SUBSCRIBE

Get new posts by email:

How to Use this Blog

Howdy! We've amassed tons of information and important history on this blog since 2010. If you have a keyword, use the search box below. Also check out the reference section above. If you have a question or need help searching, use the contact form at the bottom of the blog.

PLEASE follow this website by clicking the button above or subscribe.

We want you to use BOOKSHOP! (the editor will earn a small amount of money or commission. (we thank you) (that is our disclaimer statement)

This is a blog. It is not a peer-reviewed journal, not a sponsored publication... The ideas, news and thoughts posted are sourced… or written by the editor or contributors.

Can you help us? Here is how:

WRITE AND POST A BOOK REVIEW ONLINE:
Please know that if you write an honest book review, we are very very appreciative. Kobo, Good Reads, Apple Books, etc. - every opinion counts.

DONATE COPIES:
If you can, please donate a copy of our book titles to your local library, college or school.

Blogger forced a change to our design so please SCROLL past the posts for lots more information.

Support Info: If you are a Survivor and need emotional support, a national crisis line is available 24 hours a day, seven days a week: Residential School Survivor Support Line: 1-866-925-4419. Additional Health Support Information: Emotional, cultural, and professional support services are also available to Survivors and their families through the Indian Residential Schools Resolution Health Support Program. Services can be accessed on an individual, family, or group basis.” These & regional support phone numbers are found at https://nctr.ca/contact/survivors/ .

Search This Blog

You are not alone

You are not alone

Wednesday, March 16, 2022

Technicalities: Transfer to Tribal Court Case from Iowa Supreme Court [ICWA] [CASA]


Background: Brackeen v. Bernhardt HAALAND threatens to topple ICWA and place Native American children at risk. Supreme Court Justices agree to review constitutionality of Indian Child Welfare Act (Amy Howe, February 28, 2022)

Earlier article worth a read: https://blog.americanindianadoptees.com/2019/05/op-ed-preserve-indian-child-welfare-act.html

Kate Fort : Transfer to Tribal Court Case from Iowa Supreme Court [ICWA]

210243_816EBFA59A154

This is a very useful decision directly addressing one for the most difficult parts of a transfer process--whether the state court will use a best interest analysis to determine jurisdiction.

These are not reasons to deny a tribe jurisdiction over a child welfare case:

The State argued that transfer should be denied because of the lack of
responsibility by Mother and Father, the efforts of the foster parents to promote
the children’s Native American heritage, and the good relationship between the
current professionals and the children. The guardian ad litem for the children
joined the State in resisting the transfer of the case to tribal court.

Oh, and would you look at that, a CASA:👈  👇

The juvenile court noted that the court appointed special advocate (CASA) for the children recommended that the parental rights of the parents be terminated and the children continue living with the foster parents.  (And a full picture of the racist underpinnings of the modern child welfare system helps develop a fuller view of CASA programs. The term structural racism can call to mind invisible forces that shape the world in a discriminatory way.)

But don't worry--the Iowa Supreme Court clearly channeled the Washington Supreme Court in its thoughtful discussion of ICWA and its purpose, summarizing that

The federal ICWA and accompanying regulations and guidelines establish a framework for consideration of motions to transfer juvenile matters from state court to tribal court. Although good cause is not elaborated at length, both the statute and regulations state in some detail what is not good cause. Absent an objection to transfer or a showing of unavailability or
substantial hardship with a tribal forum, transfer is to occur. Clearly, Congress
has an overall objective in enacting ICWA to establish a framework for the preservation of Native American families wherever possible.

The Court goes on to discuss the Iowa ICWA at length, along with some bad caselaw in Iowa, specifically the In re J.L. case, which is a really awful decision and has been a pain to deal with for years.

This Court states,

State courts have struggled with the statutory question of whether federal
or state ICWA statutes permit a child to raise a best interests challenge to
transfer to tribal courts. In In re N.V., 744 N.W.2d 634, we answered the
question. After surveying the terms of the federal and state ICWA statutes, we
concluded that the statutes did not permit a child to challenge transfer on best
interests grounds. Id. at 638–39.

***

In short, there can be no substantive due process violation arising from a
statute that refuses to allow a party to present on an issue irrelevant to the
proceeding. To that extent, we overrule the holding ofIn re J.L. (emphasis ADDED)

***

In conclusion, if there is no objecting child above the age of twelve, we hold
that the transfer provisions of ICWA which do not permit a child from raising the
best interests of the child to oppose transfer does not violate substantive due
process.

Therefore,

In an ICWA proceeding, the United States Supreme Court observed that
“we must defer to the experience, wisdom, and compassion of the . . . tribal
courts to fashion an appropriate remedy” in Indian child welfare cases. Holyfield,
490 U.S. at 54 (quoting In re Adoption of Halloway, 732 P.2d at 972). These
observations apply in this case

There is a small dissent on whether the Father could appeal this case, but no issues with the Tribe's appeal. Also, a reminder that the issue of jurisdiction was never a question Brackeen and decisions like this one are tremendously helpful for tribes seeking to transfer cases.

 

FYI:

Volunteer child advocates, or “CASAs” (Court Appointed Special Advocates), are lay volunteer guardians ad litem appointed by the family court to represent the “best interests” of children who enter the child welfare system. 

  (report)

  
 [[...what is particularly striking about the proliferation of volunteer CASA programs is just how visible, and visibly racist, they are. When a CASA is appointed to speak for a child in family court, the child’s parents lose one of the most cherished responsibilities any person can have—the power to decide what is best for their own children and speak on their behalf.  This power is not transferred to the child, but rather to the CASA herself; once appointed, it is the CASA who voices “the child’s” position, based on the CASA’s own assessment of what the CASA thinks is best for the child. 4 When that power—not just the power to determine a child’s fate, but the power to even speak one’s own opinion on the matter—is distributed away from poor families and children of color and given to a group of middle-class white volunteers, the racial bias in the system—the structural racism—is not just clearly visible, but is actually given a seat at the table in court for all to see.
And that power works real, tangible harms on families who encounter the child welfare system. The simple act of having a CASA assigned increases the chance that a parent’s rights to her child will be terminated, 5 an outcome that has been called the “civil death penalty.”
CASA programs have carved out a unique and in some ways untouchable role in child welfare decision-making nationwide.    

No comments:

Post a Comment

Please: Share your reaction, your thoughts, and your opinions. Be passionate, be unapologetic. Offensive remarks will not be published. We are getting more and more spam. Comments will be monitored.
Use the comment form at the bottom of this website which is private and sent direct to Trace.


Canada's Residential Schools

The religious organizations that operated the schools — the Anglican Church of Canada, Presbyterian Church in Canada, United Church of Canada, Jesuits of English Canada and some Catholic groups — in 2015 expressed regret for the “well-documented” abuses. The Catholic Church has never offered an official apology, something that Trudeau and others have repeatedly called for.

no arrests?

Crime Scene

so far...

so far...
sign up for email to get our posts FAST

Bookshop

Most READ Posts

Happy Visitors!

Blog Archive

What our Nations are up against!

What our Nations are up against!

To Veronica Brown

Veronica, we adult adoptees are thinking of you today and every day. We will be here when you need us. Your journey in the adopted life has begun, nothing can revoke that now, the damage cannot be undone. Be courageous, you have what no adoptee before you has had; a strong group of adult adoptees who know your story, who are behind you and will always be so.

Did you know?

Did you know?
lakota.cc/16I9p4D

Did you know?

New York’s 4o-year battle for OBC access ended when on January 15 2020, OBCs were opened to all New York adoptees upon request without restriction. In only three days, over 3,600 adoptees filed for their record of birth. The bill that unsealed records was passed 196-12.

Diane Tells His Name

where were you adopted?

where were you adopted?

Lost Birds on Al Jazeera Fault Lines

Lost Birds on Al Jazeera Fault Lines
click to read and listen about Trace, Diane, Julie and Suzie

ADOPTION TRUTH

As the single largest unregulated industry in the United States, adoption is viewed as a benevolent action that results in the formation of “forever families.”
The truth is that it is a very lucrative business with a known sales pitch. With profits last estimated at over $1.44 billion dollars a year, mothers who consider adoption for their babies need to be very aware that all of this promotion clouds the facts and only though independent research can they get an accurate account of what life might be like for both them and their child after signing the adoption paperwork.

Original Birth Certificate Map in the USA

Why tribes do not recommend the DNA swab

Rebecca Tallbear entitled: “DNA, Blood, and Racializing the Tribe”, bearing out what I only inferred:

Detailed discussion of the Bering Strait theory and other scientific theories about the population of the modern-day Americas is beyond the scope of this essay. However, it should be noted that Indian people have expressed suspicion that DNA analysis is a tool that scientists will use to support theories about the origins of tribal people that contradict tribal oral histories and origin stories. Perhaps more important,the alternative origin stories of scientists are seen as intending to weaken tribal land and other legal claims (and even diminish a history of colonialism?) that are supported in U.S. federal and tribal law. As genetic evidence has already been used to resolve land conflicts in Asian and Eastern European countries, this is not an unfounded fear.

Google Followers