Here is the opinion in Eastern Band of Cherokee Indians v. Dept. of the Interior (D.D.C.):
Here are updated materials in Eastern Band of Cherokee Indians v. Dept. of the Interior (D.D.C.):
Prior post here.
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.”