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Showing posts with label Existing Indian Family Doctrine. Show all posts
Showing posts with label Existing Indian Family Doctrine. Show all posts

Tuesday, January 24, 2012

Delivering the Petition with 20,000 signatures to South Carolina leaders -


Reporter Haley Hernandez followed @Save_Veronica to Columbia today, look who they spoke with about the Indian Child Welfare Act ... http://ping.fm/MWk43

Delivering the Petition with 20,000 signatures to South Carolina leaders -

By: Haley Hernandez | WCBD


On New Year’s Eve, Jessica Munday watched helplessly as her close friends, Matt and Melanie Capobianco were forced to hand over their adopted little girl, Veronica, to her birth father.

Now Munday and Stephanie Brinkley (a Charleston adoption attorney) are on a mission to "save Veronica.”

“Rather than sit on the sidelines and just say ‘how sad’, I wanted to say ‘how sad, what can I do?’” Binkley said.

Tuesday they went from one government office to another, starting in Charleston and driving up to the State House in Columbia, delivering a petition from supporters of the organization.

Kathy Crawford, the district director at Congressman Tim Scott's office said it’s a shock that this could happen to a family, “a child could be taken away from the only mom and dad that they've ever known and you know, we hope that the courts will do the right thing.”

The organization delivered the petition to lawmakers with more than 20,000 signatures. In an unscheduled visit, Governor Haley spoke with Munday and Brinkley and empathized with the Capobiancos.

“If you have a child you know that's just like the precious part of your life and so my heart breaks for them, I will be happy to take this,” Gov. Haley said taking the petition. “The federal delegation and I communicate about a lot of things, because it is a federal issue doesn't mean I can't at least say "what are y’all doing about this?" so I'll be happy to ask the questions, be happy to see what's going on if anything.”

“I'm thankful that she was so receptive to us being there and so compassionate about what's happened,” Munday said after speaking with the governor.

“This is a matter that affects the people they represent, it represents a South Carolina couple and a South Carolina child and that child needs to be heard so it's great that they are receptive that we're trying to be a voice for Veronica when she can't represent herself,” Brinkley said about lawmakers listening to their concerns.

SaveVeronica.org is still taking signatures for their petition. Lawmakers said they will try to get a copy to the Senate committee that will hear the case.

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My Question: When is the Senate Committee going to hear it? I doubt they have any plans to put it on their agenda - we will need to do lots of pushing to get it there - and lots more to get a fair hearing!

20,000 Signatures on the Petition!

20,000 signatures on the SaveVeronica petition - Delivered to SC Senators @JimDeMint & @GrahamBlog today! Pic: http://ping.fm/Gn0hS

In just three weeks, over 20,000 signatures were gathered and delivered to South Carolina leaders - protesting the treatment of 2-year-old Veronica Rose and insisting that the Indian Child Welfare Act be changed to better protect children and the families that love them

Saturday, January 14, 2012

"Our Life with James" -

Please see this video - What happened to Veronica has happened to so many kids all over the US ... http://ping.fm/xwc0k SaveVeronica

This video is the story of 2-year old James, who was taken from the home that loved him and put into a dangerous home, where he was moved again from after just six months. Debra Belford is telling his story in the Senate Committee on Indian Affairs hearing room, Washington DC. Unfortunately, few were interested in hearing the story, much less doing anything about it.

Please help James and children like him - www.caicw.org

Wednesday, January 11, 2012

Today - Thursday - I am going to take the picture of Veronica and go make posters, yard signs and bumper stickers.... http://ping.fm/ov4li

Baby Veronica


A terrible injustice that has occurred to a two-year-old South Carolina child named Veronica Rose and her adoptive parents. Two years ago Veronica’s Latina birth mother chose Matt and Melanie to love, nurture and raise her child. To this day, Veronica’s birth mother remains committed to her decision and Veronica has been a thriving, happy child residing in a stable, nurturing environment. On or around Jan. 4, 2010, the birth father signed papers agreeing to give up his daughter.

However, because Veronica has some Cherokee heritage from her birth father’s side of the family, the Cherokee Nation intervened in the adoption proceedings and argued that this happy, healthy two-year-old be transferred to her birth father. Because of a federal law known as the Indian Child Welfare Act, a family court judge ruled that she be immediately transferred to her biological father.

The ruling placed the rights of the birth father and tribe above the best interests of this small child. Child-bonding experts agree that removing her from her home and family would be devastating and have long-lasting consequences. Numerous child psychologists stated this would be detrimental to any child. Yet on Dec. 31, Veronica was handed over to her biological father as if a possession without rights.


(Psychologist who witnessed Veronica's transfer comments on the detrimental effects -Click Baby Veronica to hear an audio of the interview.)

We believe that children need protection and should not be removed from loving, nurturing environments. We understand the premise of this law is to protect children; however, in Veronica’s case it has been used inappropriately.

Former U.S. senator Jim Abourezk (SD) authored ICWA. According to the Charleston Post and Courier, after reviewing Veronica's story, Abourezk called the interpretation in this case "something totally different than what we intended at the time."

"That's a tragedy," he said. "They obviously were attached to the child and, I would assume, the child was attached to them."

According to the 2000 census, approximately 75% of people claiming to have American Indian or Alaska Native ancestry live outside the reservation. Further, interracial marriages are a fact of life. It is must be recognized that most children of heritage live off the reservation and have extended family that are non-tribal. Though supporters of the Indian Child Welfare Act say it has safeguards to prevent misuse, Veronica and numerous other multi-racial children across the U.S have been hurt by it. Children who have never been near a reservation nor involved in tribal customs are affected. The Cherokee Nation alone is currently tied up in about 1,100 active Indian Child Welfare cases involving some 1,500 children.

Tragically, under the Indian Child Welfare Act:

1) Some children have been removed from safe, loving homes and placed in danger
2) Equal opportunities for adoption, safety and stability are not always available to children of all heritages
3) The Constitutional right of parents to make life choices for their children, for children of Indian heritage to associate freely, and for children of Indian heritage to enjoy Equal Protection has in some cases been infringed upon.

We want more than anything for Veronica to be allowed to come home. As our elected representatives, we urge you to protect Veronica’s rights in all possible ways as well as make legislative changes that will prevent this from happening to any other child again. While we understand you are unable to interfere in court proceedings, we ask you to speak out on this issue and let your constituents know clearly where you stand. We also ask you to sponsor legislation and encourage fellow Congressmen to support the amending of the Indian Child Welfare Act to:

1. Guarantee protection for children of Native American heritage equal to that of any other child in the United States.
2. Guarantee that fit parents, no matter their heritage, have the right to choose healthy guardians or adoptive parents for their children without concern for heritage.
3. Recognize the "Existing Indian Family Doctrine” as a viable analysis for consideration and application in child custody proceedings. (See In re Santos Y, In Bridget R., and In re Alexandria Y.)
4. Guarantee that United States citizens, no matter their heritage, have a right to fair trials.
• When summoned to a tribal court, parents and legal guardians will be informed of their legal rights, including USC 25 Chapter 21 1911 (b)“…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…”
• Under the principles of comity: All Tribes and States shall accord full faith and credit to a child custody order issued by the Tribe or State of initial jurisdiction consistent within the UCCJA – which enforces a child custody determination by a court of another State – unless the order has been vacated, stayed, or modified by a court having jurisdiction to do so under Article 2 of the UCCJA.

5. Include well defined protections for Adoptive Parents.
6. Mandate that a "Qualified expert witness" be someone who has professional knowledge of the child and family and is able to advocate for the well being of the child, first and foremost.
7. Mandate that only parents and/or legal custodians have the right to enroll a child into an Indian Tribe. Because it is claimed that tribal membership is a political rather than racial designation, we are asking that parents, as U.S. citizens, be given the sole, constitutional right to choose political affiliation for their families and not have it forced upon them.
• Remove the words “or are eligible for membership in” 1901 (3)
• Remove the words "eligible for membership in" from 1903 (4) (b), the definition of an ‘Indian child’ and replace with the words "an enrolled member of”

Save Veronica Supporters Worldwide
www.saveveronica.org
www.facebook.com/saveveronicarose
www.twitter.com/save_veronica

Tuesday, January 10, 2012

"Save Veronica" Video -

'Save Veronica' video is now featured on CAICW You Tube Channel - http://ping.fm/JdpRk

Tuesday, January 3, 2012

ICWA was used to take VERONICA. Please help this baby Girl return home: follow @Save_Veronica & share this petition! http://ping.fm/ERUKM

Friday, December 30, 2011

Prayer for Veronica -

Today- "The judge denied our stay. They are taking her Sunday @ noon...nothing gradual" - PLEASE pray for a miracle for this family!

Saturday, November 20, 2010

"They just took my baby after 3 years...her sobbing is forever etched in my soul."

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Friends of a family that lost their 3-yr-old to the ICWA law Friday night are signing and sharing CAICW's online petition to rescind the Indian Child Welfare Act. CAICW has gotten dozens of new signatures in the last 24 hours.

The adoptive mother had made her first contact with CAICW on Facebook about 1am Saturday morning, only hours after she had lost her little girl....
"They just took my baby after 3 years...her sobbing is forever etched in my soul. She wanted us to save her and we couldn't..devastated."
She then wrote to friends:
"Please sign this petition..the despair on her face pushes me to help destroy this law. She didn't want to go and was looking for us to protect her and we couldn't...I can't remember ever feeling so worthless."
Saturday, November 20th, was National Adoption Day. On this day, a small girl, denied the right to be adopted by the only mother she'd ever known, spent the first day in her memory in foster care, frightened and alone amongst strangers. She was denied the right to be adopted solely because of her heritage. In America, having even a small bit of Indian heritage can mean not having the same rights and opportunities for adoption that other children receive.

Saturday, November 20th, was also her adoptive mother's birthday. Her mother wrote on Facebook, thanking her friends for their love and prayers, and said that the best gift was people signing the petition.

I am so glad that CAICW happened to get that petition up just before her birthday. Maybe it helped give her small hope - something she can do to fight back - on a day she describes as the worst in her life.

I pray - pray - that CAICW can somehow be used to help. I pray for God's miraculous intervention right now, even though things seem impossible. Please pray with me. Thanks -

- Please see these sites for more information, and please share these important links:

Sign the Petition: http://apps.facebook.com/causes/petitions/559?m=1a237008


Read Letters from Families: http://www.caicw.org/familystories.html

ICWA Case Law: http://www.caicw.org/caselaw.html


CAICW Facebook 'Cause' page: (Advocacy, Petition, support for families) http://www.causes.com/causes/537834

The “Fund Attorney Retainers for 10 Families” Drive began on National Adoption Day, November 20, 2010 ~ and ends on December 31, 2010.~ The Fund website can be found through FirstGiving.com at ~ http://www.firstgiving.com/caicw/Event/AdoptionRetainerFund

Follow CAICW on TWITTER: http://twitter.com/CAICW


EMAIL: writeus@caicw.org

CAICW - Christian Evangelism and Ministry - Gal. 2:10, “All they asked was that we should continue to remember the poor, the very thing I was eager to do."

Wednesday, May 19, 2010

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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Tuesday, May 11, 2010

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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Thursday, January 1, 2009

Tell Your Representatives to Make These Legislative Changes!

Protecting children and the families they love...

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

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

a) In re Santos Y, (ftn5) the court found "Application of the ICWA to a child whose only connection with an Indian tribe is a one-quarter genetic contribution does not serve the purpose for which the ICWA was enacted..." Santos y quoted from Bridget R.'s due process and equal protection analysis at length. Santos also states, Congress considered amending the ICWA to preclude application of the "existing Indian family
doctrine" but did not do so."
b) In Bridget R., (ftn6) the court stated, "if the Act applies to children whose families have no significant relationship with Indian tribal culture, such application runs afoul of the Constitution in three ways:

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

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

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

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

More to come...

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