Friday, July 24, 2009

Mother Wins Fight Against Tribe!!

Court: Mother’s custody wishes trump those of tribe
Supreme Court rules agency can place child with non-American Indian family

By Cy Ryan (contact) Las Vegas Sun

Thursday, July 23, 2009 1:07 p.m.
Beyond the Sun

* Nevada Supreme Court

CARSON CITY – The Nevada Supreme Court has ruled that a licensed adoption agency in Las Vegas can place an American Indian child with a family, despite the objections of the Cherokee Nation Tribe.

The court, in a unanimous decision, rejected the argument of the Cherokee Nation that the adoption procedures had to go through a tribal court instead of a state district court.

Deziray G., a 23-year-old registered citizen of the Cherokee Nation, gave birth to a son at Valley Hospital in Las Vegas on Jan. 10 2007. Two weeks later she relinquished her parental rights to a licensed adoption and child placement agency, A Child’s Dream of Nevada.

Deziray wanted her child placed with a non-American Indian family identified only as “Christine and John.”

District Judge Gerald Hardcastle signed the order relinquishing the rights of the mother.

The adoption agency also started action to terminate the parental rights of the apparent father, whose paternity was not established.

The Cherokee Nation, based in Oklahoma, filed suit in Reno asking to intervene in the case. During the two-year battle, the child has been with the family favored by the child’s mother.

The Supreme Court, in a unanimous decision Wednesday, ruled the wishes of the mother should be considered over a federal law that favors keeping Indian families together.

Federal law sets forth the cases where a tribal court has exclusive jurisdiction over child custody matters. The Supreme Court said the federal law is to protect American Indian children, families and tribes “from unnecessary and unwarranted separation.”

But the Supreme Court said Congress also intended to honor the desire of the parents of the child in adoption decisions.

In this case, Deziray, although a citizen of the Cherokee Nation, said she did not live on the Cherokee Nation reservation. And in her statement to the district court, she opposed any attempt to transfer jurisdiction in the case to the tribal court.

The Cherokee Nation argued that the child’s maternal grandmother was willing to be a foster parent.

The Supreme Court said there was good cause for the district court to deviate from the adoption framework in the federal law.

Although the case started in the district court in Las Vegas, it ended up in the court in Reno where District Judge Deborah Schumacher made the decision to back the wishes of the mother in the adoption dispute.

Monday, July 6, 2009

Treaties that don't Exist

June 30th, 2009 by Rob Natelson

"Government agencies and pressure groups campaigning for more taxpayer money can create a fictitious “history” almost overnight. First, they make some claim about how something has been recognized since (whenever), and before you know it, journalists are uncritically repeating it, and it is plastered all over the Internet.

"Recently I’ve seen a burst of allegations that the U.S. government assumed a treaty obligation in 1787 to provide reservation Indians with free health care. If you Google “health care treaty Indian 1787,” you will find a long list of sources – including supposedly objective news stories – making that assertion. Here’s a sample from Montana’s Lee newspapers: “A treaty dating to 1787 requires the government to provide tribal members living on reservations with free health care.”

"Now when presented with such a claim, a journalist’s crap-o-meter should start sounding like a fire alarm, because the claim is so inherently improbable. First, the reservation system as we know it didn’t exist in 1787. Second, the cash-strapped Confederation Congress would not have had the resources to meet such a commitment. (Remember that shortage of funds was one reason Congress called the constitutional convention.) Third, a treaty is a bilateral document – even if the Confederation Congress had committed itself to provide health care to the Delaware tribe, for example, it wouldn’t follow that the government had committed itself to provide health care to all Indians for all time.

"So I checked into the claim and found that — sure enough — it is flatly false. Here are some details:
* According to Charles Kappler’s authoritative collection of treaties between the U.S. Government and Native American tribes, there was no such treaty in 1787. In fact, 1787 was a year in which no U.S.-Indian treaties were signed at all!

* There were over 20 U.S.-Indian treaties before 1800, but none obligated the federal government to provide Indians with health care, free or otherwise.

* The last U.S.-Indian treaty was signed in 1868. Some of the later ones provided that the government would pay annuities to some Indians – but often even this term was left discretionary with the government. Neither my own search nor the Kappler index of all treaties disclosed any reference to a treaty obligation to provide free (or any) health care.

We can’t blame the myth wholly on activists and inattentive journalists, however — the U.S. Government bears some responsibility as well. The journalist who authored the story quoted above referred me to a PR webpage from the U.S. Indian Health Service. It states: “The provision of health services to members of federally-recognized tribes grew out of the special government-to-government relationship between the federal government and Indian tribes. This relationship, established in 1787, is based on Article I, Section 8 of the Constitution, and has been given form and substance by numerous treaties, laws, Supreme Court decisions, and Executive Orders.”

Now, this statement certainly does not say that any treaties created an obligation to provide free health care. But it has problems of its own. It repeats the false 1787 date. And by stating that the Indian-federal “relationship” has been “given form and substance” by . . . treaties,” it implies that treaties created an obligation to provide health care, although they have not.

The website refers to Article I, Section 8, a part of the Constitution that creates congressional powers (not treaty obligations). Clause 3 of that section provides in part that “The Congress shall have Power . . . to regulate Commerce . . . with the Indian tribes.” It is true that Congress claims this “Indian Commerce Clause” gives it plenary authority to regulate Indian affairs. But as I have shown elsewhere, the only authority this provision actually granted to Congress was a power to regulate trade between tribes and non-Indians. It certainly did not confer authority to turn tribes into wards, to meddle in internal tribal affairs, or to put tribal members on the federal dole.

This entry was posted on Tuesday, June 30th, 2009 at 1:56 pm and is filed under Blogging. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site. "

Saturday, July 4, 2009

Definition of Indian Child Welfare Act

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

The Indian Child Welfare Act (ICWA) is

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

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

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

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


Sunday, June 28, 2009

Another Baby Dies.

The house where 9-month-old Tila died on June 21, 2009, was filthy. There were no clean dishes, and alcohol bottles and cans were strewn throughout. Two other children, dirty diapers sagging, were removed from the home.

23-year old Lance Ballinger was taken into custody. He has been charged with two counts of felony domestic assault, four counts of neglect of a child, five counts of child endangerment and one count of contributing to the delinquency of a minor in a criminal complaint filed in Mille Lacs County District Court on Thursday, June 25. These counts included the infant as well as two other kids who were at Ballinger's house.

But he hasn't been charged with murder yet. Mille Lacs Tribal Police Department is the lead agency investigating the death of the child.

Unbelievably, Ballinger was released from Mille Lacs County Jail just the day before Tila died - on Saturday, June 20. He had served 52 days for violating a domestic abuse/no contact order, driving under the influence and domestic assault.

Not even 24 hours later, at 5:45 a.m. on Sunday, June 21, Tila Friend-Ballinger was reported non-responsive.

Her mother, Kelly Friend, said she found the baby in Ballinger's bed, with a bruise on her forehead, at around 5 a.m. Ballinger was passed out. Friend says that there was no bruise when she left her with Ballinger around midnight.

A preliminary breath test given to Ballinger at 8:01 a.m. gave a reading of .201.

Okay, so this dumb mother left her infant at midnight with a drunk who just got out of jail for having beat her in the past - a drunk who had a no-contact order in relation to her. The guy is scum - but so, it appears, might have been the slow-witted mother.

Apparently - this guy had assaulted Tila in November as well, when she was only 2-months-old. On November 5th, the baby was airlifted to North Memorial Medical Center with head injuries.

Air-lifted with head injuries! And the mother went and dropped her off at this guy's house as soon as he got out of jail!!

In fact, the mother had initially lied to the police about that - saying the baby had gotten hurt when another little girl had pulled her off the couch. Later she said she had dropped her daughter while trying to break up a fight between her brother and Ballinger. A third story, form Ballinger's father, was that his son had dropped the baby during an argument with Friend.

I'm guessing the third story was probably the real one - and this dumb mother is too "love" struck - or sickeningly dependent- to protect her child from this guy! Instead, time and again she protects HIM against the world.

Anyway, Mille Lacs County Attorney's Office DECLINED charges on March 10, 2009. They said they couldn't press charges because "witnesses gave conflicting stories, and it was possible that the injuries were accidental." They also said that not all of the witnesses could be found until this week.

Now, new charges have been filed on that case, because on Monday, June 22, Friend finally decided that it was time to tell "the whole story about what had happened" on Nov. 5. She said Ballinger was fighting with her brother and, while she was holding the baby, pushed her down. Then he grabbed Tila from her and dropped her again. Friend's brother later confirmed that story. (I guess that must be the witness they couldn't find earlier)

But if that wasn't enough, in 2008 Friends had reported that while she was still pregnant, Ballinger had slugged her in the stomach and said ‘he would rather see it dead than her having it.’ And yet, she still hangs with the guy.

All of that, and yet there are people that write letters to the paper such as this one:

of contributing to the delinquency of a minor

Here you have an opposite view of the guy -

"...look at losers myspace profile its not private he is seen drinking a good dad the baby has a joint in his mouth. Dont bring the creator into this he has nothing to do with it and dont kid your self if he was a good dd he wouldnt be in and out of jail; for bieng a drunk and beating kelly and where was kellys mom kids having kids geeez. sounds like an uncharged case of statutory rape . you need to quit defending criminals thats the problem on the rez you feel bvad for the people who screw everyone over screw lance where is justice for the baby? the guy was out for like 6 hours then he was drunk..."

It's time Everyone woke up. What is happening in many communities is an epidemic of adults with FASD raising children with FASD, who then raise children with FASD.

Face the truth and do something about it.

The Indian Child Welfare Act is a crime - mandating that children are better off under these conditions than in safe, stable homes. One social worker told us that had my husband's grandchildren been white or black, they would have been removed from their parents much earlier. But because they were of tribal heritage, they were left to suffer. It's about time an attorney made a case against ICWA by demanding Equal Protection for these children.

"The mother reported that Ballinger hit her in the abdomen and said ‘he would rather see it dead than her having it.’ She said she believed he was attempting to harm the unborn child."

Tribal officials that lobby in Wash. DC, telling congressmen that kids are better off suffering under these conditions rather then being placed in safe, loving homes (even if they are "non-tribal") are also to blame, along with both parents.

The Indian Child Welfare Act and the phony mindset that goes with it is a crime. Tribal leaders are more interested in money per head than in the welfare of children.

Monday, June 15, 2009

States Not Complying with ICWA - for Good Reason

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

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

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

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

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

Saturday, June 13, 2009

ICWA Reaks. Reservation is Worst Place for Many Kids

Children messed up by drugs and alcohol need a safe, stable, therapeutic home - The LAST thing they need is placement back into the very garbage that they came out of.

Two days ago I sat in the front seat of an ambulance transporting my 14-year old, unresponsive "son" (placed by ICWA) to the ER. His blood alcohol level was .35.

We were not a bad home. But we were not a therapeutic home. The four children placed with us thirteen years ago, solely because my husband was their grandfather, did not get what they needed.

We were a good home, but we were not educated in the needs of the kids and were never truly inspected by Leech Lake or any other social service. We could have done anything and no one would have known or cared. All they cared about was that we met the criteria for an ICWA placement. And under that single criterion, kids are continually being placed into horrible situations with the blessing of both the federal and tribal governments. And not just kids of tribal heritage - but children of every heritage, because a child doesn't need to be 100% tribal to for a tribe to have jurisdiction over them through ICWA. Most tribes require only 1/4 blood quantum, meaning the child has an even greater heritage somewhere else. Some tribes require even less to claim a child. For example, a child in Texas has less than 2% tribal heritage, but the tribe is trying to claim him.

But as I said, the LAST thing kids of ANY heritage need is placement back into the very garbage that they came out of. Children messed up by drugs and alcohol need a safe, stable, therapeutic home - heritage isn't even an issue.

The bottom line is that this isn't just about keeping them off the Rez. We don't live on the Rez. It's about placing them in an appropriate home.

I was too overwhelmed - with five birth children and these four legal custody, as well as my husband dying of cancer. Any sane social service person should have seen that this can't work. But they didn't care. And I couldn't bring myself to give up and have them sent to Cass Lake. I've seen how kids are being raised there with our relatives. That place is absolutely horrid and dangerous for children. I could not kick them out of my home and make them live there. So I kept them and ended up doing an inadequate job, not only for the four, but for my birth children and husband as well.

With diagnosis' of FAS, ADHD, Attachment Disorders and/or Oppositional Disorders, these kids - from the very beginning - needed more help than I could give.

After having the two oldest turn 18 and proceed into the same dysfunctional lifestyle that we had supposedly rescued them from, I am today trying to get the third one into some type of therapeutic treatment. Simply taking them out of the circumstances - or even showing them a totally different way to live - didn't change the way their bodies, already affected by alcohol, worked.

Further - the tribe's choice exposed my birth children to harm. A truth I am only in the last few weeks realizing - is that the oldest of the four legal custody, now 20 yrs, old - is a con man. We had various struggles with him through his teen age years, but he was so charming and always seemed so cooperative, even when it came to discipline. Now I am finding out all the damage that had been done. Several of my birth children were affected - very negatively. He encouraged at least five of the other children to drink and or smoke weed with him - one of the kids being as young as ten when this happened.

I am only now thinking - We know that Al-anon exists because of the tremendous emotional difficulties of living with an alcoholic. Why did we not consider this in terms of the birth children living with FAS in all four?

We were not prepared to deal with the many issues. I neglected my own children in many ways. I was focused so much on correcting the behavior of the four that I totally missed so much that was going on with my own. I put my birth children in danger. This was not an appropriate home. The only reason they were placed here was because of ICWA. At the time were the healthiest part of the extended family that there was. We were the only healthy family within the extended family.

At least at the time. I no longer categorize us as a healthy family.

Children messed up by drugs and alcohol need safe, stable, therapeutic homes. It's the only chance they have. Anything less, and they will not be able to cope any better than their parents did. Fifteen years later, you will have another generation of babies needing special care.

Stop it now. Let the kids get real help.

Stop listening to most of the tribal governments on this issue. They get more money from the federal government per head. This is not really about the best interest of kids, no matter what they try to claim. They are all about money and control. The kids are pawns.

Monday, June 8, 2009

Two more families ask for help

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

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

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

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

I pray for time to update the many letters we've recieved.

Friday, June 5, 2009

Reality of Taking in Kids With FAS

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, May 28, 2009

ICWA steals adoption option from Young Mother

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

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

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

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

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

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

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

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


Tuesday, May 26, 2009

Tribe pretends to care about buried little boy

Make me sick. A stupid, selfish mother suffocated her baby, not once, but twice, because she didn't want to take care of him. Forget any of the excuses she or the tribe tries to give for what happened. This horrible woman purposeflully suffocated her baby - twice.

Coincidentally, her little baby has the same name as my 2-year old grandson; Ty.

Now the tribal government is standing up and using this poor baby for another propoganda opportunity. Tribal Gov. Ivan Pino said the tribe wants baby Ty's body to be returned to the pueblo for burial. People living near the park raised about $4,000 for a funeral for the boy, but he says, "Let the Pueblo of Zia go through its healing process right now. Give us the respect to go through our mourning at this point."

Now I'm going to throw up. The people living near the park cared enough to raise $4000 from their own pockets, and were interested in mourning the little boy as a community - which would include everyone and anyone that cared to show up. The tribe, on the other hand, will use government money for the burial, and are trying to exclude people that care. Why does Gov. Ivan Pino not want anyone else around to mourn the baby? What's up with that? I've been to plenty of tribal funerals. I've never heard of people being excluded before.

And give them respect to bury the baby? Why? Where were they when the little boy was homeless? What are they currently doing about any of the other homeless children enrollable with their tribe? Do they even keep track of them? What about the ones that are being abused? Or the children that are left alone all night while their parents are partying?

I once chased a guy off a ten-year old girl while I was visiting on one rez. I've found many children in many horrible situations. What do I see the tribe doing about it? Nothing. Why should tribes that turn their backs on enrollable children be given any kind of respect?

Claiming to want "respect to go through our mourning" is just another tribal government power push, and it has nothing at all to do with actually mourning this little guy. It's all about showing who's the boss - who's in control again. They are in control, but that doesn't mean that they are doing anything with that control to actually help their membership.


Friday, May 15, 2009

Another Win Against ICWA

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

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

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

Monday, April 13, 2009

ICWA Continues to hurt Famlies

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

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

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

Lord Please help us. It's a tribal industry and our kids are pawns in a game.

Thursday, April 2, 2009

Reality - Kids are being put just anywhere -

Several of the tribes don't really care whether they place the kids in bad homes. They do it all the time.

You can't tell me any different - I've seen it first hand. I wouldn't leave my dog in some of the homes I've seen the tribe place children in.

Further, they placed four children with us for a good year or more before they bothered to come out and do a home visit. They never once even spoke to us prior to or during the interim before that one visit. They didn't bother to ask any other social services to check on us. They had no clue how we were handling the kids, and they really didn't care.

Finally, they came out for a visit. The two social workers flew in because we were in a different state. They were supposed to be there for a two day visit. They spent about an hour or so with us. We talked in the Upholstery shop. They walked through the first floor of our apartment. Didn't look at any bedrooms. Didn't talk to any kids. Then they asked us where to go in the valley for sight seeing. That was the last we saw of them for that two day visit.

And we've never had a social worker come visit again. That was 12 years ago. We still have two of the kids in our home, and the tribe still has no clue how we're handling them.

Fortunately, we are a good home. But I have seen so many bad homes in our extended family that it's sickening.

Those that say that kids of heritage are better off within the tribal system simply because they have a small amount of heritage, or even if they are 100% tribal, are nothing but racists more concerned about tribal funds then they are about the kids.

And that's reality.

Saturday, January 3, 2009

Tell Your Representatives to Make These Legislative Changes! Part Three

7. Finally, if tribal membership is a political rather than racial designation, (as argued) than is it constitutional for the definition of an Indian child to include "enrollable" children, rather than "enrolled" children?
25 USC Chapter 21 § 1903. Definitions: (4) ''Indian child'' means any unmarried
person who is under age eighteen and is either:
(1) member of an Indian tribe or
(2) is eligible for membership in an Indian tribe and is the biological child of
a member of an Indian tribe;


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

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

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

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

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

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


Friday, January 2, 2009

Tell Your Representatives to Make These Legislative Changes! Part Two

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

a) When summoned to a tribal court, parents and legal guardians, whether enrolled or not, have to be told their rights, including 25 USC Chapter 21 § 1911. (b)
"Transfer of proceedings [to tribal jurisdiction] the absence of good cause to the contrary, [and] objection by either parent..." (ftn5)
b) The rights of non-member parents must be upheld: for example; 25 USC Chapter 21 § 1903. Definitions "Permanent Placement" (1) (iv) "shall not include a placement based ... upon an award, in a divorce proceeding, of custody to one of the parents. (ftn5)
c) Non-members have to be able to serve county and state summons to tribal members within reservation boundaries and must have access to appeal. (ftn5)
5. Adoptive Parents need well defined protections. These are the citizens among us that have been willing to set aside personal comforts and take in society's neediest children. Adoptive parents take many risks in doing this, the least of which is finances. People build their lives around family. Adoptive parents risk not only their own hearts, but the hearts of any birth children they have as well as the hearts of their extended family. These parents have an investment in the families they are building and have a right to know that they can put their names on the adoption paper with confidence. If we, as a society, continue to abuse these parents, we will find fewer people willing to take the risk of adoption and more and more children will languish in foster homes.

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

Last Part coming...

Thursday, January 1, 2009

Tell Your Representatives to Make These Legislative Changes!

Protecting children and the families they love...

1. Children of tribal heritage should be guaranteed protection equal to that of any other child in the United States. (ftn4) (ftn5)
a) Children should never be moved suddenly from a home that is safe, loved, and where they are emotionally, socially and physically comfortable simply because their care-givers are not of a certain heritage. The best interest of the child should be considered first, above the needs of the tribal community.
b) State health and welfare requirements for foster and adoptive children should apply equally to all. If there is proven evidence of emotional and/or physical neglect, the state has an obligation to that child's welfare and should be held accountable if the child is knowingly or by Social Service neglect left in unsafe conditions. (ftn5 - Title 42 U.S.C 1983)
2. Fit parents, no matter their heritage, have the right to choose healthy guardians or adoptive parents for their children without concern for heritage and superseding wishes of tribal government. US Supreme Court decisions upholding family autonomy under 5th and 14th Amendment due process and equal protection include Meyer vs. Nebraska (ftn8), Pierce v. Society of Sisters (ftn9), and Brown v. Board of Education (ftn10).

3. The "Existing Indian Family Doctrine" must be available to families and children that choose not to live within the reservation system.

a) In re Santos Y, (ftn5) the court found "Application of the ICWA to a child whose only connection with an Indian tribe is a one-quarter genetic contribution does not serve the purpose for which the ICWA was enacted..." Santos y quoted from Bridget R.'s due process and equal protection analysis at length. Santos also states, Congress considered amending the ICWA to preclude application of the "existing Indian family
doctrine" but did not do so."
b) In Bridget R., (ftn6) the court stated, "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:

- it impermissibly intrudes upon a power ordinarily reserved to the states,

- it improperly interferes with Indian children's fundamental due process rights respecting family relationships; and

- on the sole basis of race, it deprives them of equal opportunities to be adopted that are available to non-Indian children and exposes having an existing non-Indian family torn apart through an after the fact assertion of tribal and Indian-parent rights under ICWA".

c) In re Alexandria Y. (ftn7), the court held that "recognition of the existing Indian family doctrine [was] necessary to avoid serious constitutional flaws in the ICWA" and held that the trial court had acted properly in refusing to apply ICWA "because neither [child] nor [mother] had any significant social, cultural, or political relationship with Indian life; thus, there was no existing Indian family to preserve." Question: If current ICWA case law includes many situations where existing Family Doctrine has already been ignored, then have serious constitutional flaws already

More to come...