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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.
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Friday, July 24, 2009
Monday, July 6, 2009
Treaties that don't Exist
From http://electriccityweblog.com/?p=4202#more-4202
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. "
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
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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,
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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,
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