Wednesday, March 26, 2008

Mark Your Calendars! NARF 7th Annual Benefit Art Auction-Santa Fe Indian Market

Friday, August 22nd, 2008
Featured Artist: Brent Greenwood (Ponca/ Chickasaw)
La Fonda Hotel Ballroom, Santa Fe, NM
For more information: 800-447-0784

Tribal Supreme Court Project Update: ALERT: Legal Challenge for Indian Country on Land Into Trust

In another major challenge for Indian country, on February 25, 2008, the U.S. Supreme Court granted review in Carcieri v. Kempthorne, a decision by the en banc panel of U.S. Court of Appeals for the First Circuit which upheld the authority of the Secretary of Interior to take land into trust for the Narragansett Tribe under Section 5 of the Indian Reorganization Act (IRA) over the objections of the State of Rhode Island. The Supreme Court granted review on the first two questions presented within the State’s petition for writ of certiorari: (1) “Whether the 1934 Act empowers the Secretary to take land into trust for Indian tribes that were not recognized and under federal jurisdiction in 1934” (i.e. whether the IRA and its benefits apply only to tribes that were “now under federal recognition” in 1934); and (2) “Whether an act of Congress that extinguishes aboriginal title and all claims based on Indian rights and interests in land precludes the Secretary from creating Indian country there” ( i.e. whether the Rhode Island Settlement Act creates an implicit limitation on the Secretary’s land to trust authority). The Court did not grant review of the third question presented: (3) “Whether providing land “for Indians” in the 1934 Act establishes a sufficiently intelligible principle upon which to delegate the power to take land into trust” (i.e. whether Section 5 of the IRA is an unconstitutional delegation of legislative authority).

Rhode Island’s arguments threaten the land and sovereignty of all Indian tribes. A group of sixteen (16) state Attorney Generals filed an amicus brief prepared by the State of Connecticut in support of the State of Rhode Island as part of their on-going coordinated strategy to mount additional legal challenges to the acquisition of trust land for the benefit of Indians and Indian tribes. These states are: Alabama, Alaska, Arkansas, Connecticut, Florida, Idaho, Illinois, Iowa, Kansas, Massachusetts, Missouri, North Dakota, Oklahoma, Pennsylvania, South Dakota, and Utah. The Tribal Supreme Court Project coordinated amicus briefs at each stage in the First Circuit and will continue to coordinate resources and develop legal strategy at the Supreme Court level. The State of Rhode Island’s opening brief is due on April 10, 2008.

Copies of briefs and other materials for each of the cases listed in the Update are available on the NARF website at www.narf.org/sct/index.html.

NARF wins case for Alaska's tribal children

Anchorage, AK-On Friday, February 22, the federal District Court in Anchorage, Alaska issued a very important ruling that will benefit all of Alaska’s tribal children. In 2005, the Kaltag Tribe, an Athabascan Tribal village in Interior Alaska totally inaccessible by road with about 250 residents, completed an adoption for one of its youngest tribal members. (Her name is being withheld to protect her privacy.) The then 4-year old needed a safe new home and the Tribe, in its tradition of serving as parent to its people, took custody of her and then put a lot of effort into what is called “due diligence” on each potential parent. Kaltag quickly found her an excellent home with two loving parents. The two adoptive parents, who lived in another village just up the Yukon River, petitioned to formally adopt this little girl. In 2005, the Kaltag Tribal Court completed the adoption and sent the paperwork to the State of Alaska, Bureau of Vital Statistics requesting a new birth certificate for the little girl reflecting the names of her adoptive parents. To the Tribe’s surprise, the State rejected their request on the grounds that the tribe had no jurisdiction to complete an adoption -- even over one of its own tribal members.

The State’s decision conflicted with section 1911 of the Indian Child Welfare Act which provides that States are supposed to give “full faith and credit” to the decisions of Tribal Courts. This means the State is supposed to honor the adoption completed by Kaltag and issue the little girl a new birth certificate. This case presented more than just a pure legal issue however, because without a birth certificate reflecting the names of her adoptive parents, this little girl would not be able to enroll in school, get medical care, travel, or do any of the other activities for which you need your birth certificate. As far as the State was concerned, her adoptive parents were not her parents at all, and so this child was left in legal limbo.

The United States District Court for the District of Alaska put an end to this on February 22nd when they held that the Kaltag Tribe’s adoption order is entitled to full faith and credit and that this little girl is therefore entitled to her new birth certificate. The child was overjoyed when she heard the news and excited that she would finally share the same last name as her parents and all her siblings. She said that now she feels like a real member of the family.

This case is not just about one child. According to the Alaska Judicial Council’s “Directory of Dispute Resolution in Alaska Outside Federal and State Courts,” in a one year period Alaska’s Tribes had more children in custody, finalized more adoptions, granted more guardianships, returned more children home, and had fewer children in foster care and for less time than the State. Alaska’s Tribal Councils and Tribal Courts are a critical piece of care of children in Alaska, and NARF is delighted that their decisions will be afforded the full faith and credit that they deserve.