Child Welfare

AK Tribal Jurisdiction/ICWA Case–News Coverage

Kate Fort1 Comment

Here.

At issue is whether a small tribal court in the village of Minto, 130 road miles west of Fairbanks, could strip Parks of his parental rights to one of his daughters, named “S.P.” in legal filings, and approve her adoption by Jeff Simmonds, the cousin of the child’s mother, and Simmonds’ wife Rozella. According to court filings, S.P. is a member of the Minto tribe, as is her mother, Stearman, the victim of Parks’ rage. Jeff Simmonds is also a Minto tribe member, while Rozella Simmonds is a Zuni Pueblo Indian from the Southwest.

One of Parks’ parents is Alaska Native and Parks himself is an enrolled member of the tribe at Stevens Village, about 60 miles north of Minto on the Yukon River, according to the court filings.

To the state, that meant that the Minto court was trying to enforce its order against a nonmember of its tribe. The Minto court’s declaration on May 7, 2009, that Parks was an unfit parent was improperly reached, the state said in its brief to the Alaska Supreme Court, filed in April.

The proper venue for that question is before a state judge in Fairbanks, not the elders of the Minto court, the state said.

[Natalie] Landreth, from the Native American Rights Fund office in Anchorage, said the state is overreaching and ignoring the years of legal precedent since Congress passed the Indian Child Welfare Act in 1978.

 

Related case in the 9th Circuit here.

Casey Family Programs ICW Job Posting

Matthew L.M. Fletcher

For details on the posting, which is for Director — Indian Child Welfare, see here.

Civil Rights Complaint Filed in Baby Veronica Dispute

Matthew L.M. Fletcher2 Comments

Complaint here.

NCAI press release:

Federal Civil Rights Lawsuit Filed on Behalf of Veronica Brown
Statement of Support Issued by Tribal Governments and Leading Native American, Civil Rights, Child Welfare and Legal Advocates along with Arizona and New Mexico State Attorneys General to Stop Violation of “Baby Veronica’s” Civil Rights by South Carolina Courts

Washington, DC (July 31, 2013) – Today, the Native American Rights Fund filed a complaint in the United States District Court in South Carolina to protect the civil rights of Veronica Brown, a citizen of the Cherokee Nation who has been denied due process in the South Carolina courts. The filing comes after the South Carolina Supreme Court issued two controversial orders to the state’s family court on July 17 and 24, calling for the removal of Veronica from her father and a transfer her to the adoptive couple without a hearing of best interest.

The lawsuit was supported in a national statement released today by a broad coalition of civil rights, child welfare, adoption advocates, legal authorities, tribal governments, and Native American advocacy groups. These groups and individuals joined with the National Congress of American Indians, Native American Rights Fund, and National Indian Child Welfare Association in releasing the national statement of support for Veronica’s civil rights, and the rights of all children, to a hearing of best interest.

The litigation was filed on behalf of Veronica, by Angel Smith, an attorney appointed as counsel for the child by the courts of the Cherokee Nation, in U.S. District Court in South Carolina, and asks the Court to determine whether Veronica has a constitutionally protected right to a meaningful hearing in the state courts to determine what is in her best interests. Furthermore, the litigation asserts that Veronica, as an “Indian child” under the Indian Child Welfare Act, has a federally protected right to have the state courts fully consider and appropriately weigh her best interests as an Indian child. Daniel E. Martin, Jr., the judge for the family court system of South Carolina, is named as the defendant in the suit.

According to the filing, Veronica “doubtless has a liberty interest in remaining with her father and such an interest justifies at a minimum a plenary hearing on her current status, her relationships with others and her genuine need for stability… Despite the finding of the family court and the implicit assumption by the Supreme Court of South Carolina that [Veronica’s] best interest would be served by being with her father, two years later the court now determines, despite the passage of time and [Veronica’s] stage of development at age four, that her ‘best’ interests will now be served by being removed from him and given back to the adoptive couple. Again, this order is without any consideration to the present circumstances, psychological and emotional well-being, and future impact on [Veronica]. This is an arbitrary result, depriving [Veronica] of any opportunity to be heard on her own behalf, irrespective of the competing interests of the adult litigants in her young life.”

Click to download the Complaint.

Broad National Support for the Litigation

Also today, on behalf of broad coalition of civil rights, child welfare, legal authorities, tribal governments and Native American advocacy groups, the National Congress of American Indians, along with the Native American Rights Fund and the National Indian Child Welfare Association released a national statement of support for Veronica’s civil rights to be upheld. The statement of support has been endorsed by a broad coalition of tribal governments, state and federal legal authorities including two state attorneys general – Arizona and New Mexico – civil rights institutions such as the Leadership Conference on Civil and Human Rights, child welfare and adoption organizations including the Child Welfare League of America, and leading national and regional Native advocacy organizations representing the interests of almost every tribe located within the United States (see full list below).

According to the letter:

[T]he rights promised to our children are being compromised in the courts of the State of South Carolina … The recent [South Carolina Supreme Court] ruling in the case denies the basic fundamental right of an almost four-year-old Indian child to a hearing of her ‘best interests’ before removing her from her biological father after almost two years of child-rearing, bonding and establishing a loving home environment. Plainly stated, this is a denial of Veronica’s human rights and constitutional rights to due process as a citizen of the United States.

The following organizations and individuals have signed on to the letter of support for the civil rights lawsuit being filed on behalf of Veronica:

Continue reading →

Casey Family Programs Job Posting

ilpc

Here.

Intergovernmental Personnel Act (IPA) full-time contract position based in Washington DC to work on ICWA issues in partnership with the Dept. of the Interior and Administration for Children and Families (ACF).

Job Summary:

This full-time contract position supports national efforts, through the federal executive branch, to address well-being needs of children, youth and families, in particular, increase understanding of the needs and opportunities related to improving outcomes for Native American children and families impacted by child abuse and neglect. The placement will ultimately benefit Casey Family Programs, ACYF, and the BIA by advancing their respective missions to enhance the well-being of vulnerable families involved in child welfare.

Casey Report on Mille Lacs Ojibwe Child Welfare Programs

Matthew L.M. Fletcher

Here.

SD Tribes Discuss the Idea of Creating Tribal-Run Foster Care Systems

Victoria Sweet1 Comment

Following mounting anger over charges that the state has routinely and illegally placed Native American children with non-native foster parents, South Dakota tribes gathered Monday in Rapid City to discuss how they could form their own tribal-run foster care systems. . . .

Since a conference held by the tribes in Rapid City in May, attended by Kevin Washburn, the U.S. Interior Department’s assistant secretary for Indian Affairs, the Lakota have focused increasingly on steps to wrestle away federal funding from South Dakota and create native-run foster care systems.

Article here.

Collection of Reactions on Baby Girl Case

Kate Fort4 Comments

Casey Family Programs

Cherokee Nation of Oklahoma (video)

NCAI

NICWA Initial Statement (pdf)

NICWA Legal Analysis (pdf) (Includes an excellent point about state laws, and one we’ve been considering here as well)

Terry Cross Statement

NARF

The Atlantic, Andrew Cohen

Minnesota Public Radio (with Colette Routel)

NPR (with Marcia Zug and Mary Jo Hunter)

Washington Post

Will add more as they come up.

Adoptive Couple v. Baby Girl First Impressions

Kate Fort4 Comments

In a split 5-4 opinion by Justice Alito, with a strong dissent from Justice Sotomayor, the Court limited ICWA, but did not eliminate it. The Court is unwilling to go so far as Justice Thomas would like, and find the statute unconstitutional. *12 (Thomas, J. concurring). Instead, the decision turns on dictionary definitions of “continued” *8, and “breakup” *12, finding that 1912(f) (involuntary termination) does not apply to the father, as he did not have physical custody of Baby Girl, nor legal custody under state law. *11. In addition, 1912(d) (active efforts) does not apply to Baby Girl’s adoption. *13. The Court reads the statute to apply to “intact” Indian families. *9. While not an endorsement of the judicially created existing Indian family exception, this opinion will not provide assistance in pushing back against it, at least in the context of non-custodial fathers. The decision is a set back, and a devastating blow to the family, but it’s also not the end of ICWA. Figuring out how the ultimate custody decision will turn out is difficult, not the least of which because under the Court’s own definition, there is NOW an “intact” Indian family.

The Court’s reading of 1912(a), the active efforts provision, is troubling. While quick to note that active efforts are a “sensible requirement when applied to state social workers,” *14 the Court finds it would be “unusual” to apply it to these facts. As anticipated, the Court’s concern for adoptive parents trumped that of the rights of children or biological parents. The question of how to apply 1912(a) comes up often in the context of guardianships and adoptions. This decision will make it harder to argue when states and agencies don’t want to apply 1912(a) to guardianships as well.

The placement preference provisions of 1915(a) for adoptions remains intact. A family within the preferences must “formally” seek to adopt the child for the preferences to be applicable. How this will apply in practice will depend on the court, I imagine. When does the adoptive family have to be known? How far in advance? Justice Sotomayor points out that if Baby Girl’s grandparents want to adopt her, under this decision the South Carolina court must consider them under the placement preferences. *25 (Sotomayor J. dissenting).

The Court remains suspicious of tribal citizenship, talking about remote ancestors *16 and listing Baby Girl’s blood quantum in the first sentence of the opinion. *1. The Court calls it the father’s “ICWA trump card.” *16. Finally, it is not often the unwarranted removal of Indian children from their families is called “mischief.” *9 (“mischief” that continues, see the disproportionality reports out recently).

In dissent, Justice Scalia writes that the opinion “needlessly demeans the rights of parenthood.” *1. Justice Sotomayor, however, writes  explicitly that the Court’s decision is based on policy differences with Congress, *2, *8 (Sotomayor, dissenting). She also disagrees with the United States in its amicus brief, FN5, as part of her reading of the statute as a whole, rather than discrete parts. *3.

Her scathing footnote 8, which ends with her requesting examples of women who go through the trouble of giving birth via sperm donors giving the child up for adoption, injects the common sense anger and frustration this case has caused among those who have followed it closely. She addresses head on the Court’s references to blood quantum, wondering why it is needed if there are no constitutional concerns. *23-4. And finally, her, yes, empathetic paragraph of what can befall a family and that ICWA’s protections should apply to them provides a perspective missing from the majority opinion on down to many state courts. *23. ICWA does not only apply to the child removed improperly by the “culturally insensitive” social worker from an “intact” Indian family. It applies beyond that, to the families most in need of the law, ensuring the protection and health of the child, her contact with her family, her extended family, and her tribe. This narrow version of ICWA endorsed by the Court today, and evidenced regularly in family courts, does not help that child.

New NPR Story on Baby Veronica Case

Matthew L.M. Fletcher

Here.

New Report, Half of First Nations Children Live in Poverty

Victoria Sweet

Half of status First Nations children in Canada live in poverty, a troubling figure that jumps to nearly two-thirds in Saskatchewan and Manitoba, says a newly released report.

“The poverty rate is staggering. A 50 per cent poverty rate is unlike any other poverty rate for any other disadvantaged group in the country, by a long shot the worst,” said David Macdonald, a senior economist at the Canadian Centre for Policy Alternatives and co-author of the report.

The study released late Tuesday by the Canadian Centre for Policy Alternatives and Save the Children Canada found that the poverty rate of status First Nations children living on reserves was triple that of non-indigenous children.

Article here.