Cutting through the Brackeen v Haaland case

 

Was it a victory?

Read my friend Peter (law professor) on Substack.

Cutting Through the US Claim of a Right of Domination over Indigenous People: An Analysis of Haaland v. Brackeen

https://peterderrico.substack.com/i/130980867/haaland-v-brackeen-misplaced-celebration

READ

South Dakota's Federal #ICWA Ruling Heads To 8th Circuit Court of Appeals

The Indian Child Welfare Act lawsuit filed in Rapid City's federal court almost five years ago is going to the Eighth Circuit Court of Appeals. A three-judge panel is hearing oral arguments in St. Paul, Minn., on Tuesday, Feb. 12.

In March 2013, the Rosebud and Oglala Sioux Tribes, as well as tribal parents, brought suit against state officials in Pennington County. They claim the process for handling abuse and neglect cases routinely violates ICWA and due process rights.

After two years of litigation, U.S. District Judge Jeffrey Viken found for the plaintiffs and ordered changes in the way emergency placements are handled. Immediate appeals were filed by the Seventh Circuit presiding judge, the Pennington County State's Attorney, and the state Department of Social Services. SDPB's Victoria Wicks has this story.


LISTEN AT LINK: South Dakota's Federal ICWA Ruling Heads To 8th Circuit Court of Appeals | SDPB Radio

Goldwater Litigation on the Constitutionality of ICWA Dismissed Without Prejudice #StrongIndianFamilies

Posted on March 17, 2017 by Kate Fort | Turtle Talk

This is the attempted class action litigation claiming ICWA violated the Constitution.

This is a big win for ICWA and the legal advocates who worked on this case at the state, federal, and tribal levels.

Here is the Order.

The legal questions Plaintiffs wish to adjudicate here in advance of injury to themselves will be automatically remediable for anyone actually injured. The very allegations of wrongfulness are that such injuries will arise in state court child custody proceedings, directly in the court processes or in actions taken by state officers under the control and direction of judges in those proceedings. Any true injury to any child or interested adult can be addressed in the state court proceeding itself, based on actual facts before the court, not on hypothetical concerns. If any Plaintiffs encounter future real harm in their own proceedings, the judge in their own case can discern the rules of decision. They do not have standing to have this Court pre-adjudicate for state court judges how to rule on facts that may arise and that may be governed by statutes or guidelines that this Court may think invalid.

Here is the joint press release from the ICWA Defense Project.

The ICWA Defense Project is a coalition of NICWA, NARF, NCAI, and the ICWA Appellate Project to provide assistance and updates to tribes and other interested partners on the federal challenges to ICWA.

#ICWA in the news

Federal ICWA Cases Update Memo

Posted on October 20, 2015 by Kate Fort | Turtle Talk

We originally posted this when the first three lawsuits were filed. There have been two additional ones since then. Here is the memo with the most recent updates.

The National Indian Child Welfare Association (NICWA), the Native American Rights Fund (NARF), the National Congress of American Indians (NCAI), and the ICWA Appellate Project at Michigan State University College of Law—collectively known as the ICWA Defense Project—are working collaboratively to defend ICWA and the long overdue reforms to it introduced this year. This memo will summarize the pending litigation and describe some of the legal and communications strategies these partner organizations have developed to inform, advance, and unify a coordinated effort across Indian Country to respond to these attacks.

Here is a link to the page where we are keeping all of the PACER documents.

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A little girl named Veronica is our inspiration to keep ICWA intact...Trace

Wall Street Journal Article on ICWA Lawsuits

Posted on October 20, 2015 by Kate Fort

Here.

PDF copy here.

From the end of the article:

An Interior spokeswoman said Congress has determined it “is in the best interests of an Indian child to keep that child…with the child’s parents,” extended family and tribal community.
Kathryn Fort, a lawyer with the Indigenous Law and Policy Center at Michigan State University, defends the law and the guidelines. Ms. Fort said that before the law was passed, social workers would argue that it was in the “best interests” of an Indian child to be permanently removed from a house that was merely messy or lacked the most modern conveniences. “It’s really a way of allowing—and perpetuating—discrimination against Indians,” she said.
Supporters of the law say the adoption delays often required are part of its point. The law “demands excellence in how we treat Indian children,” said Matthew Newman, a staff attorney for the Native American Rights Fund. “That often requires a bit of time.”

Leland Morrill on ICWA lawsuits

From Turtle Talk: 

Doe v. Pruitt, Another (Fourth) Federal ICWA Case Filed (N.D. Okla)

August 24, 2015

My biological father and I meeting for the first time...

Turtle Talk Link:
https://turtletalk.wordpress.com/2015/08/24/doe-v-pruitt-another-fourth-federal-icwa-case-filed-in-northern-district-of-oklahoma/

NOTE: "Here is the complaint", click on the COMPLAINT to download the PDF file for the 20-page complaint to read in full.

Doe v. Pruitt, Another (Fourth) Federal ICWA Case Filed (N.D. Okla)

"Doe Pruitt Complaint" Cae 4:15-cv-00471-JED-FHM Document 2 Filed in USDC ND/OK on 8/19/15

This appears to be a lawsuit against the ICWA (Indian Child Welfare Act of 1978) where the opposition has found two enrolled Cherokee Nation Citizens who are urban and assimilated like the United States has wanted to happen, a biological mother ("Jane Doe" Cherokee) and pre-adoptive father ("Richard Roe" Cherokee) and they are using the Urban Natives to "divide and conquer" the ICWA in Oklahoma using these 18 year old, barely adult biological parents for their agenda and using a newly born infant ("Baby Doe" born July 2015) for this case.

This is a case where they claim it is an voluntary adoption for from the biological parents ( barely 18) to pre-adoptive parents and the Cherokee Nation should not have any say or notice regarding this, one of their citizens. This would bypass the childs biological famnily or any other member of the Cherokee nation or any other indian famnily from adopting this child. Keep in mind the Cherokee Nation is a Sovereign Nation within a nation and should have priority because this infant is born from a citizen of their nation.

Where it gets sticky is this involves both a State in American (Oklahoma) and a Sovereign Nation, Cherokee Nation. In 1994 Oklahoma Legislature expanded their Oklahoma ICWA:

"B. Except as provided for in subsection A of this section, the Oklahoma Indian Child Welfare Act applies to all state voluntary and involuntary child custody court proceedings involving Indian children, regardless of whether or not the children involved are in the physical or legal custody of an Indian parent or Indian custodian at the time state proceedings are initiated." (10 Okla. Stat. §40.3)


And:
In all Indian child custody proceedings of the Oklahoma Indian Child Welfare Act, including voluntary court proceedings and review hearings, the court shall ensure that the district attorney or other person initiating the proceeding shall send notice to the parents or to the Indian custodians, if any, and to the tribe that is or may be the tribe of the Indian child, and to the appropriate Bureau of Indian Affairs area office, by certified mail… (10 Okla. Stat. §40.4)

So in Oklahoma the State ICWA law includes VOLUNTARY ADOPTIONS of NATIVE CHILDREN CITIZENS of NATIVE AMERICAN (INDIAN) TRIBES)

27. The 1994 amendments to OICWA also amended §40.6 which now states:

The placement preferences specified in 25 U.S.C. Section 1915, shall apply to all preadjudicatory placements, as well as preadoptive, adoptive and foster care placements. In all placements of an Indian child by the Oklahoma Department of Human Services (DHS), or b) any person or other placement agency, DHS, the person or placement agency shall utilize to the maximum extent possible the services of the Indian tribe of the child in securing placement consistent with the provisions of the Oklahoma Indian Child Welfare Act. This requirement shall include cases where a consenting parent evidences a desire for anonymity in the consent document executed pursuant to Section 60.5 of this title.2 If a request for anonymity is included in a parental consent document, the court shall give weight to such desire in applying the preferences only after notice is given to the child's tribe and the tribe is afforded twenty (20) days to intervene and request a hearing on available tribal placement resources which may protect parental confidentiality,  provided that notice of such hearing shall be given to the consenting parent. 

So Jane and John Doe (annonymous biological parents where Jane Doe is a CITIZEN of the CHEROKEE NATION and a "resident" of the US State OKLAHOMA) their infant born July 2015 is still covered under the Oklahoma ICWA Law for PUBLIC and PRIVATE ADOPTIONS of NATIVE AMERICAN CHILDREN.

I think this case is interesting because we know in the Baby Veronica Case the attorneys "misrepresented" the spelling of Dusten Brown's name even though Christy Maldanado (Baby Veronica/RONNIE BROWN's hispanic bio-mother) knew Dusten Brown for several years and would know how to spell his name but also because it states on page 8:

"Jane Doe did not learn that she was a member of the Cherokee Nation until approximately May 20, 2015 when she discussed the matter with her estranged Father"

The above wording: "estranged Father" and "did not learn that she was a member of the Cherokee Nation until approximately May 20, 2015" seem suspect in this "complaint".

I also find it interesting that at 18 years of age (page 10) "Jane and John Doe are well aware of their rights under ICWA and OICWA. However, they believe they are making the best decision about Baby Doe's care, custody, control, and future upbringing and they do not want the Cherokee Nation to interfere with the plans they have carefully made"

I also find it suspect this 18 year old couple was coached into (page 11) "42.  As Indian parents, Jane and John Doe are aware of their right to revoke their consent at any time until the adoption is final. If the tribe attempts to interfere with their private placement adoption, and it becomes apparent that Richard and Mary Roe will not be permitted to adopt Baby Doe, Jane and John Doe will revoke the consents already given and will not give consent to anyone else for Baby Doe's adoption."

It goes on and on and on...please read the case number. If you followed the Baby Veronica Case you will understand how the wording of this "complaint" could be suspect/coaching of the 18-year-old non-married couple.

These cases are hard to read and you might have to read several times to understand ( I do at least ) and then you can form your own opinion.

PLEASE SHARE the case widely.

AND MY UPDATE!

Also coming up I will be writing about meeting my biological father on August 4th who looked for me for 46 years after he came back from the Vietnam War to find his family was gone...Can any of you parents image, especially Vets who have been to war and seen families killed, murdered, caught in crossfire, again imagine coming back from war  like from Iraq or Afganistan and finding your children are gone and the mother of your child dead...and you are suffering from PTSD and everything else that comes with serving in wartime.... ??

...that story will be coming up as soon as I can write it effectively...

Thanks,
NOW GO READ THE CASE!!

Lele