ICWA Home.. U.S.C. ICWA TEXT... ICWA Case Law ..U.S. 14th Amendment

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Page 1688 - 14th amendment

Family Relationships.--While the ``privacy'' basis of autonomy seems to be definitionally based, the Court's drawing on the line of cases since Meyer and Pierce\289\ has ``established that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation's history and tradition.''\290\ Recognition of the protected ``liberty'' of the familial relationship affords the Court a principled and doctrinal basis of review of governmental regulations that adversely impact upon the ability to enter into the relationship, to maintain it, to terminate it, and to resolve conflicts within the relationship. This liberty, unlike the interest in property which has its source in statutory law, springs from the base of ``intrinsic human rights, as they have been understood in `this Nation's history and tradition.'''\291\ Being of fundamental importance, the familial relationship is ordinarily subject only to regulation that can survive rigorous judicial scrutiny, although ``reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed.''\292\ Recent decisions cast light in all areas of the family relationship.

\289\Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1928). \290\Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality). Continuing the limitation of the right of privacy to family-related activities is Bowers v. Hardwick, 478 U.S. 186 (1986). \291\Smith v. Organization of Foster Families, 431 U.S. 816, 845 (1977). \292\Zablocki v. Redhail, 434 U.S. 374, 386 (1978).

U.S. 457, 467-74 (1982).

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It is necessary that one claiming harm through the disparate or disproportionate impact of a facially neutral law prove intent or motive to discriminate. ``[A] law, neutral on its face and serving ends otherwise within the power of government to pursue, is not invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another.''\168\ In reliance upon a prior Supreme Court decision that had seemed to eschew motive or intent and to pinpoint effect as the key to a constitutional violation\169\ and upon the Court's decisions reading congressional civil rights enactments as providing that when employment practices disqualifying disproportionate numbers of blacks are challenged, discriminatory purpose need not be proved, and [[Page 1816]] that it is an insufficient response to demonstrate some rational basis for the challenged practices,\170\ a number of lower federal courts had developed in constitutional litigation a ``disproportionate impact'' analysis under which a violation could be established upon a showing that a statute or practice adversely affected a class without regard to discriminatory purpose, absent some justification going substantially beyond what would be necessary to validate most other classifications.\171\ These cases were disapproved in Davis; but the Court did note that ``an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it be true, that the law bears more heavily on one race than another. It is also not infrequently true that the discriminatory impact . . . may for all practical purposes demonstrate unconstitutionality because in various circumstances the discrimination is very difficult to explain on nonracial grounds.''

Increasing tribal sovereignty and jurisdiction all around.  S. 578 and 523.  At the same time, power over those they deem members solely on their heritage; humans unable to refuse or opt out: claiming children.

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According to legal serviceds in Bemidji

Non-member woman and her non-member children under jurisdiction of tribal court.

According to Legal Services, the tribal court gained jurisdiction over the custody status of the minor children by virtue of the fact that AH appeared and submitted herself to the jurisdiction of the tribal court. 

But according to AH, she could not have her husband served by State court because he was on a closed reservation. 

In addition, the summons she received from tribal court stated “Failure to appear at time and place stated above shall result in judgement being entered in favor of the petitioner.” It was AH’s impression that this was binding and that she had no choice.

• What is necessary is that non-tribal members be told clearly what their rights are in situations like this.   Any and every tribal court summons to a non-member must include an attachment clearly stating their legal rights.   People can not choose to give up their legal rights if they have no idea that they have a choice, or if they have no knowledge that they are in fact giving up rights.

• Non-members must be able to serve county and state papers to tribal members within reservation boundaries.   Justice within the exterior boundaries of the United States must be obtainable.

• In addition, non-members have to have some kind of recourse other then appearing in tribal court.   United States citizens have a right to fair trials.    It is a one-sided affair when Tribal governments claim complete jurisdiction over tribal member issues, but US courts don’t claim the same for their own people.   Instead, non-tribal member United States Citizens are told that they must appear in tribal court.

• Many tribal members also beg for better recourse on the reservations.   Many times tribal court is tainted with cronyism and nepotism, judges who aren’t lawyers, and small town politics.  Many times there is no Tribal Supreme Court to appeal to.

From Johnston Moore -

Amendment 4 of the U.S. Constitution says, "The right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and
the persons or things to be seized."

Children have a right to be secure in their homes against unreasonable
seizures (including seizures of persons -- themselves). Maybe I'm
crazy, but taking a child out of his home simply because he is eligible
for membership in a tribe seems more than unreasonable. An 11 year old
girl was taken, without warning, from her home in January because she
is part Native American and the tribe wanted her removed. She had
lived with her mom (not bio) for more than half her life. Is this
reasonable?!

Amendment 14 of the U.S. Constitution says..."Section. 1. All persons
born or naturalized in the United States and subject to the
jurisdiction thereof, are citizens of the United States and of the
State wherein they reside. No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws."

The fact that a child is eligible for membership in a tribe does not
change the fact that he is also a citizen of the United States. As
long as the child is not in danger, a state may not deprive a child of
the liberty of living in a home and with a family with which he has
bonded and grown to love as his own. When a state applies the Act to
that end, it needs some serious scrutiny. The child does not belong to
the tribe. The child may be eligible for membership, but the child is
also an American citizen and is entitled to the protection that the
Constitution affords him.

Let's not forget, people -- these are children! Period. Not Indian
children exclusively, but children with so-called dual citizenship.
That means U.S. and State law apply as well as ICWA. In reality, my
kids' best interests did not change simply because they were deemed
eligible for membership in a federally recognized tribe. They were the
same kids as they were the day before. Yet, the ICWA allowed the
system to completely redefine them -- who they were and what their best
interests were. We were the best parents for them the day before the
tribe said they were eligible. We were completely unfit to raise them
the day the tribe said they were eligible. It's ludicrous.

You referred to Article One, section 8, clause 3...that Congress has
the power..."To regulate Commerce with foreign Nations, and among the
several States, and with the Indian Tribes"

From Wikipedia, the free encyclopedia..."Article I, Section 8, Clause 3
of the United States Constitution empowers the United States Congress
"To regulate Commerce with foreign Nations, and among the several
States, and with the Indian Tribes".
The Commerce Clause has been the subject of intense constitutional and
political disagreement centering on the extent to which Federal
legislation may govern economic activity connected to interstate
commerce but occurring within a state. Some have argued that the clause
should be interpreted broadly to include a wide range of activities as
related to commerce and the Supreme Court has often agreed with this
interpretation."

The American Heritage Dictionary defines commerce as "1. the buying and
selling of goods, especially on a large scale, as between cities and
nations, 2. intellectual exchange or social interaction, and 3. sexual
intercourse".

Economic Activities? Goods? Where does child welfare fit in? Since
when does Commerce have anything to do with the placement of innocent
children? How can we justify violating two amendments of the
Constitution in applying the economic term "commerce" to child welfare
proceedings?! These are children, not goods.

I recognize that there have been some loose interpretations over the
years, but we have to look at original intent. Do you think our
founding fathers were talking about abused, neglected, and abandoned
children? I suspect they were not. I also suspect many of those who
voted for ICWA in 1978 would be horrified to see how it is being
applied today.

Please, folks, take off the mantle of political correctness for five
minutes, and look seriously at what is happening to these kids. Speak
up for these children and speak out against the injustices inflicted
upon them. The old adage "two wrongs don't make a right" applies to
ICWA. The infliction of emotional harm upon fragile children does not
somehow magically make up for the wrongs done by the child welfare
system toward Indian tribes a quarter century ago.

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Box 253, Hillsboro, ND 58045


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