Todd Hembree has published “Fighting the Opioid Epidemic at Its Source” in EdWeek.
Here is the opinion:
For the reasons discussed below, it is the official opinion of the Attorney General that the Cherokee Nation Constitution protects the fundamental right to marry, establish a family, raise children and enjoy the full protection of the Nation’s marital laws. The Nation may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage based solely upon the sex of the persons in the marriage union. Therefore, Section 1 of the Cherokee Nation Marriage and Family Act (“Act”), which defines marriage as “a civil contract between one man and one woman,” is unconstitutional. Likewise, Section 3 of the Act, which prohibits marriage “between parties of the same gender,” is also unconstitutional.
Here is the complaint.
This case mirrors the ongoing Doe v. Jesson case (where Mille Lacs defeated the preliminary injunction, and we are currently waiting for a decision on summary judgment). Filed after we wrote the ICWA Legal Defense memo discussing the other three ongoing cases, this case involves a voluntary adoption, the Oklahoma state ICWA, and Cherokee Nation of Oklahoma. The arguments involve right to privacy, and due process and equal protection concerns.
Despite a treaty in 1866 between the Cherokee Nation and the federal government granting them full tribal citizenship, Cherokee Freedmen—the descendants of African American slaves to the Cherokee, as well as of children born from unions between African Americans and Cherokee tribal members—continue to be one of the most marginalized communities within Indian Country. Any time Freedmen have sought the full rights and benefits given other Cherokee citizens, they have encountered intense opposition, including a 2007 vote that effectively ousted them from the tribe. The debates surrounding this recent decision provide an excellent case study for exploring the intersections of race and sovereignty. In this article, I use the most recent Cherokee Freedmen controversy to examine how racial discourse both empowers and diminishes tribal sovereignty, and what happens in settler-colonial contexts when the exercise of tribal rights comes into conflict with civil rights. I also explore how settler colonialism as an analytic can obscure the racialized power dynamics that undermine Freedmen claims to an indigenous identity and tribal citizenship.
Decision (a rare published ICWA decision for CA).
The children were eligible for membership at Cherokee Nation of Oklahoma. The trial court ordered DHHS to help enroll the children as active efforts. DHHS appealed. The appellate court found that both ICWA and California state law limited the definition of Indian child (member, or bio child of a member and eligible), and if the children did not fit in that definition, the laws did not apply. As such, the rules were beyond the scope of the Judicial Counsel to pass.
Rule 5.482(c) states, “If after notice has been provided as required by federal and state law a tribe responds indicating that the child is eligible for membership if certain steps are followed, the court must proceed as if the child is an Indian child and direct the appropriate individual or agency to provide active efforts under rule 5.484(c) to secure tribal membership for the child.”
Rule 5.484(c) states, “In addition to any other required findings to place an Indian child with someone other than a parent or Indian custodian, or to terminate parental rights, the court must find that active efforts have been made, in any proceeding listed in rule 5.480, to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, and must find that these efforts were unsuccessful.
“(1) The court must consider whether active efforts were made in a manner consistent with the prevailing social and cultural conditions and way of life of the Indian child’s tribe.
(2) Efforts to provide services must include pursuit of any steps necessary to secure tribal membership for a child if the child is eligible for membership in a given tribe, as well as attempts to use the available resources of extended family members, the tribe, tribal and other Indian social service agencies, and individual Indian caregivers.”
Here are the materials so far in Nepomuceno v. Cherokee Medical Services (S.D. Cal.):
CMS has not come forward with any evidence of how CMS was formed, who owns CMS, how CMS is managed, and where profits from the business go. Therefore, CMS has not established that it is an arm of the Cherokee Nation entitled to tribal sovereign immunity from suit, and the Court denies CMS’s motion to dismiss for lack of subject matter jurisdiction. CMS may reassert tribal sovereign immunity in a motion for summary judgment. However, any such motion should not be filed until Plaintiff has had the opportunity to conduct adequate discovery on the issue.
The Michigan Court of Appeals heard the ICWA notice case that the Michigan Supreme Court originally remanded back to Wayne County for notice. That case, In re Morris, details what is required of Michigan courts when notifying tribes of a potential ICWA case.
The decision is here. There is finally extensive detail on what DHS did or did not put in the notice to the three Cherokee tribes, something the Supreme Court demanded in Michigan ICWA cases.
Since respondent could not obtain any additional information regarding his relatives, it would be unreasonable to expect petitioner to find it. Imposing this burden on petitioner would also encourage parents, who can best research their own ancestry, to delay the proceedings by providing limited information. Because it would often take a long time to uncover ancestry details, a requirement that ICWA tribal notices include every detail of a child’s ancestry would undermine ICWA ’ s 10-day provision, which prevents unreasonable delays. It would also jeopardize concepts of permanency and finality. The trial court did not err by finding that there was compliance with the ICWA’s notification requirements.
Fascinating. My favorite part:
By 1862, Ross had become disillusioned with the Confederate government. The first major military engagements in Indian Territory proved disastrous for both the Confederacy and the Cherokees. Retreating from Indian Territory, the Confederacy left the Cherokees open to Union advances and without supplies for Cherokee troops and destitute civilians. Although Ross believed the Confederacy was shirking its treaty promises, the Confederate colonel Douglas H. Cooper called upon Ross to fulfill his obligations by ordering all Cherokee men of fighting age to “take up arms to repel invasion.”
Union Capt. Harris S. Greeno was aware of Ross’s dissatisfaction with the Confederacy, and he ordered the arrest of Ross and his family at their plantation home, Rose Cottage, in present-day eastern Oklahoma. They were quickly paroled and escorted to Union territory, and they retreated to his wife’s family home in Philadelphia. Ross would spend the remainder of the war attempting to convince the Lincoln administration of the Cherokee’s loyalty and commitment to the Union cause.