Federal Indian Policy Says THIS is BEST for children?

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Many Families of American Indian Heritage do NOT want their children raised on or near Reservations.  Ours is one of them.  Here are the facts. 

- Federal statistics have shown that for years that children that live on or near reservations die at about twice the national rate. Quoted in a Dec. 7th edition of the Oregonian, Jon Perez, a director of behavioral health at the federal Indian Health Service, stated, “What you have are developing countries right in the heart of the United States. Each has a history of neglect and a legacy of trauma that explains these disparities. We need this history not as excuses for the disparities but as a need to intervene.”


Yet, Federal Indian policy and tribal governments keep telling everyone that the reservations are the best places for children of tribal heritage, and mandates that tribal government has juridiction over children in cases where they are in need of care.  Why?  Are their lives less important than other children's?

The Minneapolis Star and Tribune, on April 25, 2004, offered the following statistics for one Reservation county:

*Cass County, where most of the reservation's people live, ranked last among 77 Minnesota counties in a 1999 government study that measured the health and safety of children.


*In 2002, Cass County had the state's highest percentage of children living in foster homes and other county-supervised care. Most of them were Indians from the reservation, taken away from their parents, or given up by them, because of abuse, neglect or delinquency.


*A statewide study of ninth-graders in the mid-1990s found that Cass County had the highest rate of heavy drug and alcohol use and the highest.

Yet, in 2009, a baby boy was taken by the government from his safe, loving adoptive home in Utah and placed into the care of this very reservation.  Why?  Who benefited from that move?  Certainly not the little boy! 

And if a child's heritage is as important as tribal governments keep claiming it is, why does the federal government believe that only a child's tribal heritage is important?  Most enrollable children are less than 50% Indian heritage!  Why does the tribe have a right to interfere with children that are living in homes that better reflect their full heritage?

The statistics, after ten years, must be even greater now for interracial marriage...and interracial co-habitation and interracial flings....

But this isn't about drawing a line to decide how much pedigree is necessary for tribal government to lay claim in a child.  Any American citizen, no matter what percentage of tribal heritage, has a right to say "no" and choose not to be involved in the reservation system.  Blood Quantum should not rob anyone of that right.

Roland John Morris, (passed away) was 100% Minnesota Chippewa, but did NOT believe in the Reservation system or federal Indian policy.  He believed the reservation is killing people, emotionally, spiritually, and through that - physically. Drug addiction, alcoholism, abuse, etc.

He believed Men need to feel needed by their families, and as long as government taking care of everyone - helplessness and despair reign.  

He DID fight system politically. He spoke out against federal Indian policy, the reservation system, and in particular, the Indian Child Welfare Act.  For that, he was called a racist.

- The 2000 census told us that there were 4,119,301 American Indians and Alaska Natives in the United States and 562 federally funded tribes. Approximately 75% live outside the reservation, with about 55%  residing in metropolitan areas. Only about 25% of tribal members live on reservations. Most have chosen to leave.


- Further, reservations are not populated by just tribal members. As of the 2000 Census, as much as 45% of reservation residents are non-Indian. In fact, on 30% of the reservations, the number of non-members is equal to or greater than the number of tribal members. The incidence of inter-racial marriage is high. The Montana Supreme Court, in Skillen v. Menz, wrote, "…interracial marriages are a fact of life, and, as with other marriages, so are interracial divorces and custody disputes over the children of those marriages.

The Indian Child Welfare Act is a travesty of Justice and needs to be rescinded.

Visit  Independent Indian Press - Conservative tribal members, speaking their minds
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Independent Indian - Independent Thinking

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A new website is offering conservative tribal members the opportunity to speak up and speak out about how they really feel, without danger of tribal government finding out who they are.

The Independent Indian Press went online in April 2010 and is already getting attention.

Unfortunately, there are few Indian papers that people can write conservative thoughts freely in.  Most local Indian papers are owned or run by Tribal governments that only allow things to be printed that make them look good.  There are some that are independent, but if they get funds from the tribal government, they also toe the line and don't say much that the tribal council wouldn't like. 

Up until last year, people were able to speak up freely in the Native American Press / Ojibwe News out of Bemidji, Minnesota. The owner/editor, Bill Lawrence, understood the pressures people had on them to remain silent about things going on in Indian Country, so he allowed people to be printed anonymous.  He ususally knew who they were, and why they had to hide their names.  By doing that, he enabled people to come forward with their stories of tribal government corruption and opression. He encouraged them to bring documentation with them, which he happily copied and printed in the paper.

According to the Star & Tribune in 2009,

"Former U.S. Attorney for Minnesota David Lillehaug led a wide-ranging prosecution of tribal leaders in the 1990s, which culminated in prison terms for White Earth Chairman Darryl (Chip) Wadena, Leech Lake Chairman Alfred (Tig) Pemberton and former Leech Lake attorney and State Sen. Harold (Skip) Finn. All three were targets of Lawrence’s reporting.
“Bill Lawrence and the Native American Press performed a valuable service in identifying corruption in tribal government,” Lillehaug said. “Some of his stories provided leads for federal law enforcement, others were dry holes. But when he was right, he was really right.”

"In 2003, the Minnesota chapter of the Society of Professional Journalists awarded Lawrence its Freedom of Information Award for his legal effort to make public audits of Indian casinos, which Lawrence called “state-sanctioned monopolies that should be monitored, open and accountable.”

"Lillehaug called him “a force for transparency in tribal government.”

However, Bill became ill with cancer and after 21 years of publishing, had to close it down.  He passed away February, 2010, in Idaho.

Many were saddened losing Bill. He was a rare, wonderful gem as a human being.  We've also been saddened by the loss of one of the few outlets for free speach in Indian Country.

Bill Lawrence has passed on. The Native American Press / Ojibwe News has printed its final edition. But their legacy and what they taught lives on. 

Bill didn't want anyone to reproduce the paper. He said it was too hard to make any money from it, and with the Newspaper industry on the decline, it will only get worse.

So the Independent Indian Press has gone online, instead, to hopefully fill the hole left behind.  The point isn't to make money, but to provide an outlet for people to speak freely and honestly.
This site is "open to the writings of Tribal Members and those that love them for the purpose of standing up for Conservative Values, the US Constitution and freedom from over-reaching government."

You can visit it, and submit writing, at Independent Indian Press
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Case Law for Existing Indian Family Doctrine

.Holyfield - the first case in which the federal high court has construed ICWA,

Mississippi Choctaw Indian Band v. Holyfield, 490 US 30 (1989) Docket No. 87-980, Argued January 11, 1989, Decided April 3, 1989, CITATION: 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989),

DISCUSSION: I A The Indian Child Welfare Act of 1978 (ICWA), 92 Stat. 3069, 25 U.S.C. 1901-1963, was the product of rising concern in the mid-1970's over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.

Dissenting footnotes: STEVENS, J., filed a dissenting opinion, in which REHNQUIST, C. J., and KENNEDY, J., joined.

[ Footnote 8 ] The explanation of this subsection in the House Report reads as follows: "Subsection (b) directs a State court, having jurisdiction over an Indian child custody proceeding to transfer such proceeding, absent good cause to the contrary, to the appropriate tribal court upon the petition of the parents or the Indian tribe. Either parent is given the right to veto such transfer. The subsection is intended to permit a State court to apply a modified doctrine of forum non conveniens, in appropriate cases, to insure [490 U.S. 30, 61] that the rights of the child as an Indian, the Indian parents or custodian, and the tribe are fully protected." Id., at 21. In commenting on the provision, the Department of Justice suggested that the section should be clarified to make it perfectly clear that a state court need not surrender jurisdiction of a child custody proceeding if the Indian parent objected. The Department of Justice letter stated:

"Section 101(b) should be amended to prohibit clearly the transfer of a child
placement proceeding to a tribal court when any parent or child over the age of
12 objects to the transfer." Id., at 32.

Although the specific suggestion made by the Department of Justice was not in fact implemented, it is noteworthy that there is nothing in the legislative history to suggest that the recommended change was in any way inconsistent with any of the purposes of the statute.

[ Footnote 9 ] Chief Isaac elsewhere expressed a similar concern for the rights of parents with reference to another provision. See Hearing, supra n. 1, at 158 (statement on behalf of National Tribal Chairmen's Association)

("We believe the tribe should receive notice in all such cases but where the
child is neither a resident nor domiciliary of the reservation intervention
should require the consent of the natural parents or the blood relative in whose
custody the child has been left by the natural parents. It seems there is a
great potential in the provisions of section 101(c) for infringing parental
wishes and rights").

But when an Indian child is deliberately abandoned by both parents to a person off the reservation, no purpose of the ICWA is served by closing the state courthouse door to them. The interests of the parents, the Indian child, and the tribe in preventing the unwarranted removal of Indian children from their families and from the reservation are protected by the Act's substantive and procedural provisions. In addition, if both parents have intentionally invoked the jurisdiction of the state court in an action involving a non-Indian, no interest in tribal self-governance is implicated. See McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 173 (1973); Williams v. [490 U.S. 30, 64] Lee, 358 U.S. 217, 219 -220 (1959); Felix v. Patrick, 145 U.S. 317, 332 (1892).


In Bridget R. -In re Bridget R. (1996) 41 Cal.App.4th 1483 (Bridget R.). January 19, 1996 , LLR No. 9601041.CA, Cite as: LLR 1996.CA.41 - The Pomo Twins

[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.

[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.)


In re Alexandria Y.
(1996) 45 Cal.App.4th 1483, -

which applied the "existing Indian family doctrine" to a proceeding to terminate parental rights and implement a pre-adoptive placement.

...., the Fourth District held that "recognition of the existing Indian family doctrine [was] necessary to avoid serious constitutional flaws in the ICWA" (In re Alexandria Y., supra, 25 Cal.App.4th at p. 1493), and held that the trial court had acted properly in refusing to apply the ICWA "because neither [the child] nor [the mother] had any significant social, cultural, or political relationship with Indian life; thus, there was no existing Indian family to preserve." (Id. at p. 1485.)

The court observed that not only did neither the mother nor the child have any relationship with the tribe, but also that the father was Hispanic, and that the child was placed in a preadoptive home where Spanish was spoken. "Under these circumstances," the court commented, "it would be anomalous to allow the ICWA to govern the termination proceedings. It was clearly not the intent of the Congress to do so." (Id. at p. 1494.)


From Santos y,
In re SANTOS Y., a Person Coming Under the Juvenile Court Law, In re Santos Y. (2001) , Cal.App.4th [No. B144822. Second Dist., Div. Two. July 20, 2001.]

“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, "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).”

The court paid "particular attention to In re Bridget R., and quoted from Bridget R.'s due process and equal protection analysis at relative length.”

They also said, “We do not disagree with the proposition that preserving Native-American culture is a significant, if not compelling, governmental interest. We do not, however, see that interest being served by applying the ICWA to a multi-ethnic child who has had a minimal relationship with his assimilated parents, particularly when the tribal interests "can serve no purpose which is sufficiently compelling to overcome the child's right to remain in the home where he . . . 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." (In re Bridget R., supra, 41 Cal.App.4th at p. 1508.)”

Finally, Santos states, "Congress considered amending the ICWA to preclude application of the "existing Indian family doctrine" but did not do so.”

RE: Santos Footnotes, - Existing Family Doctrine:

¬FN 15. Accepting the doctrine: Alabama (S.A. v. E.J.P. (Ala.Civ.App. 1990) 571 So.2d 1187); Indiana (Matter of Adoption of T.R.M. (Ind. 1988) 525 N.E.2d 298); Kansas (Matter of Adoption of Baby Boy L. (Kan. 1982) 643 P.2d 168); Kentucky (Rye v. Weasel (Ky. 1996) 934 S.W. 2d 257); Missouri (In Interest of S.A.M. (Mo.App. 1986) 703 S.W.2d 603); New York (In re Adoption of Baby Girl S. (Sur. 1999) 690 N.Y.S. 2d 907); Oklahoma (Matter of Adoption of Baby Boy D. (Ok. 1985) 742 P.2d 1059); Tennessee (In re Morgan (Tenn.Ct.App. 1997) WL 716880); Washington (Matter of Adoption of Crews (Wash. 1992) 825 P.2d 305).

Rejecting the doctrine: Alaska (Matter of Adoption of T.N.F. (Alaska 1989) 781 P.2d 973); Idaho (Matter of Baby Boy Doe (Idaho 1993) 849 P.2d 925); Illinois (In re Adoption of S.S. (Ill. 1995) 657 N.E.2d 935); New Jersey (Matter of Adoption of a Child of Indian Heritage (N.J. 1988) 111 N.J. 155, 543 A.2d 925); South Dakota (Matter of Adoption of Baade (S.D. 1990) 462 N.W.2d 485); Utah (State, in Interest of D.A.C. (Utah App. 1997) 933 P.2d 993.)
United States Code Title 25 - Indians Chapter 21 - Indian Child Welfare

§ 1911. Indian tribe jurisdiction over Indian child custody proceedings(b) Transfer of proceedings; declination by tribal Court: In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe.


(Ftn 1) "The 2000 Census indicated that as much at 66 percent of the American Indian and Alaska Native population live in urban areas," the Senate Indian Affairs Committee wrote in a views and estimates letter on March 2 2007. http://www.indianz.com/News/2007/001803.asp
(ftn2) 14th Amendment, Section 1: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and therefore have all the privileges or immunities of citizens of the United States. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

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Jewish relative keeps custody of Indian kids

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But it's not always a slam-dunk...

SEATTLE POST-INTELLIGENCER
http://seattlepi.nwsource.com/local/80121_grandmom26.shtml

Jewish relative keeps custody of Indian kids
Friday, July 26, 2002By PAUL SHUKOVSKY

The state Supreme Court ruled yesterday that a Jewish grandmother will be allowed to continue raising her Native American grandchildren in her Tacoma home despite assertions from the mother that the children should be with her.

In a legal battle that balanced cultural protections for Indian families and tribes with the best interests of the children, the court ruled that transferring custody to the mother "would likely result in serious emotional and potentially physical damage to the children."

In 1992, Rebecca Johnston, an Alaskan Indian, and her boyfriend, Mark Mahaney, were living in Anchorage and both were struggling with the ravages of alcohol abuse, according to court documents. That March, they sent their two toddlers to live with their grandmother Erika Mahaney, also of Anchorage. The next year, they gave temporary legal custody to the grandmother, who moved with the youngsters to Tacoma.

The girl, now about 14, and the boy, about 12, have been living with their grandmother ever since and have been raised Jewish, attending Hebrew school and taking Yiddish lessons. The girl, according to court records, describes herself as being Jewish.

Over the years, Rebecca Johnston has made several attempts to regain custody of her children, asserting that she can give them a stable home environment.

An attempt to regain custody in 1994 failed when Erika Mahaney obtained, in Pierce County Superior Court, a temporary non-parental custody order.

Erika Mahaney told the court that the children suffered from "the effects of sexual abuse, domestic violence, general neglect and abandonment" while under their mother's care.

Johnston denied allegations that she used illegal drugs, and accusations from the girl that she sexually abused her. Johnston admits that she saw her younger brother sexually molest both children. In addition, she spent time behind bars after convictions for driving while intoxicated.

The children have been diagnosed with fetal alcohol syndrome, attention deficit-hyperactivity disorder, post-traumatic stress disorder and other behavioral disorders associated with sexual abuse.

The court ordered that it was in the best interest of the children for the grandmother to retain custody.

Johnston brought her custody battle to the state Court of Appeals in 1999, asserting that under the federal Indian Child Welfare Act, the Superior Court had not evaluated the evidence against her using the "clear and convincing standard" listed in federal Bureau of Indian Affairs guidelines.

And she said that under the law, an expert versed in Indian culture should have been involved in evaluating the evidence against her.

The Indian Child Welfare Act was enacted in 1978 "to promote the security and stability of Indian tribes" while protecting the best interests of Indian children. The law gives a clear preference for keeping Indian children with their families and placing Indian children who must be removed from their homes within their own families or Indian tribes.

The appellate court agreed with the mother and overturned the trial court ruling. The grandmother then brought the case to the Supreme Court.

Yesterday, the Supreme Court handed Mahaney a victory by overturning the court of appeals ruling.

Saying that the guidelines of evaluating the evidence by a clear and convincing standard do not have the effect of law, the court held that the Indian Child Welfare Act does not replace the mandate of Washington state law requiring that the best interests of the child be paramount.

"Even where there is no showing of present parental unfitness ... the court may take into consideration emotional and psychological damage from prior unfitness. Moreover, in the case before us, the court is entitled to examine the lack of a bond to the parent and the presence of a bond to the children's grandmother, who has been their parent figure for most of their lives."

The court also noted that under the Indian Child Welfare Act, placement with a grandmother, even a non-Indian, is contemplated as appropriate.

The justices quoted the trial lawyer who said that "transferring custody to (the mother) would likely result in serious emotional and potentially physical damage to the children."
The high court also held that there is no need for an expert witness to have special knowledge of Indian life if the testimony does not inject cultural bias or subjectivity into the proceedings.
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Does the ICWA Serve Children's or Government's Welfare?

The following is excerpted from a letter written five years ago to Senator Ben Nighthorse Campbell and other members of the Senate Committee on Indian Affairs by a foster mother. Senator Campbell never responded. This letter, and lack of response, mirror the frustrations and despair of parents, foster parents, extended family, and adoptive parents all over the United States:

Senator Campbell,

We are white foster parents to an Indian child who is just over 3 1/2 years old. He has been in our home since he was 18 months old, over 2 years. His birth mother, a member of an Indian tribe, voluntarily placed him in foster care with county Social Services in December 1997.

In January 2000 the tribe moved to take jurisdiction of the case because the county had filed for termination of parental rights. The Tribal Chairman wrote the county in late October 1999 suggesting that the tribe would prefer that the county seek long term foster care for the child rather than termination and adoption. The county, because of the Adoption and Safe Families Act of 1997, was unable to meet the tribe's request. It was only then that the tribe filed its motion to have jurisdiction transferred.

In the county DSS case file are at least two psychological profiles that indicate the child's interests are best served by remaining in a stable, familiar environment. There are also psychological reports that indicate that contact between the child and his mother are harmful to the child, that the birth mother has reached a developmental "ceiling" of around 9 -12 years of age, and that she'll never be able to care for the child (The Tribal Court has ordered that visitation between the child and his birth mother resume).

We understand the importance of the Indian Child Welfare Act. However, we have a very difficult time understanding how the Act is benefiting this child. As it stands, because of the Act, he's about to lose his home, his family, his stability, his security. He sees a speech therapist twice weekly, an occupational therapist twice weekly and a mental health therapist bi-weekly. Tribal Social Services, if it can't find an Indian home willing to take this special needs child for the next 15 years, will begin looking for a series of short-term placements. Do you really believe that this is in his best interest? To be shuffled from foster home to foster home to foster home for the next 15 years?
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What is a Qualified Expert Witness?

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Qualified Expert Witness:

According to Chief Judge-Sisseton-Wahpeton Sioux Tribal Court, Director-Northern Plains Tribal Judicial Institute-University of North Dakota Law School*, three stages of ICWA contain a requirement of qualified expert testimony to support state court action - foster care placement, termination of parental rights and deviating from the foster care and adoptive placement preference due to the extraordinary needs of the child. 25 U.S.C. SS1912(e); 1912(f), BIA Guidelines, F. 3 at 67594. The failure to produced qualified expert witness testimony may vitiate any proceedings held in state court. See In re. K.H., 981 P.2d. 1190 (Mont. 1999); Doty-Jabbar v. Dallas County, 19 S.W.3d 870 (Tex. App. 5th Dist. 2000). The ICWA does not define, "Qualified Expert Witness."

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

The Guidelines: D.4. Qualified Expert Witnesses

(a) Removal of an Indian child from his or her family must be based on competent testimony from one or more experts qualified to speak specifically to the issue of whether continued custody by the parents or Indian custodian is likely to result in serious physical or emotional damage to the child.

(b) Persons with the following characteristics are most likely to meet the requirements for a qualified expert witness for purposes of Indian child custody proceedings:

(i) A member of the Indian child's tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization and childbearing practices.

(ii) A lay expert witness having substantial experience in the delivery of child and family services to Indians, and extensive knowledge of prevailing social and cultural standards and childbearing practices within the Indian child's tribe.

(iii) A professional person having substantial education and experience in the area of his or her specialty.

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

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

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

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


QUESTIONS:

If a child is 1/2 Hispanic and has been raised in a Hispanic community, speaking Spanish, does the prevailing social and cultural standards of the tribal community still take precedence in the placement of that child?

What if the child is 9/10 tribal, but his parents simply chose to raise him in an alternate community with alternate standards and customs?

What is the "tribal community?" If the child lives in an inner city tribal Community, would that then be the child's tribal community? Does an inner city tribal community have the same customs, cultural standards and child rearing practices as a closed reservation does?

Wouldn't a witness be more qualified and expert in the well being of the child if the witness understood the community in which the child has been raised and the community within which the family exists, rather than the community in which the tribe exists?

Who is the Expert Witness testifying for?
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Iowa Supreme Court Tossed "Indian Child" Definition

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From:

Jennifer Delgado - The Daily Iowan
Issue date: 12/11/07 Section: Metro

The Iowa Supreme Court ruled Nov. 30 (2007) that the state's definition of an "Indian child" is an ethnic classification breaking the 14th Amendment equal-protection clauses in both state and federal Constitutions.

In the future, Iowa will have to come up with a new definition of what constitutes an "Indian child" - one that could possibly be based on tribal membership, UI law Professor Ann Estin said.

The decision comes after a custody case that began in Woodbury County, Iowa, involving two children born in Sioux City. The state removed the children from their home because of their parents' record of substance abuse. Their mother is a member of the Winnebago tribe; their father is white.

The Winnebago tribe, located in northeastern Nebraska, tried to intervene in the custody proceedings, claiming the children fit the definition of "Indian child" under Iowa law and should be returned to the tribe. But because of this new ruling, the tribe cannot legally get involved in the custody battle.

In the Winnebago tribe, children of members are only eligible for membership if they have at least one-fourth degree Winnebago blood - the two children are only one-eighth degree.

In 2004, the Winnebago tribe passed a resolution stating that the offspring are seen as "children of the Winnebago tribal community" because their mother is a member.

"The Winnebago tribe tried to establish this definition, but the court won't let it fly," said Estin, who teaches Indian law.

According to the Iowa Indian Child and Welfare Act, any unmarried Indian who is under the age of 18 or a child who is under 18 that an Indian tribe identifies as a child of their community. Enacted in 2003, its purpose is to clarify state procedures and policies for the federal act. Estin said she believes this ruling is not a step backwards because the federal legislation is still in place, which trumps the state legislation. The 1978 federal law is similar to the Iowa statue but includes Indians who are eligible for membership and who are biological children of a tribal member.' Estin said a law based on ethnicity is difficult to uphold, and the Iowa statute has gone beyond the federal law.

"The biggest problem is Iowa's definition of an Indian child is it turns on the child's ethnicity," she said. "If Iowa wants to revise the Iowa Indian Child and Welfare Act, it has a clear signal from the Supreme Court that it's going to have to have some tie to tribal membership."
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ICWA Case Law & other Authority

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Cases:
Adoption of Lindsay C. (1991) 229 Cal.App.3d 404, 280 Cal.Rptr. 194
Doe v. Hughes, Thorness, Gantz, et al. (Alaska 1992) 838 P.2d 804
In re Alexandria Y. (1996) 45 Cal.App.4th 1483, 53 Cal.Rptr.2d 679
In re Alicia S. (1998) 65 Cal.App.4th 79, 76 Cal.Rprt.2d 121
In re Baby Girl A. (1991) 230 Cal.App.3d 1611, 282 Cal.Rptr. 105
In re Brandon M. (1997) 54 Cal.App.4th 1387, 63 Cal.Rptr.2d 671
In re Bridget R. (1996) 41 Cal.App.4th 1483, 49 Cal.Rptr.2d 507
In re Charloe (Ore. 1982) 640 P.2d 608
In re Crystal K. (1990) 226 Cal.App.3d 655, 276 Cal.Rptr. 619
In re Crystal R. (1997) 59 Cal.App.4th 703, 69 Cal.Rptr.2d 414.
In re Derek W. (1999) 73 Cal.App4th 828, 86 Cal. Rptr.2d 742.
In re Desiree F. (2000) 83 Cal.App.4th 460, 99 Cal.Rptr.2d 688
In re John V. (1992) 5 Cal.App.4th 1201, 7 Cal.Rptr. 629
In re Jonathan D. (2001) 92 Cal.App.4th 105, 111 Cal.Rptr.2d 628.
In re Julian B. (2000) 82 Cal.App.4th 1337, modified by 83 Cal.App.4th 935A, 99 Cal.Rptr.2d 241
In re Junious M. (1983) 144 Cal.App.3d 786, 193 Cal.Rptr. 40
In re Kahlen W. (1991) 233 Cal.App.3d 1414, 285 Cal.Rptr. 507
In re Krystle D. (1994) 30 Cal.App.4th 1778, 37 Cal.Rptr.2d 132
In re Larissa G. (1996) 43 Cal.App.4th 505, 51 Cal.Rptr.2d 16
In re Laura F. (2000) 83 Cal.App.4th 583, 99 Cal.Rptr.2d 859
In re Letitia V. v. Superior Court (2000) 81 Cal.App.4th 1009, 97 Cal.Rptr.2d 303
In re Levi U. (2000) 78 Cal.App.4th 191, 92 Cal.Rptr.2d 648
In re Marinna J. (2001) 90 Cal.App.4th 731, 109 Cal.Rptr 2d 267
In re Matthew Z. (2000) 80 Cal.App.4th 545, 95 Cal.Rptr.2d 343
In re Michael G. (1998) 63 Cal.App.4th 700, 74 Cal.Rprt.3d 642
In re Pedro N. (1995) 35 Cal.App.4th 183, 41 Cal.Rptr.2d 507
In re Pima County Juvenile Action (Ariz. 1981) 635 P.2d 187
In re Richard S. 54 Cal.3d 857, 2 Cal.Rptr.2d 2
In re Riva M. (1991) 235 Cal.App.3d 403, 286 Cal.Rptr. 592
In re Robert T. (1988) 200 Cal.App.3d 657, 246 Cal.Rptr. 168
In re Santos Y. (2001) 92 Cal.App.4th 1274, 112 Cal.Rptr.2d 692, review denied (Feb. 13, 2002)
In re Wanomi P. (1989) 216 Cal.App.3d 156, 264 Cal.Rptr. 623
In re William G., Jr. (2001) 89 Cal.App.4th 423, 107 Cal.Rptr.2d 436
Mississippi Choctaw Indian Band v. Holyfield (1989) 490 U.S. 30, L.Ed.2d 29
Morton v. Mancari (1974) 417 U.S. 535
Native Village of Venetie I.R.A. Council v. State of Alaska (9th Cir. 1991) 944 F.2d 548
Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49
Slone v. Inyo County (1991) 230 Cal.App.3d 263, 282 Cal.Rptr. 126
State Ex Rel. Juvenile Dept. of Lane County v. Shuey (Ore.1993) 850 P.2d 378

Cases (de-published or partially unpublished on ICWA issue):
In re Adam N. (2000) 101 Cal.Rptr.2d 181
In re Bettye K.(1991) 285 Cal.Rptr. 633
In re Carlos G. (1999) 88 Cal.Rptr.2d 623
In re Jacqueline L. (1995) 39 Cal.Rptr.2d 178
In re Santos Y. (2001) 110 Cal.Rptr.2d 1
In re Se.T. (2002) 115 Cal.Rptr.2d 335

Statutes and Other Authority (Specific to Indians):
Indian Child Welfare Act of 1978, 25 U.S.C. §§1901 et seq.
Indian Child Welfare Act Regulation, 25 C.F.R. Part 23.
Indian Child Welfare Act, Legislative History, H.R. Rep. 95-1386, 95th Cong.2d Sess. 22, 1978 U.S. Code Cong. & Admin. News 7530.

Bureau of Indian Affairs Guidelines for State Courts: Indian Child Custody Proceedings, 44 Fed.Reg. 67584 (Nov. 26, 1979)
California Family Code
Section 7810 [Calif. declaration of policy, existing Indian family doctrine abrogated.]
California Welfare and Institutions Code
Section 305.5 [Transfer to Tribe after reassumption of exclusive jurisdiction.]
Section 360.6 [Calif. declaration of policy, existing Indian family doctrine abrogated.]
Section 11401(e) [AFDC-FC for Indian placements.]
Section 10553.1 [Director’s delegation agreement with Indian Tribe.]

Cal. Rules of Court
Rule 1410 - Persons present.
Rule 1412 (I) - Tribal representatives.
Rule 1439 - Indian Child Welfare Act.
Manual of Policies and Procedures, California Department of Social Services, §31-515 et seq - Indian Child Welfare Act.
Manual of Policies and Procedures, California Department of Social Services, §45-101; §45-202, §45-203. [Implementing section 11401(e).]
SDSS All County Letter No. 89-26, Procedures for Certifying Indian Blood for Children in Adoption Planning.
SDSS All County Letter No. 95-07, AFDC-FC Program Eligible Facility Requirements.
Appeal of William Stanek, 8 Indian L.Rep.5021 (April 1981)(decision of the Commissioner of Indian Affairs.) [p. 3.]
.