REAL War on Women is from Cherokee Nation

NOT ONLY is the ‘INDIAN CHILD WELFARE ACT’ a weapon against the rights and best interests of many children – but it is an affront on the parental rights of ALL woman ~ The REAL War on Women comes in the form of the Cherokee Nation’s affirmation that single mothers of ALL heritages MUST fear tribal interference if they give a child up for adoption without knowing for certain that the birth father doesn’t have EVEN ONE DROP of Cherokee blood.

In the Thursday, October 18, 2012, segment of Dr. Phil show, Cherokee Nation Attorney Christi Nemmo refuses to admit Veronica had only a drop of Cherokee blood, but she also doesn't deny it. She doesn't answer the question because she knows people would be horrified. She tries to make the argument that it's not about how a child looks or how much blood the child has, but that they have a right to be part of the Cherokee tribe. Watch this 3 minute clip, then read more...

____________________________________________________________________

She was sidestepping the fact that this "right" is being forced on not only this child, but many children and families all across the U.S. She is avoiding the fact that not all enrollable individuals WANT their children to be forced into the Cherokee Nation, not all enrollable parents want their children to be raised on or near the reservation, and some enrolled families have purposefully taken their children and moved away.

 For example: Enrolled mothers at a home for unwed mothers in Bismarck told State Representative Lee Kaldor that they had wanted to give their babies up for adoption, but were afraid that tribal government would interfere. So although they honestly didn't feel they were able to properly raise and nurture their babies, they felt that adoption wasn't an option. Instead, some of them contemplated abortion. ( Interestingly, tribal governments don't interfere in a mother's decision to abort.)

Nemmo is also ignoring the rights of the Latino birth mother in question - and ANY mother who chooses adoption for their child. The horrifying issue that is being ignored here is that while it's bad enough that enrolled mothers don't feel a freedom of choice in deciding what is best for their children, we also have a NON-Indian Mother, who was carrying a child with ONLY A TINY percentage of tribal heritage - and that mother and child's wishes were tromped on by tribal gov't. What a nightmare for any pregnant single mother contemplating adoption - that some minute amount of heritage could give a government the legal right to interfere.    

Beth Ward is the Author of the new book, "Dying in Indian Country." Purchase your copy at http://dyinginindiancountry.com/ and get it signed with a personal note, as well as $5 off the cover price ~

Indian Children: Citizens, not Cultural Artifacts

Are Children’s Lives Destroyed by ICWA?

Attend the Indian Child Welfare Act “Teach-In”

Friday, October 28, 2011, 9am - 1pm

Senate Committee on Indian Affairs Hearing Room, Dirksen Bldg, Wash, DC

Keynote speaker: Dr. William B. Allen

Across America, children who had never been near a reservation nor involved in tribal customs - including multi-racial children with extremely minimal blood quantum - have been removed from homes they know and love and placed with strangers chosen by tribal social services.

The Indian Child Welfare Act was passed in 1978 in effort to help prevent Native-American tribes and families from losing children to non-Native homes through foster care and adoption. Though well-intentioned, the Act is now harming children all across the country as courts and tribes place culture and tribal sovereignty above children’s basic needs for permanency and stability.

Come hear real stories of children whose lives have been impacted by the Indian Child Welfare Act. Listen to legal experts and scholars discuss the constitutionality of an Act that limits placement options and delays permanency for many of our nation’s most vulnerable children.

1) Some Children have been removed from safe, loving homes and placed into dangerous situations.

2) Some families, Indian and non-Indian, have felt threatened by tribal government. Some have had to mortgage homes and endure lengthy legal processes to protect their children.

3) Equal opportunities for adoption, safety and stability are not always available to children of all heritages.

4) The constitutional right of parents to make life choices for their children including political associations has been interfered with.

5) The constitutional right for children of Indian heritage to enjoy Equal Protection has in some cases been denied.

Letters from tribal and non-tribal birth parents, extended family, foster parents and pre-adoptive families can be read at http://www.caicw.org/familystories.html

In the words of Dr. William Allen, Emeritus Professor, Political Science, MSU and former Chair of the U.S. Commission on Civil Rights (1989), 

“... we are talking about our brothers and our sisters. We’re talking about what happens to people who share with us an extremely important identity. And that identity is the identity of free citizens in a Republic…"

The Christian Alliance for Indian Child Welfare (CAICW) is the only national organization advocating for families who have lost or are at risk of losing children due to application of the Indian Child Welfare Act (ICWA). We well understand the original purpose of the Indian Child Welfare Act. Although ICWA has safeguards to prevent misuse, stories affecting multi-racial families abound across America. It is important that we come together as a community to talk about them.

We Won!!!

It’s been a long and difficult two years, but God is good and faithful.  Thank you for your prayers and support. Also thank you for telling us about [the attorney]. We will forever be indebted.

Where do I start? As you probably remember our story started with a baby girl born out of wedlock to an Indian father and Caucasian mother. The mother chose us to adopt (non-native) and the father agreed at the time. Now to bring you up to speed since our last letter Nov ’09. We waited until the bio-father was out of jail in hopes to meet with him and his family about the adoption. It was our understanding that the only reason the tribe intervened in November ’09 was because they believed the paternal family wanted to adopt her and that the father changed his mind. We felt that waiting was our only option because our attorney at the time was not supportive of us. He felt that we would never win regardless of what we did. We wanted our attorney at the time to co-counsel with [the attorney], but our attorney was very negative, made it sound like it was going to cost us thousands and it would all be a waste of time anyways. We didn’t believe that so like I said we waited. Eight months later we met with the father and family. They all agreed to the adoption. After that conversation we believed we would be able to adopt without the tribe interfering (they had originally released us to adopt).  So we hired a new attorney to handle the adoption. We were talking with the father and hoping to finalize in Feb 2011. In Dec ’09 we had asked the father to come for a Christmas visit. He accepted. But the day arrived and he didn’t show up, no call or anything. The next thing we know our attorney receives a letter from the tribe that stated that the father came into the tribal attorney’s office refusing to agree to the adoption and the tribe was intervening. Unfortunately, our case was one of our attorney’s last cases because he was retiring. So needless to say we had to find a new attorney to take our now contested case. We were blessed to find ------------. She was willing to co-counsel with [the attorney] and they made an awesome team. Both of them fight for the child’s rights with honesty and dignity. They made our case bullet proof and we won... The tribe still has 42 days to appeal the decision, but ----- talked to the tribal attorney and he said that he is recommending that the tribe DOES NOT intervene. Like I said our attorneys made our case bullet proof so it would be unlikely for the tribe to win even in the Supreme Court. We will wait out the 42 days and finalize the adoption after [in] October…

[We] are still in a state of shock or disbelief. Maybe it will hit us when we sign the final papers.

Again, thank you for all of your support and prayers. We truly believe that we would not be holding our precious forever daughter without your guidance to the right attorney, your encouragement and your website to educate us. We have directed others to your website and have been able to educate others because of it. We were surprised how many people including Natives that are not aware of ICWA. 

 As I have promised in the past I will do what I can to help support you and the people you help as soon as this is over.

Many blessings,

She Wasn't a Tribal Member, so her Daughter was Taken From Her

I am a non-Tribal mother of a Native American daughter. This has been a battle of 14, nearly 15 years now. I’ve felt so alone over these years, and due to my experiences and feelings have decided it is time to reach out to the other parents like me, to help protect the children like my daughter.

I became pregnant at 16. During my pregnancy her paternal (tribal) grandmother tried to convince me to give her up for adoption to her. I refused. The day she was born, her father would not sign her birth certificate. I stayed together with him until she was nearly 2. He was abusive to me, he was doing drugs and drinking. He had a very short temper. He even attacked me at work. I tried to make it work for her sake, which was a mistake. Thinking maybe if I could force him to go to therapy he would get better. Then one day he turned his anger towards her. That was the last day.

I left him that day, and would not allow him to be alone with her. Because I did not trust him, I set arrangements for him to see her at his mother’s house on pre-arranged dates. The first few visits he was there when I brought her there. After that he wasn’t. His mother told me “It hurts him too much to see you, so he went for a walk, he’ll be back after you leave” Like an idiot 19 year old girl, I believed the woman. It later came out in the open that he had run off to San Francisco to follow his dream of being a homeless drugged out bike messenger. Which later in life is referred to in all legal proceedings as his “Spiritual Journey”.

When she was 5, the state took him to court to establish paternity. They issued a warrant for his arrest for the genetic testing. They actually had to arrest him and bring him in against his will. Once paternity was established, he was a no show for court to sign the papers. The judge had to sign it for him, which by US Citizen law, negates your parental rights.

He was absent from her life with the exception of an occasional Christmas or Thanksgiving – Which he attended to get free stuff, for 5 years. No phone calls, no visits. Nothing. (No child support, but we managed to live with me working 2 or 3 jobs at a time) He started doing something called “Canoe Journey” which I made sure that my daughter could go to when the grandmother asked if she could go. I even volunteered as class mom for all school Tribal functions, making sure that the Native American students could go to the big meets. If I hadn’t have done that none of those children would have been able to go.

Then, one day I get a knock on the door. my daughter’s Uncles are sitting there with a camera and big grins laughing , they say “You’ve been served” and take my photo as they hand me the papers. This is how I found out that her father was filing for custody.

The first court hearing went in my favor. The judge reviewed the case, recognized it as he was the judge that signed the paternity and threw it out. He told my daughter's dad that he expected him to turn his life around before he would even grant visitation, that he expected child support payments, anger management courses and clean urinalysis.

The Tribe appealed the case, which I state this way as 30 or 40 Tribal members showed up in the court room the next day, they even pushed and shoved at me as I tried to walk through the door into the court room.

We went through 4 extremely painful months of custody battle, during which a Guardian Ad Litem was assigned to research the case. During the case, hundreds of “Declarations” were produced by the tribe, attesting to my inability to parent stating things like that I had “Fecal matter spread on the walls” or that I “Partied and brought different men home every night”. They even had the audacity to claim that I am abusive to my daughter. None of these things are true. The odd thing about it all, as I had never even heard of any of these “People” that wrote the declarations, and they all seemed to be written in a variation of 3 or 4 different styles of handwriting.

The Guardian Ad Litem did a very scrutinizing investigation. She concluded that my daughter was best living with me, that she and I had one of the closest most loving relationships she had seen between a parent and child, that she had a wonderful home and a strong support structure. That her father had anger management problems, that he had failed his Urinalysis both the first and the second time, that his home was unfit structurally and sanitarily for a child, and that my daughter seemed to barely even know him. Her advice was for my daughter to stay living with me, for her father to take anger management courses, attend drug and alcohol therapy, get his life in order, THEN start visitation with our daughter under supervision.

The judge threw out her assessment. Why assign a Guardian Ad Litem to a case if you are going to throw it out if it is in the Non Tribal parent’s favor? Was it just to make me spend another $2,200? Was he hoping she would dig up dirt on me?

Needless to say, my daughter, now 14 has been living on the reservation since then. It’s been 5 years. ICW has taken her from her father’s house 3 times now, that I know of. They refuse to give her back to me. They have no just cause for this. They have stated to me they will never place her back in my home because I am not a Tribal Family Member. When they took her, for ABUSE allegations from her father I tried to work through real CPS that would never let this happen. Real CPS informed me that the only way they can get her back for me is if my daughter calls 911 or is hospitalized from the abuse.

Last night I found out that the reason I have been unable to reach my daughter or any of her paternal family for the past 3 weeks is that ICW took her from her father’s home and placed her with her grandmother. Again. They did not contact me. Again. My daughter had to sneak to the computer and email me, when she had been told not to contact me. Again.

JOIN US

SIGN THE PETITION: "She Wanted Us to Save Her..."

.

An adoptive mother made her first contact with CAICW on Facebook about 1am Saturday morning, Nov. 20, 2010, 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."

"..the despair on her face ... 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, Nov. 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. She was denied the right to be adopted by her “mom” solely because of heritage. In America, having even a small amount of Indian heritage can mean not having the same rights & opportunities for adoption that other children have.

SIGN THE PETITION

- Petition closes Jan. 21, 2011 - to be presented to Congressmen in DC Jan. 24-26.

Advocates of ICWA point to the devastation suffered by children of tribal heritage when, years ago, they were forcefully removed from homes they loved and forced to stay at boarding schools. The trauma those children experienced was, indeed, horrible and devastating.

However, in the implementation of the ICWA, the exact same thing has been happening to children in reverse.

What has to be acknowledged is that we live in a transient, multi-racial society. This means that many children who fall under the jurisdiction of the Indian Child Welfare Act have more than one heritage, and many times are predominantly of another heritage, and/or have family who not only aren’t connected to the Reservation, but have specifically LEFT it—having chosen not to participate in the reservation system. Their reasons include the high alcoholism, drug abuse, violence, child neglect, corruption, and suicide rates.

Though some argue ICWA has safeguards to prevent misuse, scores of multi-racial children are negatively affected by its application. Letters from birth parents, grandparents, foster families, and adoptive families concerning their children hurt by application of ICWA can be read at ~ http://www.caicw.org/familystories.html

YOUR PRAYERS are a Powerful Blessing for these families!

Due to ICWA, dozens of adoptions are held up every year. Even simple adoptions can be expensive and many families aren’t prepared for this additional expense. Time and again families have contacted the CAICW to ask for help because they don’t have the funds needed to hire attorney’s to defend their children.

A Firefighter in Texas, with his wife, stopped an abortion by offering to take the baby. They received the little boy immediately after birth and began adoption proceedings. The baby had been with them for a few weeks when they were informed a tribe was laying claim to the child - who had less than 2% heritage. The family, already loving the baby, fought back. Five years and thousands of dollars later, the little boy has still not been adopted.

Had the birth mother chosen abortion, no one would have stopped her.

Birth families have been hurt as well. After mortgaging homes and having nothing else to use, some have been forced to give up the fight for their children.

One grandfather with nothing left to fight with signed his final letter to us as "former grandfather of..."

A mother, responding to a tribal court summons for what was supposed to be a simple hearing, had her little girl ripped from her arms, not to be returned again.

Latino grandparents were raising their three grandchildren in California until social services decided that the children, 50% Ute, belonged on the reservation. They took the children from their paternal grandparents and placed them with their maternal grandmother on the Ute reservation, where she proceeded to beat the boys for speaking Spanish. Three weeks later, one was near dead. His younger brother presented at the hospital with raccoon eyes.

The maternal grandmother is now in prison and the children are again with their paternal grandparents. The oldest is permanently brain damaged.

A mother, having sent her children to visit their father for two weeks for a county ordered visitation, received a sudden tribal court summons. Believing that she was required to respond, she showed up for the hearing, where she was told the children were now in the custody of the father, and she is not allowed to step foot on the reservation again. When she went back to the county court to fight it, she was told that because she responded to the tribal court summons, she had voluntarily given them jurisdiction.

How was she to know?

A non-Indian father in Oklahoma was told that because he was "white," he had no rights to his child.

Of course that wasn't true. But unless a person has money to fight back with, whether it is true or not makes no difference.

WE NEED YOUR HELP. These families can not fight this alone.

SIGN THE PETITION

- Petition closes Jan. 21, 2011 - to be presented to Congressmen in DC Jan. 24-26.

Beautiful Michelle hanged herself in a closet

.

“Lisa you can and are free. Free to go on, free to thank God for your life with Roland...free to learn from the craziness and free to take what you can and to leave the rest in God's hands.”

How beautiful, wonderful, comforting those words are.

I respond: “You are right - the memories pain me, but even so, I do thank God for my life with Roland. He actually asked me before he died how I felt about our life together. And I actually had an answer ready—because I'd been thinking about it for awhile.

I told him that we had traveled from the Atlantic to the Pacific. We’ve lived in Canada and helped out at a Children’s home in Mexico. We’ve owned businesses and we’ve been on welfare. At times we had little or no food - and other times we ate at some of the finest restaurants. We have slept on dirty floors with dirty blankets in tribal housing, and we have stayed in upscale hotels on Capitol Hill in Washington DC and in Windsor, BC. I told him our life had been full. He seemed to relax into his pillow upon hearing me say it.

We felt just as comfortable talking to a drunk on Franklin Ave. as we did talking to a US Senator. I've called a US Senator looking for my husband, who was in his office at the time. The Senator made a real joke of it, as he handed Roland the phone, about how I can track him down anywhere. And...I've had an impossible time finding my husband on the reservation just after our son was born. No one would hand the phone to him then, as they were drinking with him.

A law professor and a state legislator both helped carry Roland’s casket. A retired US Navy Submarine officer carried Roland's body back to the reservation in the back of his pickup.

Who would I have been without all those experiences?

It's the truth, isn't it? Who would I have been if I had married an average man and lived with two cars and 2.5 kids in the suburbs? Really - would I even be a Christian right now? Because it was Roland that essentially led me to Christ.

And ...as I correspond with the various families that write to CAICW...how would I even begin to understand them and their fears if I hadn't been there myself? I am able to write two simple words that mean the world to them... "I understand."

And it is with that background: the birth mother to five members, the adoptive mother of one, the legal custodian of three, the step mother to four, and aunt to innumerable members of the Minnesota Chippewa Tribe - and as a former licensed Day care provider, foster care provider, as well as registered nurse - I am able to ‘withstand the barbs of the enemy’ and stand tall whenever anyone tries to call me a racist for speaking up on this issue.

I can unashamedly stand up and say what many others can't bring themselves to say - because I don't care what names they call me. And I can speak loudly. And I can help that no more children be treated as chattel for the benefit of a corrupt tribal government.

The idea some have that children "belong" on the reservation is racism at its core. It ignores who the child might factually be, who the child is connected to, what the child really wants and, importantly, what the child’s best interests are. It’s well known to everyone that the high school drop out rate, drug abuse, crime, fetal alcohol rate, child abuse, corruption, child neglect, sexual abuse, violence and suicide, etc. is so high on many reservations that no Congressman would ever willingly send their own child to live there...yet everyone is supposed to just go along with the lie that children of heritage must live with it because tribal and federal government say so. It’s not only insane but criminal.

I'm not going to diplomatically dance around so as not to step on toes. Kids are dying. Beautiful Michelle hanged herself in a simple closet, where all she had to do was stand up to save herself.

Others have died of overdose, accident, and violence.

So you are right. I have a job to do, and it is because of my life with Roland that I am able to do it.

- to be the loud-mouthed, angry witch that I am.

Bless you My Friends, you’ve been so good to hang in there with us through all these tough years.

Merry Christmas!

Read "Dying in Indian Country"

Letters from Families, asking for Help - Christian Alliance for Indian Child Welfare

Dying in Indian Country: A True Story

,

The True story of a family Living and Dying in Indian Country in the 1980's-90's.

What made a full-blooded American Indian want to work against Tribal government and federal Indian Policy?

Need a close-to-home example of how socialist policies within our government currently affect U.S. citizens? Read Roland Morris' story. Read about his family: A beautiful 16-year-old niece who hanged herself in a closet, another dying of a drug overdose in a public bathroom. A brother was stabbed to death on the reservation, a 4-yr-old was left alone for a whole night at a dangerous inner city park while her Dad drank, and a 2-yr old was beaten to death by her mother. Those examples are just starters. Find out why this tribal elder traveled to DC over and over again to fight tribal jurisdiction over his family – as well as the well-compensated Congressmen who support it.

Roland J. Morris Sr. kept his tribal culture at heart as he taught his children about wild ricing, hunting, fishing, family history and some Ojibwa language. He did this, despite having lost all trust in the reservation system. He’d watched too many family members die tragic, violent deaths and had come to believe that current federal Indian policy and the reservation system itself was responsible.

Tribal leaders tell the public that the reservation system must be maintained or all will be lost. They claim that no one understands Indians, and this system has to be preserved as the only viable way for tribal members to exist in happiness. While they are saying this, violence, crime, child neglect, drug and alcohol abuse, and Fetal Alcohol effects are epidemic on the reservations. Further, at the hands of their own governments, tribal members experience denial of civil rights: freedom of speech, press, religion and assembly. They experience cohortion, manipulation, cronyism, nepotism, criminal fraud, ballot box stuffing and have even been robbed of their own children.

We are all aware this is happening, but refuse to admit out loud. For some reason, it's much easier to blame white America, history, and poverty for the problems.

Many tribal members continue in this life, complaining in private but not willing to protest. They keep silent in part because of they have tribal jobs or housing - and rocking the boat will affect not just them, but extended family. Those that do speak up are vilified. In addition, for the most part, tribal members don’t like to discuss reservation problems with outsiders. They may be dying, but they are dying compliantly.

Read Dying in Indian Country - A Family Story - http://dyinginindiancountry.blogspot.com/
.

Facebook ICWA Discussion Page and Cause -

.
We have now set up a Facebook Page for the Christian Alliance for Indian Child Welfare as well as a "Cause."

Harmful Indian Law affecting children and Families in both USA and Canada - Read the letters from birth parents, grandparents, foster families, pre-adoptive families concerning their multi-racial children who are being negatively affected by the sometimes illegal misapplication of the Indian Child Welfare Act (ICWA).

Though proponents of the ICWA argue that the act has safeguards to prevent misuse, scores of multi-racial children are being negatively affected by application of ICWA. Across America, children that have never been near a reservation nor involved in tribal customs are routinely being removed from homes they love and placed with strangers chosen by tribes.

As most of our friends know - my husband Roland and I began CAICW org prior to his passing in 2004. For several years now, as we have moved from Alberta to Montana to North Dakota, and as I have been dealing with the raising of several teenagers on my own, I have been unable to give CAICW my full attention. However, we have continued to receive many letters from families in need of help and the board and I have attempted to support and encourage them as best we can with what little we had.

Now we are organizing a lobbying trip to DC in January, where we will meet with Gary Bauer of the American Values or, Dr. William Allen, the former Chair of the US Commission on Civil Rights, Senator Tom Coburn's staff, and many more.

Please read the stories of various families at http://www.caicw.org/familystories.html.   If you have time to help me update letters - as well as the website itself - please let me know.

1. Jn 3:16 - God so Loved the World, that he gave his only begotten son..that all might live. Jn 14:1-14 Jesus is the Way, the Truth, and the Life...

2. CAICW: Christian Ministry as well as Family Advocacy, is interested in the total well-being of the individual and Family.

3. CAICW: only nat'l org advocating for families who have lost or are at risk of losing children due to misapplied and sometimes illegal Indian Law.


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


Facebook Page: http://www.facebook.com/pages/Christian-Alliance-for-Indian-Child-Welfare/105558148606


Home Website: http://www.caicw.org


Facebook "Cause:" http://www.causes.com/causes/537834



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."
.

To Those that Love an ICWA Child:

.

- I am one of those -

- that person you are afraid of. That person with whom children were placed, not because I could handle them, not because I even knew them ...

In fact, my abilities, emotional stability, and character were never a factor at all. My husband was their grandfather. That’s all that mattered. No one from the tribe or the court ever talked to me about whether I could handle four more kids on top of my own five. No Guardian Ad Litem called to chat. No one seemed to care whether I could do this or not.

The Tribe did finally send a couple women over to do a “home study,” but that was a good year or more after they had already placed the kids with us. That was the first, and last, time anyone checked on our home.

And they didn’t even check the bedrooms. If they had, they would have discovered that not all the kids had their own beds. In fact, not all the kids even had bedrooms. We used two of our shops storage rooms for some of the kids.

No, the two tribal “social workers” who flew in from another state and who we were told would spend two days with us, chatted with my husband for about an hour, then asked how to get to a local attraction. They were anxious to get started with their paid vacation. We were happy to give them directions and be finished with the faux “home study.”

That was it. Never saw them again.

So...our family knows first hand what it takes to be one of our tribe’s “acceptable” Indian homes.

How did it turn out? I’d like to say that we became the Brady Bunch. But it’s not that simple.

In some ways, at various points of time, we did great. There was love, laughs, and kindness, along with the stress, sibling rivalry, and melt downs. The four kids, all under 7 when they arrived, started calling us Mom and Dad, just as our first five did, and all the kids, most of whom were the same age, began referring to each other as brothers & sisters.

But our lives were far from story book (Or even TV series). The reality of the effects of alcohol exposure, crack exposure, and neglect on the four wove through all of our lives. It’s one thing if a family is trying to help one child get through this kind of storm. It’s quite another when one is trying to help four without training, support, or resources - while trying to raise your own five young children at the same time.

Yup. The tribe mandated the ICWA thing, and then left us hanging.

Why did I do it? Why didn’t I just say “No?” Again, because of ICWA. I had seen the conditions in which my husband’s nephews, nieces and other grandchildren were being made to live. I knew that even though I was on the edge of losing my mind, our home was still better and safer than any other that the tribe might choose. I couldn’t turn these four away to that kind of life. Believe it or not—as much as I felt like a basket case on my better days and the wicked witch on my worst, our home was truly the best these children would get in an ICWA placement.

And we had Jesus Christ to lean on, and a wonderful, loving, large church family. Without these, I truly might have lost my mind.

Three years after my husband was given custody, he was diagnosed with cancer. Four years later, he passed away. Through all those hard years, church brothers & sisters practically carried us.

After he passed, though, is when real troubles began. It was as if a dam of emotions, pent up and waiting, suddenly exploded. Some of it was the grief of birth children, some the impulse of teen-agers. The hardest though, was the eruption of FAE angst and the familial predilection to alcoholism as children entered adolescence one by one.

Today the storm is over. Only four of the nine are still minors. At this point in our story, despite years of trying to teach the children the dangers of drugs, all is not well.

Just last week, I gave custody of one of the grandchildren to the county in order that he be able to get the mental health help that he needs, as well as for the protection of the other children still in the home. I did this because the two grandchildren that had thus far reached adulthood have returned to the birth family—as well as the destructive family lifestyle. I now needed to change how I was doing things in order to prevent the same outcome with this child.

I just wish I had fully realized years ago how necessary trained help was, so that the other two might have benefitted as well. (By the way, through correct interpretation of the law, as we explained it to the judge, this particular custody transfer was deemed non-ICWA.)

Long story short—Contrary to the belief of Congress and one-sided, tribal government testimony, the “best interest of the child” does NOT require a relative placement or even an Indian placement.

As much as many tribal leaders want society to believe that all children of heritage are “theirs” and have a “connection” to tribal culture that will crush them if broken, it’s just not true. To some people such things matter, to others, it doesn’t.

My birth children and grandchildren, for example, would be crushed if forced to live on the reservation. My Children may be 50% Indian, but they have been raised in much safer, loving communities than the reservation community in which they are enrolled. Living on the reservation would have destroyed them.

Further, most children aren’t “just” Indian. Ours are also Irish, Scottish, German and even Jewish. All their heritages are equally important. Most children of tribal heritage have other, equally important heritages, and they are all US citizens who should be constitutionally given Equal Protection. Meaning - contrary to common practice today, enrolled children should not be left in conditions that children of any other heritage would be removed from. They are not mere chattel—a means for additional funding— for tribal governments.

Many children, after suffering abuse and neglect, need real help, and several tribal governments are negligent in that they place them into situations where they can not get it.

Time and again I have seen children placed by their tribe into violent, verbally, physically, and even sexually abusive, drug infested homes. I have seen little or no attention given to the emotional and mental health issues these children have had. That isn’t to say that no tribal governments care—it’s just to say that I, having lived in this particular extended family for 30 some years, haven’t seen it.

ICWA, in all our family experience, is a crime against children.

www.caicw.org

Independent Indian Press.com

.

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.”

.

Jewish relative keeps custody of Indian kids

.
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.
.

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?
.

What is a Qualified Expert Witness?

.
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?
.

Iowa Supreme Court Tossed "Indian Child" Definition

.
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."
.

ICWA Case Law & other Authority

.
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.]
.

Original Meaning of the Indian Commerce Clause

.
Contrary to the belief of those that want control over our children, the Indian Commerce Clause did not give Congress the right to enact a law giving those entities that control.

Professor Rob Natelson, Constitutional Law Professor at the University of Montana, Missoula, researched the issue in 2007. The results of his study were documented in a lead article published in vol 85 page 201 of Denver University Law Review (85 Denv. U. L. Rev. 201 (2007)

According to Professor Natelson, "the U.S. Constitution gives Congress only limited powers, and it says nothing about legislating for “Indian child welfare.”

So what gives Congress the power to pass a law like the ICWA?

Some say the Founding Fathers intended to give Congress that power by a section in the Constitution allowing Congress to “regulate Commerce with the Indian Tribes.” But is that true? Are laws like ICWA really constitutional as regulating “Commerce with the Indian Tribes?”

His answer: Absolutely not.

Professor Rob Natelson is one of the country’s top experts on the original meaning of the Constitution. He concluded that the purpose of the section giving power to Congress to regulate commerce with the Indian tribes was to allow Congress to regulate trade between Indians and whites – no more. Foster care, adoption, parental rights, etc. were be governed by state law, not federal law.

Professor Natelson documented his findings in a lead article published in Denver University Law Review. He also examined other claimed bases for laws like the ICWA, including the “Indian trust doctrine” – and he found they didn’t have any merit, either.

“There is not much doubt on the question,” he said. “At least according the Founding Fathers, Congress had absolutely no authority to adopt the ICWA. Eventually, the courts may see their error and strike it down as unconstitutional.”

This article – and some of Professor Natelson’s other research – can be found at www.umt.edu/law/faculty/natelson.htm

The Original Meaning of the Indian Commerce Clause - 85 Denv. U. L. Rev. 201 (2007)

The Legal Meaning of "Commerce" In the Commerce Clause - 80 St. John's L. Rev. 789 (2006)
.

Treaties that don't Exist

From http://electriccityweblog.com/?p=4202#more-4202
June 30th, 2009 by Rob Natelson

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

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

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

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

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

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

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

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

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

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

States Not Complying with ICWA - for Good Reason

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

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

Perhaps compliance is difficult because the law itself is unjust, and caring people don't like to see children subjected to not only unjust, but dangerous law.

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

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

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

ICWA Reaks. Reservation is Worst Place for Many Kids

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Stop it now. Let the kids get real help.

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

Two more families ask for help

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

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

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

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

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