Lawsuit challenges Native American adoption law

By Mary Jo Pitzl, The Arizona Republic

Native American children are being deprived of equal protection when it comes to foster care and adoptions because federal law places tribal supremacy ahead of the children’s best interests, a class-action lawsuit filed today alleges.

The suit, filed by the Goldwater Institute in U.S. District Court in Phoenix, challenges portions of the Indian Child Welfare Act as it applies to Native American children living off-reservation.

The suit details the cases of two Arizona families, each of which sought to adopt a child with Native American heritage only to have their plans held by the provisions of the 37-year-old federal law.

“Alone among American children, their adoption and foster care placements are determined not in accord with their best interests but by their ethnicity, as a result of a well-intentioned but profoundly flawed and unconstitutional federal law, the Indian Child Welfare Act,” the suit states.

It names as defendants the federal Bureau of Indian Affairs, the U.S. Department of the Interior and the state Department of Child Safety.

Federal officials did not have an immediate response.

Arizona Department of Child Safety Director Greg McKay is named in the suit because his agency has to follow the provisions of the federal law. The agency said it would not comment until the case is resolved.

The suit noted 1,336 Native American children were in out-of-home placements as of last September, citing the latest DCS data. If not for the federal law, the suit alleges, some of those children could be in permanent family situations.

The lawsuit does not involve Native American children living on reservation, where tribal courts have jurisdiction

Gay marriage is still illegal for the Navajo. This man is trying to change that.

Alray Nelson lives in one of the last places in America where gay marriage isn’t legal.

By Jorge Rivas, Fusion 

He’s a member of the Navajo nation, the largest Native American reservation, whose territory spans three states in which same-sex marriage is now the law of the land.

But the Supreme Court’s ruling last month that declared the Fourteenth Amendment requires all states to issue marriage licenses to same-sex couples has no immediate legal impact on Nelson, the Navajo, or any of the 566 federally-recognized tribes in the United States.

Just like the 50 states had different positions on gay marriage before the Court stepped in, the 566 tribes have a variety of different stances on same-sex unions.

At least 11 tribes have created laws that either prohibit same-sex marriages or define marriage as between a man and a woman, according to an analysis by the Associated Press. About 12 have developed laws that approve and recognize same sex marriage, according to the New York-based gay-rights group Freedom to Marry. Many others stay silent on the issue or follow the lead of their surrounding states.

And then there’s the Seminole Nation of Oklahoma, which has a law that states a “person of the same gender will not be allowed to marry or divorce.”

Except from the Seminole Nation of Oklahoma Code of Law.
Except from the Seminole Nation of Oklahoma Code of Law.


The second most populous tribe, the Oklahoma-based Cherokee Nation, passed its law banning gay marriage in 2004.

The Navajo, who count 300,000 members and to whom smaller tribes often look for direction, passed a law in 2005 explicitly banning gay marriage. It followed in the footsteps of the U.S. Defense of Marriage Act, the federal law recognizing marriage as between a man and a woman that was signed by Bill Clinton in 1996, according to Native American LGBT advocates and historians.

But Nelson, 29, says times are changing on reservations, too.

“Now there’s Navajo couples that are becoming more vocal, and we’re seeing transgender youth also talking about their rights,” he told Fusion in a telephone interview.

He said he plans to appeal to his tribe’s traditional notions of respect and fairness to help change hearts and minds.

“There were same-sex couples from our creation story all the way to today. Those relationships were there, they were recognized, and they had every right to be productive members of our community,” Nelson said.

“If they repeal the [Diné Marriage Act] it brings it back to what our traditional values used to be. They’re using the whites man’s language, a foreign way of speaking, to redefine something that was already sacred and defined, we didn’t need to redefine it at all,” he said.

Historians say many Native Americans have embraced more fluid notions of gender and sexuality than the current gay-marriage bans might suggest.

“There is overwhelming evidence for the historic and cultural presence of multiple gender roles and same-sex relations among most if not all Native North Americans, including the Cherokee, and that they historically shared in the institution of marriage,” said Doctor Brian Gilley, an anthropology professor at the University of Vermont, in a 2005 brief submitted in a Cherokee court case after tribal leaders tried to invalidate a marriage license to a lesbian couple.

The highest Cherokee Court ultimately ruled that the two women couldkeep their marriage license.

Photo by Jerry Archuleta courtesy of Alray NelsonAlray Nelson, left, and his partner, Brennen Yonnie, are leading the fight to get the Navajo Nation to recognize gay marriage.
Photo by Jerry Archuleta courtesy of Alray Nelson
Alray Nelson, left, and his partner, Brennen Yonnie, are leading the fight to get the Navajo Nation to recognize gay marriage.

For the last 16 months Nelson was the deputy manager for former Navajo Nation President Joe Shirley, Jr.’s re-election campaign. The candidate lost after a long contested election.

Now Nelson is using his political connections to set up meetings with tribal leaders to talk about eliminating the Diné Marriage Act. (Diné is a term some Navajo use to describe themselves.) He’s scheduled meetings with lawmakers to discuss eliminating the act now so they address it in the upcoming tribal session in October.

Nelson is also reaching out to the broader community to change people’s views culturally.

“When we talk about discrimination in regards to taking away someone’s rights, Navajo people get that,” he said. “They get it because they’ve dealt with decades of assimilation policy and continue to deal with those issues. So when a certain segment of the community feels left out and aren’t treated with respect and fairness, Navajos understand that and they get that fight.”

The office of Navajo Nation president Ben Shelly did not respond to requests to be interviewed for this story.

There are other significant issues affecting the LGBT Navajo community. LGBT bullying and teen suicides are high, and the Navajo Nation has seen an unprecedented spike in new HIV diagnoses.

But Nelson said starting with gay marriage can help bring attention to the other issues.

“The Diné Marriage Act is the only law in the books that directly discriminates against the Navajo LGBT community,” Nelson said.

Feds accuse Missouri man of posing as Indian to sell art

Whetstone 3

By Tony Rizzo, The Kansas City Star

The tradition of Native American art is as rich and varied as the many tribes of North America.

And many collectors and aficionados willingly pay premium prices for it.

But that also makes buyers susceptible to counterfeiters — people willing to risk violating the federal law that prohibits non-Indian artists from marketing their creations as the handiwork of an Indian.

According to federal prosecutors, an Odessa, Mo., man did just that by falsely portraying himself as a Cherokee artist while selling his artwork online.

Federal prosecutors in Kansas City recently charged Terry Lee Whetstone, 62, with misrepresentation of Indian-produced goods and products, a misdemeanor that is punishable by up to a year imprisonment.

Neither Whetstone nor his lawyer responded to requests for comment, and he is not a member of the federally recognized Cherokee Nation, according to records of the Oklahoma-based tribe.

But he is an enrolled member of the Northern Cherokee Nation, according to Chief Kenn Grey Elk.

And while that nation is not federally recognized, it is officially recognized by the state of Missouri, according to Grey Elk.

That, according to Grey Elk, would qualify Whetstone as an Indian under federal law.

Federal prosecutors declined to comment about the charges beyond the information contained in court documents.

Whetstone’s website no longer functions. But for more than a decade, it cited his Cherokee heritage in advertising his music, painting, sculptures and jewelry.

He was raised in suburban Kansas City, according to his online biography, and performed flute music at numerous events around Kansas City. For years, his website claimed that his artwork could be found in many galleries and private collections — and even at The Smithsonian museum gift shop in Washington, D.C.

Whetstone 2

Federal prosecutors in Kansas City said they could not recall a similar case being filed in recent memory under the Indian Arts and Crafts Act of 1990.

But the phenomenon is enough of a problem nationwide that a special board under the auspices of the U.S. Department of the Interior has monitored the art world since 1935 to ensure that art marketed as Indian is authentic.

“While the beauty, quality, and collectability of authentic Indian art and craftwork make each piece a unique reflection of our American heritage, it is important that buyers be aware that fraudulent Indian art and craftwork competes daily with authentic Indian art and craftwork in the nationwide marketplace,” the Indian Arts and Crafts Board states on its website.

Federal law does not prevent non-Indians from producing Indian-style artwork. But only a member of an officially recognized Indian tribe, or a person certified as an Indian artist by a tribe, is allowed to market products as Indian-produced.

The law covers a variety of traditional and contemporary arts and crafts.

According to the Indian Arts and Crafts Board, items frequently copied by non-Indians include jewelry, pottery, baskets, carvings, rugs, Kachina dolls and clothing.

“These counterfeits undermine the market for authentic Indian art and craftwork and severely undercut Indian economies, self-determination, cultural heritage and the future of an original American treasure,” according to the Indian Arts and Crafts Board.

For legitimate Native American artists, the law is an important way to protect their cultural identity and livelihoods.

Counterfeiters “are appropriating a culture that’s not theirs,” said George Levi, an Oklahoma artist of Cheyenne-Arapaho descent.

Levi likened the crime to people who profit from counterfeiting the work of big-name fashion designers. Every piece of artwork sold as authentic by a non-Indian takes money away from a legitimate Indian artist, he said.

“They’re just trying to make a buck off of us,” Levi said.

The court documents filed in Whetstone’s case do not specify what type of artwork he sold.

But cached versions of the website listed in court documents featured his Indian-themed paintings and music. The site also showed pictures of Whetstone playing a flute and described him as a “self-taught, talented American Indian flute performer and multi-faceted artist.”

It said that he “reflects the history of his Cherokee heritage in his music and art.”

Last year, he received an award from the Indie Music Channel. In an award ceremony YouTube video, he identifies himself as “mixed-blood Cherokee.”

Whetstone listed his race as white on a 1997 Jackson County marriage license application that gave the option of marking white, black, American Indian or other.

For purposes of complying with the Indian art law, the artist must be an enrolled member of a tribe officially recognized by the federal government or a state. It is unclear whether Grey Elk’s assertion that Whetstone is a member with the Northern Cherokee Nation will have any impact on the federal case.

A person can be certified as a nonmember artist if they are “of Indian lineage of one or more members of a particular tribe,” and they have written authorization from the tribe’s governing body.

The Cherokee Nation carefully authenticates the tribal status of all artists whose work is displayed in galleries and gift shops, said Donna Tinnin, community tourism manager for the tribe.

Ensuring artwork’s authenticity is important for educating people about the specific traditions and history of each tribe, Tinnin said.

“Each tribe has their own story and their own styles of artwork,” she said.

Johnny Learned, president of the American Indian Center of the Great Plains, said he was glad to see the federal government taking action.

Learned said he finds it “interesting” that more people seemed to claim to be Indians as economic opportunities such as casinos expanded for Native Americans.

“I think there should be even more stringent rules that prohibit that,” he said.

To reach Tony Rizzo, call 816-234-4435 or send email to

Read more here:

Approval given for gambling compacts with New Mexico tribes


ALBUQUERQUE, N.M. (AP) — Gambling compacts negotiated by the state and a handful of American Indian tribes have cleared their final hurdle.

The U.S. Interior Department reviewed the compacts but took no action. Under federal law, the agreements are considered approved by the agency as long as they’re consistent with the Indian Gaming Regulatory Act.

The assistant secretary for Indian Affairs, Kevin Washburn, spelled out some concerns the department had with the compacts in a four-page letter sent Tuesday to Gov. Susana Martinez and tribal leaders.

Washburn pointed to an apparent increase in revenue sharing rates for some tribes, but he acknowledged that the agreements had the support of the tribes.

Under the compacts, the Navajo Nation, Jicarilla and Mescalero Apache nations and three pueblos can operate casinos for another two decades.

Colorado, Washington get OK from feds on marijuana

Steve Benen, The Maddow Blog

When voters in Colorado and Washington approved the legalization of marijuana possession for adults, it was a policy breakthrough, but there was a problem: the newly approved state laws conflicted with federal law.

Under the Controlled Substances Act, federal law bans marijuana use, so Colorado and Washington were left wondering whether the Justice Department would intervene and block the measures approved by state voters.

Today, as Ryan J. Reilly and Ryan Grim reported, Colorado and Washington got their answer.

The United States government took an historic step back from its long-running drug war on Thursday, when Attorney General Eric Holder informed the governors of Washington and Colorado that the Department of Justice would allow the states to create a regime that would regulate and implement the ballot initiatives that legalized the use of marijuana for adults.

A Justice Department official said that Holder told the governors in a joint phone call early Thursday afternoon that the department would take a “trust but verify approach” to the state laws.

That last part is important. The DOJ is effectively letting the states know that they can proceed on their current course, but if federal law enforcement has reason to believe in the future that Colorado and Washington are failing to be responsible, the feds can revisit the new policy.

In the meantime, though, that means these states — and any others that choose to follow their lead — can move forward on legalization.

After watching the “war on drugs” move in only one direction for the majority of my life, this strikes me as a pretty amazing development. Up until fairly recently, it would have been unimaginable.

The Huffington Post added that Deputy Attorney General James Cole also issued a three-and-a-half page memo to U.S. attorneys outlining eight priorities for federal prosecutors enforcing marijuana laws. These are the areas where prosecutions will continue:

* the distribution of marijuana to minors;

* revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels;

* the diversion of marijuana from states where it is legal under state law in some form to other states;

* state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;

* violence and the use of firearms in the cultivation and distribution of marijuana

* drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;

* growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands;

* preventing marijuana possession or use on federal property.

But note that this leaves a whole lot of recreational pot use that federal prosecutors will no longer feel the need to pursue.