South Dakota SCT Decides ICWA Doesn’t Apply to Children Not Eligible for Membership

Here is today’s opinion in In re L.S.

An excerpt:

In the circumstances here, however, the Crow Creek Sioux Tribe requires an application for membership. See Constitution and By-Laws of the Crow Creek Sioux Tribe of Fort Thompson, South Dakota, Art. II, Membership. An Indian tribe’s determination of its membership and eligibility for membership is binding and conclusive in an ICWA proceeding. In re Adoption of C.D., 751 N.W.2d 236, 241-42 (N.D. 2008). C.S. has not taken the necessary steps to enroll in the Crow Creek Sioux Tribe, even though she had sixteen months to do so from the time L.S. was removed. Therefore, L.S. is not a biological child of a member of an Indian tribe.

7 thoughts on “South Dakota SCT Decides ICWA Doesn’t Apply to Children Not Eligible for Membership

  1. Angelique EagleWoman March 22, 2012 / 2:34 pm

    I think this would be more aptly titled – South Dakota SCT decides child who may be eligible for tribal enrollment not covered by ICWA. This child was not enrolled because the mother was adopted out and had not enrolled herself. The child’s eligibility for enrollment was not foreclosed and the child could still be enrolled if some legal guardian stepped in and did the paperwork.

  2. Matthew L.M. Fletcher March 22, 2012 / 2:35 pm

    Agreed. Some times the titles just don’t write themselves….

  3. Lisa Coppedge March 22, 2012 / 5:45 pm

    Either way it is reason that the tribes seriously need to consider membership. The idea that a child may be denied the protections of icwa because of something stupid like adoption of its parents is ridiculous. Adoption does not take away who you really are. It merely gives you a bonus family. I admit this discussion is personal as an adopted child who is unable to be registered because of said adoption and sealed records this is highly annoying. Adoption is used to reduce the tribal roles. ICWA was supposed to protect the children but it failed in many cases because of mixed race children being born. It seems that we matter little or not at all to the people we come from as they have failed to find a way to protect us. This child will be lost to the tribe and may never understand who they truly are because some idiot let her parent be adopted and did not protect them. Sadly it will lead to the end of our nations but as usual someone is to damned short sighted to realize this. I would think that the heart and soul of a person should matter more then blood quantum what ever the hell that is. If you want to use blood use DNA at least that is somewhat reliable.

  4. paul spruhan March 23, 2012 / 12:15 pm

    It appears that like the recent Cherokee case out of the 10th Circuit, part of the problem is the way ICWA’s definition of “Indian child” is written. It is not enough for a child to be merely eligible for membership- he or she has the biological child to be an Indian child if he or she is not enrolled. This creates problems as discussed above because of adoptions of parents who cannot or did not establish their membership. However, part of the issue in this case is that the tribe, like most tribes it appears, requires an affirmative application for membership. As the parent did not affirmatively enroll or seek to affirmatively enroll the child, it was easy for the SD Supreme Court to follow ICWA’s definition and deny its application. Note that Cherokee attempted to fix this by having automatic enrollment of children for ICWA purposes, and got shot down by the 10th Circuit. So tribes are in a bad situation either way….

  5. paul spruhan March 23, 2012 / 12:17 pm

    Sorry, comment should read “he or she has to be the biological child of an enrolled member to be an Indian child if he or she is not enrolled.”

  6. April Pohawpatchoko May 29, 2012 / 2:07 am

    I have a grandson adopted out to non indians but the mother is enrolled in a tribe but icwa allowed the child to be adopted without posting to the tribe to intervine as icwa laws states therefore even though the child could have been eligiable to be enrolled so i think the icwa doesn’t protect the children as they should the child was adopted through white courts. so now i will have to wait many years before my grandson comes looking for his family.

  7. Russ Letica November 25, 2012 / 7:57 pm

    We know who our descendants are! They don’t need to be status to carry the blood of our ancestry by the standard of racism produced in the Indian Act.

    What other race of people have to qualify their own children to who their own blood has produced?

    This is the modernization of genocide as they continue to steal the child from our Nations and removing their status and treaty rights. Its saves the govt money as they traffic these children under the disguise of Adoption to non native families, for profit!

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