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Tuesday, July 21, 2015

Goldwater Press Conference

Goldwater Institute Seeks Protection for Native American Children

Posted By on Jul 20, 2015 | Tuscon Weekly

Clint Bolick, Vice President for Litigation, Goldwater Institute - BY GAGE SKIDMORE (FLICKR: CLINT BOLICK) [CC BY-SA 2.0 (HTTP://CREATIVECOMMONS.ORG/LICENSES/BY-SA/2.0)], VIA WIKIMEDIA COMMONS
Clint Bolick, Vice President for Litigation, Goldwater Institute, photo by Gage Skidmore (Flickr: Clint Bolick) [CC BY-SA 2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia Commons
  

Recently, the Goldwater Institute held a press conference announcing the filing of a class action lawsuit challenging race based separate and unequal treatment regarding foster and adoptive placement of Native American children.

Today’s existing problems can be traced back over one hundred years to the late 19th and early 20th Centuries when many Native American children were removed from reservations and placed in boarding schools or families with no tribal ties. These policies had a profound and deleterious effect on the ability of Native American tribes to maintain both their respective communities and cultures.

In light of this history, the Congress of the United States passed the Indian Child Welfare Act in 1978. The purpose of the act was to provide tribes with jurisdiction over the process of child foster and adoptive placement thereby maintaining the integrity of reservation community and tribal culture.

While the goals of the ICWA are laudable, many unintended consequences have resulted from putting the interests of the tribe over the needs and interests of the child.

The Equal Protection for Indian Children organization offers the story of Laurynn Whiteshield as an example of unintended consequences:

Laurynn spent most of her life in a home where she was loved and protected. From the time she was nine months old, she and her twin sister, Michaela, were raised by Jeanine Kersey-Russell, a Methodist minister and third-generation foster parent in Bismarck, North Dakota.

When the twins were almost three years old, the county sought to make them available for adoption. But Laurynn and Michaela were not ordinary children. They were Indians.

And because they were Indians, their fates hinged on the Indian Child Welfare Act, a federal law passed in 1978 to prevent the breakup of Indian families and to protect tribal interests in child welfare cases.

The Spirit Lake Sioux tribe had shown no interest in the twins while they were in foster care. But once the prospect of adoption was raised, the tribe invoked its powers under ICWA and ordered the children returned to the reservation, where they were placed in the home of their grandfather in May 2013. Thirty-seven days later, Laurynn was dead, thrown down an embankment by her grandfather’s wife, who had a long history of abuse, neglect, endangerment, and abandonment involving her own children.

Native American children are American citizens, and as such deserve the same rights and protections as any other citizen. Their rights and protections cannot be removed based on race.

Some who support the status quo deny that the distinction is based on race, but rather on political affiliation, that being of tribal membership or qualification for membership. This is true in one sense, that it is tribal membership or qualification that allows jurisdiction, but most (though not all) base tribal membership on a defined blood quantum or family lineage - in other words, the race of the child.

The Goldwater filing, authored by Clint Bolick, vice president for litigation, includes six claims for relief.

The first count claims a violation of the equal protection guarantee of the Fifth Amendment. “Government cannot treat the safety and security of children with Indian ancestry less seriously than the safety and security of all other children.” “...all subject Plaintiffs to unequal treatment under the law based solely on the race of the child and the adults involved and are therefore unconstitutional under the equal protection guarantee of the Fifth Amendment.”

The second count claims a violation of the due process guarantee of the Fifth Amendment. “The failure of ICWA as applied by the BIA Guidelines to adequately consider the child’s best interests deprives the class of plaintiff children of liberty without due process of law in violation of the Fifth Amendment.

The third count claims a violation of the substantive due process and equal protection clauses of the Fourteenth Amendment. “Defendant McKay’s compliance with and enforcement of the foster/preadoptive and adoptive placement preferences under state law and ICWA, 25 U.S.C. § 1915(b), (a), New Guidelines at §§ F.1, F.2, F.3, F.4, violate the substantive due process rights of children with Indian ancestry, and those of adults involved in their care 24 of 29 and upbringing who have an existing family-like relationship with the child.”

The fourth count claims that the ICWA exceeds the federal government’s power under the Indian Commerce clause and the Tenth Amendment. “ICWA displaces inherent state jurisdiction over specified child welfare, custody, and adoption proceedings and therefore violates the Tenth Amendment.”

The fifth count claims a violation of the associational freedoms under the First Amendment. “This forced association violates Plaintiffs’ freedom of association, which encompasses the freedom not to associate under the First Amendment.”

The sixth count claims unlawful agency action. “BIA overstepped its authority by extending, in the New Guidelines, the jurisdiction-transfer provision to all child custody proceedings. Such extension, which directly contradicts a Congress-enacted provision, harms children in cases where parental rights have been terminated. It gives tribes the “right to request a transfer,” 80 Fed. Reg. at 10156, C.1(c), in cases where Congress expressly did not give tribes a right to request 123. Such agency action is unlawful, in excess of statutory authority, and not in accordance with law.”


[Here is what I know:  Tribes and Indian people didn't create reservations or their conditions and have had to manage for the past 100+ years. Governments taking Indian children was part of the early plan, part of the genocide. Some tribes were decimated by removals of their children. Lawyers play a huge part in child trafficking (adoption) now - to make MONEY...The Goldwater Inst. doesn't seek PROTECTION! The big reason they are fighting ICWA now is they are losing the commodity of children to sell.... Trace]

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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.

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Customer Review

Thought-provoking and moving 11 October 2012
Two Worlds - Lost children of the Indian Adoption Projects

If you thought that ethnic cleansing was something for the history books, think again. This work tells the stories of Native American Indian adoptees "The Lost Birds" who continue to suffer the effects of successive US and Canadian government policies on adoption; policies that were in force as recently as the 1970's. Many of the contributors still bear the scars of their separation from their ancestral roots. What becomes apparent to the reader is the reality of a racial memory that lives in the DNA of adoptees and calls to them from the past.
The editors have let the contributors tell their own stories of their childhood and search for their blood relatives, allowing the reader to gain a true impression of their personalities. What becomes apparent is that nothing is straightforward; re-assimilation brings its own cultural and emotional problems. Not all of the stories are harrowing or sad; there are a number of heart-warming successes, and not all placements amongst white families had negative consequences. But with whom should the ultimate decision of adoption reside? Government authorities or the Indian people themselves? Read Two Worlds and decide for yourself.

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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.

Our Fault? (no)

Leland at Goldwater Protest

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