One River, Two Canoes

Kristen Carpenter on ICWA in Cato Unbound

Posted on August 31, 2016 by Matthew L.M. Fletcher

Here is “One River, Two Canoes: Peace and Respect in Indian Child Welfare.”

Kristen’s first post in this series is here.

The Indian child is not a blank slate. She is never a fraction of anything. She is Navajo or Hopi, Odawa or Cherokee, born into a fabric of spiritual life, a lineage of cultural practice, a place of individual power and of collective responsibility to the whole. One or two or three generations later – even if her mother, grandmother, and great-grandmother were themselves relocated or adopted – today the Indian child is protected in her personal identity, family life, and tribal citizenship by ICWA.[5]

Third Fletcher Commentary on ICWA in Cato Unbound

Posted on August 30, 2016 by Matthew L.M. Fletcher

Here is “A History Lesson“:

An excerpt:
Reformers are still trying to save Indian children by taking them away from Indian families and tribes. Mr. Sandefur would rather force Indian children into state court systems by undoing ICWA, perhaps because they can be more easily plucked from state systems by the private adoption market. There have even been calls to greatly expand the number of Indian children in foster care. Literally no ethical person seeks to put more children in foster care. Studies show what should be inherently understood—plucking children out of a community they know and putting them in stranger foster care is actively harmful to kids (there’s a reason Casey Family Programs is putting a billion dollars into reducing the number of kids in foster care). Eighty percent of child welfare removals are due to neglect. Our children do deserve better: better services, better wrap around care, a better understanding of the mental health issues and chemical dependency that plagues their parents. They don’t deserve to be taken from everything familiar—their neighborhood, schools, and extended family—because of system failures in our society.
Imagine a child welfare proceeding where the judge meets with the parties for two hours before the hearing to engage in problem solving and to brainstorm creative ideas to best serve the child, followed by a formal hearing that may last two or more hours. Compare that to a state court hearing that lasts mere minutes, and where there are systematic financial pressures for “permanency,” in other words, to place children in foster care, terminate parental rights quickly, and adopt them out. It’s not even a comparison.

Prior entries here and here.

[My humble opinion is the billion dollar adoption trafficking industry needs to keep Indian kids in the pipeline to make money - and that is not in the best interest of an Indian child... Trace (adoptee and erased]

#MMIWG: #cdnpoli responses to the HIV crisis have compounded the problem

During the then-Conservative Government in 2012, the government made $165-million-dollar budget cuts to Aboriginal and Northern Affairs Canada[1] (as it was then known). Some of these cuts led to decreased funding for health-related research programs, like the work at National Aboriginal Health Organization (“NAHO”).

The last fact sheet posted to NAHO’s site, which is scheduled to shut down in December 2017 indicates that Indigenous people “account for 16.4 per cent of AIDS cases in Canada and 7.5 per cent of HIV infections.” For Indigenous women, the picture is even more alarming: Indigenous women making up 47.3 per cent of HIV-positive test reports; meanwhile, non-Indigenous women making up 20.5 per cent of the same reports.
For the past 25 plus years, Kecia Larkin has been one of those Indigenous women living with HIV. And, the morning that I call Kecia Larkin, she is in British Columbia; she’s just making breakfast.
In April 2016, Kecia won an award for her work on educating others communities about the realities of Indigenous women living with HIV. But Kecia has always been an activist.
Kecia’s mother was deeply involved with the Red Power movement, American Indian Movement, and she remembers her mother wanting to put some roots down after attending protest after protest, all related to land and sovereignty.

“We were political,” she explains. “We never felt like it (Alberta) was home.” She describes her family as loving and attentive, but poor: The number of First Nations Children living in poverty is fifty percent.[2]

Because of poverty, though, Kecia made the decision to go into state care. During that time, she was in and out of hotels because she says, “I didn’t want to go to foster homes.” And during times when she needed help, she would go into group homes but then return to the streets, “It was a choice made out of duress, because of poverty.”

To address these barriers, Poitras says to me that it is important to learn about the history of Indigenous peoples in Canada, including the intergenerational effects of Indian Residential Schools.  Or, “connecting the dots” as Poitras calls it.

Returning to the theme of home, Kecia says, “Home is a big theme in my life…there is always a part of me (wanting) the stability of a home…I could never have that or create that until now.”
Nearly forty-five years later, she says, “It has taken forty years to heal, to come full circle.” Kecia continues, “When we talk about home, it is where I feel the safest, where I can be myself. I feel very lucky to have what I have today. I know I made home when my kids don’t wake up scared.”


KEEP READING

Fletcher: “The Next Justice’s Impact On The Indian Child Welfare Act” (law360.com)

SOURCE

Justice Antonin Scalia’s death impacts Indian country in dramatic ways. Last term, the most critical tribal court jurisdiction appeal to hit the Supreme Court of the United States in decades was affirmed by a 4-4 tie in favor of tribal jurisdiction. The court declined certiorari in a pair of tribal labor relations cases where there was a gaping circuit split, possibly because the justices foresaw yet another 4-4 tie. The next justice may be the deciding vote in cases that bring the same questions, but bigger cases involving the Indian Child Welfare Act(ICWA) are in the pipeline.

ICWA is invoked in literally hundreds of child welfare cases throughout the country every year. ICWA applies whenever an Indian child is removed from home by state agencies, and further applies when an Indian parent’s rights to a child might be terminated. ICWA requires state courts with jurisdiction over Indian children to notify relevant tribes and allow them to intervene as a party, and in some matters transfer jurisdiction to tribal court. ICWA more quietly establishes robust due process protections for Indian parents and Indian children, protections that Casey Family Programs and 16 other child welfare advocacy groups call the “gold standard” in child welfare statutes. Given that many state child welfare systems are bureaucratic nightmares where families can be lost, this is an important statement.

On rare occasions, only twice, the Supreme Court has addressed narrow questions of statutory interpretation in the weeds of ICWA’s text. In both instances, Justice Scalia voted in favor of tribal interests under ICWA, but later stated publicly he didn’t like it. Since ICWA’s enactment in 1978, some state court judges and agencies have been saying the same thing. Because certain provisions of ICWA also apply to a “voluntary proceeding[s],” (read: private market adoption), the most strident opponent to ICWA’s enactment then and now is the private adoption industry, a $14 billion market. Groups that represent that market have been trying to serve up a vehicle for Supreme Court review of the constitutionality of some or all of ICWA.

And by “vehicle,” I mean an Indian child with Indian parents, likely going through the roughest period of their lives. Congress enacted ICWA because it found that 25-35 percent of all Indian children had been removed from their homes and almost always placed by state workers as far from their Indian family members as possible. All of that without due process. Nearly four decades later, states are still removing Indian children and placing them in state foster care at wildly disproportionate rates. But now Indian tribes are intervening under ICWA whenever they can, offering services and doing their best to keep the state agencies honest.

How does an Indian child welfare matter become appellate litigation that could be teed up for Supreme Court review? In the two prior instances the court addressed ICWA, the party opposing the application of ICWA simply refused to comply with ICWA, and dared an appellate court to stop them. In the first case, Mississippi Band of Choctaw Indians v. Holyfield, decided way back in 1989 by a 6-3 vote, private adoption counsel persuaded a young Indian couple that was pregnant to move off the reservation to have their children (twins) and let a non-Indian couple adopt the kids through state court processes. The Mississippi courts, ignoring their own law on domicile, allowed the adoption. The Supreme Court reversed, and ordered the case transferred to tribal court. By that time, years had passed with the children in the non-Indian home. The tribe and the tribal court welcomed the children home but still ratified the adoption with the non-Indian family. Justice Scalia voted in favor of the tribe, though he said later in interviews that it was one of his most difficult votes.

Survivor Stories

In the second Supreme Court case, Adoptive Couple v. Baby Girl, decided 5-4, private adoption counsel improperly spelled the Indian father’s name wrong and provided the wrong birth date when notifying the tribe. That kept the tribe out of the early stages of the adoption. They kept the father out, too, by not serving him in a timely manner. The father was an active duty serviceman about to be deployed to a war zone when adoption counsel finally served him with the adoption papers. His deployment stalled everything for about a year, but during that time Baby Girl V. was living with the non-Indian couple and not her relatives, who would have gladly taken her. By the time the South Carolina Supreme Court decided in favor of the Indian father, Baby Girl V. was two years old. The adoptive couple then used a powerful media strategy to attack ICWA and the Indian father. The Supreme Court took the case and reversed on a technical interpretation of ICWA. Justice Scalia dissented on the simple ground that there was a fit father who wanted his child home with him, and who had her home with him for two years before he was forced to give her back to the adoptive couple.  
Sadly, Baby Girl’s most critical precedent might have been to unintentionally endorse the borderline unethical tactics of adoption counsel. That included stalling instead of returning Indian children to their families and violating the privacy rights of Indian families by pasting their images and names on social media and everywhere else.

By now, the private adoption industry’s playbook on attacking the application of ICWA is clear. Match an Indian child with a non-Indian foster or adoptive family. Persuade the foster family to renounce the goal of reunification of the Indian family and seek adoption instead. Use the media to incite racial hostility toward Indian people in the media. Then go to court, claim that ICWA is preventing the foster family from adopting the Indian child and litigate, litigate, litigate.

That’s what happened, and may still be happening in the matter of Alexandria P. Lexi, an Oklahoma Choctaw child living in California who was removed from her parents and placed with a local foster family while efforts to reunify the family were ongoing. Non-Indian relatives living in Utah began preparations to bring Lexi into their home in case reunification failed, visiting her regularly at her foster home. Reunification failed after a year or so. The trial court conducted a best interest of the child hearing and concluded Lexi should go with her Utah relatives. This conformed to the wishes and recommendations of Lexi’s attorney, the state of California and the Choctaw Nation of Oklahoma. By then, the foster couple had shifted into an adversarial mode against Lexi’s relatives, and wanted to keep Lexi. Private adoption counsel advised the foster couple to appeal, and then appeal again, and then appeal again. All these appeals stalled the return of Lexi to her relatives for three years. There were three best interests of the child hearings favoring Lexi’s return to her relatives followed by appeals. And when the appellate court finally confirmed the placement order after the third appeal, the foster family generated the media firestorm that is now a critical part of the private adoption industry’s anti-ICWA playbook, putting a little girl under a national microscope that violated her right to privacy and turned public opinion against the good people who had Lexi’s best interests at heart.

Lexi is back with her relatives, which is what should happen whenever there are fit relatives, under state law or ICWA. Perhaps not wanting all the media attention to go to waste, adoption counsel is still seeking appellate review, now from the California Supreme Court. Counsel is still pointing at ICWA as the problem. But Lexi is not a good “vehicle” for attacking ICWA’s constitutionality. State law would have justified Lexi’s return to her relatives. And three times the trial court, with three different judges, confirmed that it was in her best interests to return to her relatives. Surely the California Supreme Court will see through the smoke and mirrors.

Even as Indian children like Lexi are identified by the private adoption industry as vehicles to challenge ICWA, the U.S. Department of the Interior recently promulgated formal ICWA regulations that will be live in December 2016. They resolve some ambiguities in the statute that the private adoption industry has exploited for years, and so there will surely be challenges to those regulations as well.

All of this means that the Supreme Court may be peppered with certiorari petitions involving challenges to ICWA in the coming years. There is a clear divide on the court right now, with Justice Elena Kagan offering a pragmatic view of federal Indian law that takes into account the history of tribal-federal-state relations, and more conservative justices expressing skepticism. In Indian affairs cases that test the constitutionality of statutes rather than their interpretation, the rest of the court tends to side with the now-standard ideological splits seen in other areas, such as affirmative action and abortion. But ICWA can excite passions, and perhaps may unsettle the regular split.

The next justice likely will have to sift through zealous, emotional attacks on ICWA, Indian tribes and Indian people. Justice Scalia was able to do that in the Holyfield and Baby Girl cases, and voted in line with the statutory text. In any event, the next justice may be the fifth vote in how ICWA will be interpreted, or if it will even survive.

—By Matthew L.M. Fletcher, Michigan State University College of Law

Matthew L.M. Fletcher is a professor of law at Michigan State University College of Law. Fletcher is the primary editor and author of the leading law blog on American Indian law and policy, Turtle Talk.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

Getting Serious about #ICWA in Minnesota

Series of Articles on ICWA in the Minnesota Star Tribune

Posted on August 23, 2016 by Kate Fort

Minnesota wrestles with a system that has put more American Indian children in foster care than any other state in the nation.

Part I here.

Elaine Brown lives in fear of child protection workers.

 

Part II here.

Charts on the foster care disparities in Minnesota here.

Small piece on Minnesota Indian Women’s Resource Center here.

Indigenous Canadians taken from homes as children get day in court #60s Scoop

Class-action lawsuit brought against Canadian government by survivors of ‘Sixties Scoop’ to be heard in court after years of appeals and delays

Canada’s indigenous affairs minister, Carolyn Bennett. A spokeswoman for her said: ‘Our government believes that negotiation, rather than litigation, is the preferred route.’ Photograph: Chris Wattie/Reuters

After years of delay, thousands of indigenous Canadians who were forcibly removed from their homes as children are finally getting their day in court.
An Ontario superior court judge will on Tuesday hear arguments in a summary judgment motion for a class-action lawsuit brought against the Canadian federal government by survivors of the episode, known as the “Sixties Scoop”.

Around 16,000 indigenous children were taken from their families and communities, and put up for fostering or adoption by mostly non-indigenous families across Canada and the United States – often without the consent of their parents. Some were sent as far away as New Zealand and Australia.

Survivors and their families say the forced removal robbed the children of their cultural identity and caused an emotional rift that has been felt through generations.
The lawsuit was launched in February 2009 by two survivors, including Marcia Brown Martel, the class action’s representative plaintiff, who was just four when she was removed from her family home on the remote Beaverhouse First Nation near Kirkland Lake, Ontario. She spent time in foster care before being adopted into non-indigenous family.

Tuesday’s hearing comes after seven years of delays that were mostly due to appeals by the federal government, which has fought the class-action since it was launched.

It is estimated some 16,000 on-reserve children were removed from their homes by Ontario’s child welfare services between 1965, when the federal government signed an agreement with the province to extend its welfare programs to reserves and 1984, when the provincial government incorporated protections regarding cultural identity into law.

'It's the same story': How Australia and Canada are twinning on bad outcomes for Indigenous people

The episode has drawn comparisons to similar chapters in other countries: in Australia, thousands of Indigenous children were systematically removed from their families and communities between 1910 and 1970. In 2008, then prime minister Kevin Rudd formally apologized to the surviving members of the “Stolen Generations”. In the US, the Indian Child Welfare Act was introduced in 1978 to counter the disproportionate removal of Native American children.
The current class-action suit in Canada centres on whether Ottawa had the obligation to take steps to preserve and protect the cultural identity of the thousands of on-reserve children who were placed in non-aboriginal foster care or adoptive homes over that 20-year period. The federal government denies that claim.
Jeffery Wilson, a lawyer for the plaintiffs, said that a ruling in the suite would be the first of its kind in the western world.
“No First Nations case yet to this day has asked the question as to whether or not the loss of identity is an actionable wrong. Aboriginal title to property has been litigated, aboriginal title to identity has not,” he told the Guardian.
Last week, in an open letter to Justin Trudeau, five indigenous leaders called on the prime minister to commit to resolving the issue without further delay.
“Few things matter more than acknowledging and righting historic, and ongoing, wrongs affecting children,” they wrote.
“This moment is an opportunity for Canada to put an ugly legacy behind us, for the government to take steps to reform its conduct so that the injustice does not continue and build a better future for all.”
In the summary judgment proceedings on Tuesday, the plaintiffs will argue they have enough evidence to avoid going ahead with a full trial.
The federal Liberals, who have made renewing the relationship with indigenous Canadians a priority, have signaled they are open to seeking a resolution outside the court system.
In a statement on Monday, a spokeswoman for indigenous affairs minister Carolyn Bennett said: “Our government believes that negotiation, rather than litigation, is the preferred route. We remain open to resuming negotiations to explore options for redress outside of court.”
The class-action is seeking C$85,000 ($65,601) per person in damages. Similar lawsuits have been filed in the provinces of British Columbia, Manitoba, Alberta and Saskatchewan.
Last year, the province of Manitoba issued a formal apology for the Sixties Scoop. Saskatchewan is expected to follow suit.

---

Adoption Contracts: Living Hell

RELINQUISHMENT AGREEMENT BETWEEN CATHOLIC CHARITIES

AND A BIRTHMOTHER

Know all men by these present: That_____________ the undersigned, being the parent of _____________, a minor child born in the state of ________on the ___day of_____, 19--  being unable to adequately provide or care for said minor, hereby surrender the custody of said minor child to Catholic Social Service________ a child welfare agency duly authorized under the laws of the state of ______ to care for, maintain or place children in family homes for care or adoption; and I also hereby relinquish to said agency all rights to every kind or nature which I may have to the custody services, earnings, or control whatsoever, over said minor child and hereby consent to the adoption of said child by any person or persons deemed by said child welfare agency to be fit and proper as adoptive parents. To the best of my knowledge said child _____ was/was not born out of wedlock.  [Signatures, Witnesses, acknowledgement, date. This relinquishment has been duly recorded.]  NOTE: bottom of page: “The parent or surviving parent of a child, or the mother of a child born out of wedlock, may relinquish the child to a child welfare agency licensed to place children for adoption by a written statement signed before 2 witnesses and acknowledges before a representative of the child welfare agency. No such relinquishment shall be valid unless a copy be approved by and filed with the State Department of Social Security and Welfare. By Trace L Hentz (author of One Small Sacrifice) (the following was written for my memoir)

Many adoptees have not seen the relinquishment contract, when a mother sells hands her baby to the church. I found this contract sample on the internet.

           

Catholic Charities Social Services handled me back in 1956, though their typical contract doesn’t exactly specify secrecy. I don’t recall seeing or reading any original contract in my adoption file in 1979. It may have been in there but at age 22, I was too young to know its importance.

           
 “Know all men by these present…” Men wrote this decree and decided this for me, not even knowing me? Had religions invented a moral code just for women? The rules of SIN (seven deadly ones) were apparently handed down by an infallible Pope (directed by God) to his holy men like Jesus who spread the word to cardinals, bishops and ordained priests, all of them men.

            
Wait, it’s not complicated. I just wanted to know my name, my identity, my tribe. It has nothing to do with religion.

             
Who might invent this torture and sell it so convincingly and completely, and a few centuries later, still get away with it. It boils down to this: Sacrifice your baby and save your reputation. Who might write such an edict affecting the innocent?

           
 Apparently these holy white men.

            
 It took me years to comprehend and recognize the depth of strength needed to heal this misery. I prefer not like to think of myself (or any baby) as disposable.

           
 Raised Roman Catholic, I could see myself boxed in - knowing what I’m doing is evil (opening my own adoption file), wanting to know more, committing egregious sins, potentially hurting people – especially my moms and dads, and I’m violating someone else’s privacy, exposing the secret that I am alive so that others might be exposed and judged. Great! By all accounts, I risk eternity in hell.

             
All true, but I’d do it again. To unlock my Wisconsin and Minnesota adoption records meant taking serious legal risk. In other words, my illegal search could get me thrown in jail. Phone calls, letters, a potential lawsuit, all my attempts could get me locked up. Back then it looked possible to break through America’s barrier of secrecy.

          
I used to think of my adoption as an accident, like a derailed train car sunk in mud and muck. I could barely see the river where it happened, let alone the wrecked car, or where my disease, disconnect and blocked memories had submerged. I was living in a daze, not really knowing what happened that I happened. I’m talking numb, almost completely.

           
To top it off, my search meant I’d face my birthmother. I’d risk rejection a second time. This was most terrifying, even after hell and prison. Whatever her reason, what lead her to abandon me, I had no clear explanation after reading my adoption file. I had no idea where to find her or if I should find her. I didn’t know if she was shamed into silence like other birthmothers.

             
Obviously, there are more questions than answers when it comes to adoption. There are many more variations now: open-closed, kinship-stranger, transtribal-transracial, or national-international.

             
For adoptees, it’s either: interested-not interested, searching-reunited, hope-full or hope-less.  

book cover photo ONE SMALL SACRIFICE (using the last name DeMeyer)

Adoption secrecy is like poison. It will get you sooner or later.

Fletcher (again) on #ICWA in Cato Unbound

Posted on August 19, 2016 by Matthew L.M. Fletcher

Here is “A Civics Lesson.”

An excerpt:

In legal analysis, facts matter, and so it is time to return to the war on facts in this series. Mr. Sandefur still tries to attack ICWA in the Alexandria P. matter, even though California law that applies to all children would have Lexi back with her relatives, an outcome all parties excepting the foster parents wanted and prepared for. Along the way, Mr. Sandefur incorrectly states that the Mississippi Band of Choctaw Indians was involved when in fact it was the Choctaw Nation of Oklahoma. Mr. Olson incorrectly assumes that the Shoalwater Bay Tribe had interfered in In re T.A.W. when in fact the non-Indian parent filed the appeal asserting ICWA claims; the tribe is not a party to the case and opposes the non-Indian parent, who served time in prison for robbery and whom the tribal court found to have engaged in domestic violence. One could read the courts’ opinions to find these facts, except in one case, Baby Girl. Here, Mr. Sandefur forgets that the Cherokee dad was an active duty serviceman served with adoption papers immediately before his deployment to an active war zone without the advice of counsel. These are facts the Supreme Court majority also chose to ignore. Conversely, the South Carolina Supreme Court’s opinion addressed all these facts in reaching the opposite outcome. Facts, in law, matter.

All of the cases discussed in this series are complicated cases with difficult fact patterns, and perhaps no one case can vindicate or condemn the ICWA. Consider Mr. Olson’s reference to In re M.K.T. He seems to argue that the case is about a Cherokee father who tried to relinquish his tribal membership in order to avoid ICWA’s application, but the Cherokee Nation stubbornly refused to yield. The facts are more complicated and actually highlight how ICWA could have been useful if the parties had complied initially. The Cherokee father signed the tribal membership relinquishment form without the advice of counsel. The foster parent brought him the form while he was in prison (recall here the incarcerated parent that Mr. Olson accidentally champions by attacking the tribe in T.A.W.), bringing a notary along to cement the deal. The father later testified that he did not understand the legal ramifications of his relinquishment under tribal law, and that no one informed him that there was an Indian family available or anything else about the state of his child. All ICWA requires is the basic procedural right for Indian parents to seek the advice of counsel and to give knowing consent before a judge before their parental rights are terminated. The coercion of an imprisoned father into signing away his rights is a strange fact pattern on which to rest any conclusions about ICWA. Had the Cherokee father access to legal advice in the first instance like the public policy grounding ICWA supports, the case likely would never have been litigated, let alone reached the Oklahoma Supreme Court. The same was true for Baby Girl, where counsel for the adoptive couple failed to properly notify the tribe at the inception of the adoption process, and Alexandria P., where the foster couple fought against the wishes of all other parties to the case and against the best interests of Lexi.

In conclusion, ICWA stands up to scrutiny. Because of the treaty tradition, federal statutes like ICWA, and modern tribal governance, 21st century American Indian people know who they are and where they come from. Modern tribal governance is a triumph of the rule of law over years and years of American greed and bigotry. Indian tribes exist to preserve their homelands, including Anishinaabeki, allowing contemporary Indian people to access sacred sites and to know where their ancestors are buried. Indian tribes encourage their people to learn their languages, including Anishinaabemowin, and cultures.  Indian children are learning their histories and languages, rather than being delivered to assimilationist boarding schools or shipped out to non-Indian families. Anishinaabe children are learning mino-bimaadiwin, the principle holding that all beings are connected and that actions of people have consequences on all. And because tribes are working to protect children, rather than treat them as cogs in a state bureaucratic hell or chattel to be bartered through the private adoption market, Indian children have a place to turn for help. Tribal law – inaakonigewin – speaks for itself.

My previous entry in this series is here.
Kristen Carpenter’s entry is here.

ICWA: Federal judge to issue order fixing '48-hour hearings'

RAPID CITY JOURNAL

Three years after Native American families filed a lawsuit against state officials over the handling of cases involving their children, the end of a phase was imminent Wednesday as lawyers from both sides made final arguments in Rapid City federal court.

Attorneys for the plaintiffs said the Seventh Circuit Court, state Department of Social Services and Pennington County State’s Attorney’s Office have made no fundamental changes in Native American children’s temporary custody hearings despite a federal judge’s findings in March of 2015.

Chief Judge Jeffrey Viken, of the South Dakota District Court, at the time found that local court procedures violated Native people’s rights. This included not advising parents they had a right to contest the state’s petition for temporary custody and not requiring the state to present sworn testimony from a live witness.

Viken had asked the defendants to offer recommendations on how the emergency removal hearings, or "48-hour hearings," can be fixed. The judge wanted to use this as a guide for an order he will be issuing, but on Wednesday said he has not received any recommendations.

Defense lawyers for the Seventh Circuit Court and State’s Attorney’s Office told Viken their clients have already instituted changes since his 2015 findings. The DSS’s attorney, meanwhile, said the department has always respected Native rights in the removal process.

Among the issues Viken is expected to address in his forthcoming order is whether the federal court will appoint a monitor to watch over the custody hearings, as requested by the plaintiffs. Viken did not say when his order will be released.

An issue that will be taken up in future hearings is the plaintiffs’ claim that the DSS has failed to train its workers on the requirements of the Indian Child Welfare Act.

****
VIDEO
RAPID CITY, S.D. (KOTA TV) - U.S. District Court Judge Jeffrey Viken expressed dismay Wednesday that he has received no help from Pennington County officials drafting a court order to address shortcomings he identified in certain proceedings involving Native American children.

Plaintiff's attorney Stephen Pevar.

Seventeen months ago Judge Viken found that Indians were denied protections guaranteed under the constitution -- and the Indian Child Welfare Act – in certain hearings.

The proceedings, known as "48 hour hearings" are held to determine if the state has the right to temporary child custody.
In a suit brought by the Oglala Sioux and Rosebud Sioux Tribes, Viken found, among other things, that Native American parents were denied the right to representation by an attorney and are not afforded the chance to cross examine Department of Social Services staffers recommending the taking of their child.
Today the courts have so far not adhered to the bulk of Viken's interpretations -- nor changed much of the way they handle 48 hour hearings.
Plaintiff's attorneys called Pennington County States Attorney Mark Vargo to the stand and asked why he hadn't complied.

Vargo also said he felt his office was complying with the Indian Child Welfare Act. He said that Viken had not issued a formal ruling directing him to change procedures and that if the judge did, he would comply.
“The only issue in today's hearing was what remedies should just federal court issue in order to get the defendants to stop violating the rights of the plaintiffs,” said plaintiff attorney Stephen Pevar. “In a previous ruling he had found that the defendants were violating federal rights in seven different respects.”
Viken repeatedly said on Wednesday that he wanted the defendants, which includes the Department of Social Services, to suggest remedies. He said it was difficult for federal judges to craft write these without guidance.
But he was very clear. He said he is going to issue rules that the courts and the D.S.S. will have to follow.
He also said from the bench that it was not unlikely that this case, involving overlapping responsibilities of state and federal courts, is headed for appeal.

ONGOING: Watching the Feds

Ruth Hopkins

8/9/16

As a reservation NDN descended from exiles who went to war against the U.S. Government, I've been under surveillance by the Feds my entire life. I was born at an old military fort on tribal land: Fort Yates, North Dakota, on the Standing Rock Sioux Reservation. I grew up around other old military forts on reservations that were formerly prison camps. Fort Sisseton, South Dakota, on the Lake Traverse Reservation. Fort Totten, North Dakota, on the Spirit Lake Nation Reservation. It’s funny what a child is able to normalize. Until I went off to college, I never realized the depth and breadth of how unusual my upbringing was from the typical American youth. Sure, I watched Saved By the Bell, but I had no idea that the national park I played at was named for a man, General Sully, who slaughtered hundreds of innocent, unarmed Dakota and Lakota men, women and children in a little known ambush called Whitestone Hill. In a fury of bloodthirsty hatred, the soldiers even killed my ancestors’ dogs and horses, and burned their winter rations.

The military installations that surrounded us were not put in place to protect or assist my ancestors. They were put there to contain us. The U.S. Government and its agents massacred and imprisoned my People. We were enemies of the state. Thanks to corrupt government officials who withheld treaty promised rations, my ancestors were starving and forced to fight for their survival in the Minnesota Uprising of 1862, also known as The Dakota Conflict. At its end, 38 of our warriors were hung in Mankato under orders from Abraham Lincoln, everyone’s favorite President, in the largest mass execution in U.S. history. We were outlawed from our own Minnesota homelands. Governor Ramsey placed a bounty on our scalps, our "red skin." Some of us were shipped off to prison in Iowa, where soldiers forced Dakota men to watch as they raped their wives, sisters and daughters. Some were marched naked through the snow to Crow Creek, South Dakota. Others ran to Sitting Bull for protection, or escaped to Canada.

Outsiders read these stories at a comfortable distance. To me, history is alive. These people are my grandmothers and grandfathers. Genocide is personal. It’s my story and the story of every Native.
My great great grandfather was hauled off to an asylum for being disobedient (a bad NDN). He died there, from a ‘head wound.’ They stole my father away to boarding school when he was only 4. He was still nursing at his mother’s breast. These actions have had a profound effect on my family and oh boy, does the government know my family well. Like other Rez NDNs, the government keeps thorough records of my bloodlines' births, deaths, land holdings, and whereabouts. They know our genealogy better than we do. Like the Jews during the holocaust, I am assigned a number. It will follow me my entire life.

I went away to school and studied their laws as well. I know the history of lies and deceit; the trail of broken treaties left behind. I know the destruction of our lifeways continues to this day, as I see my relatives struggle in abject poverty, which has manifested within our communities as a direct result of the Federal government's actions and inaction. I've seen the oil spills on tribal lands that are never cleaned up. I've witnessed Federal agencies hamstringing Tribes so they're unable to actualize economic development, provide adequate health care, foster care and law enforcement, yet it is the Tribal leadership who is called into question during congressional hearings. Our suffering is not for show. If justice is real, Congress should indict itself.

The NDN knows their games. We’ve watched politicians fly in and out of our territories for photo ops during election season only to disappear once it’s over. We’ve seen the insidious workings of governmental organizations like COINTELPRO, who labored tirelessly to tear down Red Power and the American Indian Movement. Leonard Peltier, a Native political prisoner, fellow Dakota, and elder, remains behind bars despite calls from Nelson Mandela and many others, for his release. We see the black cars and agents at protests today.

I cannot shut my eyes to these things. I cannot forget the theft of our lands and resources, and the ongoing destruction of Mother Earth perpetrated by government-protected corporations, or how they removed us from our hunting grounds and natural, healthy gathering places where food was medicine, and replaced it with poison that gives my People diabetes and cancer. I will not forget how they outlawed our sacred ceremonies, kidnapped our children to ‘kill the Indian, save the man,’ nor the young women on Reservation lands who’ve appeared before me in tribal court, scared for their lives against non-Native women beaters who continue to be protected by loopholes in federal law and more empty promises yet to be implemented.

So forgive me if I don't trust the government. Pardon me if I choose not to get into bed with the establishment that committed genocide against my People and continues to commit it here and abroad against other Indigenous Nations to this day. There is something in us that they do not have and that they greatly fear. I, for one, will never surrender.

Ruth Hopkins (Sisseton Wahpeton & Mdewakanton Dakota, Hunkpapa Lakota) is a writer, blogger, biologist, activist and judge.

SOURCE http://indiancountrytodaymedianetwork.com/2016/08/09/watching-feds?utm_content=buffer7fe37&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer

Priscilla Sharp: Tips for Families Searching for Adoptees

click: Tips for Families Searching for Adoptees [Update 4/2016]

We are encouraging Native American and First Nations adoptees to contact Karen Vigneault (see our blog reference section above for her email) and please contact Priscilla Sharp as well.. she has helped many adoptees I know... Trace

PERFECT STORM: A ‘Revolution’ in Canada’s Aboriginal Child Welfare System

 

By Devon Ziminski
Written By Chronicle Of Social Change

Recent legislative action addressing the severely adverse outcomes that First Nations children face in Canada’s child welfare system has led to a national discussion.

Earlier this year, the Canadian Human Rights Commission issued a decision against the government in a 2007 lawsuit filed by the First Nations and Family Caring Society and the Assembly of First Nations. The tribunal ruled that the federal government discriminated against tens of thousands of vulnerable First Nations children by providing less money for welfare services on reserves – referred to as reservations in the U.S. – than elsewhere in Canada.

The ruling has captured the nation’s spotlight because of Canada’s troubled past with Aboriginal peoples, and its urgency is heightened by the disproportionate overrepresentation of First Nations children in the Canadian child welfare system.

“Aboriginal peoples” is a collective name for the native inhabitants of North America and their descendants. Canadian law recognizes three groups of Aboriginal peoples: Indians, commonly referred to as First Nations people, Métis and Inuit.

Nearly half of the 30,000 children and youth in foster care across Canada are Aboriginal children, even though Aboriginal peoples account for only 4.3 percent of the Canadian population.

“In the U.S., African American kids are overrepresented. In Canada, its First Nations children,” said Josh Kroll, a project coordinator with the Northern American Council on Adoptable Children (NACAC). NACAC promotes and supports permanent families for children and youth in the U.S. and Canada.

While the overrepresentation of Aboriginal children clearly exists, comparing the rates of Aboriginal children in foster care across the country is challenging because the population rates, economic conditions and community supports vary in each province.

“There is overrepresentation in each province but it is different,” Kroll said. The percentage of Aboriginal children in child welfare systems reaches 60 percent to 78 percent in some provinces and territories.

While Canadian policy acknowledges cultural differences between mainstream society and Aboriginal culture, these tensions have escalated to legal action.

“With the Inuit populations in Canada, there are profound challenges,” said Rita Soronen, president and CEO of the Dave Thomas Foundation for Adoption in the U.S. and Canada. The Dave Thomas Foundation is a nonprofit organization dedicated to finding permanent homes for children in foster care.

Historically, Canada has had a challenging relationship with First Nations people. Many struggles relating to child welfare in Aboriginal communities are perpetuated by poverty, community isolation and a lack of social services. An inaugural First Nations summit led by the Federal Minister of Indigenous Affairs will be held in fall 2016 to address these issues.

First Nations Child and Family Caring Society Executive Director Cindy Blackstock speaks about the Canadian Human Rights Tribunal regarding discrimination against First Nations children in care. Assembly of First Nations National Chief Perry Bellegarde looks on. Photo: Adrian Wyld for The Canadian Press

In the recently ruled upon lawsuit, Cindy Blackstock,  executive director of First Nations and Family Caring Society, argued that the support the federal government provides for child welfare on reserves is significantly lower than the support provincial governments give to children off reserves.

The Canadian Human Rights Tribunal began hearings for the case in 2013, and on January 26 of this year ruled that the underfunding was discriminatory, leading to a major refocusing of Canadian child welfare policy. The government’s own documents say the underfunding for welfare on reserves ranges between 22 and 34 percent.

The ruling confirming the discrimination will require hundreds of millions in financial reparations to First Nation communities and secure child welfare as a top policy priority. Political agendas have shifted, and now the question is, “Who should be running child welfare for First Nation people in Canada?” said Irwin Elman, Ontario’s provincial advocate of child welfare.
Each Canadian province and territory has its own child welfare policies and legislation in place, making blanket national policies challenging to enact or enforce.

Ontario, for example, has 48 different agencies that deliver child protection services. Six of the 48 are First Nations-designated agencies, and are run by First Nations people. This allows these agencies to have some leniency to practice child welfare in a way they say is more culturally appropriate for their community.

Aboriginal child welfare agencies work in various ways, with some being fully delegated agencies authorized under provincial child welfare laws to provide a full range of services, while others are non-delegated agencies with voluntary mandates to provide services to Aboriginal people.
However, children who enter the child welfare system have to go through the provincial legal system, regardless of whether they reach the system through a First Nations or other agency.
First Nations legal operations must adhere to Canadian law, but First Nations leaders want to reclaim control of their children. Elman said these communities are exerting the sentiment that “we should determine our services and how we protect our kids.”

In the future, First Nation communities might have their own court system for dealing with child welfare issues, as opposed to going through the traditional Canadian system.

“There is a sense of urgency for First Nation people as their children are being put into a colonial system that isn’t working for any child, let alone for First Nation kids,” Elman said.

One of the emergent themes from recent discussions is the potential movement towards a “nation-to-nation discussion, as in the First Nation people to Canada discussion,” Elman said.
Although two separate welfare systems have never been tried before, “the government is open to exploring that,” Elman said.

Despite an overall anxiety about what to do, this issue is “the number one priority, and a priority at every level in government,” Elman said. “It is a huge question with heavy context.”
Besides the tribunal ruling there have been other efforts on behalf of the indigenous population, but many “believe those kids have gotten the short end of the stick,” Soronen said.

A Truth and Reconciliation Commission final report released by the federal government mid-2015 highlighted a “policy of cultural genocide” within Canadian borders. The report described Canada’s residential schools as “part of a coherent policy to eliminate Aboriginal people as distinct peoples and to assimilate them into the Canadian mainstream against their will.”

The residential school policy removed indigenous children from their homes in attempts to assimilate them into Canadian society. The policy resulted in countless deprivations and abuses inflicted on thousands of children, as well as the loss of language, community cohesion and cultural knowledge and skills.

“The Truth and Reconciliation Commission report uncovered publicly that there is a lot of damage that has been done to three-to-four generations of First Nation people in our country,” Elman said.
And just last week, Alberta’s Child and Youth Advocate Del Graff released a report outlining the systemic issues he says are failing indigenous families, according to Edmonton CBC News.
In the report, “Voices for Change,” Graff said there is “something wrong” with the child welfare system.

The report also outlines many systemic problems that contribute to the high numbers of indigenous children in the system. Graff said many reports have documented how Aboriginal people have been underserved by child welfare systems, but despite recent calls to action the situation has “actually gotten worse.”

While the obstacles facing First Nations children are not new, a perfect storm of events has launched child welfare to the forefront.

“There’s a revolution going on in Canada about Aboriginal child welfare,” Elman said.

Fletcher on ICWA at Cato Unbound

Posted on August 5, 2016 by Matthew L.M. Fletcher | Turtle Talk

Here is “Limit Government Intrusion in Indian Families’ Lives.” This essay is part of a series of online essays at Cato Unbound on the Indian Child Welfare Act.

Excerpts:

The Indian Child Welfare Act (ICWA) restricts government intervention in Indian families’ lives, imposes important obligations on the government that benefit both children and parents when it does interfere, and limits the ease by which private entities profit from government action.

And:

Alexandria P. is a story of how foster parents created an adversarial relationship with a child’s family, disregarding the goal of reunification, and then created a perfect storm of anti-Indian media sentiment when they lost. Some facts should be made clear, in case they are not: Lexi knew and regularly visited her Utah family – her sisters and her aunt and uncle – and she always knew she was a foster child. From the beginning, the California foster couple was the only party to contest Lexi’s placement with her relatives. The state of California, the Choctaw Nation, her relatives, her father, and Lexi’s own counsel all agreed that the placement with her relatives was absolutely in her best interest. Not once did any court disagree.

Finally:

Casual racism against American Indians is alive and well. In this hostile racial climate, it shouldn’t be surprising that Indian parents in South Dakota argue that “there’s this collective belief that Native people can’t take care of their own children.” The critique that ICWA improperly routes Indian children to their relatives’ homes instead of non-Indian homes is a critique that takes advantage of racial animus against Indian people and comes dangerously close to an allegation that Indian parents and tribal communities are inherently inferior (others have outright denounced the Goldwater Institute’s goals for this reason). Indian people love their children the same as everyone else. ICWA, the gold standard in child welfare, is there to support Indian families against governments that too often devalue them.