By Carol Berry
The Cherokee Nation and one of its members have asked the U.S. Supreme Court to decide issues raised by a ruling of the U.S. 10th Circuit Court of Appeals that disputed the right of tribes to define tribal membership in Indian Child Welfare Act (ICWA) cases.
Specifically, the high court will be asked to consider whether a federally recognized Indian tribe’s membership criteria determine whether a child is a “member” of that tribe for ICWA purposes.
Tribes may have the exclusive right to determine their membership for tribal purposes, but not if they seek to define membership in order to expand a federal (ICWA) statute, a three-judge panel of the 10th Circuit ruled last April.
The current petitioners charge that the federal appeals court erred in distinguishing between membership for tribal and federal statutory purposes, because “tribal membership is bound up in the tribe’s sovereign self-determination—as it is in ICWA, where the statutory focus on tribal membership is designed to ‘promote the safety and security of Indian tribes.’”
The issues arose when, in 2007, Britney Jane Little Dove Nielson, then 17, relinquished her parenting rights for her day-old son, C.D.K. and consented to his adoption, but later sought a District Court ruling to invalidate the relinquishment, citing ICWA safeguards against removing Indian children from their families. Nielson herself became a Cherokee tribal member within the next year.
The Cherokee Nation intervened on Nielson’s behalf, arguing that C.D.K. was an Indian child under ICWA because of a section of the Cherokee Nation Citizenship Act which provides that every newborn “who is a direct descendant of an original enrollee shall be automatically admitted as a citizen of the Cherokee Nation for a period of 240 days following the birth of the child.”
Nielson also argued that the termination was invalid because it violated an ICWA provision that imposes a 10-day period before a parent can consent to the termination of parenting rights over an Indian child, and the District Court agreed, tossing out the termination
A subsequent appeal to the 10th Circuit turned on “whether C.D.K. is an ‘Indian child’ within the meaning of ICWA,” the court said, noting that the ICWA definition of “Indian child” applies to an unmarried person under age 18 who is a tribal member and C.D.K. “was thus an Indian child at the time of the relinquishment hearing if, and only if, he was a member of the Cherokee Nation at that time.”
He was a member if the Citizenship Act applied to him at the time of the hearing as a direct descendant of an original enrollee, which the federal appeals court accepted, and if the Act could permissibly extend him citizenship in the ICWA context, a conclusion with which the court disagreed.
ICWA does not apply to the 240-day citizenship awarded by the Cherokee Nation Citizenship Act, the court said. “We find that Congress did not intend the ICWA to authorize this sort of gamesmanship on the part of a tribe—e.g., to authorize a temporary and nonjurisdictional citizenship upon a nonconsenting person in order to invoke ICWA protections.”
Petitioners to the Supreme Court disagree with the “gamesmanship” argument that “a child may not be a ‘member’ of a tribe for ICWA purposes even though he or she is a member for internal tribal purposes,” because the distinction would undermine fundamental purposes of tribal sovereignty.
In BIA guidelines for implementing ICWA, “the determination by a tribe that a child is or is not a member of that tribe…is conclusive,” state the current petitioners, who also charge that the federal appeals court has ignored congressional intent in ICWA “to preserve tribal sovereignty and safeguard Indian children.”
Source http://indiancountrytodaymedianetwork.com/2011/12/10/supreme-court-approached-on-icwa-issue-66774
CPS corruption hurts and destroys families worldwide. Please use caution posting about CPS here or anyplace on the internet. For your protection, using your full, real name and precise location is not advised. CPS has eyes everywhere and CPS is notorious for taking what people say, twisting it, embellishing on it and then using it against them in CPS "investigations" and at court proceedings.
Showing posts with label indian children. Show all posts
Showing posts with label indian children. Show all posts
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Governor's office calls NPR foster care report flawed; congressmen seek review
Kevin Woster
Staffers for Gov. Dennis Daugaard on Monday attacked a National Public Radio report critical of state child-protection programs that remove Native American children from their homes for foster-care placement, saying NPR was biased and inaccurate in its reporting.
But two members of the U.S. House of Representatives thought the NPR report was valid enough to call for an investigation into whether those South Dakota child protection policies and practices with Native American families violate federal law.
U. S. Reps. Ed Markey, D-Mass., and Dan Boren, D-Okla., sent a letter to Larry Echo Hawk, assistant secretary of the Interior Department for Indian Affairs, calling for the investigation. They allege, as the NPR report implies, that South Dakota violates the Indian Child Welfare Act, a law that directs officials to place Native American children removed from homes with their relatives or tribes, except in unusual situations.
That is not being done in South Dakota, according to the NPR investigation.
"If the information on the NPR article is accurate, it would appear that the state of South Dakota has failed not only to abide by the mandates of federal law but also failed its Indian children, their families and their tribes by violating the letter and spirit of ICWA," Markey and Boren said in the letter.
They added that Native American children were being placed in non-Indian homes or group care at "alarming rates," for what "appears to be for profit."
The state gets federal financial assistance for each child removed from the home.
The NPR investigative report also alleges conflicts of interest in Daugaard's work for Children's Home Society of South Dakota when he was lieutenant governor. Children's Home Society received millions of dollars for housing Native children under contracts with the state awarded without competitive bid, a practice that has been used and criticized in other professional service areas.
Daugaard staffers have said the governor did not use political connections to get the contracts, which they say Children's Home Society was highly qualified to receive.
Daugaard's staff issued statements critical of the NPR report even before it was aired. The staffers followed up Monday with seven pages of detailed rebuttals to the NPR report and allegations of inaccuracies and bias.
Daugaard senior aide Tony Venhuizen said Monday that it was unfortunate that two members of Congress representing other states didn't contact South Dakota officials before seeking an investigation into allegations about the state.
"These congressmen based their letter on an NPR report that was deeply flawed," Venhuizen said. "It's really too bad that they took this step without even asking the Department of Social Services or anyone in South Dakota for the facts."
None of South Dakota's three congressional members would comment Monday on the NPR report or on the call for an investigation by Markey and Boren. Staffers for Sen. Tim Johnson, D-S.D., Sen. John Thune, R-S.D., and Rep. Kristi Noem, R-S.D., said they needed to learn more before responding.
Source http://rapidcityjournal.com/news/governor-s-office-calls-npr-foster-care-report-flawed-congressmen/article_86743c68-0433-11e1-96d8-001cc4c002e0.html
Staffers for Gov. Dennis Daugaard on Monday attacked a National Public Radio report critical of state child-protection programs that remove Native American children from their homes for foster-care placement, saying NPR was biased and inaccurate in its reporting.
But two members of the U.S. House of Representatives thought the NPR report was valid enough to call for an investigation into whether those South Dakota child protection policies and practices with Native American families violate federal law.
U. S. Reps. Ed Markey, D-Mass., and Dan Boren, D-Okla., sent a letter to Larry Echo Hawk, assistant secretary of the Interior Department for Indian Affairs, calling for the investigation. They allege, as the NPR report implies, that South Dakota violates the Indian Child Welfare Act, a law that directs officials to place Native American children removed from homes with their relatives or tribes, except in unusual situations.
That is not being done in South Dakota, according to the NPR investigation.
"If the information on the NPR article is accurate, it would appear that the state of South Dakota has failed not only to abide by the mandates of federal law but also failed its Indian children, their families and their tribes by violating the letter and spirit of ICWA," Markey and Boren said in the letter.
They added that Native American children were being placed in non-Indian homes or group care at "alarming rates," for what "appears to be for profit."
The state gets federal financial assistance for each child removed from the home.
The NPR investigative report also alleges conflicts of interest in Daugaard's work for Children's Home Society of South Dakota when he was lieutenant governor. Children's Home Society received millions of dollars for housing Native children under contracts with the state awarded without competitive bid, a practice that has been used and criticized in other professional service areas.
Daugaard staffers have said the governor did not use political connections to get the contracts, which they say Children's Home Society was highly qualified to receive.
Daugaard's staff issued statements critical of the NPR report even before it was aired. The staffers followed up Monday with seven pages of detailed rebuttals to the NPR report and allegations of inaccuracies and bias.
Daugaard senior aide Tony Venhuizen said Monday that it was unfortunate that two members of Congress representing other states didn't contact South Dakota officials before seeking an investigation into allegations about the state.
"These congressmen based their letter on an NPR report that was deeply flawed," Venhuizen said. "It's really too bad that they took this step without even asking the Department of Social Services or anyone in South Dakota for the facts."
None of South Dakota's three congressional members would comment Monday on the NPR report or on the call for an investigation by Markey and Boren. Staffers for Sen. Tim Johnson, D-S.D., Sen. John Thune, R-S.D., and Rep. Kristi Noem, R-S.D., said they needed to learn more before responding.
Source http://rapidcityjournal.com/news/governor-s-office-calls-npr-foster-care-report-flawed-congressmen/article_86743c68-0433-11e1-96d8-001cc4c002e0.html
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