Are Indians Protected by the Constitution?

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Reflections on the Chocktaw Decision (1998) (emphasis by Blog author)
By Dr. William Allen

In a major decision delivered earlier this month, the Supreme Court held that Indian parents have no rights over their offspring that the federal courts will protect. The case was Mississippi Band of Choctaw Indians v. Holyfield, and considering its significance, it is shocking how few people have paid attention to it.

The facts of the case are uncomplicated. The mother of twins, with the consent of their natural father, elected to give birth to her children two hundred miles away from the Indian reservation where she lives. The reason: She preferred to have her children adopted off the reservation. She found willing adoptive parents in Orrey and Vivian Holyfield. Acting in concert, the natural parents arranged for the birth of the twins, respected the prescribed procedures of the law as far as they were known, and effectuated the adoption.

The case makes no suggestion of any exchange of money or other kind of consideration. The natural parents were not bribed, the children were not sold. Apparently the natural mother and father were acting on their judgment about the best interests of their children. The matter is analogous to the Mexican mother who exerts herself to give birth on American soil in order to give her child the advantage of United States citizenship.

To the untrained eye there would be nothing here to go to court about. Though unmarried, the mother and father agreed. They found willing adoptive parents. And they followed the laws applicable to U.S. citizens.

The mere fact that they were Indians, however, robbed the parents of their rights.

Standing between the wishes of the parents and the interests of the twins is the Indian Child Welfare Act (ICWA). Congress’s aim in the act was to preserve the racial integrity of Indian tribes in general and the cultural integrity of particular tribes. Congress responded to a legitimate problem—namely, how to halt the wholesale removal (especially the involuntary removal) of Indian children from tribes. But Congress’s solution came at the cost of closing state courthouses—and even federal courts if the majority on the Court is to be believed—to Indian parents and children.

In the Court’s interpretation, the Indian Child Welfare Act gives a tribe veto power over the wishes of both parents and children in custody cases.

Although Congress mandated in the law that the wishes of parents and children should be considered, and that decisions be made in the best interests of children, the act’s lodging of final authority in tribal courts, which are not even reviewable in federal courts, means that those mandates of Congress are rather prayers than orders.

How could Congress justify this closure of the federal courts to Indians? The Choctaw tribe, in its brief to the Supreme Court, sought to couch the denial of court access in the familiar language of affirmative action: “. . . . if a jurisdictional holding occasionally results in denying an Indian plaintiff a forum to which a non-Indian has access, such disparate treatment of the Indian is justified because it is intended to benefit the class of which he is a member.”

Group benefits; individual penalties—that is the recurring lesson of state-sanctioned racial preferences, benign or malign. The question is, why does the Supreme Court extend to Congress a benefit of the doubt on this affirmative action program in the first place? That is where the ambiguities of Indian law come into play.

To start, Indian law is a sub-category of American law, treated neither by the Court nor by Congress as fully comprehended within American law. Indian tribes are called “dependent sovereigns,” meaning that Congress can deal with them in their corporate capacities without regard to the effects of its actions on Indian individuals.

The ambiguity enters when one notes that Indian persons, as opposed to tribes, are also citizens of the United States—paying our taxes, participating in our elections, and defending our freedom. When, therefore, Congress and the Court abandon these brothers and sisters of our equal liberty to the rule of their tribes, Congress and the Court (and we through them) are actually withdrawing certain of the guarantees we otherwise promise and certainly expect for ourselves.

In the Mississippi case these questions of constitutional status did not arise, for the Court rightly limited itself to statutory interpretation. No constitutional questions were raised in the arguments for the case, although that may only reflect the fact that the parents were not represented there. If the Supreme Court had considered the constitutional questions involved, the decision might have been very different. A consideration of the constitutional questions involved may well have produced a Yoder-like decision, reaffirming a “charter of rights for parents.”

Yoder, of course, was the 1972 case that defended the right of the Amish community to be different by defending the right of Amish parents to guide the religious upbringing of their children. There the Court ruled that Amish parents could not be compelled to send their children to high schools because of the devastating effects such a practice would have on Amish culture. Yoder shows us how we can preserve people’s distinct cultures and ways of life by means of defending the individual rights of parents and children.

The rights of all Americans are implicated in the denial of rights to Indian parents sanctioned in Choctaw. The notion of truly sovereign tribes connected to the United States by treaty rights became untenable from the moment Indians became citizens. The granting of citizenship to Indians interested every other American in the limitations and privileges of Indian citizenship.

If American citizenship per se poses no limitation on the power of Congress to legislate away the rights of Indians, we must sooner or later expect other citizens to be brought no less surely under the so-called “plenary power” of Congress. Our Indian brothers and sisters cannot defer to the “great white father” without making the rest of us equally vulnerable. The problem highlighted by enforcement of the Indian Child Welfare Act illustrates the foolishness of preserving “independent” tribes within “subordinate” states. We were better off when the tribes were entirely and truly sovereign.

[1] Published in the Okanogan County Chronicle (Omak, WA), August 2, 1998.
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THE NEW RACISM: William B. Allen's thoughts on ICWA -

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Excerpt from Dr. William Allen's article "The New Racism." (emphasis is Blog Author's)

Dr. Allen is a Professor of Political Science, Department of Political Science; Michigan State University as well as the former Chairman, United States Commission on Civil Rights, August 8, 1988 to October 23, 1989

"...while Congress has the power to alter Indian law and practice, it also has the power to abstain from doing so. In short, Congress may treat Indians just as it pleases, and without regard to the ordinary protections other Americans take for granted. Nor has Congress failed to follow up on this opportunity.

In the very year the ICRA was ruled to be unenforceable in federal courts, Congress passed the Indian Child Welfare Act (ICWA), in which Congress made explicit the tacit premise of all our Indian policy. An Indian is as such not permitted to assert rights of American citizenship, even while Indians are almost universally admitted to citizenship whether on or off reservations. Indians vote in all of our elections; they pay our federal taxes; and they defend our liberties in the country’s wars. Indeed, Indians are dramatically subjected to the obligations of citizenship even in one case in which certain other citizens are exempted: they must pay social security taxes. Congress specifically exempted the “selfsufficient” and “independent” Amish from the need to pay social security—a privilege Indians lack altogether.

In the ICWA the Indian individual, parent and child, is subordinated to the cultural identity of the tribe. By assigning jurisdiction in child custody cases to tribal courts, whether the child and/or parent is on or off the reservation and despite their dissent in most meaningful cases, the Congress has effectively ordered that Indian children be placed specifically with regard to their race and, more importantly, that state courts in particular close their doors to Indian suitors. Congress’s express interest in preserving the integrity of Indian tribes has been executed in such a way as to destroy the integrity of individual Indians. Now is the time to repeat: Indians are almost universally American citizens. Accordingly, what this exercise of power by Congress means is that Congress is free to dispose of the persons and properties of citizens entirely on the basis of race, and without the customary safeguards of-the Constitution.

How came Congress to exercise such power over the American Indian? In a word: treaty relations! One might rightly inquire how it can be possible for the government of a free society to deal with its own citizens (and only some of them at that) by means of treaty—thereby escaping the obligation to assure the equal protection of the laws. Congress has never attempted to answer that question, preferring to hide behind the fiction that treaties executed before Indians became citizens remain in effect after they are citizens. We will not be fooled by that device, however, for we recognize that if treaty obligations persist despite and indeed at the expense of citizenship, then there is no reason assignable why Congress may not enter into treaties with any of its citizens, suitably defined in terms of group affiliation (the most accessible of which is race).

The power Congress exercises threatens not only the Indian, therefore, but every American; for it reveals a device whereby to elude the limitations of the Constitution. Given the rapid Lebanonization of American society that has been inspired by policies of racial preference, the prospect is frightening indeed. It remains now but to answer whether this development is innocent—a by-blcw stumbled across by despotic souls ever ready to aggrandize themselves?

Far from it, it is rather the natural fulfillment of that design which was originally aimed not only at the Indian but at all the United States. The architect of American Indian policy was the selfsame architect of the positive good school of slavery, and the theoretical argument that republican government was inefficacious and should be replaced by government on the model of rationally distinguished interests or cultures engaging in mutual bargaining for the sake of their respective members. The affirmative action regime is not new; it was invented in the 19th century. The Indian policy is only the most advanced stage of the affirmative action regime a glimpse of the future that awaits us.

The 1824 Secretary of War who invented the Bureau of Indian Affairs by his own fiat, and laid out the guidelines of a government serving as a “great father,” in fact bequeathed to us what today we falsely recognize as the “new racism.” It is, in fact, the racism of yesteryear, rejecting in its principle, as it was designed to do, the central tenet of Americanism, the belief in self-government.

Behold the examples of even our most recent policy decisions. See how these decisions aggrandize the power of the state at our expense, and all in the purported service of the new regime. Then inquire anew whether we should not quickly learn to employ George Washington’s language toward the Indian, “our brother,” thence springing to his defense as the surest means to defend ourselves....

Grandparents, Hurt by ICWA, write:

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"We are in a situation where we have a daughter-in-law who is 1/8 (tribal) —and one grandchild 1/16 (not eligible per blood quantum), who have been become part of the Department of Human Services system.

We are the closest blood kin, as paternal grandparents, and want to provide for our 10 month old granddaughter while our son and his wife meet the requirements and hopefully reunite their family in 3 to about 9 months.

I say “hopefully” now that the... (tribe) has become involved. They say they have “rights” based upon the Indian Child Welfare Act based upon descendancy!"

... 3 years later

...We paid over $55,000 of our retirement monies because of the tribe and ICWA--

.... We had to help our daughter-in-law in the same fashion as our son, because her family/tribe did nothing but put their full force into destroying the family, and using ICWA did irraparable damage to our families in composition, financially, emotionally.

We firmly believe that when our son and wife try to begin another family, the tribe will find them and destroy whatever peace they might achieve, inventing whatever lies they might to achieve their own ends. Do I sound bitter? You bet. I need to do something constructive, but with our own situation, with illness, and now, having much less financial resources, must first try to keep our own heads above the financial waters. ...

Sincerely, (name), former grandparents of (child's name)
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"ICWA for Dummies" - Illegality of ICWA for Those That Can't Think

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Okay, some people can't wrap their brains around why what happened last week to the tiny baby who was taken away from a safe and loving home, the adoptive home of Clint and Heather Larson, and given to a foster family on the dysfunctional and dangerous Leech Lake Reservation was totally and utterly wrong.

Let me say it very slowly and clearly for those with brain dysfunction....

My husband's family is from Cass Lake, a major town on the Leech Lake Reservation. Leech Lake is very, very Dangerous to live in.

The Tribal Government ...(Get ready for this) ...Does Not Own My Children.
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Thus, this related concept:
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The Tribal Government ...(Get ready for this) ...Does Not Own Anyone's Children.
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Now, I know that many have missed the news over the last couple years. But some might still remember names and issues in the back of their heads. Names like... Abramoff and Conrad Burns, and others that, along with Illinois Governor Blagojevich, believe in the "Pay to Play" concept.
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Okay, so now I'll say this slowly.
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Tribal Governments... Get More Money Per Head. (I will post some of the many federal programs tied to tribal census figures later.)
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Thus, they Want More Heads.
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The Last Census Indicates that Many Enrollable Families are Moving AWAY From the Reservations.
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MEANING - Tribal Governments NEED Bodies in order to have Their "Sovereign Nation." If Bodies move away, they Need Some Way to Regain their Population.
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Tribal Governments...(Are you Ready?) have been spending more and more on buying Senators over the last thirty years, and currently Contribute Millions of Dollars to Federal Campaigns. (See the Open Secrets web site for documentation)
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Tribal Governments have contributed large amounts of money to federal campaigns, including those of several on the Senate Committee for Indian Affairs. Former Senator Conrad Burns is one great example of a corrupt Senator changing his mind for a price. In the 1990's, the tribes considered him one of their opponents as he rightly tried to introduce legislation to limit tribal jurisdiction over non-members. He supported our stand on ICWA. He also tried to keep the National Bison Range as a national jewel, where people of every race would have opportunity for employment.
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However, after the tribes derided and embarrassed him over the jurisdiction issue at a Billings meeting, he changed his mind. He began taking money from the tribes and was involved with Abramoff. He did a total Flip Flop on the Bison Range issue. When we went back to him about ICWA, his staff said he would never support new Indian policy legislation unless all 500 tribes agreed to it.
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We lived in Montana at the time and helped to vote him out of office, but not before he'd done damage. At any rate, he's just one example of one of our great Senators who loved money a little too much. There are many more.
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And The Tribes Have Lots of Money to Give. Research Tribal Campaign Contributions.

Now, ask yourself two questions:
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#1) WHY have so many enrollable members moved off the reservation? As for our family and many of our relatives, the answer is that The Reservation Is No Place to Safely Raise Your Children.

Some will try figure out some way to blame it on the "white man." Only trouble is, MOST Enrollable members are more white than Indian. Can you Understand that? It's easy math. Most tribes require only 1/4 blood quantum to be enrollable. SOME TRIBES have much LESS. And the Cherokee Tribe has NO required blood quantum. We have a case where tribes has been interfering with an adoption of a child with less than 2% blood quantum. (http://www.caicw.org/familystories.html)
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#2) If the Tribes have so much money to pay Congressmen with, as well as attorneys to chase children down with, why aren't they instead spending that same money on infrastructure and job growth on the reservation? What are the true priorities? Why not just develop resources and make an honest effort to move away from the federal dole? If the reservations were cleaned up, wouldn't more people want to stay there and live? How can a government call itself Sovereign when it is constantly running to the US Congress and demanding more money? Sounds like a bunch of teenagers!
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So, let me wrap this little lesson up by pointing out the obvious to those that don't understand the obvious. I will use my family as an example in order to get the point across.
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The Tribe Does NOT Own My Family - and in Particular, MY Children.
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My Children are 50% Minnesota Chippewa, but they are also 1/4 German, Jewish, and a spattering pf Irish Catholic. They have OTHER relatives than just those on the reservation.
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MOST enrollable children have relatives of other heritage.
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In fact, my enrollable children have German Jewish relatives that died at Auschwitz.
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So tell me Brainiacs. why my children's Native American heritage is more important than their Jewish, Irish, or Scottish heritage. Tell me why in the world the state of Minnesota has passed a law last year that says that suggests tribal heritage is more important, and that the Minnesota tribes have jurisdiction over any enrollable child, even if the child and his family don't want to be involved with the tribe and has never had any contact or relationship with the tribe.
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That law affects not only my children but my grandchildren, who will all be at least 1/4 Minnesota Chippewa.
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For every non-Indian screaming about how we have to honor Leech Lake's tribal sovereignty...why don't you move your families to Cass Lake, Minnesota. Enroll your kids in school there. Encourage them to go play at the housing tracts.
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Go ahead, hypocrites. You know darn well you wouldn't' want your children raised there. So get your nose out of my family, and quit making stupid statements as well as laws that state that MY Children belong there.
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A commenter had the nerve in an earlier post to suggest the Larson's had "kidnapped" this baby. Excuse me? Who the heck are the ones doing the kidnapping, but the tribes themselves that push federal and state legislators to give them all the rights to Our Children!
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Campbell Brown, you were RIGHT about Leech Lake. Stay Strong!

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Campbell Brown, please don't bow to the negative comments you have been recieving. I am the mother of several enrolled children of the Leech Lake Tribe, and what you said was correct!

However, whenever anyone speaks out against the obvious happening on the reservations, they are tore limb from limb. They are bullied to make them shut up, and that is exactly what is happening to you. I know this because it has has happened me and even to my husband, who was a member of the Minnesota Chippewa Tribe - Leech Lake, born and raised on Leech Lake Reservation. He spoke out because he was tired of watching his friends and relatives die. He knew that it was the reservation system itself that was destructive to them. He took our entire family and moved 1200 miles away and became politically active in an effort to bring change, happiness and hope to the people he loved.

However, getting any word out that is contrary to the image that the tribal government (industry?) chooses to project is very difficult. Although my husband went to Washington DC several times to speak to Congressmen, it was very hard as a small person to combat the lobbying the tribes do. Remember Abramoff?

Senator Burns' staff, (he was our Senator at the time), told me that the only way he would ever agree to any legislation changing Indian law is if all 500 tribes agreed to it. Never mind what's constitutional and never mind the civil rights of millions of US citizens. Just please the tribal governments. They pay very well.

And yes, there are many constitutional attorneys and professors that say that much of Indian law is unconstitutional. Please contact me and I can refer you to some.

Look at the last US census and ask yourself why so many enrolled members have moved off the reservation. #1) life is dangerous there. #2) many enrollable people are primarily NON-indian; meaning, their blood quantums are less than 1/2 tribal heritage. They have other lives, other family, and other world views, not always the same as the tribal governents.

However, if they should die, no matter their personal choice, the tribal government has jurisdiction over their children.

Please stay strong in the truth that you spoke! Don't let them bully you!
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To Clint and Heather Larson

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Clint and Heather -
I don't want to devastate you further. I wish I could assure you that your baby will be okay, but I can't. The Leech Lake Reservation is so bad, that even my husband, a member of the Minnesota Chippewa Tribe from Leech Lake, took our kids far from it and wrote in his will that he did NOT want the grand kids that he had legal custody of (through ICWA, of course) to go back there when he died.

He passed away four years ago and how I managed to keep his grand kids is still a mystery to us. The Lord definitely had his hand in it. We imagine that the Mpls. Star and Tribe series, "The Lost Youth Of Leech Lake," which came out just two months before he passed away also brought such bad publicity to the tribe that they simply decided not to fight with us.

I strongly urge you to continue to fight for this little boy. It will be hard enough for him having to deal with the affects of having been born with substances in his system. But being in Cass Lake on top of it....

You said on the news that you want to fight to make sure this doesn't happen to any more children. We are also trying to fight for the children. I have a grandson now who, at 1/4 blood quantum, is enrollable. If anything should happen to his parents, I WILL fight the tribe tooth and nail and I WILL defy the law if it came down to it.

We would like to work with you in your battle.

Leech Lake Tribal Government Steals Child from Utah Family

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On Sunday, December 16, 2008, in South Jordon, Utah, Clint and Heather were forced to give the baby they had adopted and cared for to one of the worst reservations in the United States.

In the Spring of 2004, the Minneapolis Star and Tribune had done a series called the "Lost Youth Of Leech Lake." In it, the reporter described the horrible environment children are being raised in on that reservation, as well as the treatment of children by tribal social services.

I myself have witnessed first hand plenty the neglectful and downright dangerous treatment and care of children on that reservation, and twenty years ago, my husband, a member born and raised there, made a decision that our children weren't going to be raised anywhere near it.

It is NOT safe, and the United States Government is CRIMINAL to be forcing children to be raised there when they have the option to live in a safe and loving home.

As a matter of fact, one of the worst cases of the U.S. forcing children out of a good home and into a dysfunctional home in Leech Lake was reported in the series, the "Lost Youth of Leech Lake." It involved three little girls. That decision by the tribe - as well as every one of our US Congress that voted for this awful ICWA law - resulted in these little girls being placed in an awful home. The final result was a murder and attempted murder. And that isn't the only tragic story involving ICWA in Leech Lake.

I urge every parent with a conscience to speak up against this law. After all, you never know when it might affect you. We have adoptive families that have written to our organization, in pain and fear because the child they have adopted is being pursued by a tribe, and the child has only a small fraction of blood quantum. in one case, the child is 98% NON-Indian. We also have had birth fathers write to us when they lost custody because they weren't Indian. We've also had grandparents write because they were denied custody because they weren't Indian.

Please, check out http://www.caicw.org/familystories.html to read many letters from families affected by ICWA.
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Possible Incentives for ICWA -

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Congressional Indulgence of Tribal Government?

In 2002, Senator Max Baucus wrote in reference to a bill concerning federal recognition of tribes, "I am forced to disagree…this amendment…requires the implementation of…adversarial hearings at the request of any interested party."

In other words, Senator Baucus, a top recipient of Indian Gaming funds at the time, wasn’t interested in hearing any point of view other than that of the tribal government.

Two of former Senator Conrad Burns' aides (R-MT) also stated in meetings a year apart that Senator Burn's will not change any Indian law unless all 500+ tribes agree to it.

Since that time, it has been discovered that Senator Burns was deeply involved with lobbyist Jack Abramoff and funds coming from tribal entities.

Several other Senators have been linked to Abramoff and/or tribal funds.

Unfortunately, many families affected by ICWA can't afford to buy themselves a Senator.
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Possible Incentives for ICWA -

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Tribal Government Funding?

Ms. Scott Kayla Morrison, a member of the Mississippi Choctaw Tribe as well as an attorney specializing in Indian law, wrote in 1998, “ICWA is a money-driven program for the tribes from three perspectives: 1) federal funds generated by tribal membership; 2) federal income to fund program jobs; and 3) federal funds to administer courts adjudicating ICWA cases.

- "First, each tribal member generates $5,000 (1992) for the tribal administration from the thirteen federal agencies funding Indian programs. The more members, the more federal funds. With no blood quantum [required], [some tribes allow] a person with as little as 1/2000th (to) be enrolled as an Indian. If an Indian child is adopted by non-Indians, the tribe loses $5,000 a year for the lifespan of the child.

- “Second, federal dollars fund the ICWA program for the tribe. This generates jobs for tribal administration directly through program funds and indirectly through administrative costs. Of every federal dollar allocated by Congress, 89 cents goes to administer the Bureau of Indian Affairs. The remaining 11 cents goes to tribal administration. The Choctaw administration is allowed to take 46%, almost half or 5.5 cents, for administrative indirect costs. The remaining 5.5 cents are used to administer programs like ICWA. The more membership to serve, the more money the tribe requests that generates more jobs and more indirect costs. Allowing adoption outside the tribe cuts into the pocketbook of tribal administration.

- “Third, one purpose of a tribal court or a Code of Federal Register (CFR) Court is to adjudicate ICWA cases. The amount of federal funds allocated to the court is based on the number of cases served by the ICWA
program. The court program funds generate indirect costs and jobs.”

Ms. Morrison was correct. As a matter of fact -

- According to ACF Administration For Children and Families, U.S. Department of Health and Human Services, May 9, 2007, Child Care Bureau, Office of Family Assistance -

“Tribal Child Counts: For funds that become available in FY 2008, ACF will calculate grant awards based on the number of children under age 13. A Tribe must submit a self-certified Child Count Declaration for children under age 13 (not age 13 and under), in order to receive FY 2008 CCDF funds.

“ - Tribal Lead Agencies are reminded that CCDF funds are allocated based on child counts of children from Federally recognized Indian Tribes, consistent with the Child Care and Development Block Grant Act’s definition of Indian Tribe.”

- According to Aneva J. Yazzie, Chief Executive Officer, Navajo Housing Authority
In her testimony before the Committee on Indian Affairs, United States Senate, on Reauthorization of the Native American Housing Assistance and Self-Determination Act, July 18th, 2007, Washington, DC

“The most contentious issue facing Indian housing in the last few years has been the use of Census data to determine funding allocations. NHA has been heavily involved in this discussion because we believe this is not just a debate about how funds are allocated; it is fundamental to NAHASDA and to all Indian programs. Tribal housing must remain for tribal members and tribal members should be counted when determining funding allocations.

“…We support the use of tribal enrollment data, not Census data, to determine need under NAHASDA. Until terms of verifiable enrollment data can be agreed upon by federal government and tribal representatives, NHA urges a return to the use of single-race Census data because, while imperfect, it is the better approximation of tribal enrollment numbers.

(NOTE from Blog Author: Census data shows that NOT ALL ENROLLED MEMBERS are LIVING on the RESERVATION. Tribes would only recieve funds for members actually living on the reservation. Therefore, Tribes perfer Enrollement Numbers because THEY INCLUDE MANY WHO HAVE MOVED AWAY and who, like our family, have NO INTEREST in using tribal funds or programs.)

“… One change in federal law we would like the Committee to consider would be the elimination of the prohibition from using Indian Health Service funds in concert with NAHASDA funds… The concern that the lack of available funds means we should keep these funding streams separate may be well-intended, but it flies in the face of
Tribal self-determination.”

- According to the 2003 DOI-BIA Indian Population and Labor Force Report, mandated by order of Public law 102-477, “The Indian Employment, Training, and Related Services Demonstration Act of 1992:

- Total number of enrolled tribal members and members from other tribes who live on or near the reservation and are eligible to use the tribe’s Bureau of Indian Affairs funded services – Total 2003 Tribal enrollment - 1,923,650. 5.9% increase from 2001 labor force report, 34.7% from 1995. The 2003 increase is attributed to updated tribal rolls, improved record keeping procedures, and revisions to tribal enrollment criteria.
- Total 2003 Service population 1,587,519. 4.2% increase from 2001 labor force report. 26.0% from 1995. It is also a 216% increase over the Total Service Population reported in 1982. The 2003 Service Population increase is attributed to increased record keeping and improved data collection methods, as well as eligible Indian individuals and families who came to reside in the tribe’s service area to benefit from opportunities and services unavailable to them in off-reservation
communities.
- 562 Federally recognized tribes

- Several corporate and “at-large” Alaska tribal entities formed by the 1971 ANCS Act.

- From Indianz.com, “House panel boosts funds for Indian Programs”, Monday, June 11, 2007. accessed Aug. 30, 2007 –

- Indian Education, urban health clinics, law enforcement, and language preservation will see boosts in funding under bills advanced by the House Appropriations committee last week.
- At a markup on Thursday, the committee approved 5,7 billion for Indian programs at the Interior Department and related agencies, including the Indian Health Service….
- The bill “honors our obligations to Native American communities, making investments into better education and healthcare,” the committee said of the overall $27.6 billion package, an increase of 4.3 percent over current levels.”

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ICWA is nothing but "Routine Cruelty" - by Professor Thomas Sowell

October 30, 2001
- Mr. Sowell is currently a senior fellow at the Hoover Institute in Stanford, California.

In a world where the media are ready to magnify innocuous remarks or a minor problem into a trauma or a disaster, there is remarkably little attention being paid to cruelties routinely inflicted on children by our laws and our courts. That cruelty is ripping children away from the only home they have ever known, to be sent away -- often far away -- to be raised by strangers.
Such drastic action may be necessary when children have been abused or neglected, but kids have been seized from loving homes where there has never even been an accusation of abuse or neglect. As with so many irrational acts, race and political correctness are involved. One of the children who is currently being threatened with this fate is a little boy in California named Santos, who may be sent off to live on an Indian reservation in Minnesota, among people he has never known, speaking a language he does not understand. Moreover, the single woman who is trying to adopt him there has said that she plans to put him in day care, which he has never been in before. He has been cared for at home by a married couple since he was 3 months old. He will be 3 years old on Nov. 25.

How could such an insane situation have arisen? Easy. It is called the Indian Child Welfare Act. And it began, like so many catastrophes, with good intentions. Back in 1978, Congress passed the Indian Child Welfare Act to prevent Indian children from being removed from their families and tribes by outside know-it-alls and social engineers. So far, so good. But, once a law is on the books, it means whatever the lawyers and the courts say it means. That is how little Santos got trapped in a nightmare.

Santos is part Indian, but neither he nor his biological parents lived on a reservation or among an Indian tribe. When he was born and began suffering withdrawal because of his mother's cocaine addiction, the authorities took custody of him. He was put into a foster home with a Spanish-speaking couple whom he now regards as his parents and who want to adopt him. Santos' biological mother has shown very little interest in him -- and even that little bit of interest has not been reciprocated by Santos. He has hung up on her when she phoned and cried when she visited. The woman on an Indian reservation did not even know of Santos' existence until informed by the tribal council, which wants to claim him under the Indian Child Welfare Act. Six months later, she saw the little boy for the first time.

It gets worse. Two psychologists have become involved in the case. Shrink A has "spent approximately 10 minutes alone" with Santos, according to the California Court of Appeal in its ruling this past Oct. 19. She did not interview the couple with whom he has been living all this time, even though a Spanish-speaking social worker was available to enable her to converse with the boy's foster parents. Nevertheless, Shrink A has decided that Santos would be better off being "moved to be with his tribe and his family" on a reservation in Minnesota. This strained definition of "family" is based on the fact that the woman on the reservation is a distant relative of his mother. Incidentally, Shrink A has never interviewed this distant relative either.

Undaunted, Shrink A has said that Santos would not be "catastrophically damaged" by the change because Santos has not "bonded" with his foster parents, but has "bonded to his birth mother, who is unable to care for him." This strained definition of bonding is based on counting the time spent in his mother's womb, as well as the 9 days he spent with her after birth. A second psychologist based his conclusions on what he had actually seen, rather than on such speculations. What he saw was that little Santos clings to his foster mother and became distressed when his foster father was asked to leave the room, crying "papa, papa." At another time, when Santos was with his foster father and Shrink B wanted to see the little boy alone, Santos became "clingy" with his foster father and "hugged him tightly while exclaiming 'papa, papa.'" Little Santos has not yet been sent to Minnesota. The appellate court said that the "matter is remanded for further proceedings," which means a continuing cloud of uncertainty hanging over a little boy who has become a little pawn. How could anyone do this to him? Tragically, it has happened to many others.

- Sowell, Thomas, Routine Cruelty, October 30, 2001. Online document, available from http://www.townhall.com/columnists/thomassowell/ts20011030.shtml Accessed Monday, May 31, 2004. Reprinted with permission.

Update: Santos was legally adopted in 2003 by the foster parents who had cared for him most of his life. Their attorney was Native American.

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Another Problem with ICWA -

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Prevailing social and cultural standards of the Indian community?

Exclusive jurisdiction by the tribe is scary enough for many foster and adoptive parents, but imagine how it feels for birth parents, both tribal and non, that have chosen to raise their children outside of the tribe.

If these parents should unexpectedly die, ICWA requires that “the prevailing social and cultural standards of the Indian community in which … extended family resides…” be applied in placement preferences." 25 USC 1915(d). There is no other race in the United States who are denied parental right of choice in this way.

The question arises, “What is referred to by social and cultural standards?”

If it is referring to traditional Indian Spirituality, the 1st Amendment of the Bill of Rights states "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

If it is traditional culture that is being referred to, such as language and food gathering methods, many elders, but fewer young people, practice these on the reservations today. Many teenagers are simply not interested enough to work at the language, and few honor ancient ways of hunting, fishing or harvest that was traditionally considerate and took only what was needed for the family. Does social and cultural standards refer to a romantic image or reality?

This is not to say that there are no tribal members that practice tradition. There are. But tradition is not the current standard on most reservations. There is still interest in art and craftwork, both traditional and modern approaches, but this interest in Indian art crosses racial lines and is enjoyed all over the world. Is it for art that we are placing children under tribal jurisdiction?

If the above isn't "prevailing social and cultural standards, then what is?

Sadly, the current cultural and social standards of many reservations (not all) include gambling, gang activity, promiscuity, drug and alcohol abuse, crime, unwed pregnancies, violence in and out of the homes, and child neglect. On top of all that, there is epidemic corruption within many tribal administrations.

This is not to say that reservations alone have problems of alcoholism and corruption. All of these problems can be found in any neighborhood, anywhere. But it does appear that on some reservations, these problems are a prevailing cultural and social standard.

So just what is Congress mandating when it states that social and cultural standards of the reservation be applied?

The problem is that Congress - based on faulty assumptions concerning tribal standards - is mandating that OUR children - who aren't owned by the tribes - be raised under less than safe conditions if we are no longer able to raise them.

In mandating that the tribes have jurisdiction over OUR children, Congress is mandating that OUR children receive less concern over their best interests, and less child protection than children of other heritages would recieve under the same circumstances.

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Adoption Counselor asks a Question -

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"I am an adoption counselor at a private agency. I am working with an expectant mother who has chosen to place her baby for adoption with our agency. She and the birth father have found a family they want to raise their son and their adoption will be open. The birth mother is ¼ Native American and not an enrolled member and the birth father has no heritage. The birth mother placed two other children for adoption in the past with the tribes blessing. Now, the tribe has said they have chosen a family on the reservation to adopt this baby and they will not budge. We thought that the child had to be an enrolled member or one of the birth parents in order for a tribe to take a child – especially in a voluntary relinquishment. Do you have any information that would help us? Thank you."

Response - Disclaimer -I'm not an attorney, and the only advise I can give the couple is to get a good attorney as soon as possible. Too many families don't get an attorney right away, thinking this isn't a big deal, and it really is. They need to find a GOOD attorney that knows the law well and is able to fight for the family's rights. Encourage them not to settle with an attorney that is going to roll over for the tribe - afraid to stand up and demand that the law be followed. Too many tribes, having more money and access to attorney's than many of the low-income families in situations such as this - can be somewhat bullying, and sometimes push for their will even if it has nothing to do with the law.

.... as I understand it, one parent to another - If the mother isn't enrolled - the tribe shouldn't be able to usurp the birth family's wishes. Again, I'm NOT an attorney and am NOT giving legal advice. That's just what it seems it says - (1903 (4)

......get an attorney right away, try to keep in county or state court rather than tribal court, and if your attorney agrees, make it clear from the start that this is NOT an ICWA case, as the mother is not enrolled. Keep that mantra up. This is NOT an ICWA case. Get that nipped in the bud right away in order to get this over with quickly - with the least amount of cost.

Further - 1911 (b) "absent objection by either parent" - It seems to me that this is saying that the tribe can transfer the case to tribal court, unless one of the parent's objects. Again, I'm not an attorney - but I would tell the state court, if it were me, that I strongly object to any type of transfer.

And don't forget to pray - we've see amazing answers to prayer.

UPDATE

"Thank you so much for your quick reply. Your information has helped me understand the ICWA law. We have contacted a very good attorney.
It is clear by this tribe’s own membership code that the child must be ¼ blood quantum and have a biological parent who is a member in order to be eligible. This child is 1/8. Although I think the adoptive parents would most likely win this case, the cost of litigation (financially and emotionally) has to be seriously considered. It is so sad that the birth parents may not get their first choice in families because of this. The family has to be willing to endure thousands in court costs. Thank you so much for the work that you do. Blessings,"
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One Problem With ICWA - Qualified Expert Witness

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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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