Monday, March 21, 2016

Indian Child Welfare Act Rear It's Ugly Head in the case of LEXI. But This Could Have been Settled 3 years AGO

The Indian Child Welfare Act, developed to protect Native children from the horrors of the past when Indian children were taken from their families, has come between a child and her foster family. Ostensibly designed to protect Native children, to ensure they are kept with Native families, this case of Lexi, a foster child in CA is making news.

From a FOX 11 News Story:
Lexi has 1.5 percent Native American blood, and because of that, she's about to be removed from the only home she's ever known. Both of her biological parents have been out of the picture since she was around age 2.

"Lexi doesn't know another home. She finally knows what mom and dad means and they want to take that away from her, and we can't stand idly by while that happens," Rusty said.
"This little girl, we are her home. This is her family and that can all be rocked tomorrow," Summer said.

On Friday, in the middle of their litigation, the court system lifted the families "emergency stay."
"She doesn't know tomorrow might be her last day in this house. None of our kids do. We are under specific orders not to tell any of them what's happening," Rusty said.

As hard as it is, and as scary as it is to go up against the people we going up against, we're putting everything on the line. A mom is not going to sit back, a dad is not going to sit back. We're going to fight until the very end," Summer said.

This child will be placed with a NON-Native family, not blood related in UT, away from the only family she has known.  Is this what is best for the child? It definitely WOULD have been 3 years ago.


In a statement, a court appointed attorney for Lexi said, "Her family in Utah have been waiting to receive her for over 3 years, during that time they have traveled to California monthly and she has visited their home as well.

"The injustice here is not that she is leaving California but rather that her foster parents pursued litigation which prevented her from joining her family sooner."

In another statement, the Choctaw Nation said it wants what is best for Lexi.


"The Choctaw Nation desires the best for this Choctaw child. The tribe's values of faith, family and culture are what makes our tribal identity so important to us. Therefore we will continue to work to maintain these values and work toward the long-term best interest of this child," it said.

In an ICWA revision press release, it states:

Several long-term studies have been conducted of Native American adult adoptees. Despite socioeconomic advantages that many of them received by virtue of their adoption, long term studies reflect that these adoptees experienced increased rates of depression, low self-esteem, and suicide. In addition, many adult adoptees continue to struggle with their identities and have reported feelings of loneliness and isolation. Today, the number of Native American children in foster care alone is still alarmingly high, and they are still more than twice as likely to be placed in foster care overall.


Is it time for a study on the experiences of depression, low esteem and suicide on children who have been discarded, sometimes by non-Indian leaders?  Think about this:  The news release continues: Protecting Indian children reflects the highest ideals of the trust responsibility to Indian tribes and the guidelines issued today are a part of this Administration’s broader approach to ensuring compliance with ICWA.     This statement begs the question: 

WHO has the trust responsibility to protect the now individual Indian children and ensuring the protections that the ICWA, provides Indian Children?

We can't even get the Secretary to LISTEN, or respond to repeated questions for help. Where are the Indian child welfare advocates to work on behalf of the Indian children who no longer have their heritage and whose ancestors have been desecrated by disenrollment.


There are NON-Indian children, enrolled in Indian tribes who are protected by the ICWA, while a thousand Indian children, some removed by non-Indian tribal leaders, are cast aside, receiving no protection, and to whom the Indian Child Welfare Act now does not apply.  TheBIA recognizes all tribal members as Indian, yet they have abdicated their trust responsibility to Indian children, hoping nobody will notice.

What say YOU?

44 comments:

Anonymous said...

Well if she had nothing to do with the blood mother or father for 2 years ( where were they )? Getting high ???

The Girl can't wait til her parents get their shit together, she needs a stable family now.

It's not her fault that (her sperm donor father ) did not man up....

ANYONE CAN BE A FATHER ( or sperm donor ) not everybody can be a dad!

Sorry just keeping it real.


Same goes for FAMILY.....

Anonymous said...

Another thing, thank god for the white families ...Because as we can all see the tribes do not take care of their own?

Do I not speak the truth ? ( Disenrollments,banished, etc...)


Reinstatement_Restitution said...

It seems strange that the Court would remove a child from a stable home to live with unrelated strangers, regardless of the ICWA. There aren't enough details in this excerpt to understand the reasoning here, but it appears that the current guardians want the child and are willing and able to provide care. It is difficult to see how a change in situation is going to prevent depression, low self-esteem, and suicide as the described in the study cited here.

Now on the issue of disenrollment what is happening is that corrupt tribal leaders are authorized to determine whether or not a child of a disenrollee is Indian through their power over enrollment decisions. The BIA policy to deny federal benefits to persons who have been disenrolled makes no consideration for the reason behind the disenrollment. The policy merely rubber stamps tribal decisions. It is clearly a case of denial of due process, but the BIA policy has not been tested in court.

The BIA relies on the fact that disenrollees have been disenfranchised and made destitute by disenrollment. These people do not have the resources to challenge the policy in court. The BIA appears to take pleasure in heaping injury upon the harm that the tribe has already inflicted.

So much for the "highest ideas of the trust responsibility." The duty that BIA employees observe is to plain brown envelopes filled with illicit cash stolen from tribal members by tribal leaders. They are staunchly loyal to these envelopes, and children don't really matter. They are only Indian kids after all and will probably grow up to be depressed, with low self-esteem, and suicidal tendencies. Such kids would be better off living far away from their families with non-Indians anyway.

Think about this though. The articles claims the girl is 1.5 per cent Indian blood. In the Aguayo v. Jewell case the BIA says that there is no obligation to regard those who are 1/16th degree Indian blood as Indians. That is 6.25 per cent Indian blood. So how are they measuring Indians now anyway?

The problem is that they aren't measuring them at all. They are letting the tribes tell them whether people are Indians and taking the tribes word for it. I was disenrolled from the Pala Band of Mission Indians. I am 11/32nds Indian blood. That is 34 per cent Indian blood, yet I am not considered an Indian by the BIA because the Pala Executive Committee decided I am not Indian enough to be enrolled in the Band.

The BIA hides behind these policies, pays lip service to the trust responsibility, and then through the other side of the mouth helps tribal leaders hurt their own people. I wish it could be attributed to the red tape of bureaucratic regulations, but that is not the case. It is part of the culture of the BIA. The entire agency has severe problems handling the duties with which they have been charged.

Since we are currently in litigation with the BIA I won't say too much more about their problems, but this one situation with this one child is not an isolated case. There are thousands of such stories to tell. All you have to do is look at the Cobell settlement to realize how badly the BIA can screw things up.

Anonymous said...

The court does not remove a child from a stable home....I have walked the road of that child.

A mother living out of a hotel...sisters living on the streets or in prison. Or out of the back of a car picking out in the fields with the rest of the mexicans.

And a sperm donor who did not man up...

Anonymous said...

Money talks and bullshit walks.
If you try to get the BIA involved you need to take a lunch bag full of cash with you to even get an appointment.
The hurt and suffering of these Children and the Relatives are way more than anyone can describe.
I have been down this dark road before fighting for my Grandkids and it is very stressful to say the least.
Just fight with all you have, and try to remain positive.
Our prayers are with you for this fight.

Anonymous said...

I don't need your pity, fight your on fight.

Anonymous said...

Do I have a sign on my back that say's "help me ",?

Anonymous said...

11:56 AM and 11:59 AM must work for the BIA or are corrupt members of a Tribal EC.

Anonymous said...

If Native Americans could get their shit together and quit being so damn awlfish many children would not suffer this kind of fate. These kids are better off with their white families I've seen Indian kids go from one shitty tribal family to another then they grow up to be just as traahy as the rest of their tribe. Depression and suicide ratea are higher because natvie Americans are so damn awlfish they are incapable of being decent parents

Anonymous said...

awlfish ? Did you mean crawfish?

White Buffalo said...

It is sad that some will paint the Indian nation as one of wanting caricature with no self respect or self worth, as incapable of living an upright life where the children of these families are destine to repeat history. This is not the way of good Indian people. What is not seen are those of use who have grown to become people who take care of their young and their elders without seeking the praise of others. Putting or lumping people together as you do is the very same thing that happened to our ancestors who were forced in to submission. What I do not see from you who point the finger is any solution given to those who are still affected by the captivity of the reservation, the ostracisation by the community outside the reservation for just being Indian. You who point the finger have you ever been discriminated against at school treated badly because you are not like everyone else. Who are you to say these things. If you came from the reservation and you were able to make something of yourself then you of all people would know to be supportive of your brothers and sisters who need your love and help, not your hate and suppeior shamefull hurtfull ways. Walk in their shoes for a while.

Reinstatement_Restitution said...

That is the problem of value judgment. Outsiders wish to impose their values upon Indians who are trying to resurrect their culture and traditions and pass them on to the next generation. The current culture looks at the Indian traditions and judges them as invalid in modern times. In their eyes a conquered people's culture is defeated because they have no right to live in the way their ancestors did. There are many who think that clinging to a dying past means the end of the people too.

So what can we learn from this culture conflict where people want to say that Indians raise their children badly and that the kids grow up depressed, with low self-esteem, and suicidal tendencies? Do we blame the Indians who love their children, treat them well, try to share the wisdom of the ancestors, and give them pride in their heritage? Or do we blame the outsiders who value money and financial success over honor and native pride and look down with racist eyes on dark skinned people who could care less about cell phone apps and how many followers they have on their blogs with pictures of food?

That is not to say that there aren't Indians who are failures as parents. As we have seen there are far too many of those, and their failures as parents are directly related to their failures as individuals. Drug abuse, corruption, and ignorance make bad households where children cannot feel safe. How is that different from non-Indian households where the same problems exist? Who will cast the first stone, and is that person only able to criticize and not help?

At some point reality sets in and values must resolve to the beneficial purpose of culture. The beneficial purpose of culture is the transmission of life-affirming values, of an existence in balance with nature, and the creation of art that informs that existence with vitality and longevity. This should be our goal so we can stand in the modern world with our values resolved to their beneficial purpose.

Let us all raise our children in the modern world and instill them with respect for their ancestors and pride in their heritage. Then our people will outlast fashions, trends, and styles, and the next generations will flower secure in their parents love and support with eyes on the past and a view to the future.

Anonymous said...

Why do people who never went through the system think they have the answer's?

That's like a single man telling us how to be a good father.

Or a 1/8 Indian talking about ICWA who never went through the system and I don't care if you had family who went through it.

You never walked in my shoes, so don't come here on this blog with your pretentious attitude .

Anonymous said...

These were Foster parents not parents adopting the child so they should have turned over the child. ( The Judge should rule in favor of the blood parents ) seeing that the Foster Parents know they would have to give up the child at anytime.

Anonymous said...

I think you have a huge misunderstanding of what and how the BIA operates, and how the definition of what constitutes an "Indian" within that operation. The BIA is an arm of the federal government, more specifically from within the Executive Branch. The function of the BIA is administering services to help with the tribal-federal relationship, more importantly to the fiduciary role that the federal government is to maintain through treaty relationships with federallyrics recognized tribes. Now, the federal government recognizes any individual with at least 1/4 Native American blood as a Native American, but in order to receive benefits and services from the federal government, administered through the BIA, you must be a member of a federally recognized tribe, their are exceptions, but this is the criteria that is standard throughout Indian Country. So, when the BIA says it does not recognize someone who is 1/16 Native American by blood, it is because the individual does not meet the requirements of 1/4, but if that same individual is a tribal memBerlin of a federally recognized tribe, then the BIA will recognize that same person as an Indian. The reason being is because the tribe has an inherent sovereign right to decide it's own citizenship, whether that requirement be 1/2, 1/4, 1/16 blood quantum or lineal descendancy, and it is this right that the BIA must recognize, not I memento it's own criteria for membership. Tribes will always have this right, and I think that it should not be in NY ringed or explained or I nterfered by outside courts, councils, administrations, governments, or individuals who are not part of the tribe. The matter is an internal.matter, and shoukder be decided internally, to preserve that inherent right. Tribal governments and its citizenry must live with the consequences of decisions that the make, whether they are positive or negative, that is how sovereignty works. By leaning on outside governmental non-tribal policy and law, trival sovereignty becomes more limit I ng, and eventually can be discarded in other avenues. Personally, the solution to disenrollment for large gaming tribes lies within Congress and the ability of the disenrollment to persuade Congress to pass legislation that specifically discusses enrollment issues within tribal gaming compacts, and how tribes are to deal with large scale disenrollments, and if they refuse, then renewing the right to operate tribal gaming would be revoked. In other words, amending IGRA to address disease rollment/enrollment/membership issues would force gamingredients tribes to address the issue.

White Buffalo said...

March 25, 2016 at 3:25 AM

I am in agreement that the BIA was created to work government to Nation, At the time of the creation of the BIA there was no set Indian policy that reached across all states as in most cases the states decided Indian policy. Also the Dawson Act created the need. If you know your family history then you know that the Indian agent was the arm of the BIA. Back to the present day. It is also true that Indian policy is not made by the BIA, for you are correct it is congress. If you are interested there are groups like ARROW who work toward the goal of changing the law to better represent the indicidual Indian.

Reinstatement_Restitution said...

I have no misunderstanding at all. I know exactly how the BIA defines an Indian, and it is a moving target. There are multiple definitions (Indian Non-Intercourse Act, Snyder Act, Indian Reorganization Act, Indian Child Welfare Act, etc.) and the BIA has no problem switching them up on individual Indians in order to find ways to deny them benefits and services.

The definition of Indian is therefore interpreted depending upon the particular law, program, benefit, or service that is being applied. It is absolutely ridiculous for the BIA to use a Tribe's definition of Indian to determine eligibility for federal benefits. It is a dodge the Agency uses in order to sanction disenrollments and to prevent those who have been denied their tribal heritage from obtaining recourse or remedy.

On the one hand you have a tribe with a right to say who belongs and who doesn't. Then on the other hand you have federal programs that are funded by Congressional appropriations, and the BIA is allowing tribes (and by tribes I mean tribal leaders) to tell them who gets to participate in those federal benefits. It is clearly a circumvention of the intent of Congress to aid and assist Indians due to the harms and injuries the federal government has inflicted on Indians.

Once an Indian is recognized as an Indian by the BIA, then that Indian should qualify for programs and services regardless of what a tribe says. This is no infringement on the sovereignty of a tribe. It would just mean that monies targeted to aid a disadvantaged minority would reach the people for whom it was intended.

The rest of your polemic is regurgitated rhetoric designed to argue in favor of protecting the corrupt intentions of the leaders of gaming tribes to eliminate members in order to increase shares of per capita distribution and line the pockets of tribal leaders. There is nothing in the concept of tribal sovereignty that says the BIA should participate in disenrollment without due process, help tribes destroy legitimate members, and then slam the door on those that have been harmed by stripping away their eligibility for programs and services.

Congress does not have to legislate either for or against disenrollment. That takes the responsibility for the beneficial governance of tribes away from the tribes. Why should Congress have to fix the problems created by greed and lust for power? Is it because the BIA is helping tribes destroy their own people so Congress has to step in and prevent the collusion between a federal agency and the tribes?

If this is the case then these are not internal tribal matters and they do require a solution from an external sovereign. Get your arguments straight. The IGRA has enforcement provisions, but the NIGC is playing hands off. The BIA has a trust duty obligation, but it shirks that responsibility because it has endemic corruption and defers to tribal leaders. Tribes have a responsibility to their own citizens, to build the community, to provide for the general welfare and to develop economic opportunities to sustain the community into the future, but those responsibilities are taking a backseat to the pursuit of wealth and power by tribal leaders.

If all the players were playing fair these problems could be resolved with justice and equanimity. It is because of widespread corruption that the problems are escalating, and this so-called view of tribal sovereignty is part of the problem. A tribe that conducts a government-to-government relationship with the United States must observe the limits placed on sovereignty by federal law. Instead the tribes are pushing those limits in adverse ways. Instead of adopting just laws and applying those laws fairly to all members, tribes are playing games with their laws and the lives of their people.

Sovereignty is not license for tribal leaders to do whatever they want, and then to claim it is an internal tribal matter. Once tribes disenroll the former members then become a burden on society. That is harmful to the all the citizens of the U.S. and there may be a severe backlash.

Anonymous said...

Don't mistake the Internet for a Law degree. IGRA does not allow a private right of action and why would the NIGC have anything to do with "who an Indian is"?

The question will always be what gives the Judges the right to hear an enrollment issue? Or dis-enrollment.

Reinstatement_Restitution said...

IGRA allows for the submission of reports of regulatory violations to the NIGC. IGRA also requires that gaming tribes have approved Revenue Allocation Plans that provide a dispute resolution mechanism for individuals regarding per capita distribution, appropriate handling of revenue distribution to minors, and regarding the use of unallocated or undistributed funds. Any member with a dispute can bring that dispute to a forum for resolution within a tribal forum. That is the IGRA allowance for private right of action.

The NIGC has the mandated authority to regulate gaming and enforce the IGRA. They NIGC has to know who the Indians are in order to perform this duty. However, the NIGC looks to the BIA to tell them who the Indians are, but that is only at the tribal level. The IGRA does not have any provision to regulate gaming for individual Indians. The NIGC does conduct its own investigations and has actually denied approval of gaming ordinances to Indian entities that are not federally recognized. This is not the same as identifying individual Indians, but I never said that was the purview of the NIGC.

If you are asking what laws provide jurisdiction for the Court to adjudicate disenrollment issues then you are asking a question that has nothing to do with any comments I made. My comments were directed at the BIA and its ludicrous practice of denying participation in federal programs and services on the basis of disenrollment decisions made by tribes.

In fact none of your comments have anything at all to do with what I said. Don't even know why I bothered to respond...

Anonymous said...

Yes any member may bring suit under the RAP, But not non members ( a private person or private right of action ) cannot be brought on by a non tribal member.

Disenrolled people have already tried to bring suit under IGRA and the RAP provisions and the courts ruled ( private people ) cannot bring a private right of action against a tribe.

This is why all cases are thrown out of court because ( non members ) or private people cannot sue a tribe .

ONLY if the Tribe allows oversight in their constitution.

Anonymous said...

That is the IGRA allowance for private right of action.

IGRA does not allow a private right of action (allows private parties to bring a lawsuit ) ...

That's the meaning of private right of action.....

A tribal member is a member not an Outside private party.

Anonymous said...

R and R

How many times are you goiing to insist that non-Indians, or individuals who are no longer recognized by tribes as members, have a right to federal services and resources intended for tribal communities. You cannot have individual Indians and no tribe, you must have a tribal entity (federally recognized) in order to participate in the government to governmenthe relationship. The tribe, is and should be the only entity that defines itself and it's citizens, regards of who they have a relationship with, the BIA is only there to administer and facilitate the govt-to-govt relationship. Being "Indian" is defined differently across federal, but the common shared idea within federal law is that a tribe has the inherent right to determine its own membership, and in order for individuals to receive resources allocated for Indian Country, they need to be a recognized member of Indian Country, which is determined through tribal enrollment within a federally recognized tribe. Why would Canada, Mexico, the US, Germany, or France give resources and benefits to I divide also who are not citizens of their countries, same with tribes. The only way an individual can receive any resource intended for Indian Country is for that individual to be a recognized tribal member. Moreover R and R, the federal-tribal relationship is a political-legal relationship, therefore any definition or framework United to understand or implement that relationship is also political-legal, meaning the status of "Indian" and who is recognized as one, will always be seen as a political-legal construct from the gaze of the US governemnt, but luckily each individual tribe has the inherent right to depoliticalize that meaning and establish it's own criteria to define themselves and their citizens. Why would or should a tribe give benefits and resources to non-Indians, neither should the federal government.

Pro Se said...

Well let me tell you " from courtroom experience",when you have your case thrown out for "failure to state a claim ", and private right of action (And it cost you around 500 bucks ) you learn fast ...

Big bad ass ,.. Pro Se

Have you been down my road R and R ?


Reinstatement_Restitution said...

Did you cite the Snyder Act?

"The BIA, under the supervision of the Secretary of the Interior, shall direct, supervise, and expend such moneys as Congress may from time to time appropriate, for the benefit, care, and assistance of the Indians throughout the United States..."

There is no requirement to belong to a federally recognized tribe in order to participate in the programs and services identified under the Snyder Act.

The Indian Reorganization defines Indians as: "all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any reservation and shall further include all other persons of one-half or more Indian blood."

This definition includes recognized Indian tribe in the definition, and the BIA has interpreted it to apply to eligibility for programs and services from the federal government. As a federal agency the BIA's interpretation receives deference in Court, meaning that the court will lend greater weight and in some instances controlling weight to the interpretation of the BIA.

It is possible to interpret this definition to read that only those in Indians in 1934 were required to be members of recognized Indian tribes, and that the Act is silent on the membership status of their descendants. At this point in time there have been consistent Court rulings that lend controlling weight to the BIA definition of Indian since they are the agency that administers federal regulations in Indian Country.

Then again in the Court of Claims there have been many settlements that were awarded, although in class litigation, to Indians regardless of their membership status. Whether or not there is a private cause of action has been decided, but there is always opportunity for a well pleaded complaint. I have been talking about the definition of Indian and how it is a moving target. If you want to change the subject go argue with yourself.

And I repeat that once the BIA recognizes an Indian as eligible to receive programs and services from the federal government that such persons should remain eligible until they have received due process from the BIA regarding any change in that status.




Anonymous said...


I think I get what your saying , my friend is not a tribal member at pechanga but he still get's to go to the Indian health clinic and dentist.


Anonymous said...

Again that's up to the tribe if they allow him to do that.

Reinstatement_Restitution said...

Does the tribe pay for the clinic? If it is an Indian Health Clinic and paid for by the federal government then why should the tribe decide who gets to use it? This is exactly what I am talking about and it has nothing to do with sovereignty, or with suing over disenrollment, or with the NIGC or the IGRA. It is specifically about eligibility for federal programs and services that are not paid for by tribes, that are not administered by tribes, and that are not regulated by tribes.

However, the above poster is incorrect about tribe's determining eligibility for Indian Health Services. The IHS determines eligibility thusly:

"The eligibility requirements are:
Is of Indian and/or Alaska Native descent as evidenced by one or more of the factors:
Meaning an individual must be of Indian descent and belong to the Indian community which may be verified by tribal descendency or census number. An individual must be a member, enrolled or otherwise, or an Indian or Alaska Native Tribe or Group under Federal supervision;
Any other reasonable factor indicative of Indian descent..."

In this case the IHS gets it right and provides services based on belonging to an Indian community and Indian descent (meaning blood degree). So why doesn't this same definition of Indian apply for all federal programs and services?

Anonymous said...

OK well back up, you get a blood degree from the BIA and you can use the Indian health clinic. But the clinic on each rez is up to the tribe its their property or nation.

Your not a member and don't belong to an Indian community .

It sounds crazy ( I forgot the criminal case ) An Indian man tried to say you can't arrest me I am not Indian or a tribal member, but the court ruled against him and said he had a (blood degree) and used the Indian clinic. ( They ruled he was Indian )

Anonymous said...

Any Indian descendant can use the IHC due to the IHC eligibility definition of what constitutes "Indian," but that does not automatically make that same individual eligible for other federal programs, housing, loans, education, because those resources are geared towards federally recognized tribal members. Also R and R, the BIA does not have deference by the Court, the Court utilizes definitions of whow an Indian is based on the Supreme Courts determinations, which are always based on Santa Clara v. Martinez, nothing else. Get your facts right. I do not think that once somebody gets benefits from the federal governemnt, that they should receive them forever regardless of their membership status. If you are disenrolled you are no longer an Indian part of Indian Country, you are no longer eligible for federal support or resources because those monies are allocated for tribal members. The federal government no longer considers you Indian, because you no longer belong to a tribe, you can't have Indiansd without a tribe, so a tribe determines who an Indian is and that is thee most important principle of sovereignty.





Reinstatement_Restitution said...

The Indian Health Service has a definition for Indian that is based on descent from an Indian ancestor. The BIA has the same definition in certain cases; in others it is required to be a member of a tribe. For instance, if you have allotted land, then the BIA will consider you to be an Indian as far as protecting your rights to resources. Also there are benefits that are tied to the Cobell settlement such as scholarships that make Indians eligible by descent from an Indian. Then the BIA will deny Indian eligibility to other programs because they are only available to members of federally recognized tribes.

Even though the BIA doesn't determine the membership of the Tribe they still deny eligibility to these programs to disenrolled tribal members and provide no due process. They do not notify the disenrollees that they are no longer eligible. They do not provide hearings or a forum for adjudicating disputes. They provide no recourse or remedy to individuals who have been denied eligibility on erroneous decisions, or decisions that have no supporting evidence. This is a violation of the ICRA which the BIA has pledged to uphold.

The IHS is an agency within the Department of Health and Human Services. It is not bound to BIA interpretations of Indian law. You are very wrong about the deference given to the BIA by Courts. This deference is defined in several different cases and there are different versions of it. There is Skidmore deference wherein the BIA interpretation are weighted on a sliding scale due to the agency expertise in handling Indian Affairs. There is Chevron deference where agency interpretations of federal regulations are given controlling weight in judicial review. There is Auer deference where the Court gives controlling weight to BIA interpretations even when proffered in amicus briefs.

The Supreme Court issued a decision in Santa Clara Pueblos v. Martinez that established a tribes right to determine its own membership. That is not an all encompassing right that precludes judicial review. It does mean that the Court will not interfere with or abrogate the right of tribes to determine their membership. So my facts are completely in a straight line, and you probably need a refresher on the scope of judicial review.

I never said that once an Indian receives benefits that they should always receive benefits. I said that once an Indian is determined to be eligible for benefits they should not be denied benefits without due process. A disenrolled tribal members is still an Indian by blood until proven otherwise. In many cases the determination of tribal enrollment is compromised by personal interests, or has been enacted in contradiction to tribal law, or violates the civil rights of individual Indians. In such cases the BIA should conduct hearings to determine the reason for disenrollment and decide whether or not it affects eligibility for federal programs and services.

Now you have to explain to us all how tribal sovereignty should control the BIA decision making process. Is that somehow part of the government-to-government relationship? Or is it part of a tacit agreement the evidences collusive behavior?

I say the latter. I say that because the Tribes benefit, but the disenrollees are hurt, the BIA does not benefit unless the tribes give them some benefit, the community does not benefit, and the U.S. does not benefit. When assessing a dubious decision making process it is prudent to assess the parties that benefit. And stop trying to twist everything into an issue of sovereignty. Tribal sovereignty is for tribes. It is non-operative for individual Indians, or for federal agencies, or for courts.

White Buffalo said...

There is another way a person can still get Indian Health Services, the person who has been disenrolled is still eligible if they are a direct descendent of a parent grand parent who is/was connected to another tribe lets say Pala or Morongo. The person who was disenrolled does not have to be a member of that tribe they just have to show that the person is or was a member by providing proof that this member was in the form of their Indian enrollment number or fro the 1969-71 Indian census. Not sure of the date. This person will not be eligible for contact care. They will only be able to get basic care meaning no referrals to specialist, they have to show or have basic insurance Medical or Medicare. They will receive pharmacy service, dental, or what ever the clinic has on site. It is not the best but it is better than nothing.

Anonymous said...

R and R

Please show me the cases that give deference to BIA interpretation over Supreme Court interpretation, federal law and judicial review works different for federal Indian Law cases. As far as due process is concerned, your argument sounds good but has no teeth. Due process has been understood by the Supreme Court to only apply in Indian Country when an individual has been detained and or arressted. Since being disenrolled is neither, you do not get a special space at the BIA or any other court to argue the merits of what or why a tribal governemnt decided to sever your citizenship and all rights afforded to that citizenship at the tribal and federal level. Tribal sovereignty is not part of and or connected to the BIA because the BIA operates under US sovereignty in the administration of US law and policy, while tribes operate under its own tribal law and plocy. Disenrollment is an administrative decision of a tribal government, and has no other jurisdiction except in tribal council, nor should it be. The BIA, federal, and State courts should not interfere and they dont, because that is an infr I ng emergency the on sovereignty. The Constitution, the Bill of Rights, and the Indian Civil Rights Act have all been clearly defined and applied to Indian Country. The Constitution does not applyet in Indian Country, and the ICRA is limited in its scope. This is all spelled out very clearly in Santa Ara v Martinez.

Reinstatement_Restitution said...

Your question is inapposite. Deference is a principle that has arisen from Supreme Court decisions. I can't cite a case where the Court has deferred to a BIA interpretation over that of the Supreme Court because the two would be in conjunction due to the deference given to BIA interpretation.

The Court defers to a BIA interpretations because the BIA has expertise in the administration of Indian law, the BIA has the duty to carry out the statutory legislation of Congress in regards to Indians, and the BIA enforces its own regulations. It is only when the Court determines that the BIA is not entitled to deference that it would conduct a de novo review and make its own determination.

Due process is a right guaranteed to all U.S. Citizens and transcends the enforcement limitations of the ICRA. The fact that Santa Clara Pueblos v. Martinez denied claims of ICRA violation because the ICRA does not provide for enforcement outside of habeas corpus, does not mean that Indians can be denied due process by federal agencies. Indians are still U.S. Citizens even if they have been disenrolled.

A U.S. Citizen has a private cause of action against a federal agency for civil rights violation. Such litigation would be under the APA since the United States has sovereign immunity just as a tribe does. The APA provides a waiver of immunity to impeach agency decisions if they are arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with the law.

You keep arguing in favor of disenrollment. Are you finding it to be a good thing for tribes to remove citizens from their authority and jurisdiction and cause divisions among nations? I personally believe anyone that upholds the right of a tribe to disenroll members without providing due process, without proper observance of tribal law, and without supporting evidence to be misguided and misinformed.

Anyway you keep arguing points outside the purview of my comments. When I say the BIA has pledged to uphold the ICRA that means they should provide due process to Indians. When I say that all U.S. Citizens are entitled to due process that means federal agencies should provide due process to individuals whether the ICRA has enforcement provisions or not. When I say that the BIA is inconsistent with its definition of who is an Indian that has nothing to do with disenrollment. When I say that Courts offer deference to BIA interpretations that is a legal principle that has been defined in Supreme Court cases and is not in conflict with Supreme Court decisions.

When I say that tribes should not have the power to determine individual eligibility for federal programs and services, that does not mean I wish to infringe on a tribe's right to determine its own membership. It means that the U.S. Government pays for, regulates, and provides the services, and that tribes should not have the power to tell the federal government how to spend its money.

When I say should, could, may, or might, that means that the current conditions are changeable. They should be more fair. They could be more just. Those in power may make other decisions or determinations. Things might change if people did things differently. These are conditional. It does not describe the current state of affairs.

I have faith that you might be able to take off the sovereignty blinders and see a world where disenrolled tribal members can benefit from programs and services that were intended to help disadvantaged people. That is what they were designed for, and who has been harmed and injured more than disenrollees?

Anonymous said...

R and R

Disenrolled Indians does not make sense. In order to be an Indian eligibility for federal monies, you need to be recognized by a tribal government, otherwise you are not an Indian. I am not an enrolled Indian, but I am Indian because of my family, heritage, culture, and bief. I can get services from the IHC, but I cannot participate in tribal resources because I am not a tribal citizen nor can I take advantage of the opportunities of utilizing the resources that Congress sets asidea for Native Americans, because I am not an enrolled member of a federally recognized tribe, but I am 1/2 total blood. With your argument, I should be able to have access to BIA resources, but how through which agency and through which tribal government, I am not anecessarily enroll we do member of a tribe. Your argument makes no sense. You can't be an Indian eligible for monies allocated for Indian Counary in this country if you do not have a tribe, plain and simple. That is the law, policy, and truth in this country.

Reinstatement_Restitution said...

I have already given you several examples where the definition of Indian does not require enrollment in a federally recognized tribe. What about that doesn't make sense? These Indians are still Indian by blood degree and descent. Whether or not an Indian is enrolled in a federally recognized tribe does not change the fact that a person has Indian blood and is descended from Indian ancestors. Such persons can have title to allotted land, go to Indian Health Clinics, get funds for education in the form of Cobell Scholarships, get employment preference in certain cases, and so on.

Now listen carefully and try not to get mixed up. The BIA currently has a policy to deny federal benefits to Indians that are not members of federally recognized tribes. I am saying this policy is a violation of an individual's right to due process if they were formally enrolled and then disenrolled. The reason why it is a violation of due process is because the BIA does not notify people that they have been denied benefits, provides no route of appeal, conducts no hearings, and has no forum for resolution.

This policy should be challenged. Will the courts hear such a case? Only if the individual has exhausted administrative remedy, but that is not hard since there is no way to appeal the policy. Then it would be possible to sue the BIA under the Administrative Procedures Act. Can an individual win such a case? Probably not. But maybe if lots of people filed similar suits or joined together in class litigation it could be possible to get a favorable decision.

The point is that it is a violation of civil rights to deny due process. I am not saying that Indians who have been disenrolled are getting benefits. I am saying that if the BIA upheld the ICRA that they would provide due process and maybe change their policy.

Tribes do not fund, administrate, or regulate federal programs. They SHOULD not have the power to deny programs and services based on disenrollment actions. It SHOULD be an agency decision guided by fair and just policy that provides due process.

If you don't understand the point that is your problem. I have no other way of saying it.

Anonymous said...

RandR
Read this article on due process and its application, it is very dicey at the federal and State level, how can this as pply at thec tribal level, let alone through BIA administrative process.

https://www.law.cornell.edu/wex/due_process

Reinstatement_Restitution said...

First of all a tribe cannot be compelled to offer due process. I have not suggested that any cause of action can be pursued in a tribal forum by disenrolleess. All the lip service that tribes pay to the ICRA is dispelled by actual practice. There is no such thing as a consistent, across the board, acceptable list of what constitutes due process at the tribal level.

That is not the case at the state and federal level. However, I have not touched at all upon the state law and how the right to due process is observed and exercised. The BIA is a federal agency and therefore the only applicable comments in this article would be those addressing administrative observation of due process procedure. The article properly explains that due process at a minimum requires notification, a hearing of some kind, and an opportunity to present arguments why the action(s) taken against an individual is disputed.

This is exactly what I have suggested. The BIA should provide due process to tribal members who are denied eligibility for federal programs and services because they have been disenrolled. Thanks for sharing this article. It supports my contention that the BIA policy violates the right to due process, that this violation creates a private cause of action, and that individuals can pursue a remedy in federal court if they so choose.

There is a precedent cited in the article, Matthews v. Eldrige, where federal benefits were denied without provision of due process. The Court's decision to make a determination based on three factors establishes a test with which to measure the interest, the risk, and the value of procedural safeguards. This test could also be applied to the BIA policy, where it might be be found to provide insufficient procedural safeguards.

Would that be enough to change the policy? I don't know. The BIA has never published this policy as a rule, so it does not have force of law. That might be enough to undermine deference and get a favorable decision. Someone has to challenge the policy to find out.

Anonymous said...

My comment on this revolves around the 1.5% Native American blood... am i the only one that realizes this is equal to 1/64 native blood. I am relatively sure that most American families that have been here a few generations have some native American somewhere in their bloodline. But once most of realize we are made up of a little this and you know, I'm Irish, French , German and a little Spanish. Breaking it down to maybe eighths. Ive never heard anyone rattle off more than 8. Im not trying to be smart or anything but does anyone care to know what the other 63/64 of her bloodline is. That leaves a lot of potential for some family with more at stake.... Hey ..wait there is that family that has come forward and made their claim. 1.5 % aint nothing compared to the 98.5% (you can check the math) bloodline made of love that Lexis foster family has for this little girl. It isn't even close. And this family has been waiting and ready for her since day 1. You cant put her life on hold she needs to be raised four years ago. Unless their is something about this foster family that we haven't been told, don't tear her between families at such an impressive age. ICWA needs to worry more about the Native Americans that have a blood quantum that matters.
Please don't think that i am saying that ICWA doesn't bring the right ending to many a native story, but it seems they might be spreading themselves thin with this one, because there are many stories from many reservations that need attention.

On a last note A few people might not like what i have to say involving tribal disenrollment's but after all ive heard and read my thought is exactly the same......if a tribe has ever used a 'tribal member' as per capita count for grant monies when they were in need, i believe it is unethical and should be illegal to not count those same members as per capita when the tribe is handing it out instead of the government. After all, even though different tribal people read the same paperwork and see it differently, it still really says the same thing.

Reinstatement_Restitution said...

Thank you for bringing the thread back to the original subject. My own opinion is that measuring blood degree is a form of racism. It's what breeder use to develop pedigrees for show animals. You shouldn't measure how Indian a person is by how much Indian blood they possess, but that is how the system developed and it is up to tribes to make changes if they so wish.

As far as distribution of federal monies to members that is exactly what I have been talking about with the BIA policy of denying federal programs and services to disenrollees. If at one time these former members received services they were determined to be eligible by the BIA. To revoke that eligibility without due process is a violation of individual right to due process.

Anonymous said...

The reason the 1.5% blood quantum is relevant in this case has nothing to do with blood quantum. Obviously the tribe she is part of does not use blood quantum for eligibility, the reason the 1.5% is not relevant is because she is 100% a tribal citizen of a tribal nation that should determine its future without any outside interference or abrogation, and children are the most important factor in a tribal nations future. The tribe has been tying to get her back to a tribal family since she was born, if the foster parents would have stopped fighting the law and dragging thus case on for four years, Lexi would not be in this predicament. I believe Lexi deserves to be with her trine, and that is why ICWA is so important.

Reinstatement_Restitution said...

Are you arguing for the the tribe's benefit or the child's benefit? Do you think it might be possible that she would still be a member of the tribe after being raised in her current home, assuming that her current home is beneficial to her? Then as an adult she could make an informed choice instead of being shuffled around in order to satisfy someone's idea of what the law means.

It isn't an easy question to answer, but the child's welfare should come first and the tribe's need to sustain itself second. The interpretation of the ICWA is intended to help Indian children. If it helps that is a good thing. If a child is harmed then it is a bad thing. For all I know she is being moved to a good home, but the current caregivers appear to be willing and able to care for her. I am glad I don't have to make the decision, but stability is important in the upbringing of children. They need to feel safe and secure. Getting shuffled around often makes kids feel unwanted.

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Anonymous said...

Indian Health Services is a federally funded program, so long as a person is an enrolled member of a federally recognized tribe, they can utilize the services at any IHS clinic.