Minority Report: Congressional Commission on Native Children

Mar 012024
 

To the President of the United States, the Speaker of the House of Representatives, and the President Pro Tempore of the Senate:

Pursuant to the Alyce Spotted Bear and Walter Soboleff Commission on Native Children authorizing legislation (Public Law 114-244), October 14, 2016, as amended, I respectfully submit a Minority Report of the Commission on Native Children.

This report attempts to include the perspective of those Native Americans who live outside of the reservation system and do not use any form of tribal benefit or program.  Indeed, about 75% of Native Americans do not live on reservation land or participate in reservation politics.  As a result, countless families of Native American heritage are not heard through methods normally employed by those assessing the needs of the United States’ native population. 

This is significant as legislation and administrative rules often include them and their children, whether they have chosen to be involved with the reservation system or not.  

With their voices in mind, this report presents additional recommendations, several of which were presented to the Commission but were not put forward for discussion or vote.

Due to the strength of an ‘iron triangle’ encompassing federal Indian policy, it is necessary to submit this minority report.

A Minority Report – February 27 2024Download

 

Respectfully submitted,

Elizabeth Morris

Alyce Spotted Bear and Walter Soboleff Commission on Native Children

 March 1, 2024  28 Responses »

The Indian Child Welfare Act: An Unconstitutional Attack on Freedom

Mar 082022
 
roland, fishing, son

In Support of Brackeen

Adapted from the thesis ‘Philosophical Underpinnings and Negative Consequences of the Indian Child Welfare Act,’
by Elizabeth Morris*

PDF: The Indian Child Welfare Act: An Unconstitutional Attack on Freedom 

The Fifth Amendment to the United States Constitution provides that: “No person shall be…deprived of life, liberty, or property, without due process of law…” and the Fourteenth Amendment, Section 1, states “nor shall any State deprive any person of life, liberty, or property, without due process of law...” (Congress 1787).  But for almost 200 years, the U.S. federal government has assumed a power that deprives members of federally recognized Indian tribes of these privileges – and for almost a century, the federal government has claimed wardship over U.S. citizens who happen to be tribal members.

Yet, despite the nineteenth century U.S. federal court rulings that propagated this view, disagreement continues as to whether tribes located within the United States are indeed sovereign, whether Congress has plenary power over them, and whether individual tribal members have U.S. Constitutional rights.

  • Some tribal officials argue that international law should not have been forced upon non-European cultures that had no say in it. Others point to natural law and international law – the grounds for treaties between nations – as basis for uninterrupted tribal sovereignty.
  • Some tribal representatives argue that the Constitution has no authority over tribes or tribal members. Others cite the Constitution when seeking judicial redress for their community.
  • Some historians say the Constitution never gave Congress anything more than the power to regulate trade with tribes. Others claim the Constitution not only gave Congress total and exclusive plenary power to decide almost every aspect of life in Indian Country – but by unstated extension, gave the executive branch this power as well.
  • Some say treaties promise a permanent trust relationship. Others point out that most treaties have clearly specified final payments of federal funds and benefits and were written and signed with clear intent for gradual assimilation.

Where Does the Plenary Authority of Congress Come From?

Law professor Robert G. Natelson writes, “For many years, Congress has claimed, and the Supreme Court has conceded, a plenary power over American Indian tribes” (2007, 204).  But, according to Natelson, there are problems with how historical documents have been construed.  Legal scholar Matthew L. M. Fletcher agrees and notes that the origin of federal authority over Indian tribes is unclear, as the Constitution carried no “clear textual provisions” concerning such power. Due to that lack, the Supreme Court has created a body of “unwritten constitutional law” (Fletcher 2006, 654).  Supreme Court Justice Stephen Breyer’s 2004 majority opinion in United States v. Lara is an example of Congressional authority in dealing with Indian affairs being categorized as “beyond the strictures of the Constitution” (Fletcher 2006, 656).

Authority is not Inherited from Britain

This unwritten authority, according to Natelson, is said by some to have been inherited from the British Crown, which transmitted “extraconstitutional sovereign authority to the Continental Congress, which then passed it to the Confederation Congress, which in turn conveyed it to the federal government” (2007, 204). However, Natelson argues:

As a matter of historical record, the British Crown did not transfer its foreign affairs powers to the Continental Congress, but to the states. The Confederation Congress did not receive its authority from the Continental Congress, but from the states. The federal government did not receive its powers from the Confederation Congress, but from the people (R. Natelson 2007, 205-206).

Natelson further contends that case law does not support the doctrine of inherent plenary authority. The Supreme Court “has acknowledged the [plenary] theory, but only rarely and in limited respects” (R. Natelson 2007, 204). He added, “The Supreme Court’s reluctance to fully accept inherent sovereign authority is understandable, for the doctrine is fundamentally unconvincing. It clashes with the Constitution’s underlying theory of enumerated powers and would render some enumerated powers redundant.” (R. Natelson 2007, 205).

Natelson explained that the dicta of Chief Justice Marshal and others has frequently been cited as recognizing Congress’s plenary authority over Indian Affairs – but it does not (R. Natelson 2007, 204). Other cases often cited are similarly lacking.  “A passage in Chief Justice Taney’s opinion in Dred Scott v. Sandford[1] suggests an inherent sovereignty theory, but later in the opinion Taney made it clear that he was invoking an enumerated power” (R. Natelson 2007, 204).   Natelson explained further, “Kansas v. Colorado (1907),[2] the Supreme Court’s clearest pronouncement on inherent sovereign authority in internal affairs, actually rejected the doctrine. United States v. Curtiss-Wright resuscitated it, but only for foreign affairs. In 2004, the Court suggested an application to Indian concerns, but the Court’s language was neither definitive nor necessary to its decision” (R. Natelson 2007, 205).

Lastly, if inherent authority had in fact existed in any context when the federal government was created, Natelson clarifies its fate: “[T]he doctrine of inherent sovereign authority is simply contradicted by the text of the Constitution. Any extra-constitutional authority inhering in the federal government in 1789 was destroyed two years later, when the Tenth Amendment became effective. By its terms that Amendment precluded any federal power beyond those bestowed by the Constitution… precisely to re-assure Anti-Federalists who feared that the new government might claim powers beyond those enumerated” (R. Natelson 2007, 206-207).

Authority is not from the U.S. Constitution

Another theory is that plenary authority comes from within the Constitution itself. Several Constitutional powers are suggested, including the War Power; the Executive Power; the Necessary and Proper Clause; the Treaty Clause; the Territories and Property Clause; and the Indian Commerce Clause.  However, Natelson contends “…[M]ost of those provisions can be readily dismissed” (R. Natelson 2007, 207).  For example, Natelson states that if it were true that the Territories and Property Clause, were the source of plenary power:

…then legal title to this land is federal ‘property’ subject to congressional management under the Territories and Property Clause, and such title would give Congress at least some jurisdiction over the minority of Indians who reside on reservations. But this begs the question of the source of authority for holding reservation land in trust. As already noted, pre- or extraconstitutional power is not a viable answer. Nor, as originally understood, is the Territories and Property Clause, for that Clause originally granted Congress the unlimited power to dispose of federal lands within state boundaries, but not the unlimited capacity to retain or acquire such lands. As for the treaty power, it happens that not a single Indian treaty provides that the government has retained or acquired trust title to the reservation. The sole references to trust arrangements in Indian treaties are peripheral provisions, such as temporary trusts incident to sale and trusts to fund Indian schools and other amenities (R. Natelson 2007, 209-210).

Just one theory for the origin of plenary power remains. Felix Cohen, in his ‘Handbook of Federal Indian Law,’ states that Congress has power over tribes through the Indian Commerce Clause as long as members are wards of the government (Cohen [1942] 1971, 353). A large body of law has been written in support of this.

Authority is not from the Commerce Clause, specifically

The United States Constitution was written to protect the lives, liberty, and property of the People.  As part of that protection, the Constitution needed to clarify roles and responsibilities necessary for the promotion of a stable and productive economy. The founding fathers understood that regulation of commerce was a proper function of government, and regulation of interstate and international commerce was a proper function of federal government. Article 1, Section 8 of the United States Constitution enumerates the powers vested in the federal government to regulate commerce between lower and foreign political entities:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; To borrow Money on the credit of the United States; To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes… (Congress 1787). [stresses added]

The commerce clause is one of the Constitution’s central pillars. It prevented states from setting up trade barriers, while at the same time not giving the federal government complete power.  In protecting markets, the commerce clause is at the heart of what has become one of the “largest common markets in the world” (Weingast 1995, 8). But this clause also contains one of the limited mentions of tribes within the Constitution.  The third point within the Commerce Clause refers to Congress’ power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” (Congress 1787, Art. 1 Sec 8).

The United States Constitution goes on to reserve all other rights and powers to the people and to the States. Amendment IX declares that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” and Amendment X declares “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” (Congress 1787).

Despite these clarifying amendments, the Bureau of Indian Affairs claims “Article 1, Section 8 of the United States Constitution vests Congress, and by extension the Executive and Judicial branches of our government,” with exclusive authority over the tribes (BIA, 2013). Constitutional Law Attorney Philip J. Prygoski also affirms Congress’s constitutional power to regulate commerce with tribal governments and states the “Indian Commerce Clause” is the primary power source and vehicle for Congress to define tribal sovereignty (Prygoski 2015).

Yet Natelson asks, “[W]hy were treaties understood for so long as the principal method of dealing with tribes if Congress could regulate all affairs under the ICC?” (R. Natelson 2019). Indeed, why were treaties necessary if the Constitution had already given Congress power over the tribes?

In his historical research, Natelson found that the “drafting history of the Constitution, the document’s text and structure, and its ratification history all show emphatically that the Indian Commerce Power was not intended to be exclusive” to the federal government. He further notes, “Throughout the Colonial and Revolutionary period, colonies and states frequently entered into treaties with Indians within their territorial limits. New York even appointed treaty commissioners after the Constitution had been issued and ratified” (R. Natelson 2007, 223).  Founding Fathers, Thomas Jefferson, and William Samuel Johnson, also alluded to this state authority to regulate commerce with Indian tribes inside their borders (R. Natelson 2007, 225).

State authority over commercial regulation aside, United States v. Kagama (1886)[3] “rejected the Indian Commerce Clause as a source of plenary congressional authority” (R. Natelson 2007, 210).  The Supreme Court stated “it would be a ‘very strained construction’ of the Commerce Clause to conclude that it authorized creation of a federal criminal code for Indian country” (R. Natelson 2007, footnote 65, at 210 ).  Kagama  “did recognize unenumerated federal power over Indian affairs, but the Court’s justification was Indian dependency on the federal government, not inherent sovereignty” (R. Natelson 2007, 204-205).

Patent attorney Nathan Speed notes that when Congress first began asserting authority over tribes beyond trade, the Indian Commerce Clause was not cited as the source of that authority.  Further, the Supreme Court rejected the claim that the Clause was the source of plenary power over tribes (Speed 2007).

Nevertheless, according to Cohen, the Clause has become “the most often cited basis for modern legislation regarding Indian tribes” [ (LexisNexis 2005, 397) ] In the case Cotton Petroleum Corp. v. New Mexico, (1989), it was stated that “the central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs” (R. Natelson 2007, 211).

Many have argued that the Founding Fathers intended the word “commerce” within the cited clause to refer not just to merchant trade, but to all economic activity and even beyond to any and every transaction.  Natelson contends that a meaning that expansive would not belong in a list of ‘enumerated’ powers. However, this argument persists, and being so pervasive, several studies have recently examined how the word was employed in constitutional, lay, and legal contexts “before and during the Founding Era” (R. Natelson 2007, 214).

Those studies[4] found that “‘commerce’ meant mercantile trade, and that the phrase ‘to regulate Commerce’ meant to administer the lex mercatoria (law merchant) governing purchase and sale of goods, navigation, marine insurance, commercial paper, money, and banking (R. Natelson 2007, 214). Natelson states:

In both lay and legal discourse in the 18th Century, the term “commerce” “was almost always a synonym for exchange, traffic, or intercourse. When used economically, it referred to mercantile activities: buying, selling, and certain closely-related conduct, such as navigation and commercial finance (2006).

Justice Clarence Thomas, in his concurrence in United States v. Lopez, (1995)[5], agreed, stating:

At the time the original Constitution was ratified, ‘commerce’ consisted of selling, buying, and bartering, as well as transporting for these purposes. See 1 S. Johnson, A. Dictionary of the English Language 361 (4th rev. ed. 1773)[6] (defining commerce as “Intercourse; exchange of one thing for another; interchange of anything; trade; traffick”); T. Sheridan, A Complete Dictionary of the English Language (6th ed. 1796) (“Exchange of one thing for another; trade, traffick”). This understanding finds support in the etymology of the word, which literally means “with merchandise.” See 3 Oxford English Dictionary 552 (2d ed. 1989) (com–“with”; merci–“merchandise”). In fact, when Federalists and Anti Federalists discussed the Commerce Clause during the ratification period, they often used trade (in its selling/bartering sense) and commerce interchangeably (United States v. Lopez 1995).

Thomas quoted his Lopez comments in his concurrence in Adoptive Couple v. Baby Girl (2013), and added, “The term ‘commerce’ did not include economic activity such as ‘manufacturing and agriculture,’ ibid., let alone noneconomic activity such as adoption of children” (Adoptive Couple v. Baby Girl 2013). Thomas also cited Natelson nine times in his concurrence.

“Thus,” Natelson writes, “‘commerce’ did not include manufacturing, agriculture, hunting, fishing, other land use, property ownership, religion, education, or domestic family life.” In fact, the Federalists during the Constitution’s ratification explicitly maintained that “all of the latter activities would be outside the sphere of federal control” (R. Natelson 2007, 214-215). He adds in his article concerning the legal meaning of the Commerce Clause, “The fact that other uses of the term “commerce” existed during the pre-ratification and post-ratification periods, does not change the accepted general meaning of the word ‘commerce’” (R. G. Natelson 2006, 789, 811)

Finally – and most obvious – the word ‘commerce’ could not have had a broader meaning for Indian tribes than it had for States and foreign Nations, which are located in the exact same clause (R. Natelson 2007, 215). Natelson notes, “I have been able to find virtually no clear evidence from the Founding Era that users of English varied the meaning of “commerce” among the Indian, interstate, and foreign contexts” (R. Natelson 2007, 216).  The United States government has not asserted plenary jurisdiction over state and international actors in the same manner it has tribes and tribal members.

Natelson further asks “If a broad power was intended, why use the same word for Indians as was used for foreign nations and interstate commerce? Why not use instead the readily available and traditional phrase ‘Indian affairs’?” After all, he notes, the writers of the Constitution were meticulous in the word usage and “knew about the presumption of the same word not changing meaning” (R. Natelson 2019). Natelson wrote in 2019:

Edmund Randolph’s list of powers that can be exercised under the Commerce Clause with foreign nations, interstate commerce, and Indian tribes is a list of examples of common kinds of regulation within the three categories.  It does not define different scopes. For example, Randolph speaks of restricting the travel of merchants with the Indians, but he could have used exactly the same example for merchants with foreign countries, as in the case of embargoes (R. Natelson 2019).

Attorney Krystal V. Swendsboe concurs, quoting Vielma v. Eureka Co.,[7] “When the terms of a statute are ambiguous, we will employ cannons of statutory construction to discern the legislature’s intent…In the absence of some indication to the contrary, we interpret words or phrases that appear repeatedly in a statute to have the same meaning’(citations omitted) ” (Swendsboe 2019) and in Clark v. Martinez,[8] “To give th[e] same words a different meaning for each category would be to invent a statute rather than interpret one” (Swendsboe 2019).

Assistant Professor of Law, Gregory Ablavsky, agrees and stated: “[T]he history of the Indian Commerce Clause’s drafting, ratification, and early interpretation does not support either ‘exclusive’ or ‘plenary’ federal power over Indians. In short, Justice Thomas is right: Indian law’s current doctrinal foundation in the Clause is historically untenable”  (Ablavsky 2015).

The final draft of the Constitution gave James Madison, a nationalist, less authority than he had wanted for the federal government and the ratification process reduced the powers even further. But even with this, not even Madison “suggested granting Congress plenary dominion over the Indians. His proposal was for Congress to ‘regulate affairs with the Indians’—to govern transactions between tribes and citizens. Yet this still was more than the convention, or the public, was willing to accept”  (R. Natelson 2007, 258).  Fellow delegate, John Rutledge of South Carolina, instead suggested to the Committee of Detail a federal power concerning Indians that “stripped down Madison’s proposal to a mere commerce power” (R. Natelson 2007, 258).

Among the issues defined by the Federalists as outside of congressional regulation (and therefore, under state jurisdiction) were “crimes malum in se (except treason, piracy, and counterfeiting), family law, real property titles and conveyances, inheritance, promotion of useful arts in ways other than granting patents and copyrights, control of personal property outside of commerce, torts and contracts among citizens of the same state, education, services for the poor and unfortunate, licensing of public houses, roads other than post roads, ferries and bridges, and fisheries, farms, and other business enterprises” (R. Natelson 2007, 248-249).

To summarize, the Indian Commerce Clause was included to give Congress the power to regulate trade between tribes and non-tribal members.  It gave Congress the ability to override state laws, but not to abolish or alter “pre-existing state commercial and police power over Indians within state borders” (R. Natelson 2007, 265).  The Commerce Clause did not establish a ‘Trust status” authorizing a pupilage condition.  Nor did it grant Congress a plenary police power over tribal members or a license to interfere in Indian affairs.

Natelson concludes, “…the results of textual and historical analysis militate overwhelmingly against the federal government having any ‘inherent sovereign power’ over Indians or their tribes” and “…the Founders intended the states to retain their broad residual police power” (R. Natelson 2007, 266).

One of the most Damaging Results of Unconstitutional Congressional Authority: The Indian Child Welfare Act

Tribal member and Family Law Attorney Mark Fiddler examines the constitutional ramifications of the Indian Child Welfare Act through the lens of the case, Adoptive Couple v. Baby Girl, and various State ICWA laws.  He explains that one of the questions asked in Adoptive Couple was “if a birth father has no rights under state law, what specifically is it in ICWA that accords him greater federal rights?” (2014, 3).

The attorneys for the birth father and Cherokee Nation had argued that the constitutional issues did not apply and cited Morton v. Mancari, 417 U.S. 535 (1974), in which the Supreme Court had construed that preferential treatment for Native Americans was based on their unique political status, not on their heritage. Attorneys for Adoptive Couple, however, argued that “differential treatment predicated solely on “ancestral” classification violates equal protection principles” and cited Rice v. Cayetano, 528 U.S. 495 at 514, 517 (2000). When unequal treatment is predicated on a status unrelated to social, cultural, or political ties, but rather blood lineage, the ancestry underpinning membership is “a proxy for race.” Rice, 528 U.S. at 514.

Supreme Court Justice Clarence Thomas, in his Adoptive Couple concurrence, cited Professor Rob Natelson’s white paper concerning the Commerce Clause and the unconstitutionality of the ICWA. Justice Thomas explained he was construing the statute narrowly to avoid opening the door to rule the ICWA unconstitutional. But he noted, “In light of the original understanding of the Indian Commerce Clause, the constitutional problems that would be created by application of the ICWA here are evident. First, the statute deals with “child custody proceedings,” §1903(1), not ‘commerce’” (Adoptive Couple v. Baby Girl 2013).

While the court did not address the constitutional issues, Fiddler believes that “…at a minimum, Adoptive Couple stands as a clear signal from the Court that the application of ICWA, and perhaps other Indian preference statutes, cannot be based merely upon a person’s lineal or blood connection with a tribe. Something more is required. In Adoptive Couple, it was the requirement of parental custody” (Fiddler, Adoptive Couple V. Baby Girl, State ICWA Laws, and Constitutional Avoidance 2014, 7-8).

Families and children are not ‘commerce’ with Indian tribes and thus are not legitimately dealt with under the Indian Commerce Clause, yet tribal attorneys continue to claim ICWA is constitutional, and some assert a right to claim any child they choose as a member. In reference to Baby Girl, Chrissi Nimmo, Attorney General for the Cherokee Nation stated, “… we repeatedly explained that… tribes can choose members who don’t have any Indian blood” (Rowley 2015).

The increased push for jurisdiction over other people’s children has increased the push back from those who hold the ICWA is unconstitutional.  Swendsboe states in her amicus brief concerning the 2018 ICWA case Brackeen v. Bernhardt:

Because adoption proceedings like this one involve neither “commerce” nor “Indian tribes,” there is simply no constitutional basis for Congress’ assertion of authority over such proceedings. Also, the notion that Congress can direct state courts to apply different rules of evidence and procedure merely because a person of Indian descent is involved raises absurd possibilities. Such plenary power would allow Congress to dictate specific rules of criminal procedure for state-court prosecutions against Indian defendants. Likewise, it would allow Congress to substitute federal law for state law when contract disputes involve Indians. But the Constitution does not grant Congress power to override state law whenever that law happens to be applied to Indians. Accordingly, application of the ICWA to these child custody proceedings would be unconstitutional (Swendsboe 2019).

ICWA: Necessary for the Child’s Well-being …or the Tribal Government’s?

Often cited as justification for the ICWA is a 1998 pilot study by Carol Locust, a training director at the Native American Research and Training Center at the University of Arizona College of Medicine.  Locust’s study is said to have shown that “every Indian child placed in a non-Indian home for either foster care or adoption is placed at great risk of long-term psychological damage as an adult” (Locust, Split Feather Study 1998).

Referring to the condition as the “Split-feather Syndrome,” Locust claims to have identified “unique factors of Indian children placed in non-Indian homes that created damaging effects” (Locust, Split Feather Study 1998).  The Minnesota Department of Human Services noted “an astonishing 19 out of 20 Native adult adoptees showed signs of “Split-feather syndrome” during Locust’s limited study (DHS 2005). The MDHS did not mention that there were only twenty, hand-picked participants in the study. All twenty adoptees were removed from their biological families and placed with non-native families. There were no control groups to address other variables.

“Unfortunately,” according to Bonnie Cleaveland, PhD ABPP, “the study was implemented so poorly that we cannot draw conclusions from it.” According to Cleaveland:

Locust asserts that out-of-culture removal causes substance abuse and psychiatric problems. However, she uses no control group. She doesn’t acknowledge the high rates of trauma, psychiatric and substance abuse among AI/AN people who remain in their culture and among the population of foster children. These high rates of psychosocial problems could easily account for all of the symptoms Locust found in her subjects (Cleaveland 2015).

Cleaveland concluded, “Sadly, because many judges and attorneys, and even some caseworkers and other professionals, are not familiar with the research, results that may be very wrong are leading to the wrong outcomes for children” (Cleaveland 2015).

While supporters of ICWA often cite “Split-feather Syndrome” as proof the ICWA is in the best interest of children, and some children and families faced with foster care, adoption or child custody disputes have felt protection through the ICWA, others have felt forced into relationship with tribal governments – and some have been forced into dangerous, abusive homes  (Morris 2019, 194-221, 237-251)[9].

Federal government has focused on how the ‘child drain’ has affected tribal governments and the future of the tribe as an entity but has paid little attention to the children themselves: their needs, passions and diversity of individuals affected by federal Indian policy – many of whom have spiritual beliefs, political views, or parental practices unlike those promoted by the tribal government.  There is no acknowledgement that most of the children eligible for tribal membership are multi-racial and live outside of Indian Country. Not only are the views of individual tribal members dissimilar to each other, but it is also unarguable that children of slight tribal heritage have many more non-tribal relatives than they have tribal relatives – and might actually be bonded to non-tribal relatives.

The “best interest” that select federal agencies appear to be more concerned with is that of the tribal government.  The Obama administration’s ICWA rules in 2016 prejudicially assumed it is always in the best interest of a child to be under jurisdiction of tribal government, even if parents and grandparents have chosen to raise them in an alternative environment and worldview. The 2016 rules marginalize the rights of birth parents as well the reality of extended tribal and non-tribal birth family.

Yet, the Obama ICWA rules were long called for by tribal leaders.  Tribal governments, using ‘wardship’ and ‘trust relationship’ as revenue vehicles, requested Congress enact legislation giving increased control over certain vulnerable children to tribal governments and have repeatedly returned to DC to insist Congress make the resultant ICWA even more stringent – covering more people and closing all “loopholes” for escape. When some members of Congress recognized the overreach and constitutional implications of ICWA amendments and blocked them from passage, tribal leaders went to the White House to insist on the strict regulation of independent families through the executive branch – even going so far as to accuse some families of committing ‘fraud’ by not admitting they had tribal heritage.

Tribal leaders have also asked state governments to take responsibility for ensuring larger numbers of children and families remain within the reservation system – even if against the will of the children and families – and state governments have acquiesced.  Ironically, in doing this, tribal leaders, under the premise of strengthening jurisdiction over children of heritage, have essentially admitted their lack of it.  In going to Congress and the president with the expectation and demand that they do something about grounding enrollable children to the reservation system, tribal leaders have admitted they lack the authority and are willing to submit to the sovereign authority of the United States of America. They have also essentially admitted that the best interest of children and families are second to the best interest of the tribe as a corporation.

Conclusion

The national dilemma has become whether an individual’s right to privacy, constitutional equal protection, and freedom of association are of less priority than tribal sovereignty and the future of a tribe.

Too many within federal government choose to please political leaders and protect tribal interests and sovereignty rather than save children’s lives. The federal government has reduced children to the status of a ‘resource’ for tribal governments, just as the private property of individual tribal members has been relegated to the control of the BIA as a resource for tribal governments. Children are treated as material assets, and adults are treated as children. Throughout history and every heritage, various men have coveted power over others.  Today, tribal governments, while accepting and playing into Congress’ claim of plenary power, have themselves, also, claimed exclusive jurisdiction and authority over unwilling citizens. Tribal governments regularly lobby and petition both Congress and the White House to codify tribal jurisdiction over the lives, liberty, and property of everyone within reservation boundaries as well as some outside reservation boundaries.  While claiming to have exclusive jurisdiction, tribal governments have paradoxically requested and given blessing for the federal government to manage children of tribal heritage – asking Congress to write the Indian Child Welfare Act and the executive branch to write federal rules governing the placement of every enrollable child in need of care. Some tribal governments and supportive entities have gone further – asking even governors and state legislators to expand on and strengthen control over children with heritage.

Independent political communities have a legitimate right to determine their own membership. However, basing that determination on an individual’s heritage and then forcing the individual into political affiliation because of that heritage is the epitome of racism.  While family and community are important to children of every culture, tribal government claims that eligible children are lost without tribal culture infer there is something inherently different about children of tribal heritage as opposed to other children.  Recognition that children of every heritage are individuals with their own wants, needs and goals is quashed.

While it is unarguable that a certain amount of strain occurs when traversing disparate cultures, children from around the world are successfully and happily adopted into American homes on a regular basis. Yet, it has become accepted belief that children of tribal heritage are, as a rule, unable to thrive outside of Indian Country. The evidence is to the contrary. The vast majority of tribal members live outside of reservation boundaries, and many are living happy and successful lives.  Meanwhile, according to statistics provided by numerous tribal organizations, the BIA, FBI, and ACF, crime and physical, and sexual abuse have been steadily worsening on many reservations – even with reservation crime and child abuse frequently under-reported.

A concerned community does not wait for additional studies to act on an obvious and immediately known danger.  We do not wait for a study to rush a child out of a burning building. When a child is bleeding to death, we know to immediately put pressure on the wound and get the child to a hospital. Unwillingness to deal effectively with the immediate needs of children suffering extreme physical or sexual abuse from extended family or community – no matter where it is – casts doubt on tribal and federal government assertions that safety of the children is of paramount importance. These ten statements are not absolute to all reservations and individuals, but clarify the general reality witnessed:

  • Crime and child abuse are rampant on many reservations
  • Crime and child abuse are rampant because the U.S. Government has set up a system that allows for extensive abuse and crime to occur unchecked and without repercussion.
  • Because a certain amount of crime has been allowed to occur unchecked, many families who desire a safer community for their children (not all) have moved away from the reservation system.
  • At the same time, gang related tribal members remain or move to the reservation because it is protected from state police. With the increase in gang activity there is an increase in crime, drug abuse, alcoholism, child neglect, child abuse, and Fetal Alcohol Spectrum Disorder.
  • As a result of the migration off the reservation, tribal governments experience a drop in federal funds.
  • As an increasing percentage of healthier families leave the reservation system, an increasing percentage who remain willingly participate in the crime and abuse.
  • As a result of increasing crime and child abuse, more children are in need of care.
  • Some tribal governments are reticent to admit they no longer have enough safe homes to place children in, and not wanting to place the children off the reservation, have placed children in questionable and even dangerous homes.
  • It appears more important to some in federal government as well as some in tribal government to protect tribal sovereignty than it is to protect children.
  • In other words, there seems to be a protection of tribal sovereignty at all costs – even at the cost of children’s lives.

In contrast, the following five points clarify self-evident truths that policy makers need to know:

  • International law and treaties are valid and relevant
  • Life, liberty, and the ability to pursue happiness are rights endowed by the Creator to all men equally, no matter their heritage.
  • The vast majority of tribal members live outside of reservation boundaries, and many are living happy and successful lives.
  • A wide body of research confirms that foster care children of every heritage experience higher levels of emotional and psychological trauma.
  • A growing body of work by legal and historical researchers is finding current federal Indian policy unconstitutional

Although the ICWA has some statutory safeguards to prevent misuse, numerous families continue to be hurt by the law.  While the ICWA itself states it is not to be used in custody battles between birth parents, parents can refuse tribal court jurisdiction, non-tribal grandparents have the same rights as tribally enrolled grandparents, and courts can deviate from placement preferences with “good cause,” what has played out in various state and tribal courts has not always followed the wording and intent of the law. Further, wording in a law is of no help if one does not have the money to hire an attorney who knows Indian law. Many times, families fighting ICWA are low income.  Further, many non-tribal courts do not understand the law and defer to the tribal court. The ICWA has given some tribal leaders, social services, and tribal courts a sense of entitlement when it comes to children of heritage.

The era of the Indian Child Welfare Act will become one of the numerous shames in American history. While many have been led to believe the ICWA is a righteous law, the reality is that powerless citizens have again been placed under subjugation.

If the ICWA were to remain law, it would require several amendments:

  • Children of tribal heritage need protection equal to that of any other child in the United States. State health and welfare requirements for foster and adoptive children should apply equally to all. Importantly, those assigned to child protection, whether federal, state, county or tribal, need to be held accountable if a child is knowingly left in unsafe conditions. (Title 42 USC 1983).
  • Fit parents, no matter their heritage, should have the right to choose healthy guardians or adoptive parents for their children without concern for heritage or the overriding wishes of tribal or federal government. US Supreme Court decisions upholding family autonomy under 5th and 14th Amendment due process and equal protection include Meyer vs. Nebraska, Pierce v. Society of Sisters, and Brown v. Board of Education.
  • The ‘Existing Indian Family Doctrine’ should be available to families and children who choose not to live within the reservation system. Alexandria had held that “recognition of the existing Indian family doctrine [was] necessary to avoid serious constitutional flaws in the ICWA”. Thus, if the existing Indian family doctrine has already been ignored in current ICWA cases, then serious constitutional flaws may have already occurred.
  • United States citizens, no matter their heritage, are guaranteed civil rights which include fair hearings. When summoned to a tribal court, parents, and legal guardians, whether enrolled or not, should be fully informed of their rights, including 25 USC Chapter 21§1911(b), which states “Transfer of proceedings [to tribal jurisdiction]” will occur only “…in the absence of good cause to the contrary, [or] objection by either parent….” The rights of non-member parents must be upheld. According to 25 USC Chapter 21§1903(1)(iv), ICWA placement preferences “shall not include a placement based … upon an award, in a divorce proceeding, of custody to one of the parents.” ICWA placement preferences also include all grandparents – no matter the heritage. Finally, non-members must be able to serve county and state summons to tribal members within reservation boundaries and must have access to appeal.
  • A “qualified expert witness” must be someone who is able to advocate for the well-being of the child, first and foremost, not a tribe. An expert witness needs to be a professional person with substantial education and experience in the area of the professional person’s specialty and significant knowledge of and experience with the child, his family – and the culture, family structure, and child-rearing practices the child has been raised in. There is nothing a tribal social worker inherently knows about a child based on nothing more than the child’s ethnic heritage. This includes children of 100% heritage who have been raised apart from the tribal community. A qualified expert witness needs to be someone who has not only met the child, but has worked with the child, is familiar with and understands the environment the child has thus far been raised in and has professional experience with some aspect of the child’s emotional, physical, or academic health. This is far more important than understanding the customs of a particular tribe.
  • Finally, if tribal membership is truly a political rather than racial designation, than the definition of an “Indian” child is one who is “enrolled” in the tribe, not merely “eligible.”

Allowing tribal governments the right to determine their own membership at the expense of the rights of any other heritage or culture as well as at the expense of individual rights is indeed political. However, relatives being told these children are suddenly now members of an entity with which the family has had no political, social, or cultural relationship betrays the reality that at least in the case of their child, “race” is determining membership.

Keeping children, no matter their blood quantum, in what a State would normally determine to be an unfit home – solely on the basis of tribal government claims that European values do not apply to and are not needed by children of tribal heritage – is racist in nature and a denial of the child’s personal right to life, liberty and the pursuit of happiness.

Tribal members are not just U.S. citizens; they are human beings. They are not chattel owned by tribal governments or servants indentured to the success of tribal governments, nor are they lab rats for Congress, pawns to be used at the negotiating table, or zoo exhibits for patronizing tourists looking for entertainment.

Even if a child had significant relationship with tribal culture, forced application of ICWA conflicts with the Constitution. There is nothing within the U.S. Constitution nor any treaty that gives Congress the authority to mandate individuals stay connected to a tribe, support a particular political viewpoint, or raise their children in a prescribed culture or religion.

For this reason, the ICWA cannot remain law. Natelson has shown that the ICWA goes far beyond the limited scope of the Indian Commerce Clause.  While some tribal members appreciate that proper application of the Constitution means that Congress has no plenary power over tribal affairs, it also means that Congress has no power to enact laws such as the ICWA.

In light of constitutional issues inherent to the foundational enactment of the Indian Child Welfare Act, the ICWA must be repealed. The Commerce Clause does not give Congress plenary authority over tribes or children of heritage, and tribal governments do not have the authority to force membership onto individuals, no matter their age.

Allowing individuals to employ their full constitutional rights would preserve to citizens their God-given right to individuality, liberty, and property, which is what the United States government is tasked to do.  In the words of Dr. William Allen, Emeritus Professor, Political Science, MSU and former Chair of the U.S. Commission on Civil Rights:

 “… We are talking about our brothers and our sisters. We’re talking about what happens to people who share with us an extremely important identity. And that identity is the identity of free citizens in a Republic…” (2010)[10]

*BIO:

Elizabeth Morris is the administrator of the ‘Christian Alliance for Indian Child Welfare’ – a national non-profit she and her husband, a member of the Minnesota Chippewa tribe, founded in 2004.  She is also a Congressional Commissioner on the Alyce Spotted Bear and Walter Soboleff Commission on Native Children.  Ms. Morris has been writing, lobbying, and advocating on issues related to federal Indian policy since 1995 and is currently working on her PhD in Public Policy: Social Policy at Liberty University.

Ms. Morris graduated with a Bachelor of Science, Interdisciplinary Studies: Government and Policy, Communication, and Health Science magna cum laude in August 2016 and earned her Master of Arts in Public Policy with Distinction in July 2019, both at Liberty University.  Her Master Thesis is titled: “The Philosophical Underpinnings and Negative Consequences of the Indian Child Welfare Act.’

Ms. Morris also earned a Bachelor of Arts in Christian Ministries; Associate of Science (Registered Nurse), a Diploma of Bible & Missions, and is the author of the book, ‘Dying in Indian Country.’

FOOTNOTES

[1] Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)

[2] Kansas v. Colorado 206 U.S. 46 (1907)

[3] United States v. Kagama 118 U.S. 375, 378 (1886)

[4] See generally Randy E. Barnett, New Evidence of the Original Meaning of the Commerce Clause, 55 ARK. L. REV. 847 (2003); Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. CHI. L. REV. 101 (2001); (R. Natelson, The Original Understanding of the Indian Commerce Clause 2007, Supra note 2, 214 )

[5] United States v. Lopez, 514 U.S. 549, 585, 586, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995)

[6] (reprint 1978)

[7] 218 F.3d 458, 464–65 (5th Cir. 2000)

[8] 543 U.S. 371, 378 (2005)

[9] SEE The Philosophical Underpinnings and Negative Consequences of the Indian Child Welfare Act: ‘ICWA Case Studies’ and ‘Child Abuse.’

[10] Dr. William B. Allen’s keynote speech at the Christian Alliance for Indian Child Welfare’s  ICWA Teach-In, titled ‘Indian Children: Citizens, not Cultural Artifacts,’ on  October 28, 2011, in the chambers of the Senate Committee on Indian Affairs.

REFERENCES

Ablavsky, Gregory. “Beyond the Indian Commerce Clause.” Yale Law Journal 124 (2015): 1012, 1017.

Adoptive Couple v. Baby Girl. No. 12–399 (U.S. Supreme Court, June 25, 2013).

Allen, William B. “ICWA Teach-in, Keynote.” Washington DC: CAICW, 10 2010.

Brief of Amicus Curiae Christian Alliance for Indian Child Welfare in Support of Plaintiffs-Appellees and Affirmation (Brackeen v. Zinke, 2018). 4:17-CV-00868 (U.S. Court of Appeals for 5th Circuit, February 2019).

Cleaveland, Bonnie PhD ABPP. Split Feather: An Untested Construct. Scientific Analysis, Charleston: Icwa.co, 2015.

Cohen, Felix S. Handbook of Federal Indian Law. 1942. Albuquerque, NM: University of New Mexico Press, [1942] 1971.

DHS. ICWA from the Inside Out: ‘Split Feather Syndrome’. Article, Dept of Human Services, State of Minnesota, St. Paul: DHS, 2005.

Fiddler, Mark. “Adoptive Couple V. Baby Girl, State ICWA Laws, and Constitutional Avoidance.” Minnesota State Bar Association Family Law Forum (Minnesota State Bar) 22, no. 2 (Spring 2014): 10.

Fletcher, Matthew L.M. “The Iron Cold of the Marshall Trilogy.” N.D. Law Rev (Michigan State University College of Law) 82 (2006): 627.

LexisNexis. Cohen’s Handbook of Federal Indian Law. LexisNexis, 2005.

Locust, Carol. Split Feather Study. Pilot Study, Native American Research and Training Center, University of Arizona College of Medicine, Tucson: Pathways, 1998.

Morris, Elizabeth. “The Philosophical Underpinnings and Negative Consequences of the Indian Child Welfare Act.” Scholars Crossing, 8 2019: 337. https://digitalcommons.liberty.edu/masters/591/

Natelson, Rob. “Constitutional Law Professor.” Email Correspondence. 1 22, 2019.

Natelson, Robert G. “The Legal Meaning of “Commerce” in the Commerce Clause.” St. John’s Law Review 80 (2006): 789, 805–06.

Natelson, Robert. “The Original Understanding of the Indian Commerce Clause.” Denver University Law Review 85 (2007): 201.

Prygoski, Philip J. “From Marshall to Marshall: The Supreme Court’s changing stance on tribal sovereignty.” GP Solo Magazine, 7 2, 2015.

Rowley, Sean. 43rd Symposium on the American Indian at Northeastern State University . April 17, 2015. http://m.tahlequahdailypress.com/news/icwa-discussed-at-symposium-seminar/article_08846b3a-e543-11e4-8421-7744ec7971c6.html?mode=jqm (accessed April 20, 2015).

Speed, Nathan. “Examining the Interstate Commerce Clause Through the Lens of the Indian Commerce Clause.” Boston University Law Review, 2007, 87 ed.: 467, 470-71.

United States. “Constitution.” Cornell University Law School: Legal Information Institute. 1787. https://www.law.cornell.edu/constitution/.

United States v. Lopez. 93-1260 (U.S.S.C., 4 26, 1995).

Weingast, Barry R. “The Economic Role of Political Institutions: Market-Preserving Federalism and Economic Development.” The Journal of Law, Economics and Organization, 1995: 1-31.

 March 8, 2022  No Responses »

Wiley Files Amicus Brief in High-Profile Supreme Court Case on Behalf of Christian Alliance for Indian Child Welfare and Former ICWA Children and Families

Oct 112021
 
children dying

October 11, 2021

Washington, DC – Wiley, a preeminent DC law firm, submitted an amicus brief to the U.S. Supreme Court on behalf of the Christian Alliance for Indian Child Welfare in Brackeen v. Haaland. The brief was filed in support of adoptive families and states in this high-profile case, which urges the Court to review a Fifth Circuit decision involving the rights of Native American children and their families under the Indian Child Welfare Act of 1978 (ICWA). The brief was joined by seven individual signatories who are former ICWA children or are parents to ICWA children, all of whom have been harmed by ICWA.

Wiley partner Stephen J. Obermeier and associate Krystal B. Swendsboe, who authored the amicus brief, are members of the firm’s Issues and Appeals Practice and are representing the nonprofit Alliance on a pro bono basis.

The case, which stems from a child-custody dispute, addresses the harm suffered by Indian children and their families as a result of ICWA – such as the denial of the full range of rights and protections of the federal and state constitutions to the petitioners when subjected to tribal jurisdiction under the ICWA.

“For nearly fifty years, ICWA has imposed race-based classifications on Indian children and their families – a clear violation of Equal Protection – and has caused horrendous individual suffering as a result,” Obermeier and Swendsboe explained in the Alliance’s brief.

As noted in the brief, this case raises particularly significant issues for Alliance because its members are birth parents, birth relatives, foster parents, and adoptive parents of children with varying amounts of Indian ancestry, as well as tribal members, individuals with tribal heritage, or former ICWA children – all of whom have seen or experienced the tragic consequences of applying ICWA’s race-based distinctions. The brief includes, as examples, stories from the individual amicus signatories who have been harmed by ICWA’s race-based distinctions and discriminatory placement preferences.

In addition to violating the U.S. Constitution’s Equal Protection Clause, the ICWA exceeds the authority granted to Congress under the Indian Commerce Clause, according to the amicus brief.

Congress “may not exercise power over family and custody matters under the guise of regulating commerce with Indian Tribes,” the brief argued. “ICWA, therefore, exceeds Congress’s power to regulate commerce, as it is entirely unrelated to commerce and intrudes on noncommercial subjects belonging entirely to the states.”

https://www.wiley.law/pressrelease-Wiley-Files-Amicus-Brief-in-High-Profile-Supreme-Court-Case-on-Behalf-of-Christian-Alliance-for-Indian-Child-Welfare-and-Former-ICWA-Children-and-Families

 October 11, 2021  No Responses »

Neither the ‘Red Nation’ nor the ‘Red Deal’ is the Real Deal: Selling a Socialist Dreamland to Indian Country

Oct 102020
 

Dr. Nick Estes, a member of the Lower Brule Sioux Tribe, earned his Ph.D. at the University of New Mexico – where he is now an Assistant Professor in American Studies. In 2014, he co-founded a Native American revolutionary organization called “The Red Nation.” His work centers on refuting and condemning world history and critically judging capitalists and persons who are of fully European heritage. Este holds “discussions” urging young people to join him against “settler colonialism” and “US imperialism” “from Hawaii to Samoa, First Nations, Black America and Palestine.” He talks about decolonizing America, but does not explain exactly what this would entail or how it is achieved, other than to say that when it is completed, he believes he and his colleagues should run the nation. Mind you, what he says is that Native Americans should govern the nation. But this isn’t fully what he means. Tribal members who prefer capitalism and like America the way it currently is need not apply.

The Red Nation combines Marxism with theories of ‘first-comer’ power around the world, except in areas where those thought to have come first are considered ‘European’ or ‘semitic.’ Europeans are never considered indigenous, even in Europe. Their tremendous stress from loss of traditions and culture over the last few years following the massive influx of immigrants running from failed political and economic systems is said to be nothing more than racism. Further, in Israel, Este seems to believes those who have only lived on the land since 1920 and took on the name “Palestinian’ should retain power over the area, as opposed to the original, ‘semitic’ Palestinians who the United Nations recognized as a nation in 1948, and whose history on the land goes back well over 2000 years.

In October of 2019, Este and his colleagues held the “First International Meeting of Native Peoples” in Venezuela. Here, the Red Nation was described as “an American organization dedicated to promoting the liberation of the natives from capitalism and colonialism.” Native leaders from “some 20 countries, including Chile, Bolivia, Brazil, Colombia, Ecuador, Sri Lanka, Canada and the United States” were present. According to their newsletter, this meeting was part of a strategic endeavor to “establish a Bolivarian alliance of indigenous peoples for sovereignty, solidarity and decolonization.”

Also in October of 2019, Este met with the Democratic Socialists of America in South Dakota. There, the DSA, claiming “The Red Nation is a group of radical indigenous people… fighting back against the US imperialist settler colonialist state,” committed to TRN’s policy points, including “decolonization, deoccupation, demilitarization,” ridding the world of fossil fuels, and “full repatriation of indigenous lands.” While giving no explanation for the oil drills, pipelines, or refineries owned by capitalist Native American tribes and individuals, such as those on the Fort Berthold Indian Reservation, the DNR and the TRN claim these policies are all “essential to ensuring a socially just and environmentally sustainable future.”

The Red Nation has invited varied “allied movements, comrades, and relatives” to join them “for a series of listening sessions and workshops to draft and implement the Red Deal,” which they assert is a “movement-oriented document for climate justice and grassroots reform and revolution.” The policies have been dubbed the “Red Deal for two reasons. First, “because it prioritizes Indigenous liberation,” and second, it promotes a “revolutionary left position.”

The Red Deal has four main principles:

  • What Creates the Crisis Cannot Solve It
  • Change Comes from Below and to the Left
  • Politicians Can’t Do What Only Mass Movements Can
  • From Theory to Action

What creates crisis cannot solve it: This would be a good point to remember when considering the large number of corrupt tribal governments within Indian Country. But this is not what Este and the Red Nation are referring to. Believing that capitalism creates world crisis, they wants to everyone to divest from large, private industries and give the money to them to handle and distribute to those they judge worthy by claiming they are investing it “into programs that will benefit those most scarred.” Never mind the scarring that will occur when people lose their industrial jobs. Este does not seem to understand that most men, regardless of skin color, prefer to work hard to support their families, and many families value fuel oil for warmth and cooking. A large percentage of the population is not interested in shutting down the businesses Estes has deemed ‘harmful’ – and would need to be forced to do so.

Changes from below and to the Left: Just like the promises of all revolutionaries on trajectory to tyranny, the Red Nation claims they will “work to empower the poor and downtrodden, to help them to assert their natural power and demand back what was taken from them for so long.” That’s a line right out of Lenin’s play book.

The Red Deal is said to be comprehensive – not just for a region, but for all of America and every nation. They intend it to be a blanket policy, one-size-fits-all for the entire world without any input from the poor, downtrodden masses they had promised natural power to. Like it or not, it will encompass “the entirety of Indigenous America,” and will include “our non-Indigenous comrades and relatives who live here.”

The Red Nation asserts that “Politicians can’t do what only mass movements do.” Well, if it is indeed something that only a mass movement can do, then it goes without saying that an individual wouldn’t be able to do it alone. However, politicians are able to do many things that mass movements cannot. Getting a consensual mandate from the majority of citizens through the process of voting is just one of the things mass movements do not do.

The Red Nation seeks a “complete moratorium on oil, gas, and coal extraction” and claims to want “restoration of Indigenous land, water, and air to a healthy state.” This, after the Standing Rock “water protectors” drove and flew into the Dakotas from out-of-state in gas propelled vehicles, overwhelming the local resources, and left literal dump truck loads of garbage in the trampled meadows, waiting for the spring rains to wash it into the very river they claimed to be protecting. Everyone in the local area could see the hypocrisy of the ‘water polluters,’ corporately camped next to the pipeline just outside reservation boundaries – including many of the true members of Standing Rock. This is the genuine face of the “non-reformist reforms” Este and comrades claim are “crucial” to their goal of “abolition, decolonization, and liberation.” And yet, they point their collective fingers at others and vow to fund their reforms by “dispossessing the wealth from corporate polluters and settler governments,” then “redistributing it to the masses.”

Just as there is no mention of what will be done with the large number of people – including many tribal members – who do not want to live under socialism, there is no clear explanation as to how populations will be sustained long-term if there is no industry, capitalism, fuel oil, or coal – and thus, no way to keep your family warm in the winter (other than chopping down the forests for firewood).

Finally, From Theory to Action: The Red Nation believes the Red Deal reflects “…Indigenous liberation, life, and land—an affirmation that colonialism and capitalism must be overturned for this planet to be habitable for human and other-than-human relatives to live dignified lives.” They state “We must take what we have learned from the radical traditions of old and new to mobilize and fight with renewed vigor.” This is all vague in terms of a “call-to-action,” but lofty sounding nonetheless.

The Red Nation attempts to sidestep informed consent by promising “free healthcare; free education; free housing.” They also promise all the perks they assume every indigenous person might yearn for, including “restoration of Indigenous land, water, and air to a healthy state” and “fulfillment of treaty rights, land restoration, sovereignty, self-determination,” and “full citizenship and equal protection to undocumented relatives.”

This brings up several questions:

  • Will fulfillment of treaties include an end to federal funds for most reservations? The vast majority of treaties stipulate a set amount of funds and a limit to the years of payment. Most treaties stated the promised funds would be disbursed in precise amount for only 25 to 40 years.
  • If it is decided that the funding will continue, where will the funds come from? Will Este’s newly established government take over funding tribal governments as the United States government had?
  • Having returned full sovereignty to tribal governments, will Este’s government step totally back, and allow tribes to practice capitalism within their borders if they wish?
  • Further, when discussing land restoration, will there be a restoration to federal taxpayers of the millions in Indian Claims Commission funds that were paid to most tribal governments between 1955 and the 1970’s? Tribal officials had signed off on their land claims when they accepted the large cash payments. Only the Black Hills remains unpaid for – the money waiting in trust for the tribe to accept it. Does the Red Nation intend for all other tribal governments to repay the funds they received?
  • While promising to return all land to those who roamed it centuries ago, Este and the Red Nation also intend to open borders so that all those from socialist countries who have hungered years for the freedom of capitalism can come rushing in – and live where? Este states on the one hand that “the idea of separate possession of property by individuals is foreign to the Indian mind,” and that everyone will share the land (at least with others he has chosen as indigenous). On the other hand, he has promised a return of every inch of land to North American tribes.
  • Will tribal police be abolished along with the county and state police?
  • Perhaps tribal governments would have no problem with other indigenous groups moving onto their newly re-acquired land. Theoretically, people could move anywhere, including onto the Black Hills where there is plenty of firewood and wildlife available. The Red Deal calls for abolishment of the military, police, prisons, and ICE, so there will be no one around to tell immigrants (or white people for that matter) “No, you cannot move there.” And what if the new indigenous neighbors want to practice Catholicism on the Black Hills? …Or worse, what if they want to practice capitalism – and then get all feisty if anyone intrudes on their staked-out domain or possessions?

It is ridiculous to claim communities can thrive under the oppressive yoke Este and his comrades intend to put on them. There is no society yet that has thrived without industry and at least some amount of capitalism. This is why so many former communist countries have opened to capitalism in the last couple decades. East and West Berlin in the 1960’s and 70’s revealed clear distinction between the two – and it was East Berliners rushing past the broken wall to the west, not the other way around.

But let’s just say Este is right and the transition runs smoothly. His next assumption is that once people have all their common human needs met – crime will cease. Everyone will be content with what they have and convert their energy to love for each other – even if it is just the indigenous people that have all the land, water, and air.

Will everything be equal? Including house size, color, or number of toys a man is allowed to have?  Will human envy have disappeared?

People like Este are the true racists, pretending to know – on the basis of skin color – the inner nature and motivations of virtually all humans and asserting that he speaks for everyone he has chosen to be subject to his movement. Este has no recognition of individuality within “the masses,” and no genuine understanding of diverse human nature.

What if… the capitalistic downtrodden start to out-number the socialistic downtrodden? What would the Red Nation do if most of those they patronize suddenly decide they want capitalism to be re-instituted? Inquiring minds want to know.

In September 2020, Este won a “Freedom Scholar” award from the Marguerite Casey Foundation and the Group Health Foundation. While it would be fascinating to see how Este and his comrades enforce their vision of government without assistance from military or law enforcement, those who acknowledge genuine history and understand human nature know it isn’t possible. “The masses” will not passively submit to Este’s demands, and Este will not passively allow them to rebel against his mandates. Este is lying to his followers in the hope of leading a movement. Maybe he dreams he will someday achieve the stature of another Lenin, Stalin, or Mao.

References

  1. Radio Havana Cuba, Venezuela promotes ties of brotherhood with U.S. Indigenous people 30/10/19
  2. Red Nation
    • – https://twitter.com/The_Red_Nation
    • – https://www.facebook.com/therednation/?hc_ref=ARQKPx5d0cDUGP9kksmv5BUyWM1hJzlGbrI3lh5mS0eM-JcCDmZYDHSinqJab44KpOI&fref=nf&__tn__=kC-R
  3. Revolutionary Socialism is the Primary Political Ideology of The Red Nation – https://therednation.org/revolutionary-socialism-is-the-primary-political-ideology-of-the-red-nation-2/
  4. Indigenous Feminism – http://therednation.org/indigenous-feminism-does-not-discriminate/
  5. Palestine Will Be Free, Rejecting Anti-Palestinian, Anti-Arab, and Anti-Muslim Opportunism – https://therednation.org/the-liberation-of-palestine-represents-an-alternative-path-for-native-nations/
  6. Red Nation Position Papers “Communism is the New Horizon, Queer Indigenous Feminism is the Way.”
    • – https://twitter.com/The_Red_Nation/status/1301999835747319819
    • – https://towardfreedom.org/global-news-and-analysis-global-news-and-analysis/position-paper-revolutionary-socialism-is-the-primary-political-ideology-of-the-red-nation/
    • – https://therednation.org/10-point-program/
    • – https://therednation.org/caucuses/beyond-borders-caucus/
 October 10, 2020  No Responses »

Pedophilia Ignored by Winona LaDuke

Sep 212020
 
'Honor the Earth' founder

Winona LaDuke, co-founder and executive director of ‘Honor the Earth,’ a group that rakes large amounts of money from extreme left corporations and foundations, has repeatedly turned a blind eye to sexual predators on her staff.

In 2019, a former employee sued Honor the Earth for ignoring sexual harrassment by fellow employee, Michael Dahl, who is a known pedophile. ‘Dahl, according to the lawsuit, has been “credibly accused of using his status as a spiritual leader to commit sexual violence against Native boys” and “The man’s “inappropriate sexual behavior towards boys became an open secret in the White Earth Community.” ‘Honor the Earth’ then engaged in sex discrimination and reprisal against the plaintiff, Margaret Campbell, choosing to protect Dahl and their reputation rather than protect staff and the community.

More recently Nahko “the Bear,” a nationally-known musician who was on the board of ‘Honor the Earth,’ was accused of pedophilia. There are also rumors that LaDuke is protecting accused pedophile Anthony Sul. Disturbingly, LaDuke’s own father, Vincent LaDuke, who claimed to lead his own “tribe,” was once accused of sexually assaulting a minor.

‘Honor the Earth,’ founded in 1993, wants America to switch to a “land-based’ economy, but does not want tribal members to have full title to their property. They want the land to remain in the control of tribal leaders.

LaDuke, who ran for Vice President of the United States in 1996 and 2000 on the Green Party ticket wth Ralph Nader, said in December, 2018, that she wants AOC’s socialist “Green New Deal” to be administered by “Native Americans.” By this, she means only those who adhere to far-left ideology. Conservative tribal members are regularily pushed away by tribal elite who embrace Marxism – not traditional Native American culture and custom. LaDuke said that the “next economy is going to have people like me making decisions. I’d like to be an architect for the next economy. I didn’t like the last one.”

‘Honor the Earth’s’ funding suddenly increased by a factor of 6 in 2016, the year President Trump was elected to office. One grant, $63,000, was given by the Tides Foundation – which recieves millions of dollars from George Soros’s organizations – to interfere with the Dakota Access Pipline. ‘Honor the Earth’ used deceiful propaganda to agitate out-of-state rioters, then transported them to North Dakota to camp on property near construction of the pipeline, which was outside the boundaries of the Standing Rock Reservation. The agitated rioters, who used oil products in one form or another througout their camp, were not told about the oil refinery, pipeline, and oil wells owned by the Three Affiliated Tribes – the MHA Nation – on the Fort Berthold Reservation 125 miles or so north on the very same river. They were only told to protest the Dakota Access Pipeline. A few months later, the tribal Chair of Standing Rock told the rioters to leave as they were destroying the wetlands they were camping on, bothering residents, expecting too many freebies, and causing too much crime. ‘Honor the Earth’ helped pay for the legal defense of those who were arrested for crimes.

Honor the Earth is now attempting to block the Enbridge Line 3 pipeline — a $2.9 billion project to replace a 1960s oil pipeline with a newer, safer one.

With regard to the sexual abuse apparently rampant within the organization, Standing Rock tribal member Jacqueline Keeler, journalist for Pollen Magazine, has done a podcast. Cindy Gomez, from the poscast “A Mexican Crossing Lines” has also talked about the sexual harrassment and abuse.

The Daily Caller reports:

In one instance in fall 2014, Dahl allegedly asked Campbell in front of a group environmental activists and funders, “Who’d you fuck last night? … You look like you’ve been fucked,” the lawsuit said.

When Campbell notified LaDuke, she dismissed the complaint and said Dahl suffered from “verbal Tourettes,” according to the lawsuit. The suit details a December 2014 encounter in Denver, Colorado, where Dahl “approached with a phallic object in his pocket” and told Campbell “I have something for you.”

Campbell told an Honor the Earth board member about the incident, who responded that “queens will try to get away with that, you just have to learn to stand up for yourself,” according to the complaint. Gender Justice, a non-profit legal advocacy group, filed suit on Campbell’s behalf.

The lawsuit also alleged Dahl was involved in youth organizing despite him being “credibly accused of using his status as a spiritual leader to commit sexual violence against Native boys.”

At a 2015 meeting with fellow tribal activists, Campbell and LaDuke learned Dahl had been accused of sexually abusing a 15-year-old boy by his mother during a 2012 ceremony on the White Earth Reservation.

“Dahl’s inappropriate sexual behavior towards boys became an open secret in the White Earth Community,” reads the complaint.

Campbell’s complaint also mentions a horseback ride in fall 2014 where Dahl allegedly joked about sharing a tent with two young men, including talking about giving boys a “hand job.” LaDuke was on that horseback ride, the complaint said.

The Brainerd Dispatch reports that Dahl also has a felony conviction for allowing three horses to “die from starvation, exposure and neglect.” One of the horses “was the great-granddaughter of the famed racing horse Secretariat, a Triple Crown winner in 1973.” The other two rode with ‘Honor the Earth’ at a 2015 event.

The filings from the lawsuit expose several abuses and deceptions, including “allegations about LaDuke’s deceased father Sun Bear and pedophilia/sexual abuse, and false teachings,” questioning of LaDuke’s enrollability at White Earth, and allegations by the White Earth Tribe that LaDuke’s ‘White Earth Land Recovery Project,’ which began in the 1990s, has not yet returned the more than 20,000 acres they acquired through donations back to the tribe. Return of the land to the tribe had been the claimed goal and intent of the project as stated to the donors. Tax documents show that as late as 2019, WELRP had at least 1million in funds available.

Tara Houska, campaign manager for ‘Honor the Earth’ as well as the “Native American Advisor to Bernie Sanders” in 2016, abruptly resigned from ‘Honor the Earth’ in 2019, following the filing of Campbell’s complaint involving Michael Dahl.

Campbell’s lawsuit, which is still in litigation, alleges that LaDuke has used her influence to prevent Campbell from being hired elsewhere. Michael Dahl, on the other hand, was hired by the Detroit Lakes public school district in 2016 to teach tribal culture and language.

We hope the courts will hold LaDuke and ‘Honor the Earth accountable for the harm they and Dahl have caused. 

References

Becker County MN: Campbell vs Honor the Earth (Allegations about Michael Dahl pedophilia)

Podcasts concerning Winona LaDuke and Honor the Earth Law Suit (Michael Dahl) and Now HTE Board Member Nakho Bear

Nakho Bear

https://www.change.org/p/music-venues-nahko-and-medicine-for-the-people-sexual-abuse-allegations

https://www.callingallcrows.org/july2020statement

https://jezebel.com/lets-get-to-know-nahko-bear-shailene-woodleys-alleged-1691156574

Articles About Winona LaDuke and Honor the Earth Law Suit (Campbell v Honor the Earth)

https://gainfactchecker.org/anti-pipeline-group-honor-the-earth-has-metoo-reckoning/

https://dailycaller.com/2019/05/08/lawsuit-environmental-honor-earth/

https://www.bemidjipioneer.com/news/4611481-updated-former-employee-files-lawsuit-against-honor-earth

https://www.inforum.com/news/crime-and-courts/1020617-Former-employee-sues-Honor-the-Earth-over-sexual-harassment-claims-complaints-were-mishandled-by-the-activist-organization

https://www.startribune.com/becker-county-lawsuit-honor-the-earth-ignored-sexual-harassment-allegation/509659492/

https://truepundit.com/lawsuit-details-serious-allegations-against-an-environmental-group-at-the-heart-of-the-anti-pipeline-movement/

https://www.bemidjipioneer.com/news/3978467-Judge-denies-request-to-dismiss-harassment-lawsuit-against-Honor-the-Earth

https://climatechangedispatch.com/anti-pipeline-activist-group-sex-abuse-allegations/

https://www.westernjournal.com/remember-group-center-dakota-access-protest-caught-massive-lawsuit/

Michael Dahl

https://www.brainerddispatch.com/news/4383710-man-sentenced-starvation-death-three-horses-becker-county

https://www.startribune.com/rez-radio-4-tribal-stations-are-thriving-up-north/253063101/

https://www.valleynewslive.com/content/news/Man-has-been-charged-for-animal–421798573.html

http://news.minnesota.publicradio.org/features/2003/08/20_robertsont_languagecamp/

https://www.valleynewslive.com/content/news/MN-man-pleads-guilty-to-felony-animal-abuse-charge-after-3-horses-found-dead-in-Becker-County-450298563.html

http://news.minnesota.publicradio.org/features/2003/08/18_gundersond_spiritualityeigh/

https://www.dl-online.com/community/4119931-teaching-lost-language-new-teacher-ojibwe-learning-and-native-american-culture

Winona LaDuke

Honor The Earth

WELRP

https://studylib.net/doc/6897270/break—white-earth-land-recovery-project

https://www.welrp.org

https://welrp.wordpress.com

https://www.walkermn.com/news/northwest-minnesota-foundation-awards-k-grant-to-white-earth-land/article_4e6b1a58-117e-11e3-892c-0019bb2963f4.html

 September 21, 2020  No Responses »

Tribal Council votes to keep child-molester/Oglala Sioux Tribal President in his power seat.

Sep 162020
 

On August 24, 2020, Oglala Sioux tribal president Julian R. Bear Runner issued a State of Emergency due to a rash of suicides on the Pine Ridge Reservation.

He claimed the rash of suicides and threats of suicide in 2019 and 2020 were a result of the pandemic, as if the pandemic affected youth in 2019, or as if most of the youth have been staying in their homes, isolated from friends and activities in 2020.

While the tribal government may have issued orders for people to stay at home, the reality is that not only have the youth NOT been staying in isolation, he himself has felt free to go pick up children for an evening of his own self-entertainment – molesting a young man.

According to reports, there have been 5 confirmed suicides since the first of this year (were some of these before the pandemic began as well?) and “as many as 14 reported suicides this year,” … (the tribal government DOESN’T KNOW the exact number of suicides??). A third tribal agency, the Oglala Sioux Tribe Suicide Prevention Program, says there has been “nine suicides reported from local agencies this year of people who were 14 through 32-years old.”

President Bear Runner is said to be working “with Tribe officials to develop and implement strategies for combating the high rates of suicide on Pine Ridge.” Will any of those suicide prevention strategies include prosecuting and imprisoning all the adults who have been taking sexual advantage of children? Will it include an investigation of all persons in authority who have turned their back on the sexual abuse of children, leaving the children to feel feel trapped – hopeless and helpless?

Bear Runner “spoke out against the harms of child sexual abuse” in February during the sentencing hearing of a pedophile pediatrician who the Indian Health Service had moved from one reservation to another every time he molested a child. Yet, Bear Runner has been accused this year of both drunk driving and molesting a 17-year-old boy. The molestation complaint, signed by the victim’s father, was sent to the tribal Secretary’s Office on August 19, just five days before Bear Runner issued his ‘concerned’ State of Emergency over suicides. The molestation complaint was then forwarded to the tribal council. The chief of the Oglala Sioux police, Robert Ecoffey, wouldn’t comment on whether the victim had filed a criminal complaint, however, there is an unsubstantiated rumor that the FBI has been asking questions of witnesses.

The father stated that Bear Runner had groomed his son when he was 17 years old – “contacting him over social media, and once rubbing his thigh.” It was also stated that Bear Runner had coerced the 17-yr-old into into oral sex. The boy did not feel able to share what was happening at that time. Sexual intercourse occurred soon after he turned 18.

On August 24, the tribal council suspended Bear Runner without pay pending an impeachment hearing. The impeachment hearing — overseen by a tribal judge — was held on September 14, 2020. The victim, Bear Runner and others were allowed to testify and answer the council and judge’s questions, but neither were allowed lawyers. The now-young-man was very clear the sexual contact was both unwanted and demeaning. His testimony was very emotional.

According to the judge at the hearing, “elected officials can be impeached if two thirds of the council finds they committed crimes, gross incompetency, corruption or malfeasance.”

Bear Runner, who campaigned to ban alcohol, was arrested in May for driving drunk and threatening a man. He had been also been suspended in July after he couldn’t be reached following his issuance of “a 72-hour coronavirus lockdown.”  

Nevertheless, the September 14 vote to impeach Bear Runner failed. While 11 of the council members voted for impeachment, five voted no, and another five were too cowardly or complicit to vote. Therefore, a 2/3 majority was not achieved.

The victim had stood before the council to testify, and the entire reservation now knows everything that happened to him. But no justice was served. According to numerous reports from tribal entities and the Indian Health Service, suicide and the sexual abuse of children are both rampant on many reservations. But most federal and tribal officials repeatedly protect the offenders. Young victims are left feeling trapped with no one willing to help them – especially when the most powerful people on the reservation are the perpetrators.

This isn’t the first time the Pine Ridge reservation has had to declare an emergency in order to get more federal funding due to young suicides. While the pandemic certainly adds to stress, it is not the main cause of the suicides. It is way beyond time federal and tribal officials admit and deal with the real cause.

REFERENCES:

For documentation of the high incidence of physical and sexual abuse on many reservations – read Chapter 4, subhead “Child Abuse” of the “The Philosophical Underpinnings and Negative Consequences of the Indian Child Welfare Act‘ – https://digitalcommons.liberty.edu/masters/591/ 

Bear Runner DUI arrest and suspension

– https://rapidcityjournal.com/news/local/crime-and-courts/oglala-sioux-president-charged-with-drunk-driving-threatening-man/article_256fa4b3-6a80-5292-a4e5-f92a7ce3e699.html

– https://www.kotatv.com/content/news/Oglala-Sioux-Tribe-President-admits-to-being-arrested-570165151.html

– https://www.indianz.com/News/2020/05/06/president-of-oglala-sioux-tribe-faces-le.asp

– https://www.kotatv.com/content/news/Oglala-Sioux-Tribe-president-faces-DUI-charge-570224971.html

– https://www.argusleader.com/story/news/crime/2020/05/04/oglala-sioux-tribe-president-arrested-saturday/3077687001/

– https://www.indianz.com/News/2020/05/04/president-of-oglala-sioux-tribe-admits-a.asp

– https://www.capjournal.com/news/tribal-leader-acknowledges-arrest/article_12d7fb4a-8fd6-11ea-9816-33265ee333ef.html

– https://indiancountrytoday.com/news/oglala-sioux-president-suspended-8kFfw3seWUOSeUwtL2TLbA

– https://www.keloland.com/news/local-news/president-of-oglala-sioux-tribe-announces-his-own-arrest/

– https://apnews.com/cb63acf32c5890a253ebc11543e4a1b9

– https://www.nativesunnews.today/articles/president-of-oglala-sioux-tribe-arrested-and-jailed-on-pine-ridge-reservation/

– https://www.newscenter1.tv/oglala-sioux-tribe-president-julian-bear-runner-reinstated/

– https://apnews.com/beba351350b97426d44b86ecdee62445

– https://www.gowatertown.net/oglala-sioux-president-who-campaigned-in-favor-of-an-alcohol-ban-now-charged-with-dui/

– https://abcnews.go.com/US/wireStory/oglala-sioux-leader-charged-driving-drunk-threatening-70535973

– https://www.facebook.com/jbearrunner

Bear Runner Improper Conduct (pedophilia)

‘Your silence votes for you’: Citizens of Oglala Sioux Tribe target council over impeachment vote

Bear Runner escapes impeachment despite vivid testimony by alleged victim

– https://indiancountrytoday.com/news/oglala-sioux-leader-suspended-following-improper-contact-allegation-2xvrI86Sq06pye5zCmdP7A

– https://indiancountrytoday.com/news/oglala-lakota-president-in-limbo-after-sexual-misconduct-allegations-UbJYvQIrXkSIi5HNOjtfeg

– https://apnews.com/e6b1f80905c6650a21eef1e4fb835cf9

– https://www.msn.com/en-us/news/crime/bear-runner-remains-tribal-president/ar-BB192h65

– https://rapidcityjournal.com/news/local/impeachment-hearing-set-for-ost-president-accused-of-inappropriate-contact-with-teen/article_0071a83c-594a-5f65-9119-11273c5a57d8.html

– https://madison.com/news/national/oglala-sioux-president-suspended-on-improper-contact-charge/article_d11f0dc3-f686-514b-a57e-e1dfce0bccba.html

– https://www.facebook.com/BearRunnerForOglalaNationPresident/

– https://www.usnews.com/news/best-states/south-dakota/articles/2020-09-15/vote-to-impeach-oglala-sioux-tribal-president-has-failed

Bear Runner FBI Investigation Underway?
https://www.indianz.com/w/?p=259

Bear Runner 2018 Inauguration
https://www.kotatv.com/content/news/Bear-Runner-inaugurated-as-Oglala-Sioux-President-502220931.html

 September 16, 2020  No Responses »

The Philosophical Underpinnings and Negative Consequences of the Indian Child Welfare Act

Oct 212019
 
The Philosophical Underpinnings and Negative Consequences of the Indian Child Welfare Act - https://digitalcommons.liberty.edu/masters/591/

By Elizabeth S. Morris

A Thesis Submitted to the Faculty of the Helms School of Government in Candidacy for the Degree of Master of Arts in Public Policy

https://digitalcommons.liberty.edu/masters/591

‘Although the ICWA has some statutory safeguards to prevent misuse, numerous families continue to be hurt by the law.’

Preface

My husband and I began our lives together in a symbiotic alcoholic-enabler relationship in the late 70’s. With our family on the edge of self-destruction in 1987, my husband, an enrolled member of the Minnesota Chippewa Tribe, born and raised on the Leech Lake reservation, had a transformational experience which changed his worldview and led him to take our family in a new direction. 

Having watched many of his relatives suffer within the reservation system, he began to see reservation violence and crime as an outcome of current federal Indian policy more than it was about past policy. This led us to forming an advocacy in the late 90’s for families hurt by federal Indian policy.  We did our best to share hope and life, as inadequate as we were, by assisting extended family in our home, neighbors in our community, and strangers across the nation. We never did it for money; there was never any money. Everything we did came from passion for the lives of our children, nieces and nephews, and extended communities.

Unfortunately, reservation crime, corruption, drug abuse and violence have continued to increase over the years. My husband has since passed away and I am a widow, continuing the work we had begun in 1996.

This thesis compiles some of the documented history, philosophy, and consequences of federal Indian policy. It also includes a preliminary quantitative causal comparative survey with 1351 participants – 551 of whom identify tribal heritage – and explores the relationship between differences.

We serve a powerful God with whom all things are possible.  Our job is to serve in the capacity He has given us, even if we do not understand why, and then enjoy watching what He does next. 

Abstract

This paper will examine the philosophical underpinnings of current federal Indian policy and its physical, emotional, and economic consequences on individuals and communities.

The U.S. Civil Rights Commission found in 1990 that “[T]he Government of the United States has failed to provide civil rights protection for Native Americans living on reservations” (W. B. Allen 1990, 2). As Regan (2014) observes, individuals have been denied full title to their property – and thus use of the property as leverage to improve their economic condition (Regan 2014). Tribal executive and judicial branches have been accused of illegal search and seizures, denial of right to counsel or jury, ex parte hearings and violations of due process and equal protection (W. B. Allen 1990, 3). Violence, criminal activity, child abuse and trafficking are rampant on many reservations (DOJ 2018). Largely because of crime and corruption, many have left the reservation system. The last two U.S. censuses’ report 75% of tribal members do not live in Indian Country (US Census Bureau 2010).

Research suggests current federal Indian policy and the reservation system are built on philosophies destructive to the physical, emotional and economic health of individual tribal members. This paper contends that allowing property rights for individual tribal members, enforcing rule of law within reservation systems, supporting law enforcement, and upholding full constitutional rights and protections of all citizens would secure the lives, liberties and properties of affected individuals and families.

Introduction

For almost 200 years the U.S. federal government has claimed wardship over members of federally recognized Indian tribes.  Yet, despite the nineteenth century U.S. federal court rulings that propagated this view, disagreement continues as to whether tribes located within the United States are sovereign, whether Congress has plenary power over them, and whether individual tribal members have U.S. Constitutional rights: 

  • Some say the nineteenth century U.S. Supreme Court cases known as the ‘Marshall Trilogy’ contradict tribal sovereignty.  Others say they uphold it.
  • Some say treaties promise a permanent trust relationship. Others point out that most treaties have clearly specified final payments of federal funds and benefits and were written and signed with clear intent for gradual assimilation.
  • Some say the Constitution never gave Congress anything more than the power to regulate trade with tribes. Others claim the Constitution not only gave Congress total and exclusive plenary power to decide every aspect of life in Indian Country – but by unstated extension, gave the executive branch this power as well.
  • Some argue that the Constitution never had authority over tribes or tribal members. Others cite the Constitution when seeking judicial redress. 
  • Some tribal officials argue that international law should not have been forced upon non-European cultures that had no say in it. Others point to natural law and international law – the grounds for treaties between nations – as basis for uninterrupted tribal sovereignty.

Inherent, retained tribal sovereignty was reality for tribal governments prior to the formation of the United States and in the immediate years following its birth, but is not reflected in case law from the 1800s and much of the 1900s. By the time of Andrew Jackson, the United States had taken a position of control. Further, over the last two centuries, the vast majority of tribal leaders accepted large payments for land, accepted federal trust benefits, and submitted to federal government’s de facto power over them.   

Throughout history and every heritage, various men have coveted power over others.  Today, tribal governments, while accepting and playing into Congress’ claim of plenary power, have themselves, also, claimed exclusive jurisdiction and authority over unwilling citizens. Tribal governments regularly lobby and petition both Congress and the White House to codify tribal jurisdiction over the lives, liberty and property of everyone within reservation boundaries as well as some outside reservation boundaries.  While claiming exclusive jurisdiction, tribal governments have requested and given blessing for the federal government to manage children of tribal heritage – asking Congress to write the Indian Child Welfare Act and the executive branch to write federal rules governing the placement of every enrollable child in need of care. Some tribal governments and supportive entities have gone further – asking even governors and state legislators to expand on and strengthen control over children with heritage.

Often cited as justification for the ICWA is a 1998 pilot study by Carol Locust, a training director at the Native American Research and Training Center at the University of Arizona College of Medicine.  Locust’s study is said to have shown that “every Indian child placed in a non-Indian home for either foster care or adoption is placed at great risk of long-term psychological damage as an adult” (Locust, Split Feather Study 1998).  Referring to the condition as the “Split-feather Syndrome,” Locust claims to have identified “unique factors of Indian children placed in non-Indian homes that created damaging effects” (Locust, Split Feather Study 1998).  The Minnesota Department of Human Services noted “an astonishing 19 out of 20 Native adult adoptees showed signs of “Split-feather syndrome” during Locust’s limited study (DHS 2005).

“Unfortunately,” according to Bonnie Cleaveland, PhD ABPP, “the study was implemented so poorly that we cannot draw conclusions from it.” Only twenty adoptees with tribal heritage – total – were interviewed. All were removed from their biological families and placed with non-native families. There were no control groups to address other variables. According to Cleaveland:

Locust asserts that out-of-culture removal causes substance abuse and psychiatric problems. However, she uses no control group. She doesn’t acknowledge the high rates of trauma, psychiatric and substance abuse among AI/AN people who remain in their culture and among the population of foster children. These high rates of psychosocial problems could easily account for all of the symptoms Locust found in her subjects 

(Cleaveland 2015).

Cleaveland concluded, “Sadly, because many judges and attorneys, and even some caseworkers and other professionals, are not familiar with the research, results that may be very wrong are leading to the wrong outcomes for children” (Cleaveland 2015).  While supporters of ICWA cite “Split-feather Syndrome” as proof the ICWA is in the best interest of children, many children have been hurt by application of the law. 

Questions that need more extensive study include whether children who were adopted into non-Indian families as children show greater problems with self-identity, self-esteem, and inter-personal relationships than do their peers.  Are the ties between children who have tribal heritage and their birth families and culture stronger than that of their peers, no matter the age at adoption?  Other considerations include whether all tribal members support federal policies that mandate their cases be heard only in tribal courts and whether a percentage of persons of tribal heritage believe federal Indian policy infringes on their life, liberty and property.

 The central concern of this paper is how current federal Indian policy has affected the lives, liberty and property of those who have tribal heritage – most specifically the Indian Child Welfare Act.  Through research of the historical foundations of federal Indian policy and a nation-wide comparative survey of family dynamics, this paper will attempt to answer these and other questions.

READ FULL TEXT – https://digitalcommons.liberty.edu/masters/591

Citation

Morris, Elizabeth S. The Philosophical Underpinnings and Negative Consequences of the Indian Child Welfare Act. Master Thesis, Helms School of Government, Liberty University, Lynchburg: Digital Commons, 2019, 337.  

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 October 21, 2019  No Responses »

Silence About Conditions at Pine Ridge Reservation

Jun 082017
 
Gang Jumped Savannah

by Thomas F. Sullivan

For generations, the residents of the Pine Ridge Reservation have lived with unemployment and poverty rates that have never been seen in the majority community even during the Great Depression.

According to an MSNBC Report on Pine Ridge on May 29, 2014, “Roughly four out of five residents are unemployed and well over half live in deep poverty…… Life expectancy is just 48 years old for men and 52 for women….. About 70 percent of the students will drop out of school before they graduate.”

That last statistic is especially troubling and is inconsistent with the claim frequently stated by tribal leaders that “Our children are sacred”.

According to that same MSNBC Report, “In a startling new draft report, issued in April 2014 by the Bureau of Indian Education which oversees 183 schools on 64 reservations in 23 states, focuses attention on BIE’s inability to deliver a quality education to its students. BIE schools are chronically failing. BIE operates ‘one of the lowest-performing set of schools in the country.’ During the 2012 – 2013 school year, only one out of four BIE-funded schools met state-defined proficiency standards and one out of three were under restructuring due to chronic academic failure…. BIE students performed lower on national assessment tests than students in all but one other major urban school district.”

Given these conditions which have persisted for generations as well as the Pine Ridge in SDalmost total absence of any economic activity on the reservation, it is not surprising that there is a high level of dysfunction as well. This dysfunction is exemplified by the following health and social welfare measures:

* The infant mortality rate at Pine Ridge is one of the highest in the nation at 3 times the national average;
* The incidence of diabetes is 8 times the national average;
* Eight out of every ten people at Pine Ridge are alcoholics. Given this fact it is highly likely that most newborns on this reservation are born with Fetal Alcohol Spectrum Disorder (FASD), a severe developmental delay. Care of children with FASD requires an extended time commitment, great patience, and resilience, none of which is in abundant supply in most reservation homes:
* Drug use and abuse, both prescription and illegal, is rampant;
* The teenage suicide rate is 150 percent of the national average. In the first 8 months of 2015. There were 19 completions by youth between the ages of 9 and 24 and more than 100 attempts by children from the same age group. Within the last week, a 12-year-old girl hanged herself on a tree behind the Sue Anne Big Crow Youth Center. Shortly before a 14-year-old boy recently completed, he was being counseled by one of his teachers. She told him that Lakota tradition teaches that a spirit set free by suicide is doomed to wander the earth in lonely darkness. “You don’t want that, do you?” His response was chilling, “Anything is better than here”.
* The level of domestic violence is at epidemic levels. In CY 2014 the Tribal Department of Public Safety prosecuted 470 cases of domestic violence. During the same period one of the Tribe’s domestic shelters reported they had responded to more than 1,300 cases of domestic violence:
* In CY 2016 there were 17 homicides on Pine Ridge, a rate 4 times the current homicide rate in the city of Chicago:
* For the last several years, the Pine Ridge reservation child protection staff has been investigating, relying on rigorous standards, every case of reported child sexual abuse and confirming, on average, 2 ½ cases per week for every week during each of those years. Considering that most estimates are that 10 percent or less of such abuse is ever reported, the seriousness of this level of child sexual abuse cannot be overstated.
* Research data are clear, children who are sexually abused are 2½ times more likely to attempt and/or complete suicide than children who have not been sexually abused.

On May 1, 2015, in the New York Times Ron Cornelius, the Great Plains Director of the Indian Health Service is quoted as saying, that “the recent suicides were an incredibly sad situation that IHS was committed to working with the tribe to address this heartbreaking problem.” It is not clear to me from the public record available to me just what the IHS has done to fulfill this commitment. At that time I was the ACF Regional Administrator in Denver and heard from friends on and around Pine Ridge, “There are a lot of ‘suits’ traveling to Pine Ridge. They are not meeting with anyone from the Reservation. They spend all of their time in a conference room talking with each other. They seem to make it a point to avoid any tribal members.”

However, former Pine Ridge Tribal Judge Saunie Wilson, in a power point presentation to a west coast conference on youth suicides in early 2017, described the 20 professionals sent to Pine Ridge by IHS to “solve” the reservation suicide epidemic in the following terms, “They had, No background checks, No licenses to work in South Dakota and No knowledge of reservation culture, mores or society.” Unfortunately, this is the same inept approach IHS used when there was a comparable burst of youth suicides on Montana’s Fort Peck Reservation several years earlier. I was invited by the Tribal Chair to sit in on the IHS meetings with Tribal staff as an impartial observer for the Tribe. As a result, I could observe what IHS was doing in response to the youth suicide burst on that Reservation. They were clearly not effective then. How could they believe they would be effective several years later?

On April 5, 2017, at a meeting of the Pine Ridge Tribal Law and Order Committee, the following statement was made by Richard Little Whiteman, a Council member and Chair of this Committee, “I haven’t seen this level of violence since the 1970s”. The Committee also heard reports that the number of law enforcement officers, once numbering more than 100 sworn officers, now was little more than 20, had the impossible task of policing a geographic area comparable in size to the states of Delaware and Rhode Island combined 7 days a week, 24 hours every day.

What is especially puzzling is the deafening silence from both the media, those who by their titles and their government positions have direct responsibility to correct such problems and those who claim they are advocates working on behalf of the welfare of women and children.

For example, if either the city of Cambridge, MA or Berkeley, CA, each with a total population of approximately 100,000, had the same level of youth suicide completions as Pine Ridge, the following would be occurring:

1. There would be youth suicide completions just about daily in each of these communities.
2. There would not be enough curb space to park all of the media trucks providing a direct link to the community for their viewers. After all the media had ignored multiple detailed, factual reports about the dysfunction in these communities and predictions about what would follow from that dysfunction. Recognizing their prior error in not covering all of the dysfunction, media outlets were competing to provide the most offensive coverage. They characterized their coverage as “presenting the facts.”
3. Members of Congress would be convening hearings in these communities in an attempt to elicit some hints as to the cause of such dysfunction even though they had never mentioned these communities until the funerals began to be held when the dysfunction in these communities could no longer be ignored. Based on past experience the best that the local congressional delegation will be able to do is to appoint a study committee charged with reporting back on the cause of all the suicides within three years. No action would have to be taken to assist these communities until the study report was produced.
4. Advocates would be elbowing their way to get in front of any operating TV camera to push their unique solutions to such dysfunction even though they had not only known about the extreme dysfunction in these communities but they had also been silent about it until the funerals began.
5. State, county, and local officials would point at each other, claiming they had little or no responsibility to correct these problems. It was the responsibility of that “other guy” (whoever that unidentified person was) until federal funds were made available. Then the competition would be cut-throat. Each would cite their “expertise” on matters of this kind even though each had just established an extensive written record claiming they knew nothing about such matters in their efforts to avoid any responsibility (political punishment for refusing to deal with the dysfunction in their communities until the funerals began) for what was happening in these communities.
6. Federal officials whose organizations had been widely praised for formally adopting mission statements claiming they were responsible for the well-being of every citizen in their service area would initially deny any responsibility for such dysfunction, pointing at state, county or local officials as the parties responsible for addressing and correcting such behavior. When and if Congress appropriates funds to address and correct these problems, these same federal officials will distribute those funds without first establishing performance measures to determine the effectiveness of how these funds are spent. If the past is any guide, it will be several years before performance measures will be put in place.

If this is the response to the massive dysfunction and resulting epidemic of youthful suicides in communities like Cambridge or Berkeley, can anything better be expected at Pine Ridge?

Pine Ridge is a small, Isolated, rural community with little political power. They have been ignored and will continue to be ignored.

The sexual abuse of American Indian children should have resulted in a high-level commitment to stop the abuse once it had been uncovered years ago.

During the last two Administrations, I brought the twin epidemics of child sexual abuse and child/youthful suicides in Indian Country to the attention of the political leadership of the Administration for Children and Families and the Department of Health and Human Services with multiple, detailed, factual, written presentations. These presentations detailed the pervasive extent of the abuse, the long-term impact on the abused individuals, their families and the community at large and the substantial public cost of such abuse. They had no effect. It was as if they had never been read.

Until one is prepared to focus on and widely and continuously publicize the hypocrisy of those who know the facts and who deny or ignore them, thereby allying themselves with those who abuse children, nothing will be done to correct this barbaric situation. Until those who have chosen silence in the face of widespread child sexual abuse are publicly identified and shamed in all major media outlets for their alliance with sexual predators, attempting to stop the barbarism is a fool’s errand.

Thomas F. Sullivan is a former Regional Administrator for the Administration of Children and Families under the federal HHS.  He was forced out of his job in May, 2016, after defying his DC superiors by repeatedly reporting on child abuse on several reservations. 

~~~~~~~~~~~~~~

From Elizabeth Morris, Chair of CAICW:

For more information concerning our federal government’s apathy toward the well-being of tribal members, watch this 20-minute video:

 

 

 June 8, 2017  No Responses »

He died five hours after calling us –

Oct 242014
 
Lavern 'Bundy' Littlewind

He died in a car wreck on Sept. 22, 2014. Just five hours earlier, he was talking to us on the phone, telling us he had tape recorded his meetings with BIA social services and tribal court because he finally wanted his story to be public.

Lavern “Bundy” Littlewind was a BIA policeman and Spirit Lake tribal member. He wanted people who don’t live on the reservation to understand why child abuse is endemic on so many reservations. Many Tribal social services don’t protect kids. They protect tribal sovereignty.

Jastin Ian Blue Coat died 10-18-2014

Jastin “Ian” Blue Coat

The latest: Toddler Jastin Blue Coat was murdered October 18, 2014, in Eagle Butte, SD. Because of his heritage, he wasn’t allowed protection.

After a series of child murders at Spirit Lake, our federal government – in the form of the BIA, FBI and U.S. Attorney Tim Purdon – was called in two years ago to oversee, improve care, and protect the kids. Federally funded programs such as Casey Family Services and ACF were also supposed to be improving care. But that money has been poured down the drain.

There is no serious intention to protect children if the only real solutions are perceived to threaten tribal sovereignty. Protect tribal sovereignty at all costs – even at the expense of children.

Power and money have corrupted nations from time immemorial.

In all our years of going to DC about this, Representative Kevin Cramer has been the only Congressman to take real action. This year, he pushed for an oversight hearing and called the BIA on the carpet. His office asked Bundy to testify at the June hearing as well, but Bundy was nervous, thinking tribal government might use his kids against him if he spoke up. That’s understandable – many have seen that happen.

The U.S. Government has set up a system that allows crime and corruption to occur without repercussion in Indian Country. We are very grateful to Rep. Cramer. It takes real courage to address something other Congressman have been afraid to touch. We need him to remain in office, pursuing protection for kids at Spirit Lake as well as across the country.

 October 24, 2014  No Responses »