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Wake up America. Tribal Government's should not be given jurisdiction over our children simply because they claim the right. I understand that tribal government jurisdiction over Indian children sounds like common sense. It seems like a no brainer when tribal governments approach the federal and state governments and say, "They are our children and we have a right to raise them." Everyone just nods their head and says, "Sure, no problem!"
Heavens, everyone's afraid they'll be accused of racism if they take the time to really think the issue through.
Wake up. These aren't the tribe’s children. The ones in my home, for example, happen to be MY children, and we have no intention of living within the reservation system. Other parents across the country feel the same. According to the last census, most enrolled tribal members live off the reservation. Many, just like our family, left because they don’t want their children raised amid the dangers and dysfunction on the reservation. As American citizens, we have the right to make that choice for our families. And as well-intended as some in government are, they haven’t the ability to know what is best for my family or for the many other families that have left to live a different life.
Further, MOST children falling under the Indian Child Welfare Act (ICWA) and other tribal jurisdiction laws have relatively small amounts of Indian heritage. Did you read that right?
Tribal governments decide their own membership and most have decided ¼ blood quantum is all that’s necessary. The Cherokee Nation of Oklahoma goes further and claims jurisdiction over any child with ancestry tracing back to the Dawes Rolls no matter how minute the blood quantum.
Now, the ICWA defines an Indian child as any "enrollable" child. Think it through.
Parents can’t avoid ICWA and other jurisdictional laws by not enrolling their children.
Therefore, many children with 1/4 or less heritage and no connection to Indian Country fall under ICWA. And that is actually most of the affected children.
It's plain as day. Think of a pyramid. Children of 100% heritage are the least common. They are at the tip. The largest number of children are the ones with little heritage. They make up the base. But being of little heritage also means they are primarily non-tribal and have a large percentage of relatives that are also non-tribal.
Don't misunderstand. I am not noting this because I think the non-tribal heritage is of primary significance. There is no blood quantum of any heritage is of primary importance over another. All of my children's heritages are interesting and valuable. I hate the idea of referring to a percentage of a child's heritage in the same way one refers to the pedigree of a dog. How demeaning. Or worse, it is abhorrent to focus a preference on one blood heritage in the same way 1940's Germany scrutinized the heritages of millions. The only point of noting blood quantum is to note that children with less than 100% heritage have more than one history and more than one set of interesting and important relatives.
What I am pointing out is that ICWA and other jurisdictional laws affect millions of people - and most aren't even aware of it.
Until something comes up.
January 2008, the Navajo Nation sent for a 6-year-old girl in Texas. The little girl had been living with her father most of her life. Now, the birth mother wanted custody. Normally, there is a hearing, an attorney looking out for the child's interests, and a transition period if there is to be a change of custody. Normally, both parents get equal opportunity to state their case. But this wasn't normal, and the Texas County police, thinking the Navajo court order was enough, helped the tribe pick the little girl up from her day care without a Texas Court order. The little girl and her father wept, and then she was gone. He has seen her only once since, at a hearing in Navajo Tribal Court. Again, they held on to each other and wept.
That was in late March. He hasn't been able to see or speak to her since. He hasn't been given an address or phone number to contact her and the guardian ad litem hasn't been able to locate her. He has no money, and the attorney he hired has put him on notice. No funds, no help.
A man in Oklahoma has fought to keep his baby girl. The tribe took custody right after the child’s birth and refused to even tell him her name let alone see her. Two years ago, a tribal court judge told him that because he is white, he had no rights to his baby. At one point he won custody. However, the tribe has appealed it, and his lawyer told him he needs about $30,000 to fight the appeal. He doesn't have the money.
As unbelievable as it seems, some parents have lost custody of their children because they couldn't afford a lawyer.
A three year old girl in Oregon hasn't seen her birth mom in over two years. The last time she saw her mom was when the tribal police took her out of her mother's arms at a tribal court hearing that was only supposed to be about getting a DNA test. The mom tried to hang on to her, but the judge ordered the police to take the baby by force, so they put pressure on her arms until she let go. Since then, she tried to get her back but couldn't to find a lawyer to help. In 2007, she wrote:
“… Last year was very hard for me, and the constant let down of not being able to see or speak to my baby has tore me apart. I have spoken to the ... father and he informed [me] that it is final that I will never be able to see my little girl again as long he has anything to do with it. So I have taken it very hard. I did write the tribal court judges, and asked for another hearing at least for visitation, and my pleas were denied. …. There is probably not a day that goes by that I don’t cry for my baby. I feel like the life I once had no longer exists.”
She isn't alone. A mother in Wisconsin is trying to keep her 4-year-old daughter off the reservation. She said she has spoke to dozens of lawyers and can’t find anyone to help her.
ICWA doesn't apply to custody battles between parents. Nonetheless, many tribal courts claim jurisdiction over all children, even in custody battles. Non-tribal parents with limited knowledge or funds find themselves in situations they can't do anything about, commonly facing discrimination in the tribal courts.
ICWA does apply in foster and adoptive cases, but the next two stories are examples of how the law can harm even these children. It is also an example of how the law reaches out to affect children with limited tribal heritage.
A Texas fireman and his wife offered to take custody of a baby whose mother was considering abortion. She agreed. Later, after the baby was in their home for several weeks and adoption procedures had begun, the father wrote,
“... it was discovered she [the birthmother] is 1/128th Cherokee. That makes my son 1/256 or .0039% Native American and 99.9961% not…. His mother…was very adamant about the Cherokee Nation NOT raising her child and the court records show this. In April of 2006, we were notified of the Cherokee Nation's intent to take us to court and remove our son from our home… Since then, we have been in a constant state of panic…”
To this date, in May 2008, this family is still fighting to complete this adoption. They have spent thousands and thousands of dollars on the effort, but will continue to fight to the end because of their love for this little boy.
A couple in Arkansas had custody of two little girls for 5 years. Late one night in February, 2007, as the adoptive parents were getting their two girls ready for bed, police arrived at their door. The 10-year-old twins already were in pajamas, but brandishing a court order, the police took the frightened girls and drove them 60 miles to the home of the other relative. They weren't able to even tell friends good-bye.
Background: In October, 2002, the birth mother, a distant cousin, had arranged for the couple to adopt the twins. However, after signing the papers, an elderly relative who had four of the twins’ siblings began custody action. Although everyone agrees the adoptive parents kept a loving and stable home, the elderly relative won custody with the Tribe's support. But within months, all of the children were removed from that home due to neglect. However, the twins weren't returned to their adoptive parents. All the children were instead places back with the birth mother.
Interestingly, neither the birth mother, the adoptive family, NOR the relative were Indian, so why was the tribe involved?
Because the twins' natural father is an enrolled member. And although the court said that he had “undisputedly abandoned the children,” his status made him “relevant to this case.” This gave the tribe jurisdiction under the Indian Child Welfare Act (ICWA). The tribe wanted the twins placed with the siblings, “irrespective of the fact that many other full and half-siblings are scattered among several other states.” And irrespective of the children's other various heritages.
Again, why take children from the only safe, nuclear family they’d ever had, and place them in unstable homes?
Power. Citing a 1974 Congressional hearing statement, "there is no resource ... more vital to the continued existence and integrity of Indian tribes than their children...," an appeals court found that the "best interest" of the child wasn’t the only issue for a court to consider. Citing ICWA, the court found that “maintaining the integrity of the Nation, its culture, its children, and its progression through time not to become extinct” also had to be considered.
In other words - (stop and re-read what this appeals court actually said) this law is for the benefit of the tribal entity and tribal government. It is not designed for the benefit of individuals or families.
Be that as it may, neither the Tribe nor Arkansas explained how moving the girls from the potential adoptive parents and non-tribal home they loved to a foster situation in a non-tribal home they were strangers to would help preserve the tribe.
According to Mississippi v. Holyfield, ICWA’s original goal was to combat "abusive child welfare practices" that took children from tribal communities and placed them in unfamiliar environments with strangers. The trauma that Indian children suffered from, among other things, being forced to enroll in far-off boarding schools is undeniable. But today the reverse is happening. Children that have never been near a reservation are being removed from environments they love and forced to live with strangers chosen by tribes.
Tribal authorities argue they are most qualified to decide the best interest of enrollable children. Are they? Arguments aside as to how ICWA has safeguards to prevent misuse, stories affecting black, Hispanic, Norwegian-American and other families reflect this reality. Letters from birth parents, grandparents, pre-adoptive families, and tribal members themselves can be read at http://www.caicw.org/familystories.html
Three years ago, two boys of 50-50 heritage were taken from their paternal, Mexican grandparents in California and sent to their Ute grandmother in Utah. Their home in California was loving and safe. They were sent to Utah only because social workers decided that ICWA required it. In a matter of weeks, 3-year old Emilio Rodriguez and his brother, Jose, 4-years-old, were beaten so severely that they both suffered severe concussions and Jose ended up in a coma. Why were they beaten? It was reported in the Utah papers that their maternal grandmother didn't like that they were speaking Spanish.
The boys and their sister are now back with their Mexican grandparents who recently won a million dollar lawsuit against the United States for removing the boys and placing them with the Utah grandmother. The Utah grandmother is in jail.
If there is any case that illustrates just how bad the ICWA is, this one would be it. Wake Up, America. Do away with this law that primarily benefits governments, not people.
