Proposed Binding Rule on the Indian Child Welfare Act

The comment period has now passed for the Indian Child Welfare Act (ICWA) regulations that were proposed on March 20, 2015 through their publication in the Federal Register. These rules, if adopted by the Bureau of Indian Affairs become binding on states. In other words, states have no choice but to follow them. These proposed rules come on the heels of up-dated ICWA guidelines—which are not binding upon states in the same way that rules are—published in the Federal Register on February 25, 2015.

Public meetings and tribal consultation sessions about the proposed rule have been held. Comments on the proposed rules were to have been submitted by May 19, 2015.

Having binding rules is an important step forward in ensuring that states follow ICWA, and that the rights of American Indian children, their families, communities and tribes are recognized and respected. This puts a significant barrier in the way of courts trying to evade the application of ICWA by creating doctrines such as the “Existing Indian Family” exception (EIFE) to ICWA. The guidelines already make clear that the EIFE is not compatible with ICWA and should not be used. The proposed rule does the same—with the clear advantage of doing so from – if the rule is put into force—a position that is binding upon states. Commentary on the proposed rule explains:

 “… the proposed rule clarifies ICWA applicability and codifies that there is no ‘Existing Indian Family Exception (EIF)’ to ICWA. Since first identification of the EIF in 1982, the majority of State appellate courts that have considered the EIF have rejected it as contrary to the plain language of ICWA. Some State legislatures have also explicitly rejected the EIF within their State ICWA statutes. When Congress enacted ICWA, it intended that an ‘‘Indian child’’ was the threshold for application of ICWA. The Department agrees with the States that have concluded that there is no existing Indian family exception to application of ICWA.”

 Both the guidelines and the proposed rules represent important steps towards regaining integrity in the application of ICWA that was lost with the 5-4 decision by the US Supreme Court in Adoptive Couple v Baby Girl in 2013.

Post written by Sarah Sargent.

Indian Child Welfare Act: the latest news from the US

There is a great deal that has been happening with respect to the Indian Child Welfare Act and its ability to be an effective tool to safeguard American Indian families and tribes. Recently new Bureau of Indian Affairs guidelines were announced. This was the first time since 1979 that new guidelines had been put forward. The position of the guidelines with respect to ICWA is unclear- whether these are only advisory or whether they in fact should be given weight as binding.

The Bureau of Indian Affairs has stepped forward with a plan, however, to fill that breach, through announcing a plan to issue rules interpreting the Indian Child Welfare Act that would be binding on courts.There are several public meetings and tribal consultation sessions scheduled to discuss the proposed rule. Among other things, the proposed rule continues the message that there is no “existing Indian family” exception to the application of ICWA. In other words, judges cannot determine whether or not to apply ICWA on the basis of their own perceived strength of cultural ties of the child and family to tribal culture. The proposed rule states that: “ There is no exception to the application of ICWA based on the so-called “existing Indian family doctrine.” It further provides a “non-exhaustive list” of factors that courts cannot consider in deciding whether or not ICWA is applicable.

 Post written by Dr Sarah Sargent.

Updated Guidelines Issued by the Bureau of Indian Affairs on the Indian Child Welfare Act

For those who have been following the effects on the Indian Child Welfare Act ( ICWA) following the 2013 decision by the US Supreme Court in the case of Adoptive Couple v Baby Girl, there is a glimmer of good news. A previous blogpost (here) commenting on this decision noted that it upheld the spirit if not the letter of the Existing Indian Family doctrine, a judicially created doctrine that allowed judges to determine that they would not apply ICWA if the judge had made a determination that the child concerned did not have requisite ( as decided by the judge) cultural ties to their indigenous heritage.

On February 25, 2015, new Guidelines on the implementation of ICWA went into effect. The Guidelines were issued by the Bureau of Indian Affairs. It is the first time since 1979 that Guidelines on ICWA have been updated. There are many praise-worthy elements in the new Guidelines which will be examined in future blog posts. However, given the commentary in the previous blog post about the effect of the US Supreme Court decision on the Existing Indian Family Doctrine, it is important to note that the EIF doctrine is specifically addressed in these Guidelines. The Guidelines specifically state that “Section A ( of the Guidelines) is intended to make clear that there is no existing Indian family (EIF) exception to application of ICWA… The Department agrees with the States that have concluded that there is no existing Indian family exception to the application of ICWA.” This is certainly good news, however long overdue.

Post written by Sarah Sargent.

And the debate continues...the Keystone XL pipeline

Presidential Veto for Keystone XL Pipeline, and Concerns that the Oil Industry Brings an Increased Risk of Risk and Sexual Assault.

President Obama vetoed the Keystone XL pipeline on February 24. This is the first time in 5 years that he used his veto powers, CNN notes.  But this does not mean that the issue has ended, as the six yearlong battle over the pipeline is set to carry on, with political proponents of the pipeline seeking to override the Presidential veto. It would appear at the moment that there are insufficient votes to accomplish that.

This article (here) explains that the strong indigenous opposition to the Keystone XL pipeline construction involves more than environmental and sovereignty issues. “Community safety” is an additional concern that is noted—where the concern is that workers on the pipeline “could cause an uptick in sexual assaults against area women.|” Native American women already experience a disproportionately high rate of sexual assault. The perpetrators of the sexual assault are non-Native men, “in at least 86 per cent of the reported cases of rape or sexual assault” according to Amnesty International (here).

Links between the oil industry and an increased risk of sexual assault and rape have been raised (here and here), but this is a message that somehow seems to have attracted very little discussion. The concerns that are raised are ones that need to be addressed in any future debates about the construction of the Keystone Pipeline.

Post written by Dr Sarah Sargent.

Debate on Construction of Keystone XP Pipeline Continues: Protests by the “Cowboy and Indian Alliance”

The debate about the construction of the Keystone XL pipeline has heated up again in the United States, perhaps ironically at a time when gas prices are at near record lows. The debate about the construction of the pipeline is long-running, and it is not clear if it is going to be resolved at any time soon. US President Barack Obama has pledged to veto any approval of the pipeline construction, despite both Congressional and Senate support for the bill.

Indigenous opposition to the construction of the pipeline remains steadfast, on both the Canadian and American sides of the border (see here, here and here).

The opposition to the construction of the pipeline has been the focus of organised protests in Washington DC, including a combination of ranchers and indigenous peoples who formed the “Cowboy and Indian Alliance”.   The “Cowboy and Indian Alliance” gathered for a 5 day protest in Washington DC in April 2014. 

Whether the latest actions in Washington DC around possible approval or veto of the pipeline will result in further protests by this Alliance remains to be seen. 

Post written by Dr Sarah Sargent.

Chile: consultation is needed.

This year Chile has seen several mining projects blocked after local opposition. A recent case, EL Morro mine in northern Chile shows the importance of ‘prior and informed consent’ since the community affected i.e. Diaguita was not consulted.

The BBC reports that back in April, a national court actually rejected the case to which the community appealed. The Diaguita peoples argued that Goldcorp, did not conducted proper consultations with local communities (as required by the ILO Convention 169 and UNDRIP – both signed and ratified by Chile).

Maglene Campilley, a Diaguita’s leader, acknowledged that the community is ‘happy’ to see that justice is on the side of those that ‘defend Mother Earth’.

What is next? A consultation needs “to take place before an environmental permit can be awarded allowing mining to take place.”

Christine Marks, Goldcorp spokesperson, said that “The company remained committed to open and transparent dialogue with its stakeholders and to responsible practices in accordance with the highest applicable health, safety and environmental standards."

Well...we have to wait and see. The Diaguita community noted that the project ‘could pollute a local river’. On the other hand, the said mine is value at almost $4bn. Will justice be on the side of mother Earth?

Source BBC.

The Undetected Lion King

No everybody knows Solomon Linda; but you may know the song ‘the lion sleeps tonight’ right? Well, that is probably the moment when you think of Disney’s ‘The Lion King’ and ask yourself what Salomon Linda has to do with it.

Solomon Linda is a Zulu musician, who composed this song and he is a victim of intellectual property. While The Walt Disney Company earned millions of Dollar by using his song, he died poor in a Southafrican township. It is a tragedy and scandal that companies (like Disney) exploit traditional knowledge (TK) without obeying international legal standards.

However, the situation is tricky. One the one hand, immense treasures of TK exist, values that go beyond ethical materialism or consumerism and on the other hand, cruel market policy expedited by globalisation forces the competition of companies. Realisable regulations are needed to protect TK and enforce the indigenous right to determine what happens to traditional values, be it music, designs or handicrafts.

Article 11 paragraph 2 of the United Nations Declaration on the Rights of Indigenous Peoples (UBDRIPI) marks the starting point for a bold approach. It implies the right to revitalize and develop cultural traditions and customs of indigenous peoples. The use of a traditional song in a successful animated film is quite a revival and a gain. The only way to guarantee that the utilization of a traditional song is not only a gain for the producing company but also for the composer, is to make an indigenous approval condition for the commercialisation. Within the Declaration and the ILO Convention 169, the achievement of the Free, Prior and Informed Consent (FPIC) could provide assistance. If states ensure that commercialisation of TK is only permitted if indigenous consent is granted, two beneficial aims could be achieved. A natural protection of the TK and the foundation of compensation. Therefore indigenous consent has to be interpreted as the power to decline or accept marketing strategies. By making the obtaining of indigenous consent obligatory for companies and states, the biggest obstacle would have been conquered.

FPIC, a legal affirmation of adequate socio-legal behaviour and decency, needs to become an every day practice in protecting TK. If this, or the truly implementation of the Declaration into national legal systems, were possible, you would have heard of Solomon Linda before.

Posted written by Lisa Albanis (LLM candidate, University of Buckingham).
Source The Guardian.