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Couple files suit challenging Indian Child Welfare Act

By Randy Ellis, The Oklahoman

An Oklahoma couple has filed a federal lawsuit challenging the constitutionality of portions of the Oklahoma Indian Child Welfare Act.

The couple specifically objects to provisions of the Oklahoma act that permit tribes to intervene in private, voluntary adoption cases involving Indian children.

Under the Oklahoma law, tribes are allowed to intervene — even when both birth parents oppose tribal intervention and have agreed on who they want as adoptive parents for their child.

“It’s nobody’s business who is involved in the adoption and they shouldn’t have to give anybody any notice and run the risk of having all their personal information exposed to other people,” said Tulsa attorney Paul Swain, who represents the couple in the lawsuit filed Wednesday in Tulsa federal court.

The couple contends that people of Indian descent, just like non-Indians, should have a right to privacy in voluntary adoption cases and that the state law giving tribes the authority to intervene violates their constitutional rights to due process and equal protection under the law.

Oklahoma Attorney General Scott Pruitt and Cherokee Nation Attorney General Todd Hembree are listed as defendants in the lawsuit because of their official positions.

Chrissi Nimmo, assistant attorney general for the Cherokee Nation, said the tribe believes it is important for tribes to have a voice in adoptions of Indian children and it plans to vigorously defend the law.

The Cherokee Nation is a government and has an interest in what happens to its citizens, just like the State of Oklahoma has an interest in what happens to its residents, she said.

“In addition, we have a history that led to the Indian Child Welfare Act of children being removed from their tribes and their families,” Nimmo said. “Even in voluntary placements, there’s a long history where young mothers were coerced by adoption agencies to place their children for adoption because there was an attitude that a child would be much better off with a middle class or upper middle class home than to be raised by a young Indian mother.”

Nimmo said the Cherokee Nation likes to be notified early when a tribal member wants to put a child up for adoption so that the tribe can work with the birth parents to identify prospective Indian adoptive parents agreeable to all, before other arrangements have been made.

The Oklahoma Supreme Court has previously upheld the constitutionality of the Oklahoma act, she said.

A spokesman for Pruitt said he had not yet seen the lawsuit.

The lawsuit uses fictitious names to identify both the birth parents and prospective adoptive parents to protect their identities. The birth couple, who are both 18 and unmarried, are referred to as Jane and John Doe, while the prospective adoptive parents are referred to as Richard and Mary Roe.

“After discussing the matter with their counsel, Jane and John Doe became incensed that the Cherokee Nation would have any right to interfere with the adoption plan … which they had agonized over for many months,” the lawsuit states.

Although the birth mother is enrolled in the Cherokee Nation, the birth father is not and neither birth parent grew up following tribal traditions or participating in tribal events, the lawsuits says.

“They do not know anything about the Cherokee culture and heritage and, at this point, they have no interest in learning about those subjects,” the lawsuit states.

The prospective adoptive father is enrolled in the Cherokee Nation, but the prospective adoptive mother is not enrolled in an Indian tribe, according to the lawsuit.

“Jane and John Doe are also adamant that they do not want the Cherokee Nation put on notice regarding Baby Doe’s adoption,” the lawsuit says. “This notice will result in word spreading in the tribal offices of their adoption plan in violation of their privacy rights and if the tribe seeks out alternate placements, then others in the tribal community will learn of their adoption plan and John and Jane Doe feel that the decisions that they have made for their child are confidential and are not the proper subject for discussions among tribal members.

“This will result in embarrassment and immense pressure to deviate from what Jane and John Doe have determined to be the best decision for Baby Doe.”

The lawsuit states that the initial couple that the birth parents selected to serve as adoptive parents “made the tearful decision to withdraw from the adoption because they did not want to experience the emotional turmoil of litigating an adoption case.”

That couple was not of Indian descent, but had an adoption profile that impressed the birth parents, who spent months building a relationship with them, the lawsuit says.

The birth parents subsequently selected another couple as prospective adoptive parents, and that couple joined them in filing the federal lawsuit.

The Oklahoma Indian Child Welfare Act goes beyond the federal Indian Child Welfare Act by granting tribes the right to intervene in voluntary adoption cases, the lawsuit says.

The federal act gives tribes the right to intervene in cases where there has been an involuntary termination of parental rights, which can happen for a number of reasons including abandonment, neglect, abuse or failure to provide financial support for a child.

Under state law, when an Indian child is put up for adoption — absent good cause to take other action — preference is to be given to a member of the child’s extended family, other members of the Indian child’s tribe or other Indian families.

Both the state and federal Indian Child Welfare Acts were written to halt a trend of huge numbers of American Indian children being taken from their parents and placed with white foster or adoptive parents because of cultural differences rather than actual abuse or neglect.

The federal and state Indian Child Welfare Acts both have come under attack recently in a number of court cases.

In May, the Oklahoma Court of Civil Appeals ruled that contrary to new Bureau of Indian Affairs guidelines, a judge can deviate from child placement preference contained in the federal Indian Child Welfare Act when such action is in the best interest of a child.

In July, the Goldwater Institute filed a class-action lawsuit in Phoenix contending the federal Indian Child Welfare Act is unconstitutional because it doesn’t give Indian children the same right that other children have to be placed in homes based on their best interests, without regard to their race. That case is pending.

The Oklahoma and federal Indian Child Welfare Acts frequently come into play in Oklahoma foster child placement and adoption cases. About 30 percent of the children in state care have American Indian ancestry, according to a spokeswoman for the Oklahoma Department of Human Services.

New Senate committee incorporates tribes into policymaking

By Eastern Arizona Courier

Members of the new state Senate Ad-Hoc Committee on Indian Affairs met for the first time in Phoenix on July 15. On the committee is San Carlos Apache Tribal Chairman Terry Rambler, second from left.

Members of the new state Senate Ad-Hoc Committee on Indian Affairs met for the first time in Phoenix on July 15. On the committee is San Carlos Apache Tribal Chairman Terry Rambler, second from left.

PHOENIX — A new state Senate committee made its debut July 15.

The Senate Ad-Hoc Committee on Indian Affairs is designed as a joint undertaking between the state and the tribes. State Sen. Carlyle Begay, D-Ganado, said he launched the committee as a way to foster crucial relationships and open communication between tribal leaders and state government.

“There are 22 tribal communities in Arizona, and it’s essential that we bridge the gap between the tribes and state government so we can work together on some of Arizona’s prominent issues, such as Indian gaming and water rights,” Begay said. “This committee seeks to improve communications and build a sense of trust between Arizona’s tribal citizens, communities and governments.”

Tribal issues often cut across party lines, so with this in mind, the committee was formed with Democrats, Republicans and tribal leaders as members to ensure balanced views and perspectives.

“I want to thank the state Senate for establishing the Senate Ad-Hoc Committee on Indian Affairs and including tribal leaders. Today our discussions centered on Indian education, and I am hopeful that this is a new era of collaboration between the state of Arizona and Indian tribes. This will not only provide education and awareness, but a joint partnership on improving relations between governments,” said San Carlos Apache Tribal Chairman Terry Rambler,

During the first meeting, the committee received reports from the Arizona Department of Education on the status of Native American education, on the activities of the ADE Native American Advisory Council and from the Arizona State Board for Charter Schools.

The committee also heard presentations regarding Native American Joint Technical Education District (JTED) program funding and the Indian School Bus Routes Maintenance Program. Representatives from the Goldwater Institute updated the committee on the status of the Indian Child Welfare Act lawsuit. Finally, the committee heard testimony from the public.

The next Senate Ad-Hoc Committee on Indian Affairs will be in August.

Goldwater Institute challenges Indian Child Welfare Act

Suzette Brewer, Indian Country Today Media Network

PHOENIX, Ariz. – On July 7, the Phoenix, Arizona-based Goldwater Institute announced the filing of A.D. v. Washburn in the United States District Court for the District of Arizona, a class-action lawsuit challenging the constitutionality of the Indian Child Welfare Act (ICWA) based on its contention that the federal legislation “discriminates against Native children.”

Secretary of the Interior Sally Jewell, Assistant Secretary for the Bureau of Indian Affairs Kevin Washburn, and Gregory McKay, director of the Arizona Department of Child Safety (DCS) were named as defendants in the case.

The suit is being filed on behalf of “all off-reservation Arizona-resident children with Indian ancestry in child custody proceedings and the foster, pre-adoptive or prospective adoptive parents of these children,” according to the organization’s press release. “This case will not impact current or future cases that involve children or parents living on a reservation where a tribal court has jurisdiction; it will change the law so that state courts and agencies cannot discriminate against Native American children.”

Washburn marks the third major legal challenge to the 38-year-old federal law since the Bureau of Indian Affairs published new ICWA guidelines in the Federal Registry in February of this year, followed by the agency’s declared intention to seek a federal rule, which would make the statute more enforceable on state courts and social service agencies.

“While we have not yet reviewed the filing, we understand that a lawsuit challenging ICWA was filed yesterday. In matters in litigation, we will speak primarily through our briefs in court, but I want to assure the public that we will defend the Indian Child Welfare Act,” said BIA assistant secretary Washburn in a written statement. “Nearly 40 years ago, Congress determined that Indian children were being treated unfairly in the context of foster care and adoption. Congress determined that ‘an alarmingly high percentage of [Indian] children’ were subjected to ‘unwarranted’ removal from their homes and that a federal law was needed to protect Indian children. This law has been an important feature of the legal landscape for many years now and we firmly believe that the protection of the best interests of Indian children continues to be important today.”

According to the suit, the plaintiffs are seeking declaratory and injunctive relief against “certain provisions of ICWA and the accompanying BIA guidelines” on behalf of “A.D.,” a 10-month-old baby girl who is an enrolled member of the Gila River Indian Community. Another child plaintiff is a 4-year-old boy who is a member or eligible for membership in the Navajo Nation. The birth parents of both children have had their parental rights terminated by the state and both children reside off-reservation in Arizona. The Navajo Nation, as outlined in the brief, has repeatedly attempted to find ICWA-compliant homes for the boy – all of which were rejected by the state as “inappropriate” placements. If not for the Indian Child Welfare Act, according to the brief, the boy would already be in a permanent home under “race-neutral” Arizona law.

“When an abused child is removed from his home and placed in foster care or made available for adoption, judges are required to make a decision about where he will live based on his best interest. Except for Native American children. Courts are bound by federal law to disregard a Native American child’s best interest and place him in a home with other Native Americans, even if it is not in his best interest,” said Darcy Olsen, president of the Goldwater Institute in the organization’s press release. “We want federal and state laws to be changed to give abused, neglected or abandoned Native American children the same protections that are given to all other American children – the right to be placed in a safe home based on their best interests, not based on their race.”

But the original author of the Indian Child Welfare Act, retired South Dakota Sen. James Abourezk, took the Goldwater Institute to task for its attempt to overturn one of his signature legislative achievements during his time in the United States Senate. Ironically, Abourezk’s late friend and colleague Sen. Barry Goldwater actually voted in favor of ICWA when it was approved by the Senate in 1977.

“I knew Barry Goldwater – he was my friend and often came to me for advice on most tribal matters,” said Abourezk from his home in Sioux Falls, South Dakota. “I wish he were alive to see this travesty because he would never approve of it and you can quote me on that and make sure you emphasize the word ‘never.'”

Tribal leaders, their legal teams and ICWA advocates across the country seem universally opposed to the litigation. They view with skepticism adoption practices in the United States, and the economic factors and profits at play.

“The Native American Rights Fund is closely following the lawsuits filed in Virginia, Minnesota, and now Arizona,” said NARF staff attorney Matthew Newman. “What is abundantly clear is that these lawsuits are part of a coordinated, well-financed attack on the rights of tribal nations to protect their children. It is open season on the Indian Child Welfare Act.”

“At this point it is pretty clear that anti-ICWA advocates, who primarily represent adoption interests, have started a coordinated attack on ICWA,” said Kate Fort, staff attorney and adjunct professor for the Indigenous Law and Policy Center at Michigan State University College of Law. “They are looking for cases of opportunity in courts across the country by inserting themselves and trying to make the same constitutional arguments against ICWA. But this lawsuit will absolutely hurt vulnerable children and families in our state child welfare systems. Their claims that ICWA’s protections are substandard is simply not true. ICWA’s standards are considered the gold standard of child welfare practice. To say these lawsuits to dismantle ICWA are in the best interest of the child is really contrary to what is considered best practices by child welfare professionals.”

Stephen Pevar, senior counsel for the American Civil Liberties Union, says the whole point of enacting ICWA was to end decades of unnecessary removals of Indian children from their homes and communities.

“Congress held years of hearings [before enacting ICWA] and many Indians who were victims of state foster care cases testified,” Pevar said. “Based on that testimony and other research, Congress found that it is in the best interests of Indian children to be raised in an Indian home except in extraordinary circumstances. Therefore, the Goldwater Institute is wrong in saying that Congress overlooked the ‘best interest’ standard. Instead, Congress accepted that standard and concluded that there’s a presumption that it’s in the best interest of Indian children to be raised in an Indian home. In addition, the Supreme Court has already rejected the notion that ICWA creates racial discrimination when it imposes minimum federal standards on state courts in their handling of Indian child custody cases.”

But ICWA has come under assault in courts all over the country in the last several months, say legal experts, in states unwilling to deviate from the “business-as-usual” approach, in which an average adoption can bring anywhere from $40,000 to 100,000 in fees and costs for private adoptions, depending on various factors, including living expenses for the birth mother.

In May, for example, Washington, D.C.-based attorneys Lori McGill and her husband, Matthew McGill, filed suit in federal court in Virginia seeking to challenge the new BIA guidelines which they believe impose “federalism” on state courts regarding the adoption of Indian children. Mrs. McGill, who played a key role in Adoptive Couple v. Baby Girl in 2013, told the National Law Journal in May that she gets emails on a weekly basis “from lawyers and adoptive parents telling me how ICWA is ripping their families apart.”

That same month, the Oklahoma Court of Civil Appeals openly dismissed the new BIA guidelines in a case involving a 4-year-old Cherokee girl who had been placed in a non-Indian foster home during emergency proceedings in 2013. At the time, an ICWA-compliant home was not available, though a year later the tribe filed a motion to transfer the girl to a Cherokee family that the tribe had located. In ordering the girl to stay with her foster parents over the tribe’s objection, the court’s contempt for the new guidelines was palpable.

“The BIA guidelines’ intentional disregard of these factors results in a one-size-fits-all approach to the placement of children with any tribal affiliation,” the judges wrote. “That result may bear little resemblance to what is really in the child’s best interests, despite the self-serving pronouncements of the BIA guidelines.”

In June, adoption attorneys representing tribal parents in Minnesota filed another suit, Doe v. Jesson, in which they argued the Minnesota Indian Family Protection Act (MIFPA) violates constitutional due process in requiring notice of adoptions to the tribe. However, the Minnesota District Court denied a preliminary injunction based on state law requiring notice to tribes. The Court ruled that the MIFPA posed no threat of irreparable harm to the two tribal plaintiffs in complying with notice requirements. The tribe in the case, the Mille Lacs Band of Ojibwe, have declined to intervene.

But the litigation, said observers, strikes at the heart of not only of the Indian Child Welfare Act, but also the keystone of tribal sovereignty as a whole – the right of Indian tribes to determine their own membership and raise their children in their home communities.

“Using tragic stories to try to destroy the constitutionality of ICWA is not appropriate. As we know from Morton v. Mancari, Native status is a political identity not racial or ethnic, so laws that give any type of Indian preference or preferential treatment are not in violation of the equal protection clause,” said Victoria Sweet, a program attorney for the Reno, Nevada-based National Council of Juvenile and Family Court Judges. “It’s ironic that [the Goldwater Institute] would argue that Native children get less protections when they actually get more and it is disingenuous to suggest otherwise when the reality is clearly the opposite. We are not yet at a point where the initial purpose of ICWA has disappeared. We still need this law. It still protects Native children.”

“It’s 38 years later and I still get mail from Indian people who tell me how important this legislation is,” Abourezk said. “The tribes need to mount a unified attack against this lawsuit because it’s good law and what they’re doing is wrong. It would be an enormous tragedy to see them overturn it.”

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

Assistant Secretary Washburn Announces Revised Guidelines to Ensure that Native Children and Families Receive the Full Protection of the Indian Child Welfare Act

Guidelines clarify tribal authority, responsibilities of state courts and agencies in Indian child custody proceedings to protect tribal children and their families

Indian Affairs – U.S. Department of the Interior
WASHINGTON, D.C. – In keeping with President Obama’s commitment to supporting Indian families and building resilient, thriving tribal communities, Assistant Secretary – Indian Affairs Kevin K. Washburn today announced action the Bureau of Indian Affairs (BIA) has taken to help prevent the further dissolution of American Indian and Alaska Native families through the misapplication of the Indian Child Welfare Act (ICWA) of 1978 (Public Law 95-608).
“For too many years, some of Indian Country’s youngest and most vulnerable members have been removed from their families, their cultures, and their identities,” said Assistant Secretary Washburn. “Congress worked hard to address this problem by enacting the Indian Child Welfare Act.  Yet, today too many people are unaware of this important law and, unfortunately, there are some that work actively to undermine it.  Our updated guidelines for state courts will give families and tribal leaders comfort that the Obama Administration is working hard to provide better clarity so that the courts can carry out Congress’ intent to protect tribal families, preserve tribal communities, and promote tribal continuity now and into the future.”
In his address to the National Congress of American Indians at its winter session in Washington, DC, the Assistant Secretary announced that the BIA will publish this week its revised BIA Guidelines for State Courts and Agencies in Indian Child Custody Proceedings to support the full implementation and purpose of ICWA – the first such update since it was issued over 35 years ago.
Congress enacted ICWA after hearings which found that an alarmingly high percentage of Indian families had been broken up when public and private agencies subjected Indian children to unwarranted removal, most of whom were eventually placed in non-Indian homes.
ICWA set forth a federal preference for keeping American Indian and Alaska Native children with their families, including extended families, and deferring to tribal judgment on matters concerning the custody of tribal children.  In initially carrying out Congress’ intent, the BIA published on Nov. 26, 1979, Guidelines for State Courts; Indian Child Custody Proceedings to inform state courts and agencies of ICWA’s requirements in Indian child custody proceedings.   Until today, those guidelines had not been updated.
The guidelines will provide long-overdue guidance to state courts as they work daily to ensure full implementation of the law.  BIA’s updated guidelines build upon the good work of states like New Mexico and Wisconsin that are actively working to implement ICWA as Congress envisioned.  In Wisconsin, the state codified ICWA into state law to facilitate implementation.  New Mexico is working with tribes to review its implementation of, and compliance with, ICWA.  As part of this effort, the New Mexico Tribal-State Judicial Consortium developed an ICWA Judicial Bench Card that provides reference materials for tribal and state judges as they handle ICWA cases.  The BIA guidelines issued this week will serve as another resource for state and tribal courts and agencies.
Several long-term studies have been conducted of Native American adult adoptees.  Despite socioeconomic advantages that many of them received by virtue of their adoption, long term studies reflect that these adoptees experienced increased rates of depression, low self-esteem, and suicide.  In addition, many adult adoptees continue to struggle with their identities and have reported feelings of loneliness and isolation.  Today, the number of Native American children in foster care alone is still alarmingly high, and they are still more than twice as likely to be placed in foster care overall.
The United States Department of Justice is taking action in states like South Dakota to ensure that Native children and families receive the full protection of ICWA.  These guidelines will assist those efforts to ensure that states fully implement the federal law enacted to protect tribal communities.  In enacting ICWA, Congress recognized that this was not a tragedy only for American Indian and Alaska Native families and children, but also for tribes who have lost generations of future members and leaders.  In enacting ICWA, Congress sought to carry out the United States’ trust responsibility for protecting Indian children and the stability and security of American Indian and Alaska Native tribes and families.  Protecting Indian children reflects the highest ideals of the trust responsibility to Indian tribes and the guidelines issued today are a part of this Administration’s broader approach to ensuring compliance with ICWA.
In 2014, the Department of the Interior invited comments to determine whether to update its guidelines and what changes should be made.  The Department engaged in a process that included three listening sessions with tribes and two listening sessions with judicial organizations across the country to hear comments on how the guidelines should be updated.  The Department received comments from those at the listening sessions and also received written comments, including comments from individuals and organizations interested in Indian child welfare.  An overwhelming proportion of the commenters requested that Interior update its ICWA guidelines and many had suggestions for revisions that have been included.  The Department reviewed and considered each comment in developing these revised guidelines.
In his remarks, Assistant Secretary Washburn noted instances in which the ICWA law and BIA guidelines were not followed, preventing the goals of ICWA from being realized.  These circumstances continue to alarm tribal leaders, Indian families, and Indian child welfare advocates.
The updated guidelines will help ensure tribal children are not removed from their communities, cultures and extended families.  The guidelines clarify the procedures for determining whether a child is an Indian child, identifying the child’s tribe, and notifying its parent and tribe as early as possible before determining placement.  The updated guidelines also now provide comprehensive guidance on the application of active efforts to prevent the breakup of the Indian family.  They also provide clarification that ICWA’s provisions carry the presumption that ICWA’s placement preferences are in the best interests of Indian children.
The Assistant Secretary – Indian Affairs oversees the BIA, which is headed by a director who is responsible for managing day-to-day operations through four offices – Indian Services, Justice Services, Trust Services, and Field Operations.  These offices directly administer or fund tribally based infrastructure, economic development, law enforcement and justice, social services (including child welfare), tribal governance, and trust land and natural and energy resources management programs for the nation’s federally recognized American Indian and Alaska Native tribes through 12 regional offices and 81 agencies.
The Office of Indian Services Division of Human Services administers the BIA’s ICWA regulations at 25 CFR Part 23 and the Guidelines for State Courts.  For more information, visit http://www.indianaffairs.gov/WhoWeAre/BIA/OIS/HumanServices/IndianChildWelfareAct/index.htm.

Tribal Leaders Meet with Vice President Biden who Addresses Efforts to End Violence Against Women Attorney General Holder Announces Initiative on Indian Child Welfare Act

On March 8, 2013, President Barack Obama signed into law the reauthorized Violence Against Women Act that includes tribal provisions.

On March 8, 2013, President Barack Obama signed into law the reauthorized Violence Against Women Act that includes tribal provisions.

National Congress of American Indians, December 3, 2015
Washington, DC:  Vice President Joe Biden joined over 300 tribal leaders at the sixth annual White House Tribal Nations Conference today. At the opening of the conference, Vice President Biden delivered an impassioned speech about violence against women in Indian Country saying “The most horrific prison on earth is the four walls of an abused woman’s home. For far too many Native American women that is a daily reality.”
The Vice-President, who was the original author of the Violence Against Women Act and has been its most steadfast supporter over the past 20 years, was introduced by Councilwoman Deborah Parker from the Tulalip Tribes , “Vice President Biden has led the movement to protect women against rape and domestic violence.  Last year he helped pass the much needed protection to help Native women from violence.   Mr. Vice President, you are correct when you say no means no — no more abuse.”
Referring to the provisions added to VAWA in 2013 that allow tribal governments to prosecute non-Indian domestic violence offenders in certain cases, the Vice-President apologized that it took so long to give tribal governments the tools to hold offenders accountable in their communities, saying “as long as there is a single place where the abuse of power is excused as a question of jurisdiction or tolerated as a family affair, no one is truly safe, and we cannot define ourselves as a society that is civilized.”
The Vice President delivered a call to action saying, “Tribal governments have an inherent right, as a matter of fact they have an obligation, to protect their people. All people deserve to live free of fear.”  He urged all tribal governments to be prepared on March 7 when the law goes into effect to use their authority to aggressively prosecute domestic violence offenders. He stressed the need to change the culture that too often leaves victims asking what they did wrong and instead to focus on sending a strong message that violence against women is always unacceptable.
Vice President Biden also acknowledged that we have much more to do to protect Native women from violence including giving Alaska tribes the same authority and expanding the provision to cover sexual assault and other crimes. Biden called on Congress to appropriate the $25 million in grants authorized in VAWA 2013 to implement the new law. 
Attorney General Eric Holder followed Vice President Biden, and strongly stated the Department of Justice’s commitment to improving law enforcement in Indian country, and to institutionalizing that commitment so that it will continue.  He announced that he has implemented a Statement of Principles to guide the Department’s work with tribal nations into the future.
Attorney General Holder also announced a new initiative to promote compliance with the Indian Child Welfare Act in partnership with the Departments of Interior and Health and Human Services.  Holder stated that the initiative is “working to actively identify state-court cases where the United States can file briefs opposing the unnecessary and illegal removal of Indian children from their families and their tribal communities.” Holder went on to explain that DOJ will work with its partners and tribes to “to promote tribes’ authority to make placement decisions affecting tribal children; to gather information about where the Indian Child Welfare Act is being systematically violated; and to take appropriate, targeted action to ensure that the next generation of great tribal leaders can grow up in homes that are not only safe and loving, but also suffused with the proud traditions of Indian cultures.”

Tribal Leaders Summit panel talks child welfare


By Karee Magee, The Bismark Tribune

Sandra Bercier, interim director of the Native American Training Institute, said there is an acute need for Native American foster homes in both North and South Dakota.

Sandra Bercier, interim director of the Native American Training Institute, said there is an acute need for Native American foster homes in both North and South Dakota.

BISMARCK, N.D. — A panel at the Tribal Leaders Summit on Thursday addressed problems facing the implementation of the Indian Child Welfare Act.

The mission of ICWA, first founded in 1978, is to keep or reunite Indian children with their families.

According to the National Indian Child Welfare Association’s description, the act was created in “response to the alarmingly high number of Indian children being removed from their homes by both public and private agencies.”

According to panelists, the numbers of Indian children put in foster homes remains high.

The consensus among the panelists is that the obstacle facing implementation of child welfare programs on reservations is lack of funding.

Sandra Bercier, interim director of the Native American Training Institute, said that because the programs are underfunded, they also are understaffed.

It is also hard to find permanent employees, said Leander McDonald, chairman of the Spirit Lake Tribe.

Child welfare programs are the hardest place to work, Bercier said, because staff sometimes take children out of homes.

Another significant problem is the lack of foster homes and families on the reservations, she said. Indian children who are taken from their families will often end up in a non-native family instead.

“If you have room in your home, hook up wth Indian Child Welfare,” Bercier said. “If we want ICWA to work, we have to be the ones to drive that process.”

The tribal leaders from South Dakota, though, emphasized an issue specific to that state.

“The problem is that there was this systemic institution that incentivized the removal of Indian children,” said Chase Iron Eyes, tribal judge of Lakota People Law Project.

According to Iron Eyes, the state of South Dakota earns $60 million from the federal government for the placement of Indian children into foster care.

South Dakota has a system of 48 hour hearings. The parents are required to go to court within 48 hours after their children were taken away, according to Tom Disselhorst, attorney for United Tribes Technical College.

The timespan doesn’t give them a chance to find a lawyer, he said, and they often don’t know why their children have been removed.

B.J. Jones said that the majority of these situations in South Dakota have nothing to do with abuse or neglect, but more often it is because the parent committed a misdemeanor like forgetting their license while driving.

He said society criminalizes poverty and Indian mothers are now afraid to drive because, if they are stopped by the police, their child could be taken away.

The Oglala Sioux Tribe and the Rosebud Sioux Tribe have filed a class action lawsuit against the state of South Dakota, and hope it will be part of the solution. They are accusing state officials of violating the Fifth Amendment by not providing opportunities for due process.

Due process includes that an attorney is required in court, which many Indian parents don’t have in the 48-hour hearings.

If the lawsuit reaches the 8th Circuit Court of Appeals, it may require other states to change their policies as well, said Disselhorst.

Johnson Legislation Helps Indian Country Adoption Tax Credit

By Mark Brown, KELO.com

Washington D.C. (KELO AM) – U.S. Senators Tim Johnson (D-SD), James Inhofe (R-OK), Heidi Heitkamp (D-ND), and Lisa Murkowski (R-AK) today introduced the Tribal Adoption Parity Act. The legislation ensures parents adopting American Indian and Alaskan Native children through tribal courts are treated fairly under our nation’s tax code by making it easier for adoptive parents across Indian Country to claim the full adoption tax credit for “special needs” children.

“The Tribal Adoption Parity Act will provide financial relief for families in South Dakota by making it easier for adoptive parents in Indian Country to claim the full adoption tax credit,” Johnson said. “It is unacceptable that parents who adopt an Indian child through a tribal court are prevented from accessing the financial relief that is provided to adoptive families in non-tribal areas. This bill addresses an oversight in our tax code by ensuring that adoptive parents throughout Indian Country receive fair tax treatment.”

Under current law, parents adopting a child who has been determined by a State as “special needs” can claim the full adoption tax credit regardless of their qualified adoption expenses.  Congress created the “special needs” determination to provide an added incentive for parents adopting children who might otherwise be difficult to place in adoptive homes.  In Fiscal Year 2011, 84 percent of the nearly 50,000 children adopted through public agencies were designated as having “special needs.”  Parents adopting children through tribal courts, however, are currently ineligible for the special needs adoption tax credit.  This unfortunately results in parents and children throughout Indian Country unfairly missing out on an important tax credit that would make a significant difference in their day-to-day lives.  Becoming eligible for the special needs adoption tax credit would help further reduce the financial costs associated with adoption and lessen administrative burdens.

In 1978, Congress passed the Indian Child Welfare Act that gives Indian tribes exclusive jurisdiction over custody proceedings involving Indian children within a reservation.  The special needs adoption tax credit currently fails to recognize the authority that tribal governments have over adoption proceedings of Indian children. The Tribal Adoption Parity Act would amend the Internal Revenue Code to provide fair tax treatment to parents adopting Indian children through tribal courts.  As a result, a tribal government would be permitted to designate an adoptive Indian child as having “special needs.” This legislation would ensure that families in Indian Country are treated fairly by providing the same financial relief that adoptive families currently receive across the nation.

The bill has been endorsed by organizations such as the National Indian Child Welfare Association, the Child Welfare League of America, Voice for Adoption, the American Academy of Adoption Attorneys, the Donaldson Adoption Institute, and the Joint Council for International Children’s Services.

In 1996, Congress created the adoption tax credit to ease the initial financial burden for adoptive parents.  The adoption tax credit provides a tax credit of up to $10,000 and is adjusted for inflation. The credit was $12,970 for tax year 2013. Since 2003, families adopting children with “special needs” are allowed to claim the full adoption tax credit regardless of their qualified adoption expenses. The definition of “special needs” varies from state to state. Examples of factors that can qualify a child for the “special needs” determination include: age; membership in a minority or sibling group; ethnic background; medical condition; or physical, mental, and emotional handicaps.

The National Taxpayer Advocate Service, an independent organization within the Internal Revenue Service, recommended the adoption tax credit be amended to recognize tribal governments in its 2012 Annual Report to Congress, which can be accessed here.


Judge orders transcripts produced in ICWA case

Dana Fast Horse carries posters at the American Civil Liberties Union press conference in Rapid City on March 21, 2013. Families and tribes claim that temporary custody hearings were too short and violated rights guaranteed under the 14th Amendment. Court reporters who produced the transcripts during the hearings have until June 1 to produce the files. Photo/ Rapid City Journal

Dana Fast Horse carries posters at the American Civil Liberties Union press conference in Rapid City on March 21, 2013. Families and tribes claim that temporary custody hearings were too short and violated rights guaranteed under the 14th Amendment. Court reporters who produced the transcripts during the hearings have until June 1 to produce the files.
Photo/ Rapid City Journal

By Andrea J. Cook, Rapid City Journal
By the end of the month, attorneys representing Native American families and two tribes in a federal child welfare case will know more about what happened during hearings that gave the Department of Social Services temporary custody of children.The Oglala Sioux and Rosebud tribes took the lead for three parents in a class action lawsuit challenging the practices of the 7th Circuit Court, the Pennington County State’s Attorney’s office and the Department of Social Services during temporary custody hearings that must take place within 48 hours of removing a child from a home. The parents claim the Indian Child Welfare Act hearings are too brief, sometimes as short as two minutes, and violate parental rights guaranteed under the 14th Amendment.

In mid-March, U.S. Chief District Judge Jeffrey Viken granted the tribe’s request for transcripts of more than 100 of the hearings, which are referred to as 48-hour hearings. He gave the judges who presided over the hearings two weeks to order transcripts of the hearings.

Those confidential hearings are at the heart of the plantiffs’ case, which contends that children are frequently taken from their homes for 60 days after hearings that often last no more than two minutes.

Presiding 7th Circuit Judge Judge Jeff Davis ordered transcripts of his hearings. Judges Wally Eklund, Thomas Trimble, Craig Pfeifle and Robert Mandel did not order transcripts.

The judges claimed Viken’s order threatens the distribution of authority between state and federal courts.

Transcripts were also not forthcoming from hearings held in front of former Judge Mary Thorstenson.

Last week, Viken chose to circumvent the judges’ reluctance to order the transcripts by ordering the court reporters who recorded the hearings to produce the transcripts. They have until June 1 to produce the transcripts.

The plaintiffs will have to pay for the transcripts that will be treated as confidential.

“Production of the 48-hour ICWA hearing transcripts is critical to the resolution of the issues in this case,” Viken said in his order.

Adoption, From a Native American Perspective


By: Shannon Logan

Feb 07, 2014 Adoption.net


Leland Morrill was estranged from his Navajo lineage for twenty years. Today, as an author, advocate, and speaker, Morrill shares the unique perspective of how adoption is viewed by Native American family and culture, through the eyes of an adult adoptee.

Leland Morrill was born in 1966, on sovereign land, in the Navajo Nation, within the state of Arizona. He was not issued a birth certificate, and does not know the exact date of his birth. His young, unwed mother was his sole caretaker for the first few years of his life, and according to Leland, this wasn’t unusual in Native American culture.

“Marriage is a Christian concept, not Native,” said Morrill. “Many people from my parent’s generation weren’t married. It’s a very matriarchal society. When you’re born, you take on your mother’s last name, you go to your mother’s family, and the women decide whether the men stay around after the children are born. That’s the way it was. ”

When Leland was two years old, his mother suffered a fatal head injury after flipping her car on a bridge in Albuquerque New Mexico. It was September 1968; Leland was two years old.

“My brother and I went to St. Anthony’s orphanage, where they figured out that we were Navajo, and took us back to the reservation to stay with my grandmother. In our culture, once your mother dies, your next caretakers are your aunts and grandmothers. They are considered your mothers,” said Morrill.

callout2Less than a year after being placed in the care of his grandmother, Leland was taken to the Indian Health Services Hospital for a minor burn on his foot. After Leland was treated, he was taken to another hospital in Gallup, New Mexico, where the Bureau of Indian Affairs decided to investigate.

“They saw poor people, Indians. My grandmother was a sheepherder, living on an Indian reservation without electricity,” Morrill said. “My relatives couldn’t speak English, so they said— ‘we don’t know if these people are your relatives or not, so we are going to take you.’”

Leland was immediately removed from his home and placed with an adoptive couple looking for Native American children to foster and adopt. The day after he was adopted, the family moved to Ontario, Canada, severing all ties Leland had to his biological, Native American family.

Not uncommon for the times, before 1978, when Congress passed the Indian Child Welfare Act, a very high number of Indian children were removed from their homes by public and private agencies and placed in non-Indian foster and adoptive homes or institutions. Leland, who was part of the Amicus Group that went to DC to attend the argument on behalf of Dusten Brown and the Cherokee Nation in the “Baby Veronica” adoption case, explained that there are new laws and bills being passed currently to help further protect biological families. One bill in particular, the Oklahoma Truth In Adoption Act (HB 1118), urges judges to consider the biological family members first before allowing a child to be placed with non-related adoptive parents by an adoption agency.

“From a human trafficking point of view, I was trafficked,” said Morrill. “Every time they adopted a child, they went to another country. They adopted seven more children when we got to Canada, and then we moved right after that. They separated us from our cultures.”

callout4“They trained us within the Mormon ideology; they thought they were saving us. They thought they were doing the right thing, and from that perspective they were good people. But from a Native American perspective—they were not.”

Leland Morrill returned to his mother’s clan, the Many Goats Clan, for the first time in 1989, to be greeted with open arms by his grandmother and his cousins. “I was a little freaked out, like—wow! this is what I would have been raised like.”

“I tell Native American adoptees like myself—yes, this is what happened to you. You were trafficked. But you have to get past that. Consider yourselves different, because you were forced to assimilate into a different culture. But use that assimilation in your favor—whatever education or opportunities were presented to you that others on the reservation didn’t have, you can come back and use them to help your people.”

For more about Leland’s story, read: Two Worlds: Lost Children of the Indian Adoption Projects