why it must be changed. He went through the notable problems with the law and gave clear instruction on what must be done to protect the children. Several family stories were told – including the Belfords, the Helmholz, and the Anderson’s.

Johnston Moore also gave a wonderful presentation on the problems ICWA has caused families, and Melanie Duncan did a very well researched presentation on attachment issues – and how, surprise, surprise, children of tribal heritage are no different than any other child in the world.

Dr. William Allen introduced Sage DesRochers, who as a thirteen-year-old was forcibly removed from the only home she knew & loved, and placed with her birth mother on the reservation. She spoke about the trauma she went through and the relief she had when she was finally “released” (her words) from the reservation a couple years later and allowed to return to her chosen family. To this day, twenty some years later, she is upset by what the gov’t and ICWA put her through. She asked her adoptive mother (her ONLY mother, says Sage) to join her on this trip to DC.

I told how my husband and I, as parents and granparents of enrolled children, have been affected and hurt by the Indian Child Welfare Act. Jessican Munday did an awesome job MC’ing and organizing the event

Again – this is about the right of individuals to determine their lives – not governments. Most tribal members have left the reservation system. Some move away but choose to continue close relationship with tribal gov’t. Many other persons – with both large and small amounts of tribal heritage – choose NOT to raise their own children within the limited cultural perspective that some tribal gov’ts and other entities define.

Many of us, knowing that our children are multi-heritage, choose to raise and teach our children within other world views, with knowledge of and appreciation for the wide diversity of culture here in the U.S. Many of our children, as American citizens, feel most comfortable within mainstream American culture, working and learning along side all other diverse American citizens. They appreciate ALL of their varied heritages. Neither tribal nor federal government have a right to dictate what culture should be most important to our children and grandchildren.

In the words of Dr. William Allen, Emeritus Professor, Political Science, MSU and former Chair of the U.S. Commission on Civil Rights,

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

THANK YOU ALL FOR YOUR ENCOURAGEMENT AND SUPPORT! We could not be do this without you!!

Please continue to press in on our Congressmen – they need to hear your voice!!

CONTACTS:

Senator Akaka: Chairman of Senate Committee on Indian Affairs, Member of Congressional Coalition on Adoption, Hawaii

CONTACT: Lotaka_Baptiste@akaka.senate.gov

Senator Inouye: Senate Committee on Indian Affairs, Member of Congressional Coalition on Adoption, Hawaii

CONTACT: Kawe_Mossman@inouye.senate.gov

Senator Barrasso: Minority Leader; Senate Committee on Indian Affairs (Very interested in ICWA), Wyoming

CONTACT: Travis_McNiven@barrasso.senate.gov

Senator Crapo: Senate Committee on Indian Affairs, Idaho

CONTACT: Kathryn_Hitch@crapo.senate.gov

Senator Johanns: Senate Committee on Indian Affairs, Nebraska

CONTACT: Ally_Mendenhall@johanns.senate.gov

Senator Cantwell: Senate Committee on Indian Affairs, Washington State

CONTACT: Paul_Wolfe@cantwell.senate.gov

Senator Johnson: Senate Committee on Indian Affairs, Member of Congressional Coalition on Adoption, South Dakota

CONTACT: Kenneth_Martin@johnson.senate.gov

Senator Conrad: Senate Committee on Indian Affairs, Member of Congressional Coalition on Adoption, North Dakota

CONTACT: Jayme_Davis@conrad.senate.gov

Senator Hoeven: Senate Committee on Indian Affairs, North Dakota (helped with Teach-In)

CONTACT: Ryan_Bernstein@hoeven.senate.gov

Senator Murkowski: Senate Committee on Indian Affairs, Member of Congressional Coalition on Adoption, Alaska

CONTACT: Kristi_Williams@murkowski.senate.gov

Senator Tom Udall Senate Committee on Indian Affairs, New Mexico

CONTACT: Fern_Goodhart@tomudall.senate.gov

Senator McCain: Senate Committee on Indian Affairs, Member of Congressional Coalition on Adoption, Arizona

CONTACT: Nick_Matiella@mccain.senate.gov

Senator Franken: Senate Committee on Indian Affairs, Minnesota

CONTACT: http://www.franken.senate.gov/?p=email_al

Senator Tester: Senate Committee on Indian Affairs, Montana

CONTACT: Mark_Jette@tester.senate.gov

_________________________________________

Senator Landrieu: Co-Chair of Congressional Coalition on Adoption, Louisianna

CONTACT: Libby_Whitbeck@landrieu.senate.gov

Senator Inhofe: Co-Chair of Congressional Coalition on Adoption, Oklahoma

CONTACT: Ellen_Brown@inhofe.senate.gov

Senator Coburn: Former Member of Senate Committee on Indian Affairs (Very interested), Oklahoma

CONTACT: Michael_Schwartz@coburn.senate.gov

Senator Demint: Member of Congressional Coalition on Adoption, South Carolina

CONTACT: Laura_Evans@Demint.senate.gov

House Committee for Indian Affairs

Chris.Fluher@mail.house.gov – 202-225-2761

Honorable Representative Don Young – Chair, Subcommittee on Indian/Alaska Native Affairs

P 202-225-5765, F 202-225-0425, (From the State of Alaska)

CONTACT: Mary.Hiratsuka@mail.house.gov

Honorable Representative Tom McClintock – Subcommittee on Indian/Alaska Native Affairs

P 202-225-2511, F 202-225-5444, (From the State of California)

CONTACT: Kristen.Glenn@mail.house.gov

Honorable Representative Jeff Denham – Subcommittee on Indian/Alaska Native Affairs

P 202-225-4540, F 202-225-3402, (From the State of California)

CONTACT: Ryan.Henretty@mail.house.gov

Honorable Representative Dan Benishek – Subcommittee on Indian/Alaska Native Affairs

P 202-225-4735, F 202-225-4744, (From the State of Michigan)

CONTACT: Tad.Rupp@mail.house.gov

Honorable Representative Kristi Noem – Subcommittee on Indian/Alaska Native Affairs

P 202-225-2801, F 202-225-5823, (From the State of South Dakota)

CONTACT: Renee.Latterell@mail.house.gov

Honorable Representative Paul Gosar – Subcommittee on Indian/Alaska Native Affairs

P 202-225-2315, F 202-225-9739, (From the State of Arizona)

CONTACT: Kelly.Ferguson@mail.house.gov

Honorable Representative Raul Labrador – Subcommittee on Indian/Alaska Native Affairs

P 202-225-6611, F 202-225-3029, (From the State of Idaho)

CONTACT: Jason.Bohrer@mail.house.gov

Honorable Representative Dan Boren – Subcommittee on Indian/Alaska Native Affairs

P 202-225-2701, F 202-225-3038, (From the State of Oklahoma, 2nd Dist.)

CONTACT: Hilary.Moffett@mail.house.gov

Honorable Representative Dale Kildee – Subcommittee on Indian/Alaska Native Affairs

P 202-225-2611, F 202-225-6393, (From the State of Michigan)

CONTACT: Erin.Donar@mail.house.gov

Honorable Representative Eni F. H. Faleomavaega – Subcommittee on Indian/Alaska Native Affairs

P 202-225-8577, F 202- 225-8757, (From the Territory of American Samoa)

CONTACT: Leilani.metz@mail.house.gov

Honorable Representative Ben Lujan – Subcommittee on Indian/Alaska Native Affairs

P 202-225-6190, F 202-226-1528, (From the State of New Mexico)

CONTACT: @mail.house.gov

Honorable Representative Colleen Hanabusa – Subcommittee on Indian/Alaska Native Affairs

P 202-225-2726, F 202-225-0688, (From the State of Hawaii)

CONTACT: Josh.Dover@mail.house.gov

Honorable Representative Ed Markey – Subcommittee on Indian/Alaska Native Affairs

P 202-225-2836, (From the State of Massachusetts )

CONTACT: Jennifer.Romero@mail.house.gov

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Congressional Coalition on Adoption

Honorable Representative Michele Bachmann – Co-Chair, Congressional Coalition on Adoption

P 202-225-2331, F 202-225-6475, (From the State of Minnesota)

CONTACT: Katie Poedtke

Honorable Representative Karen Bass – Co-Chair, Congressional Coalition on Adoption

P 202-225-7084, F 202-225-2422, (From the State of California)

CONTACT: Jenny.Wood@mail.house.gov

New Book: Dying in Indian Country – An Amazing Family Story

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Jul 022012
 

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Dying In Indian Country - by Beth Ward

This is the true story of an American tribal member who, after coming to know Jesus Christ, realized just how much policies within tribal and federal government were hurting his extended family.

Roland grew up watching members of his family die of alcoholism, child abuse, suicide, and violence on the reservation. Like many others, he blamed all the problems on “white people.”

Beth Ward grew up in a middle class home in the suburbs. Raised in a politically left family, she also believed that all problems on the reservation originated with cruel treatment by settlers and the stealing of land. Meeting her husband, her first close experience with a tribal member, she stepped out of the comfort of suburban life into a whole new, frightening world.

After almost ten years of living with his alcoholism and the terrible dangers that came with it, they both came to realize that individual behavior and personal decisions were at the root of a man’s troubles, including their own. After coming face-to face with the reality of Jesus Christ, their eyes opened to the truth of why there is so much Dying in Indian Country.

What cannot be denied is that a large number of Native Americans are dying from alcoholism, drug abuse, suicide, and violence. The reservation, a socialistic experiment at best, pushes people to depend on tribal and federal government rather than God, and to blame all of life’s ills on others. The results have been disastrous.

Roland realized that corrupt tribal government, dishonest federal Indian policy, and the controlling reservation system had more to do with the current pain and despair in his family and community than what had happened 150 years ago.

Here is the plain truth in the eyes of one family, in the hope that at least some of the dying in Indian Country — physical, emotional, and spiritual — may be recognized and prevented.

Unfortunately, persistent public misconceptions about Indian Country, misconceptions sometimes promoted by tribal government and others enjoying unaudited money and power, have worked to keep the situation just as it is.

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  • “Roland truly has encouraged many people…the last trip to D.C. was a testimony to God’s faithfulness.Rev. Robert Guthrie, B.Th. M.A. –Professor, Vanguard College, AB
  • “…he earned my deepest respect, and…made heroic and very honorable attempts to improve the lot of Native Americans in this country.” Jon Metropoulos, Attorney, Helena, MT
  • “‘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 metis children
  • “I truly admire Roland for the message he was trying to have heard.” Ralph Heinert, Montana State Representative
  • “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
  • “…hope emerging from despair… This is a story about an amazing life journey.” Darrel Smith. Writer, Rancher, South Dakota
  • “He’s a Christian now you know… I saw him crying on his knees on my living room floor. I was there.” Sharon, 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)

Read More:

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Haley Hernandez Reports on the Veronica Petition – 20,000 Signatures

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Jan 262012
 


Reporter Haley Hernandez followed @Save_Veronica to Columbia today, look who they spoke with about the Indian Child Welfare Act … http://ping.fm/MWk43

Delivering the Petition with 20,000 signatures to South Carolina leaders –

By: Haley Hernandez | WCBD

On New Year’s Eve, Jessica Munday watched helplessly as her close friends, Matt and Melanie Capobianco were forced to hand over their adopted little girl, Veronica, to her birth father.

Now Munday and Stephanie Brinkley (a Charleston adoption attorney) are on a mission to “save Veronica.”

“Rather than sit on the sidelines and just say ‘how sad’, I wanted to say ‘how sad, what can I do?’” Binkley said.

Tuesday they went from one government office to another, starting in Charleston and driving up to the State House in Columbia, delivering a petition from supporters of the organization.

Kathy Crawford, the district director at Congressman Tim Scott’s office said it’s a shock that this could happen to a family, “a child could be taken away from the only mom and dad that they’ve ever known and you know, we hope that the courts will do the right thing.”

The organization delivered the petition to lawmakers with more than 20,000 signatures. In an unscheduled visit, Governor Haley spoke with Munday and Brinkley and empathized with the Capobiancos.

“If you have a child you know that’s just like the precious part of your life and so my heart breaks for them, I will be happy to take this,” Gov. Haley said taking the petition. “The federal delegation and I communicate about a lot of things, because it is a federal issue doesn’t mean I can’t at least say “what are y’all doing about this?” so I’ll be happy to ask the questions, be happy to see what’s going on if anything.”

“I’m thankful that she was so receptive to us being there and so compassionate about what’s happened,” Munday said after speaking with the governor.

“This is a matter that affects the people they represent, it represents a South Carolina couple and a South Carolina child and that child needs to be heard so it’s great that they are receptive that we’re trying to be a voice for Veronica when she can’t represent herself,” Brinkley said about lawmakers listening to their concerns.

SaveVeronica.org is still taking signatures for their petition. Lawmakers said they will try to get a copy to the Senate committee that will hear the case.

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My Question: When is the Senate Committee going to hear it? I doubt they have any plans to put it on their agenda – we will need to do lots of pushing to get it there – and lots more to get a fair hearing!

Someone on the ‘Save Veronica page’ asked what one would ask the President about ICWA if one had the chance. As a birth mother, I have had several questions. These are questions that my husband and I felt disturbed by ever since our children were small:

– “Mr. President, what part of the Constitution gave Congress the right to give jurisdiction over OUR children to another government when my husband chose to raise our children apart from that government, and I have had no part in that government?

– Why is it that if I should die, another government would have the right to take our children and place them in a home neither my husband nor I would approve of?

– Why is it that strangers within that government would have more right to raise my flesh and blood children than my flesh and blood brother or sister have?” –

The bottom line is – both my husband and I had always held that OUR Children were NOT the tribal government’s children – as the NICWA logo attests. They aren’t the federal government’s children, either.

My husband did not feel his reservation was a safe place to raise children and thus raised them elsewhere. Further, we are not alone. Many tribal members have left the reservations on purpose and taken their children with them. As U.S Citizens, we have a right to choose how and where we want our children raised. We had personally chosen the friends and family we would have liked to be guardians should the need arise.

The ICWA law is poorly thought out – stepping on the lives of U.S. Citizens in order to benefit tribal leaders, not children. Which is why it is continually misapplied and has been as hurtful as it has been to many children and families – and why there are so many parents writing to you on this page wondering why they aren’t getting help to keep their kids. They mistakenly believe that ICWA was actually meant to help them.

For those who are concerned that the Veronica case involves a birth father – let me clarify:

The adoption wasn’t finalized because the tribe had intervened, but M&M were ‘parenting’ Veronica from the moment she was born. They were at the birth. The bio-dad was not. Matt cut the umbilical cord – the bio-dad did not. Melanie stayed in a room at the hospital where she could parent/mother Veronica right away. The bio-dad did not. The bio-dad made no effort during the pregnancy or after birth to contact or support the mother, and made no real effort or request to see the little girl at any point in her life. She had never met him up until the evening she was handed over to him in the attorney’s office. The judge had allowed only ½ hour for Veronica to meet this man before he was free to take her. But it took two hours for the transfer to complete because she kept crying for M&M every time they tried to leave the room.

Matt and Melanie are the only parents she has ever known.

Had South Carolina law been applied to this case, the bio-dad would not have had any standing. By state law, he has essentially abandoned her and would not have had any parental rights. He had also signed a paper sometime after her birth giving up any claim to her. But after Veronica had been with M&M for four months, he changed his mind. And because he has a small percentage of Cherokee heritage, he was able to get the tribal attorney involved.

Veronica wasn’t the only one in tears. Matt & Melanie are emotionally devastated.

And this family isn’t a rare case. This actually happens quite often, especially when dealing with the Cherokee Nation; it’s just that for some unknown reason, this time it got attention. Read letters from more families – and how they were hurt by ICWA at https://caicw.org/family-advocacy/letters-from-families-2/ and watch the story of James on the CAICW YouTube Channel ~

This does not need to happen to another child. Please Call your Congressmen and tell them this has to stop.

Find information for contacting Congressmen at SaveVeronica.org

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