child by a tribal or state court in an Indian family (where one is available) may be in the best interest of the child. We strongly oppose the expansion of the definition of Indian child and recommend that the definition should not only contain a membership requirement but also that the domicile of the birthparent or parents is in Indian country. If the family is not domiciled in Indian country we believe that the appropriate state court should have jurisdiction over the proceeding but that the priority list currently under ICWA for foster care and adoption placements should be followed unless the best interest of the child requires a different placement. We estimate that implementation of S. 1976 would cost the BIA approximately $7 million. The cost to the states and individuals involved would certainly raise this figure substantially. Mr. Chairman, we have serious concerns about these issues. As I stated earlier, we will be sending a draft bill to meet our concerns in the near future and ask that the Committee not act on S. 1976 until you can review our draft. I am certain that by working together we can agree on a bill that will address the most important issue the "best interest of the Indian child." This concludes my prepared statement, I will be happy to answer any questions you may have. I am extremely alarmed over the provisions of S. 1976, a bill to amend the Indian Child Welfare Act. My concerns are such that I have asked Assistant Secretary Swimmer to request permission of the Chairman to incorporate this letter in the record when he testifies on the bill. The three branches of the Government of the United States frequently are called upon to deal with the complex issues which arise when Indian tribes, states and the federal government each seek to exercise sovereignty over matters or persons of interest to them. The reasonable balancing of interests between such entities, always bearing in mind what is in the best interests of Indians as individual human beings, is not always easy. I believe strongly that it is clear that this bill fails the test of reasonable balance. It would skew the balance in a manner which is wholly unacceptable to the Department of the Interior and should be unacceptable to any persons who are concerned about human rights issues, especially including the human rights of children. Although there are multiple flaws in the bill, we call your attention to three, fundamental objections: First. The bill is anathema to the salutary constitutional principle that legislation cannot stand if it makes classifications and distinctions based on race. If enacted, this bill would subject certain Indian children to the claim of jurisdiction of an Indian tribe solely by reason of the children's race. For example, under Section 101(b) of the bill, if a tribe seeks transfer of a child custody or adoption case from state court to the tribe, the parents' objection to such transfer will be unavailing unless the objection is "determined to be consistent with the best interests of the child as an Indian (emphasis added). The provision ignores all other aspects of the child's status as a human being. That, in my view, is pure racism. " Celebrating the United States Constitution Honorable Daniel Inouye - 2 May 11, 1988 The Fourteenth Amendment to the Constitution was adopted to protect the rights of the individual against classifications based on the individual's race. This bill cannot be reconciled with that guiding principle. It is not enough to say "but, this is 'Indian legislation." Indians are, and certainly should be, entitled to the basic protections of the Constitution even when those protections would be denied by "Indian legislation." See Hodel v. Irving, 107 S.Ct. 2076 (1987) (Just Compensation Clause of Fifth Amendment). Second. The bill is contrary to what I believe is sound, prevailing public policy in this country in adoption and child custody cases, - it is the interests of the child which are of paramount importance. This bill subordinates the best interests of the child to that of the tribe. While we all can agree that a child's knowledge of and exposure to his or her cultural heritage can be a vital and valuable aspect of the child's personality and value system, it is wrong to elevate that concept to a point where it overrides virtually every other concern bearing on the fundamental well-being of the child. Third. At least the current Act limits the jurisdictional claim of the tribe to children of tribal members. Such membership typically is obtained by voluntary enrollment or at least can be terminated by the Indian's voluntary act, thereby creating a situation where the tribal member arguably may be said to have consented to application of tribal law. This bill, however, extends the jurisdictional reach of the tribe to children whose parents need not be tribal members. Indeed, the parents and other ancestors of the child may have had no connection with the tribe, perhaps for years or even generations. In such circumstances, it seems to me that the state in which the parents and child are domiciled does have a proper and overriding interest to see to it that its processes, not those of the tribe, are invoked to assure that the child custody or adoption proceeding will result in protecting the best interests of the child. The bill does substantial violence to important consitutional principles and to sound public policy. Mr. Chairman, you may wish to inquire of Assistant Secretary Swimmer about the accusations frequently leveled against the United States for its treatment of Indians when the issue of human rights within the Soviet Union arises. Enactment of this bill in the name of "Indian legislation" simply will provide significant fuel to that fire. The bill should not be enacted. Sincerely, Warald Paul Cadil DONALD PAUL HODEL CC: Hon. Daniel J. Evans, STATEMENT BY EDDIE F. BROWN DIRECTOR ARIZONA DEPARTMENT OF ECONOMIC SECURITY BEFORE THE SENATE SELECT COMMITTEE ON INDIAN AFFAIRS May 11, 1988 I appreciate the opportunity to address you today regarding the Indian Child Welfare Act (ICWA). My name is Eddie Brown. I am the Director of the Department of Economic Security (DES) and an enrolled member of the Pascua Yaqui Tribe. The ICWA provides for the establishment of relationships between the states and tribal governments in order to protect and preserve Indian families and communities. The state of Arizona fully supports the rights of tribal governments to intervene in child custody matters regarding children members of tribes. The Arizona Department of Economic Security administers state and federal human service programs in Arizona and is responsible for child welfare programs including child protective services, foster care and adoptions. The department also licenses and monitors child placing group care and adoption agencies. In Arizona, there are 20 federally recognized tribal governments which have jurisdiction over tribal lands. Reservations account for 26.6% of the total land base and are located throughout the state. The total Indian population residing on Arizona Indian reservations is approximately 200.000. This represents the largest reservation Indian population in the United States and accounts for approximately 20% of the reservation Indian population nationwide. years of age. Forty-six percent (46%) of the reservation population is under 18 Many accomplishments have resulted from Implementation of the ICWA. The number of Indian children in state licensed foster care homes has been reduced from 220 in 1980 to 84 in 1988. This number reflects 3.3% of our state agency's foster care population. Through joint efforts of the department, tribal governments and the Inter-Tribal Council of Arizona, further accomplishments Include: A permanent Indian Child Welfare Specialist position to coordinate O Thirteen (13) on-reservation Child Abuse/Neglect Prevention and o A Tribal Child Protective Service Academy Training Program which O An annual Indian child and family service conference, now in its O families. A project with the Arizona State University School of Social Work O The use of formal intergovernmental agreements to pass through |
