In an unpublished ICWA case, the Virginia Court of Appeals found that an order denying transfer to tribal court is not a final order and therefore the Nation could not appeal the decision. Footnote 6 points out that the court believes an order to transfer to tribal court is a final order and therefore could be appealed.
Decision here.
Here.
Response from the U.S. Mission to the UN here.
GENEVA (10 September 2013) – The United Nations Special Rapporteur on the rights of indigenous peoples, James Anaya, today called on the relevant state, federal and tribal authorities in the United States of America to take all necessary measures to ensure the wellbeing and human rights of ‘Veronica,’ an almost four year old Cherokee child at the center of a highly contentious custody dispute.
“Veronica’s human rights as a child and as member of the Cherokee Nation, an indigenous people, should be fully and adequately considered in the ongoing judicial and administrative proceedings that will determine her future upbringing,” Mr. Anaya stressed. “The individual and collective rights of all indigenous children, their families and indigenous peoples must be protected throughout the United States.”
Veronica is currently facing judicially ordered removal from her Cherokee family and community. In June of this year the US Supreme Court ruled that certain protections of the Indian Child Welfare Act did not apply to proceedings in which a non-Cherokee couple sought to adopt Veronica, given the particular circumstances of the case. The high court, however, it did not make an ultimate determination of the disposition of the adoption proceedings.
Following the Supreme Court decision, a South Carolina state court awarded custody of Veronica to the non-Cherokee couple, but it did so without a determination of whether her transfer away from her Cherokee family would be in her best interests in light of her current situation and Cherokee heritage. Although Veronica lived with the non-Cherokee couple in South Carolina for the first two years of her life, she has now resided with her father and extended indigenous family in Cherokee territory in the state of Oklahoma for nearly two years.
South Carolina authorities have attempted to force Veronica’s father to release custody of her, charging him with custodial interference for his refusal to do so. On 3 September 2013 the Oklahoma Supreme Court took up the case, granting a temporary stay of an enforcement order and allowing the father to keep Veronica pending further proceedings.
“I urge the relevant authorities, as well as all parties involved in the custody dispute, to ensure the best interests of Veronica, fully taking into account her rights to maintain her cultural identity and to maintain relations with her indigenous family and people,” said the UN Special Rapporteur.
The independent expert pointed out that these rights are guaranteed by various international instruments subscribed to or endorsed by the US, including the International Covenant on Civil and Political Rights, and the UN Declaration on the Rights of Indigenous Peoples.
In his 2012 report* on the situation of indigenous peoples in the US, the Special Rapporteur noted that the removal and separation of Indian children from indigenous environments is an issue of longstanding and ongoing concern. “While past practices of removal of Indian children from their families and communities have been partially blunted by passage of the Indian Child Welfare Act in 1978, this law continues to face barriers to its implementation,” Mr. Anaya stated.
“I encourage the United States to work with indigenous peoples, state authorities and other interested parties to investigate the current state of affairs relating to the practices of foster care and adoption of indigenous children, and to develop procedures for ensuring that the rights of these children are adequately protected,” the UN Special Rapporteur said.
The UN Human Rights Council appointed S. James Anaya as Special Rapporteur on the rights of indigenous peoples in March 2008. Mr. Anaya is a Regents Professor and the James J. Lenoir Professor of Human Rights Law and Policy at the University of Arizona (United States). As Special Rapporteur, he is independent from any government or organization and serves in his individual capacity. Learn more, log on to: http://www.ohchr.org/EN/Issues/IPeoples/SRIndigenousPeoples/Pages/SRIPeoplesIndex.aspx
(*) Check the Special Rapporteur’s 2012 report on the USA: http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session21/Pages/ListReports.aspx
See the UN Declaration on the Rights of Indigenous Peoples: http://daccess-ods.un.org/access.nsf/Get?Open&DS=A/RES/61/295&Lang=E
UN Human Rights Country Page – United States of America: http://www.ohchr.org/EN/Countries/ENACARegion/Pages/USIndex.aspx
For more information and media inquiries, please contact Maia Campbell (+ 41 22 917 9314 / mcampbell@ohchr.org) or write to indigenous@ohchr.org.
For media inquiries related to other UN independent experts:
Xabier Celaya, OHCHR Media Unit (+ 41 22 917 9383 / xcelaya@ohchr.org)
Q&A from Sunday here. Particularly useful is the timeline and list of current court cases.
Here. Updated with Cherokee Nation press release on the extradition order signed for Dusten Brown by Governor Fallin yesterday evening.
Where the Baby Veronica case has been:
1. Nowata County Courthouse: South Carolina’s court order to transfer custody had to be “domesticated” by an Oklahoma court, making it enforceable here. The case went to Nowata because Brown and Veronica live there.
2. Cherokee County Courthouse: With Veronica staying with her grandparents on Cherokee Nation trust land in Tahlequah, the Capobiancos filed a “writ of habeas corpus” to have Brown and his family brought to court. They hoped to get an order to transfer custody immediately, but instead agreed to enter mediation.
3. Sequoyah County Courthouse: Facing a felony warrant for custodial interference in South Carolina, Brown surrendered himself to authorities in Sequoyah County, apparently because a judge was on duty there to handle the bond arrangements. He faces an extradition hearing next week.
4. Cherokee Nation Courthouse: Before leaving the state for National Guard duties in July, Brown asked a tribal court to grant guardianship of Veronica to her stepmother and paternal grandparents. The Cherokee Nation has asserted jurisdiction because Brown and Veronica are members of the tribe.
5. Oklahoma Supreme Court: Brown and the Cherokee Nation are appealing the Nowata judge’s decision to send Veronica back to South Carolina without a best interest hearing.
6. Muskogee County Courthouse: For reasons not made public, the judge in Cherokee County removed herself from the case. And it was apparently reassigned to a judge in Muskogee.
Here. An excerpt:
The Supreme Court’s decision in Adoptive Couple v. Baby Girl is most certainly a blow to Indian sovereignty by way of an assault on core notions of Indian family and tribal identity. Yet what is even more disturbing is how the “Baby Veronica” ruling so vividly highlights the Roberts Court’s deep investment in white supremacy, capitalism, patriarchy, heterosexism, and a coercive binary gender system. Adoptive Couple is about far more than the rights of adoptive parents. The decision should serve as a warning to all marginalized groups such as Indians, ethnic minorities, the lower class, or the LGBT community: If given the opportunity the High Court will construe legislation to serve its own institutionalized interests, in spite of the law’s intent.
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.
Assuming the efforts listed in the opinion are accurate, here is a case detailing what we think most ICWA experts would agree are active efforts. It is true, however, that the court denied transfer to tribal court due to essentially a forum non convenes (concern about subpoenaing witnesses, which is strange).
Here.
The opinion in In re D.N. is here.
An excerpt:
The “by blood” requirement in the Choctaw Nation‟s Constitution, as well as others, has been interpreted as excluding the descendants of freedmen. (Allen v. Tribal Council (2006) 9 Okla. Trib. 255.) The exclusion of the descendants of former slaves of the Five Civilized Tribes is a matter of ongoing controversy. (See, e.g., Cherokee Nation v. Nash (N.D.Okla. 2010) 724 F.Supp.2d 1159.) It cannot be addressed in this dependency proceeding since membership criteria are the tribe‟s prerogative, and its determination of a child‟s eligibility for membership is conclusive for purposes of ICWA. (44 Fed.Reg. 67584, 67586 (Nov. 26, 1979); § 224.3, subd. (e)(1); In re Jack C., III (2011) 192 Cal.App.4th 967, 978.)
Here.
The network and the ombudsman, Edward Schumacher-Matos, who is paid to critique NPR’s news coverage, have split sharply over his findings.
The series, which appeared in October 2011 on All Things Considered and was published on NPR.org, alleged that the state of South Dakota took Native American children and separated them from their families and tribes at an alarming rate. The series won national awards and helped inspire federal and state reviews of such policies.
***
Kelly McBride, a senior ethics scholar at The Poynter Institute, a journalism training center in St. Petersburg, Fla., and past ombudsman for ESPN, says Schumacher-Matos wanted NPR to produce a different story — one about the full crisis besetting Native American families — rather than simply critique the story it broadcast.
“In a way, it sets up an unfair challenge to NPR,” McBride says. “Because, if he wants to do a column about why they chose this story instead of that story, then he should do that column. But he essentially does both in this very long report.”
McBride argues that it’s hard to tell whether the weight of the ombudsman’s critique is warranted by the mistakes admittedly committed by NPR in this case. She faults both NPR and Schumacher-Matos for being less than clear about the source of their data.
NPR continues to stand by the stories:
In this instance, however, we find his unprecedented effort to “re-report” parts of the story to be deeply flawed. Despite the report’s sweeping claims, the only source that figures in any significant way in the ombudsman’s account is a state official whose department activities were the subject of the series. Additionally, the ombudsman’s interaction with state officials over the past 22 months has impeded NPR’s ability to engage those officials in follow-up reporting. Overall, the process surrounding the ombudsman’s inquiry was unorthodox, the sourcing selective, the fact-gathering uneven, and many of the conclusions, in our judgment, subjective or without foundation. For that reason, we’ve concluded there is little to be gained from a point-by-point response to his claims.
Here is the report. The NPR editors are correct that there is little to be gained from a point-by-point response. In a very quick scan of the first page, the line “There is some debate over whether ICWA applies to tribal judges, which I review in Chapter 6. Whether it does or not, ignoring the tribal judges is unjustifiable under NPR’s standards of completeness and fairness.” indicates to us that the Ombudsman is uninformed as to the application of ICWA, at the very least. Whether ICWA applies to tribal judges is not up for a debate. His further comments in Chapter 6 are distressing in their inaccuracy:
We have discussed how ignoring the tribal judges is journalistically wrong. It may be legally mistaken, too, under an ICWA framing. The American Bar Association’s Indian Child Welfare Act Handbook, by B.J. Jones, Mark Tilden and Kelly Gaines-Stoner, says of the law:
The beginning point for any analysis of the Indian Child Welfare Act in an understanding of what type of proceeding the act is intended to cover. The Act applies only to child custody proceedings in state courts. (My ital. p. 27, 2nd Edition).
And here is what the respected advocacy group, the National Indian Child Welfare Association, a source used in the series, says on its website:
ICWA does not apply to divorce proceedings, intra-family disputes, juvenile delinquency proceedings, or cases under tribal court jurisdiction.
I am not expert enough to take a position on the law, but clearly there is at least enough serious difference that if the tribal courts are to be lumped in with state ones on legal grounds, the story has to say why. It did not. Rather, its framing of its interpretation of ICWA was presented as a given.
It is too bad the Ombudsman didn’t just end after “I am not expert enough.” His misreading of these two sources is disturbing. A further scan of Chapter 6 indicates the Ombudsman is confused about the legal status of tribes and tribal sovereignty. We can only speculate about the timing of the release of this six chapter report during the larger national story happening right now about ICWA.
Turtle Talk 
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