Call for Papers: SLSA stream on Indigenous and Minority Rights

The annual SLSA conference will be held at the Law School of Lancaster University from April 5 to April 7 2016. The call for papers is now open. The deadline for submission of abstracts is January 18, 2016. Once again, there will be a stream on Indigenous and Minority Rights.

The SLSA conference is a great opportunity for the exchange of research information, ideas and arguments in a lively and friendly setting.

Postgraduate students are particularly welcomed to consider making a submission to the stream on minority and indigenous rights.

International Day of the World's Indigenous Peoples, Well-Being, Health and the Keystone XL Pipeline

August 9 was the International Day of the World’s Indigenous Peoples. The theme for this year’s day was to ensure the well-being and health of the indigenous peoples. This theme comes curiously timed with events  and decisions that determine whether or not the contentious Keystone XL Pipeline will received needed permits to be constructed.

Pipeline proponents are anticipating a final rejection by President Obama, which, according to this news article, might be delivered sometime in August. 

9 days of hearings were held in South Dakota  on the issue of pipe construction through that state.

The pipeline’s planned route through South Dakota would “pass through Lakota treaty territory”   “[R]epresentatives and expert witnessesfor four tribal governments” provided testimony at the recent concluded South Dakota hearings against the construction of the pipeline. 

Lakota People's Law Project Video Response to Goldwater Institute Press Conference

The Lakota People's Law Project has made a video response to the press conference held by the Goldwater Institute to announce its class-action law suit against the Indian Child Welfare Act. 

The US Adoption Industry, the Indian Child Welfare Act, and Black American Infants Sent in Intercountry Adoption

The news of the multiple legal challenges to the Indian Child Welfare Act (ICWA) are beginning to percolate through to the consciousness of news reporting outlets. The reasons behind these attacks on the law are also starting to be queried. This report from Fusion.net  explains that these law suits are a backlash against the proposed binding ICWA regulations, noting that “These proposed regulations have angered opponents of the bill, including the lucrative adoption industry.” In other words, the news story points to those involved in adoption as being opposed to not only the idea of binding ICWA regulations but to the Act itself. The news story goes on to comment that “Since the regulations were proposed, multiple lawsuits have been filed around the country challenging ICWA…”

Just how “lucrative” is the adoption industry in the United States? And why would it care about the adoption of American Indian children? The demise of children available to adopt to the United States through intercountry adoption is well-known. These statisticsfrom the United States Bureau of Consular Affairs, Department of State,  demonstrate the dramatic fall that continues in the number of children received by the United States.  And yet, at the same time, there are children sent from the United States for intercountry adoption—with an estimate, given in this article  that “as many as 500 infants, most of whom are black, leave this country through outgoing adoption every year.”

At the same time the US adoption industry is apparently concerned about restrictions on the adoptions of American Indian children to non-Indians, there is relative silence about the numbers of black children leaving the US in intercountry adoption.  Why a strong reaction to the proposed regulations to ICWA and yet seemingly very little about sending black American children in intercountry adoption? 

More on Class Action Law Suit Against the Indian Child Welfare Act

More information on the lawsuit which has been filed by the Goldwater Institute, challenging the constitutionality of the Indian Child Welfare Act (ICWA) can be found at the Turtle Talk blog.The Turtle Talk blog comments that: “This is highly funded, highly professional media campaign.” The blog also provides a link to the complaint  filed to initiate the law suit.  

Paragraph 5 of the complaint sets out the aims of the lawsuit: “They seek a declaration by this Court that certain provisions of ICWA, and Guidelines issued by the Bureau of Indian Affairs (BIA), both facially and as applied, violate the United States Constitution. They also seek an injunction from this Court against the application of certain provisions of ICWA and the accompanying BIA Guidelines.”

A statement from  theNational Indian Child Welfare Association 

 remarks that “It is disappointing that during this era of unprecedented support for Native children and youth, there are still special interests intent on mobilizing their considerable resources to dismantle critical protections for children that Indian Country and our allies fought so hard to establish.”

Backlash Against Indian Child Welfare Act Gains

It would be naïve to think that the many gains towards a full and consistent implementation of the Indian Child Welfare Act (ICWA) would go without challenge. ICWA has faced hostility from its inception, and some state courts have been reluctant to fully abide by its binding provisions—thus, the creation of the so-called “existing Indian family exception”—a  judicially created exception that is counter to the plain language of ICWA—that allowed state courts to determine whether to apply the Act or not.

And so it is that a class-action law suit has been announced. The Goldwater Institute is filing a lawsuit planning to challenge ICWA as being a “race-based law that discriminates against American Indian and Alaskan Natives” according to  Native Newsline Online.

In a season of many unprecedented and long-overdue gains for ICWA, this backlash should not have been unexpected. 

Keeping Track of the Indian Child Welfare Act

It is by now a well-rehearsed comment on the Indian Child Welfare Act that it is poorly implemented and adhered to by states. This poor implementation and state adherence was at least in part responsible for the issuance of new ICWA Guidelines and a proposed binding rule earlier this year. Each of this is a notable event in its own right. The non-binding Guidelines have not been updated since 1979, and there has never been a binding rule in place for ICWA.

The Children’s Bureau, part of the Administration for Children and Families, announced on April 2, 2015, that it intended to issue a supplemental notice of proposed rulemaking that would, for the first time, collect information on ICWA as part of the federal child welfare data. The  intent to publish a supplemental notice  states that:

“we have determined that there is authority under the statute (section 479(c) of the Act) to collect ICWA-related data in AFCARS. Specifically, the statute permits broader data collection in order to assess the current state of adoption and foster care programs in general, as well as to develop future national policies concerning those programs.”

This is significant in providing a needed mechanism to provide federal oversight of state performance with respect to ICWA. To date, no further supplemental notice of proposed rule-making has been published—and without that, the details of what would be included on the ICWA data has not been stated. Nevertheless, this information from the Children’s Bureau is a much needed step in the right direction with respect to ensuring compliance with the Indian Child Welfare Act.

Children's Bureau Policy Now Recognizes Customary Adoption for Title IV-E Requirements

A great deal of attention has rightfully been focused so far this year on the changes occurring at the federal level on the implementation and interpretation of the Indian Child Welfare Act. There have been new (non-binding) guidelines issues, and for the first time, a proposed binding rule has been put forward. But these are not the only changes happening at the federal level that are note-worthy. Perhaps hidden because of the higher profile of the ICWA-related changes is a very significant change in the policy of the Children's Bureau.

The National Indian Child Welfare Association explains that

"On February 13, 2015, the Children’s Bureau issued a new policy clarifying that tribal use of customary adoption to modify, as oppose to terminate, parental rights will meet Title IV-E Foster Care and Adoption Assistance requirements. Previously, the Children’s Bureau interpreted Title IV-E requirements to mandate that tribes operating the Title IV-E program must have a tribal code provision that terminates parental rights to be in compliance with Title IV-E. Many of the tribes that operate the Title IV-E program use customary adoptions to honor tribal customs and remove the use of nonIndian practices that resulted in the separation of many AI/AN children from their extended families and tribes"

This is an important recognition, in practice, of American Indian views of adoption, which may differ from that of the typical Western "clean-break" approach that demands the complete legal severance of ties between the child and the parent. The federal policy recognition of the place that customary adoption has in the traditions of some American Indian tribes is a significant step in the acknowledgement and respect for these in the legal arena-- and no doubt will have an impact where it matters the most, in the lives of children and families.

The Children's Bureau policy can on the recognition of customary adoption can be found here at number 3.

The Heart of Everything that Is: Book Reviews

Reviewing a book--- writing a book review—can be a tricky business. Is the review supposed to glow uncritically, even effusively, about the book? Should it be critical—in an analytical, constructive sense? The former does not serve a real purpose. The latter can be difficult to find. But when a thoughtful, critically constructive review does appear, in itself it is worth a mention. And such a review is available at this link; original review at this link. 

That  article discusses the book, “The Heart of Everything that Is: The Untold Story of Red Cloud”, written by Bob Drury and Tom Clavin. The article, by Four Arrows,  takes issue with the “anti-Indian” narrative throughout the book. It offers several examples that are woven throughout the book, where the overall picture presented is one of American Indians as primitive --and viciously violent as an end in itself. The article also refers to this review  by Tim Giago, who is an Oglala Lakota.  Giago’s review provides an American Indian’s view of a book written about American Indians. And Giago has very little positive to say about this book, noting that fails to present an indigenous perspective on its subject matter. 

These two commentaries on the book are perhaps worth reading ahead of the book—and to be borne in mind when reading it. I have also read the book, at the same time I was viewing the National Museum of the American Indian “Nation to Nation:Treaties Between the United States and the American Indian Nations” exhibit.  The timeline of the book is covered within the exhibit, as are the treaties discussed in the book. An entirely different point of view and of relevant information is given at the exhibit. The difference between the narrative of the book and of the exhibit were jarring—underscoring the point made in the 2 reviews of the book that who is telling the “story” makes a world of difference in whose voice is heard, and how events, and indeed indigenous peoples, are presented. 

Truth and Reconciliation Commission of Canada

Forcible removal of children is recognised as a form of genocide in international law. This is part of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide http://www.hrweb.org/legal/genocide.htmlas well as more recently made part of the 2007 United Nations Declaration of the Rights of Indigenous Peoples, at Article 7(2) http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf. The international position on this practice is clear.

And so it is perhaps not surprising that Canada’s Truth and Reconciliation Commission http://www.trc.ca/websites/trcinstitution/index.php?p=3has concluded that the forced removal of generations of Aboriginal children  to residential schools is “cultural genocide.” http://www.trc.ca/websites/trcinstitution/File/2015/Exec_Summary_2015_06_25_web_o.pdfThe Summary of the Final Report of the Truth and Reconciliation Commission of Canada explains the concept of “cultural genocide”:

Cultural genocide is the destruction of those structures and practices that allow the group to continue as a group. States that engage in cultural genocide set out to destroy the political and social institutions of the targeted group. Land is seized, and populations are forcibly transferred and their movement is restricted. Languages are banned. Spiritual leaders are persecuted, spiritual practices are forbidden, and objects of spiritual value are confiscated and destroyed. And, most significantly to the issue at hand, families are disrupted to prevent the transmission of cultural values and identity from one generation to the next.

But what is the significance of this finding? The term “cultural genocide” itself occupies a nebulous space within international law, according to this news analysis of the Truth and Reconciliation Commission findings. http://www.cbc.ca/news/aboriginal/cultural-genocide-label-for-residential-schools-has-no-legal-implications-expert-says-1.3110826. The question of “where do we go from here?” is addressed in this video from the Truth and Reconciliation Commission website. http://www.trc.ca/websites/trcinstitution/index.php?p=3

                

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.