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Native American Sovereignty Follow

#1 Apr 16 2013 at 2:14 PM Rating: Good
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The SCOTUS hears a case today about a little Native American girl that was adopted by a loving, but non-Native American family. The couple attended the delivery with the bio-mom, took custody and began their family. This was 2010 I believe.

The bio-Dad had originally relinquished all parental rights to the child. However after the birth and adoption he decided, or his tribe decided, they wanted the baby. In 2011 a family court ruled in bio-dads favor and they took the baby from the couple. The family court was forced under the Indian Child Protection Act to give custody to the bio-Dad - a Cherokee Indian. South Carolina Supreme Court upheld the family court ruling.

Locally our administration has been sparring with the Passamaquoddy tribe over fishing licenses. The elver, little baby eels, spawn by the gazillions in the mouths of many rivers. The little worm-like critters are currently selling for about $2600/lb. The local fish and game agency gives out 750 licenses each year to catch elver. Two hundred go to the tribe. The tribe gave out 500 licenses. Boy that ****** off the gov. Anyway, the tribe claims they can do pretty much whatever they want when it comes to hunting and fishing on their lands - or the waters adjacent to their land I suppose. They Passamaquoddy had never intended to fish out more elver than what they were allotted. They just wanted to spread out the licenses more - they've done this in other years.

Should Native Americans be more equal than others because they were here first?
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#2 Apr 16 2013 at 2:44 PM Rating: Good
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Treaty of 1794 wrote:
The said islands, tracts of land and privileges to be confirmed by the Commonwealth of Massachusetts to the said Indians and their heirs forever. In testimony of all which, we, the said Alexander Campbell, John Allan and George Stillman, the committee aforesaid, and in behalf of the Commonwealth aforesaid, and the chiefs and other Indians aforesaid, in behalf of themselves and those connected with them as aforesaid, have hereunto set our hands and seals at Passamaquoddy, the twenty-ninth day of September, in the year of our Lord one thousand seven hundred and ninety-four.


Yes

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#3 Apr 16 2013 at 2:49 PM Rating: Good
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Why does the treaty have three different dates, and a copyright of 2003?
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#4 Apr 16 2013 at 3:00 PM Rating: Good
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The original date of 1794, the date of the Federal Non Intercourse Act
wiki wrote:
The 1834 Act, currently codified at 25 U.S.C. § 177, provides:
[N]o purchase, grant, lease, or other conveyance of land, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant the constitution.

and the 2003 copyright for the website, at a guess.

As for the 1795 date, I would also guess that it is when negotiations were concluded

Totally Gbaji'd that one!
Edited, Apr 16th 2013 2:00pm by stupidmonkey

Edited, Apr 16th 2013 2:01pm by stupidmonkey
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#5 Apr 16 2013 at 3:09 PM Rating: Decent
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I'm going to say yes as well. My heart goes out to the families, but we Americans can be so forgetful of our arrogance. I'm sure that if any separate country found out that baby-hungry Americans were coming and stealing their indigenous children without their consent, they wouldn't be thrilled about it. Unfortunately, Native Americans today live in America today, if not on their isolated islands. They aren't as in harmony as our nostalgia might like to imagine them. They are racked with alcoholism. abuse, and all the other plagues of a material existence.

As far as the fish, if the only fishing area are on their land, I'd say tough luck to everyone else. Maybe the government needs to do a raffle for what I assume are the remaining 50 slots available to fish elver.
#6 Apr 16 2013 at 3:33 PM Rating: Excellent
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Guenny wrote:
I'm sure that if any separate country found out that baby-hungry Americans were coming and stealing their indigenous children without their consent, they wouldn't be thrilled about it.


What does this have to do with a biological father first giving up his rights then changing his mind...?
#7 Apr 16 2013 at 3:47 PM Rating: Good
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Belkira wrote:
What does this have to do with a biological father first giving up his rights then changing his mind...?
Money it isn't even his idea to change his mind.
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#8 Apr 16 2013 at 3:56 PM Rating: Decent
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Belkira wrote:
Guenny wrote:
I'm sure that if any separate country found out that baby-hungry Americans were coming and stealing their indigenous children without their consent, they wouldn't be thrilled about it.


What does this have to do with a biological father first giving up his rights then changing his mind...?


Agreed. The fishing thing.. oh well. Let them fish. Re: the baby, the father gave up his rights. I fail to see how tribal policy can override parental rights in the context of state or federal law. I'm no expert, but this just seems wrong on so many levels.
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#9 Apr 16 2013 at 3:56 PM Rating: Good
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lolgaxe wrote:
Belkira wrote:
What does this have to do with a biological father first giving up his rights then changing his mind...?
Money it isn't even his idea to change his mind.


Yeah, that. There was no article, I was going off of Elinda's synopsis.

Quote:
However after the birth and adoption he decided, or his tribe decided, they wanted the baby.


Edited, Apr 16th 2013 4:57pm by Guenny
#10 Apr 16 2013 at 4:05 PM Rating: Good
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BrownDuck wrote:
Belkira wrote:
Guenny wrote:
I'm sure that if any separate country found out that baby-hungry Americans were coming and stealing their indigenous children without their consent, they wouldn't be thrilled about it.


What does this have to do with a biological father first giving up his rights then changing his mind...?


Agreed. The fishing thing.. oh well. Let them fish. Re: the baby, the father gave up his rights. I fail to see how tribal policy can override parental rights in the context of state or federal law. I'm no expert, but this just seems wrong on so many levels.


Man Stubs, now that you have given your intelligent and well thought out opinion, I can't wait to see what Alma has to come in and say about this exciting topic of conversation!
#11 Apr 16 2013 at 4:10 PM Rating: Good
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I think I remember a news story a month or two back talking about the laws dealing with adoption of Native American children. Probably related to this story, but I didn't listen to the whole thing...

Our local fishermen and the tribe here (Odawa?) feud a bit all the time here in Michigan. I think the latest one was some net fishing that the Tribe was doing, commercially if I remember correctly, that the DNR did not allow non-Tribe to do. The fishermen were not too happy about the method, tried to get them to stop, unsuccessfully I think. Claimed it was harmful to the fish supply and the nets and methods used were dangerous to other boats in the water. I think it ended up with the Tribe agreeing to clearly mark the net locations, and they continued doing what they were doing. I'm not 100% sure of the details as I was not too concerned about it.
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#12 Apr 16 2013 at 5:13 PM Rating: Decent
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I just think the law, the way it's written is giving undue precedence to a group of people that are part of our society to help them preserve their heritage. No other race or ethnic group gets that kind of privilege.

If Tribes weren't 'Sovereign' it wouldn't fly.

I watched some documentary a while ago about a tribe that was throwing out all it's members and then firing them from their jobs at their casinos. Fewer Indians in the tribe and bigger piece of Casino profit for the remaining members. Just some expose, but rather contradictory to the story of the little Indian girl.

Lastly though, if this Cherokee really wants and loves his daughter, power to him to be her daddy. She's his.

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#13 Apr 16 2013 at 5:46 PM Rating: Good
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There's a lot of backstory to similar cases in other tribal lands, where mothers have their children taken by DFCS case workers because they live in such poverty, only to have the kids fostered off to white families who want babies. It's pretty heartbreaking. I think the SCOTUS called it right on this one - Native kids belong with their families whenever possible.

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#14 Apr 16 2013 at 5:57 PM Rating: Good
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Catwho wrote:
I think the SCOTUS called it right on this one - Native kids belong with their families whenever possible.


Oh and the SCOTUS hasn't called it yet. They just heard it today. Sounds like it was short and sweet. A decision will be out in June.

Edited, Apr 17th 2013 1:58am by Elinda
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#15 Apr 16 2013 at 6:14 PM Rating: Good
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Guenny wrote:
lolgaxe wrote:
Belkira wrote:
What does this have to do with a biological father first giving up his rights then changing his mind...?
Money it isn't even his idea to change his mind.


Yeah, that. There was no article, I was going off of Elinda's synopsis.

Quote:
However after the birth and adoption he decided, or his tribe decided, they wanted the baby.


Edited, Apr 16th 2013 4:57pm by Guenny


I just don't understand where you're getting the whole "whitey stole the poor Native's kid" angle. According to the OP, the couple adopting was in the delivery room with the mother and the father signed off on it. Cat, there was nothing mentioned about DFCS being called. It's pretty @#%^ed up to take a kid from a good home because the tribe "made" the guy change his mind or whatever. There isn't any garuntee the kid is even going to be raised by its biological father. Seems like he or she would've been better off if they hadn't intervened.

Edited, Apr 16th 2013 7:15pm by Belkira
#16 Apr 16 2013 at 6:17 PM Rating: Excellent
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As I understand it (and I could easily be wrong), the timeline went something like: he gave up parental rights while the child was still in her mother's custody. The mother surrendered the child subsequently without his being further consulted. Child was adopted. He sued for parental custody.

Without knowing all the he-said, she-said stuff that went on in between, I'm guessing that A) substance abuse was an issue for one or both of the birth parents; B) there was little or no contact between the birth parents after he gave up his parental rights; C) he may or may not have known that the little girl was no longer in her mother's care.

I'd be curious as to the circumstances surrounding his giving up custody in the first place.
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#17 Apr 16 2013 at 10:44 PM Rating: Good
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From some articles I've read in the past, I've gathered that biological parents have really strong rights to their children, even in situations when you might think they've waived all such rights.

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#18 Apr 16 2013 at 11:27 PM Rating: Good
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There was a story about this on NPR on my way home from work today.

Link

Quote:
Emotions boiled over at the U.S. Supreme Court on Tuesday as the justices heard arguments in a case testing the meaning and reach of the Indian Child Welfare Act, known as ICWA.

The 1978 law was enacted after Congress found that more than a third of all Native American children were being taken from their families and given to white adoptive and foster parents.

The question before the court was whether a Native American biological father who gave up his parental rights and refused to provide financial support to the mother and child could later object after the non-Indian mother gave up the child for adoption.

The birth father, Dusten Brown, considers himself Cherokee. The birth mother, Christy Maldonado, is of Hispanic heritage. Maldonado got pregnant while engaged to Brown, but subsequently broke off the engagement. Brown refused to support her or the child and eventually texted Maldonado that he was giving up his parental rights. He says he thought he was turning over his rights to Maldonado and therefore was angry to learn, four months after the birth, that she had put the child up for adoption. He then filed an objection in court and sought custody.

Two years later, the South Carolina Supreme Court ruled that while Brown would have had no rights under state law, the Indian Child Welfare Act trumped state law. The court ordered the adoptive parents to turn the little girl, by then 2 years old, over to Brown.

The Father's Rights

On Tuesday, emotions were pretty raw inside the Supreme Court chamber. That's not particularly surprising, given that two of the justices — Chief Justice John Roberts and Justice Clarence Thomas — have adopted children.

But it was Justice Sonia Sotomayor who jumped in feet first, repeatedly cutting off the adoptive parents' lawyer, Lisa Blatt, before Blatt could answer a question.

Finally the chief justice silenced Sotomayor, saying, "Could I hear her answer, please!"

Blatt argued that Brown could not invoke ICWA to get custody of his daughter. He had "no legal rights whatsoever," she said, because he had given them up and failed to provide any financial support.

Justice Antonin Scalia disagreed, saying, "This guy is the father of the child, and they're taking the child away from him even though he wants it."

Blatt replied that the birth father, who had not had any contact with the child and provided no financial support, had "a biological link that under state law was equivalent to a sperm donor."

But "this isn't state law," countered Scalia — it's a federal statute that uses "expansive" language to define the Indian family and to prevent its breakup.

Sotomayor took a similar view, asking, "If the choice is between a mother, a biological father or a stranger, and if the father's fit, why do you think" that the federal statute requires the child to be given to a stranger — namely, the adoptive parents?

The only stranger here, shot back Blatt, was the birth father, "who expressly repudiated all parental rights."

Justice Ruth Bader Ginsburg challenged Blatt's characterization, noting that the birth father said he only intended to surrender his custodial rights to the mother, not to adoptive parents, and that when he found out about the adoption, he objected.

Nonetheless, Blatt argued, Congress did not intend for ICWA to reach a situation like this one, where there was no existing Indian family with custody prior to the adoption. Applying ICWA to this adoption dispute, she said, would amount to "conscripting other people's children to grow the tribal population based solely on a biological link."

A Focus On Biology?

Following Blatt to the lectern was lawyer Paul Clement, representing the guardian ad litem appointed by the state court to determine the child's best interest. The state courts had misread ICWA, he maintained. And if indeed there were such preferences for noncustodial Indian parents under the law, it would amount to an unconstitutional racial classification.

Under the state court's interpretation, said Clement, ICWA moves the inquiry away from the child's best interests to focus instead on biology, the birth father and race — namely, that the child has 1 percent Indian blood.

Not so, said lawyer Charles Rothfeld, representing the father. Brown had been found a "fit, devoted and loving father" to his other children, and by the terms of the statute, that means he should be awarded custody.

Pressed by the chief justice, Rothfeld said that it doesn't matter how large or small a child's Indian heritage is because under ICWA, an adoption cannot go forward if a biological parent wants custody and is not a threat to the emotional or physical safety of the child.

Troubled by Rothfeld's contention, Justice Stephen Breyer noted that the father here appears to have "three Cherokee ancestors at the time of George Washington's father." And if you accept that view, said Breyer, "a woman who is a rape victim" could be at risk of having her child taken and given to the Indian father, who "probably just got out of prison."

Rothfeld swiftly replied that such a father could be shown to be unfit to have custody.

ICWA, he noted, was aimed at preventing the breakup of Indian families, and "there unquestionably was an [Indian] family here in the ordinary sense," including grandparents.

A Call For King Solomon And A Warning

At this point in the argument, Rothfeld seemed to become irrelevant as the justices battled it out.

"He had offered to marry the mother, and she rejected that," Scalia said.

Ginsburg interjected that she thought that there was some "ambiguity" about that.

Rothfeld chimed in to say that Brown "was excited by the pregnancy, was looking forward" to the child.

Roberts said, sarcastically, "He was excited, but ... he paid nothing during the pregnancy and nothing at the time of the birth" to support the child or the mother.

Justice Anthony Kennedy at this point seemed to call a timeout, wishing wistfully for the assistance of King Solomon.

Instead, as Kennedy observed, "What we have here is a question of a federal statute which ... displaces the ordinary best interest [of the child] determinations of the state courts."

If anyone thought that moment of quiet consideration might be the last word, they were mistaken.

In rebuttal, Blatt, the lawyer for the adoptive parents, had a warning for the justices. If you rule in favor of the father, she said, "you're basically banning the interracial adoption of abandoned Indian children. There's not a single adoptive parent in their right mind who is going to ... go through these Kafkaesque hoops."

The court's decision in this case, she told the justices, is going to apply to other absentee Indian fathers who have impregnated non-Indian women. These women, she said, will be rendered "second-class citizens" with "inferior rights," and "you're basically relegating the child ... to a piece of property with a sign that says 'Indian, keep off, do not disturb.' "

After the argument, Indian rights groups hotly disputed that notion, saying the ICWA has worked well for 35 years.

A decision in the case is expected by the end of June.


I'm still not sure how I feel about this. I feel bad for that kid, she's old enough for it to be quite an ordeal to be taken from who she thinks are her parents.
#19 Apr 17 2013 at 12:26 AM Rating: Decent
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Guenny wrote:
BrownDuck wrote:
Belkira wrote:
Guenny wrote:
I'm sure that if any separate country found out that baby-hungry Americans were coming and stealing their indigenous children without their consent, they wouldn't be thrilled about it.


What does this have to do with a biological father first giving up his rights then changing his mind...?


Agreed. The fishing thing.. oh well. Let them fish. Re: the baby, the father gave up his rights. I fail to see how tribal policy can override parental rights in the context of state or federal law. I'm no expert, but this just seems wrong on so many levels.


Man Stubs, now that you have given your intelligent and well thought out opinion, I can't wait to see what Alma has to come in and say about this exciting topic of conversation!

Wouldn't be a complete Asylum thread without the overzealous hipster angle.
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#20 Apr 17 2013 at 3:11 AM Rating: Decent
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Quote:
I just think the law, the way it's written is giving undue precedence to a group of people that are part of our society to help them preserve their heritage. No other race or ethnic group gets that kind of privilege.

If Tribes weren't 'Sovereign' it wouldn't fly.


You think your ancestors should have finished the job, is what you're saying? They didn't wipe out native tribes as political units quite thoroughly enough?

Quote:
Should Native Americans be more equal than others because they were here first?


Great point, those guys are being treated like the fucking master race. The government needs to take action.
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#21 Apr 17 2013 at 4:41 AM Rating: Default
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Kavekk wrote:
Quote:
I just think the law, the way it's written is giving undue precedence to a group of people that are part of our society to help them preserve their heritage. No other race or ethnic group gets that kind of privilege.

If Tribes weren't 'Sovereign' it wouldn't fly.


You think your ancestors should have finished the job, is what you're saying? They didn't wipe out native tribes as political units quite thoroughly enough?
No need to get gnarly. I have no clue about my heritage - no one ever made a ruling here or in my mother-land (wherever that may be) to insure my clan stayed together.

If they're defined as a separate political unit can they be part of the political unit the rest of us belong to?

Short of a museum type existence, the Native American political unit is endangered if not already long gone for all practical purposes. I'd rather not keep them impoverished, uneducated and chained to a reservation.



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#22 Apr 17 2013 at 5:31 AM Rating: Good
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Belkira wrote:
Guenny wrote:
lolgaxe wrote:
Belkira wrote:
What does this have to do with a biological father first giving up his rights then changing his mind...?
Money it isn't even his idea to change his mind.


Yeah, that. There was no article, I was going off of Elinda's synopsis.

Quote:
However after the birth and adoption he decided, or his tribe decided, they wanted the baby.


Edited, Apr 16th 2013 4:57pm by Guenny


I just don't understand where you're getting the whole "whitey stole the poor Native's kid" angle. According to the OP, the couple adopting was in the delivery room with the mother and the father signed off on it. Cat, there was nothing mentioned about DFCS being called. It's pretty @#%^ed up to take a kid from a good home because the tribe "made" the guy change his mind or whatever. There isn't any garuntee the kid is even going to be raised by its biological father. Seems like he or she would've been better off if they hadn't intervened.

Edited, Apr 16th 2013 7:15pm by Belkira


Right. I was discussing another story with similar base situations (native kids fostered/adopted out to white families) that exposed the ugly underbelly of the system a few years ago. I even linked to the article.
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#23 Apr 17 2013 at 6:41 AM Rating: Excellent
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Elinda wrote:
I just think the law, the way it's written is giving undue precedence to a group of people that are part of our society to help them preserve their heritage. No other race or ethnic group gets that kind of privilege.

If Tribes weren't 'Sovereign' it wouldn't fly.

This is the point of sovereignty, isn't it? I mean, if we're saying "You can do whatever you want until it conflicts in some way with what we want, then you can't" then they're as 'sovereign' as I am in my living room. It would seem that respecting their sovereignty even when we disagree is what makes it worthwhile to them. No other group has it because no other group has had quite the same relationship with the US government. Not to say other groups haven't been extremely ill-treated but the relationship between the American Indian tribes and the US government have been at a different level politically and legally.

Should they maintain it? I don't see why not, barring some truly major issue. I couldn't name something off the cuff but we'd essentially be breaking a treaty with those people and I don't believe that "catching too many fish" or "adoption/family services case" should be the grounds for it. That's despite whatever my personal opinions may be in the individual cases.

Elinda wrote:
Short of a museum type existence, the Native American political unit is endangered if not already long gone for all practical purposes. I'd rather not keep them impoverished, uneducated and chained to a reservation.

You're not keeping them anything. If they all want to pick up and move to the big city and dissolve their tribe and way of life, nothing is keeping them from doing so. If they wish to remain on what little land still belongs to them and continue an existence for good or ill as a tribe, they have the right to do so.
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#24 Apr 17 2013 at 7:16 AM Rating: Default
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Jophiel wrote:
Elinda wrote:
I just think the law, the way it's written is giving undue precedence to a group of people that are part of our society to help them preserve their heritage. No other race or ethnic group gets that kind of privilege.

If Tribes weren't 'Sovereign' it wouldn't fly.

This is the point of sovereignty, isn't it?
It is. Can we have two nations living under the same roof?

Native Americans are Americans, they're subject to the same taxes, the same 'rules' the same benefits (mostly, unless they don't) - but not the same enforcement or justice system. How can we allow a second set of rules to govern them yet expect them to follow state and federal rules. If they had set up tribes like municipalities that could work - but it's not ever been done that way.

...and really for what purpose?

To make us feel like we're letting the indigenous people of this land resume the lives that the white man interrupted a couple centuries ago?

Native Americans are never going back to the longhouse and hunting buffalo. I'd think we'd be anxious to make them part of our little US family instead of always being the red-headed step child.

I've no doubt that Indian children were unnecessarily removed from their families a few decades ago, but, IMO, the ICWA was really poor legislation in response. In the case of the ICWA an abused Indian child as determined by the US Social Services people, does not necessarily make an abused child in the eyes of the tribe.

Sovereignty in general though just has not played out well for anyone. Native Americans are not a prospering people. The Casino's were a nice little cheering-up for them, but are quickly turning into a losing proposition - what then? Stories abound of native american women who have been abused raped beaten and yet their perpetrators go unpunished under tribal law. But even more, what about that Indian woman that was raped by a white man - or visa versa. Now, who's jurisdiction are we under?

This is from a NYT's article discussing the re-authorization of Violence Against Women Act:
Quote:
A Senate version, passed with broad bipartisan support, would grant new powers to tribal courts to prosecute non-Indians suspected of sexually assaulting their Indian spouses or domestic partners. But House Republicans, and some Senate Republicans, oppose the provision as a dangerous expansion of the tribal courts’ authority, and it was excluded from the version that the House passed last Wednesday. The House and Senate are seeking to negotiate a compromise.


We just keep piling laws on top of acts in an effort to treat Native Americans 'fairly', when the governments job is to treat everyone fairly.




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#25 Apr 17 2013 at 7:43 AM Rating: Decent
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trickybeck wrote:
From some articles I've read in the past, I've gathered that biological parents have really strong rights to their children, even in situations when you might think they've waived all such rights.
That's not so bad. People make mistakes, bad decisions, whatever. It shouldn't be used "for the tribe" as it's playing out here, though. Sounds entirely xenophobic. He wanted to get married, but the woman didn't want that, and then he pretty much fell off the radar until the mother gave up her right to an adoptive couple and then suddenly swooped back in to assert his right? Without all the details, that bit sounds skeevy. Doesn't sound like he gives two flips about the kid.

Edited, Apr 17th 2013 9:44am by lolgaxe
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#26 Apr 17 2013 at 7:57 AM Rating: Default
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lolgaxe wrote:
trickybeck wrote:
From some articles I've read in the past, I've gathered that biological parents have really strong rights to their children, even in situations when you might think they've waived all such rights.
That's not so bad. People make mistakes, bad decisions, whatever. It shouldn't be used "for the tribe" as it's playing out here, though. Sounds entirely xenophobic. He wanted to get married, but the woman didn't want that, and then he pretty much fell off the radar until the mother gave up her right to an adoptive couple and then suddenly swooped back in to assert his right? Without all the details, that bit sounds skeevy. Doesn't sound like he gives two flips about the kid.

Edited, Apr 17th 2013 9:44am by lolgaxe
In this particular case, I do think the father has parental rights that were not simply voided out when he relinquished responsibility for the child. Certainly a bio-mom in a similar situation would be allowed to 'change her mind' about giving up her child - whether a contract had been signed or not. I think the father deserves the same treatment. I don't think the 'tribe' should have any rights in determining custody for a child.



Edited, Apr 17th 2013 3:58pm by Elinda
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