Alaska Defends Abuse of First Alaskans
I read a story in the Daily News last week and felt sick.
A tribe found a non-tribal man unfit to parent a child from the tribe. The man then proved their judgment sound when he kidnapped the child’s mother and almost beat her to death.
The Parnell administration has now swooped in, four years later, to defend the abuser.
Why now? Why this guy? Why are state resources going to defend a convicted wife-beater?
I realize Michael Geraghty, the state’s attorney general, doesn’t want to explain these decisions to “lay people” like you and me. That’s unfortunate because we lay people, in addition to being his employer, don’t get why the state would prosecute a domestic abuser, and then defend him against a tribal ruling that he’s an unfit parent. If the point of joining the court case isn’t to get child custody for a violent father, then what is it?
Tribal sovereignty? This administration can’t stand tribal sovereignty. Parnell has all kinds of whiney complaints about federal overreach but thinks nothing of overreaching into small Alaska communities to tell them how to run their affairs.
On a mission to crush tribal authority, the state is willing to jeopardize the welfare of a child it never had custody of. (Is it time to reserve the Denai’na Center for a “Tribal Overreach Summit?”)
Can we now stop pretending that “Choose Respect” is anything more than a hollow slogan to this governor? There’s a big difference between a campaign and politics. Sadly, as always with Parnell, politics trumps his catchy bumper sticker.
The patience of First Alaskans is remarkable. Seriously, in their place I’d be wearing a hoodie that says, “I was here first” and “Sean go home!”
Here’s the breaking news, folks: This land has been here for a long, long time. We just invented a state of Alaska. The land was purchased from Russia — about the way someone buys a stolen stereo out of the back of a van. The people — these “invented tribes” — and their rules and authority were here when the rest of us Americans showed up.
Here’s a slogan suggestion, governor: Choose Respect for the Resourceful Cultures that were Here Before Auto Starters and Central Heat.
If this were the only case of “Whose side are you on?” I might take a more charitable view. It isn’t.
Parnell has Alaskans siding with Shelby, Ala., in a recent U.S. Supreme Court case that overturned part of the Voting Rights Act. Alaska was included with southern states because of our history of disenfranchising First Alaskans. But complying with the Voting Rights Act was interfering with our Republican redistricting board’s efforts to gerrymander voting districts.
When the Native American Rights Fund in Anchorage did a study for Alaska Natives, they found 180 villages that lacked the capability for early voting. That’s right, all Alaskans have two weeks to vote — except those who live in these 180 communities. How is that equal rights? (I’m talking to you, Gov. Parnell, and you, Lt. Gov. Mead Treadwell.)
The state won’t translate ballots into Native languages. They treat Native speakers like they snuck across the border in the dead of night to try to get something that isn’t theirs.
You may think this affects just a tiny number of people, so what’s the big deal? One area, the Wade Hampton Census area, had 7,460 citizens, 76 percent of whom speak Yup’ik, according to the 2011 Coverage Data Files. Eleven percent of them speak Inupiat.
What if it were fewer people? What if only one citizen of these United States was being impeded in voting? Should anyone in Alaska have to fight to be able to vote?
Here’s another slogan, governor: Choose Respect for the Rights of Voters.
The state of Alaska is paying for a prison cell to hold a man convicted of violent crimes. We paid to prosecute him. Now we’re paying to oppose a tribal court ruling that he’s an unfit parent, even though that’s obviously the case.
Alaska has lawyers paid to fight against equal voting access for tribal members in villages. Translating English into the languages of First Alaskans isn’t a priority for the administration.
It should be.
Seventy one years ago, 881 Aleut Alaskans were put in internment camps. One in 10 died from the deplorable conditions — with almost the same death rate as American soldiers in the POW camps in Europe. And for the record, Aleuts were AMERICANS, living in America.
You might think that the Parnell administration would be willing to help the men and women who endured those conditions and their descendants to cast their ballots.
You’d be wrong.
[This article is cross-posted from The Anchorage Daily News]
Shannyn, I had the pleasure of meeting Don Mitchell 10 years ago when he was representing my daughter in her child custody case involving a Native Tribe in Alaska. He told us he was more of a land lawyer . He said he didn’t know a whole lot about children so he consults a professional in that regard but he does know about law. My daughter and her significant other had ended their relationship but were at a standstill on what to do about the well-being of their child. One day my daughter received an Order from the Tribal Court for her to be at the Tribal office the next evening at 7:00pm. The Order was postmarked 2 days prior. The Tribal office is 50 miles away. We were all surprised. Tribal Court, what is Tribal Court? Is it a real court? We thought tribal business was for people living in the Tribes’ village. My daughter is Caucasian . Her ex-significant other is half Alaska Native. He never lived in his Tribes’ village. My daughter and their daughter never lived in the Tribes’ village. Who were the judges? Are they trained in child custody matters? Does my daughter need a lawyer? If so, how will she pay for one? How can she find one? How should she prepare for her child’s custody case in 36 hours? Should she go? Yes, my daughter did go. There was a lot of confusion ,trying to find answers to questions non of the judges had answers to. My daughter decided to find someone help her. She consulted several lawyers. Fortunately she found Don Mitchell. Because of Don Mitchell we ALL found out the Tribe violated my daughters and her daughter’s Due Process Rights. Thru the State of Alaska Court System and the Tribal Court System it was determined my daughter will never again be subjected to the jurisdiction of the Tribal Court in the matter of her daughter.
Interesting sequence of events, which I had not been aware of. As someone who is a non-tribal member living in a native community, I’m privy to some of the issues that come up from time to time that result in a clash between the state and the tribe. An example would be OCS coming to take a child into protective custody, and a tribe disallowing it due to their jurisdiction.
I am an educator in said community. As such, I am required by law to report instances of suspected child abuse to OCS. I cannot and will not discuss specific incidents, however nothing prevents me from generally conversing about how I have come to witness the system operate.
The problem I have identified, at least in this community (it may be different in others), is the tribe wants to be in the loop as to when reports of abuse of tribal members come in, and where they come from. Most villages outside the hubs are very small, and if the tribe can find out that a report of abuse came from a teacher at the school, it may not be much of a stretch to figure out who made the report. I am not suggesting that a tribe would retaliate against a teacher for reporting child abuse, but their methods can potentially compromise the anonymity of mandated reporters. Just the possibility of this occurring may cause a teacher to think twice about reporting abuse, actual or suspected, which is an absolute travesty if a child needs to be removed from a hostile, abusive home environment…not to mention illegal.
I am all for tribal sovereignty…but people must understand there are some perhaps undesired consequences of their being able to trump the state in child custody matters. As such, children who may best be served by being removed from the home, or even their community, can end up as effective prisoners if the tribe decides to keep them there. I would not make that claim if I was not aware of factual information.
In the specific instance related to this article, I would say the tribe made some good judgments in denying the parents any further “rights” (freedom to abuse) over the child. Perhaps they went too far to outright deny counsel, thus provoking state involvement.
Truth be told, the “invented tribes” statement is just as valid as the “invented State of Alaska”…and even the invented U.S. of A. They are all concepts…and concepts do not exist in reality. Alaska Natives just came up with their concepts at an earlier point in time. And if we’re going to lambaste Alaska’s record of abuse, we need not look any further than its “parent” for some reasons why they might’ve occurred. The U.S. Government pulled one of, if not the, most successful genocides in human history over the course of the 19th century by periodically eradicating not only physical lives, but entire cultures and ways of life…and the ultimate success was getting the history books to look at is as anything but a genocide. The people being oppressed were just as imperfect as their oppressors, but they seemed to have some pretty good ideas about how to live, and did not in any way deserve what was forced upon them. And to my knowledge, even to this day, the U.S. Gov’t has never issued a public apology for these atrocities.
I guess I will conclude with some questions, which perhaps an Alaska Native or any Native American reading this could reply to: Why, after proven acts of genocide against Indigenous people by the U.S. Government, do tribes seek any sort of federally-recognized status, or any relationship whatsoever with the U.S. Government? Is this the ultimate catch-22 of maintaining some form of sovereignty?
Shannyn-
This is such an important set of issues here.
Thank you for sounding off on some of the pieces of it.
Thank you for letting me shoot my cyber mouth off about some of it.
I wish we could do a lot more talking about all of it.
It IS important to see where Minto dropped the ball .
All tribal courts need to get themselves up to speed on providing for due process.
Cap’n Torpedo and his band of raiders – Pfft!
As AK Pi says this is messy.
A couple details worth noting include:
1) The tribal court not only extinguished the father’s parental rights, they also extinguished the mother’s parental rights. The state is not only supporting an abusers attempt to regain custody of his child, the state is also supporting an abused mothers attempt to regain custody. Mitchell was also representing both parents, and does not represent the father anymore. He apparently never represented the father solely. None of that substantively changes the legal questions of this case, but it does change the context in which we decide that certain people are evil.
2) Legally, the questions are very messy, but the tribe pretty clearly had no jurisdiction until Mom asked a resident and tribal member of Minto to care for her child. Up until that point, the child was not domiciled on Indian Land. Leaving aside the question of whether or not Minto can be treated like an Indian Reservation (I don’t think it can, but many disagree with me) it is very scary that these temporary caregivers can apparently create tribal jurisdiction by moving the child from Fairbanks to Minto, even though the mother did not make the same move. I may be misunderstanding a number of things here, but I absolutely understand why it is in the State’s interest to challenge the jurisdiction of tribal courts in a situation where both parents live in Fairbanks and are opposed to tribal jurisdiction.
Actually- the tribe did have jurisdiction . The child is a tribal member. That is settled law.
What is at issue- see WC below- is whether the father was afforded at least minimal due process.
The status as of now is that no, he wasn’t – because of the methodology of the Minto Tribal Court which disallows attorneys speaking. As the attorney wanted to raise very complex jurisdictional issues and was not allowed to speak it effectively means the man was denied due process.
Howsomever- it doesn’t mean the tribe has no standing .. The ICWA still applies here. It is even messier now.
http://www.tulalipnews.com/wp/2013/08/26/in-challenging-tribal-court-alaska-state-goes-to-bat-for-man-convicted-of-beating-his-wife/
For those of you who haven’t followed the story.
It is messy, it is bad.
Please note that Mr Mitchell, who was attorney for the father is an advocate for NOT recognizing tribes in Alaska and that the State , while saying it recognizes tribes exist in Alaska, has fought tooth and toenail to have primary jurisdiction in child custody.adoption cases where tribal courts have asserted jurisdiction.
Please note also that the FEDERAL law – The Indian Child Welfare Act- would seem, on the face of it, to establish the mother’s tribe as having primary jurisdiction under ICWA :
(3) “Indian” means any person who is a member of an Indian tribe, or who is an Alaska Native and a member of a Regional Corporation as defined in section 1606 of Title 43;
(4) “Indian child” means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe;
(5) “Indian child’s tribe” means (a) the Indian tribe in which an Indian child is a member or eligible for membership or (b), in the case of an Indian child who is a member of or eligible for membership in more than one tribe, the Indian tribe with which the Indian child has the more significant contacts;
(8) “Indian tribe” means any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary because of their status as Indians, including any Alaska Native village as defined in section 1602(c) of Title 43;
(9) “parent” means any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include the unwed father where paternity has not been acknowledged or established;
25 U.S.C. § 1911. Indian tribe jurisdiction over Indian child custody proceedings
(a) Exclusive jurisdiction
An Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceedings involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law. Where an Indian child is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child.
2.4 – What is domicile under ICWA?
A child born in wedlock takes the parents domicile. A child born out of wedlock takes the domicile of his or her mother
http://narf.org/icwa/index.htm
Ms Stearman and Mr Parks are not married.
As per WC’s comment below, this one does raise the question, on some levels of whether the father had his constitutional rights abused- however, given his attorney”s penchant for arguing that NO tribes exist and therefore no tribal courts have any jurisdiction in AK under the ICWA, I am highly suspicious of that as anything more than a strategy to get this case into the system to try to chip away at tribal sovereignty here.
This one equally raises the question of whether the mother had her constitutional rights abused. And, while these two may be poor parents, I find it highly unlikely that they are just pawns of Don Mitchell’s larger agenda. The tribes took their child away from both of them, and they found a talented and knowledgeable lawyer who was probably glad to take on their case at a reduced cost. I’m sure we know Mitchell’s agenda, but why presume that the parents had any agenda other than to recover custody of their child?
“Despite the fact that this case involved only application of well-settled law, the State petitioned for certiorari in the United States Supreme Court on the basis that Tribes do not have inherent jurisdiction over the adoption of their own tribal members. The Supreme Court issued an order directing the Solicitor General to provide the views of the United States on whether certiorari should be granted, and the United States filed a brief stating that the Supreme Court should not grant certiorari. On Monday, October 4, 2010, the Supreme Court denied certiorari and ended this case.
*******The rule now is that Tribes have inherent jurisdiction to adjudicate the adoptions of their own members even outside of Indian Country. *********
NARF will now ensure that the mandates set forth in this case and its precedent are followed by the State of Alaska. ”
http://narf.org/cases/kaltag.html
“On March 4, 2011, the Alaska Supreme Court published its decision in State of Alaska v. Native Village of Tanana and reaffirmed that
(1) Alaska Tribes had not been divested of their jurisdiction to adjudicate children’s custody cases, and
(2) Alaska’s tribes have concurrent jurisdiction with the State.
The court further held that tribes that had not reassumed exclusive jurisdiction under ICWA nonetheless had concurrent jurisdiction to initiate ICWA-defined child custody proceedings, *******regardless of the presence of Indian country and that as such, the decisions of tribal courts in these cases were due full faith and credit under ICWA.****** ”
http://narf.org/cases/tanana.html
****- my emphasis
I am not presuming the parents had any other agenda. I am very, very wary of them using an attorney who has spent years taking cases and devising strategies to fight tribal sovereignty- esp. since he says over and over there are NO tribes in Alaska.
Tribal sovereignty is a very complicated subject- especially here in Alaska post- ANCSA.
Tribal Sovereignty makes my head spin. It is one of the only hugely important issues in the state that I can’t figure out where I stand. Certainly I understand why you are wary of Mitchell and his motives, but this case also is an example of just the sort of situation that he has warned about, with regards to competing claims of jurisdiction.
Tribal law is fine, but I’m very uncomfortable with the idea that an unwilling family in Fairbanks may be subject to tribal law in cases of child custody. A white couple would never lose their right to have such a case heard in State or Federal court.
Upfront, I am a Tribal sovereignty advocate . To the fullest extent possible under law.
It does create jurisdictional issues, in general and case by case at times. That is not necessarily a bad thing , regardless of the headaches it causes.
Please remember , tribes are domestic dependent nations and do have jurisdiction over their members on a number of fronts. This child and her mother are members of the Minto tribe. To be a member one must be enrolled. This is not just a by-way-of-being- born situation. While it is not seen as equal to citizenship in a fully sovereign nation, there are enough similarities with that as regards the enrollee’s rights and responsibilities to serve as a place to understand why the child’s mother is subject to the tribal court proceedings to protect her child.
Doesn’t matter if she was/is willing- she is subject to the member based jurisdiction in law.
The father- that gets stickier because they were not married.
Okay — when it comes to tribes and tribal law, I –like most, I’m presuming– am clueless…and confused. So; Question: If a person enrolls in a tribe, can they dis-enroll? And if they can, can they then enroll in another (different) tribe? beth.,
🙂 good questions, beth
Tribes have criteria which determine eligibility to enroll and it can be very, very different from tribe to tribe.
http://www.doi.gov/tribes/enrollment.cfm
“Two common requirements for membership are lineal decendency from someone named on the tribe’s base roll or relationship to a tribal member who descended from someone named on the base roll. (A “base roll” is the original list of members as designated in a tribal constitution or other document specifying enrollment criteria.) Other conditions such as tribal blood quantum, tribal residency, or continued contact with the tribe are common.”
I’m not sure how one can/could un-enroll oneself but it has to be possible.
I read a court case where a father wanted to un-enroll his child from the mother’s tribe and enroll her/him in the father’s tribe. He was such a dud that question never got dealt with and his parental rights were terminated based on his unfitness.
As for enrolling in another tribe- you have to meet the criteria for membership in that tribe.
Where parents are of different tribes , it is possible , often, for the children to be dually enrolled, at least as minors. Whether that can continue when they reach majority is up to the particular tribes.
Pi –
Are you telling me that if two members of the same tribe have a child and enroll that child in the tribe and move (with the child) to the lower-48 (or Switzerland for that matter) that the tribe retains jurisdiction in child custody matters?
My understanding was that Minto’s jurisdiction only extended to Minto members who are domiciled in Minto. Am I wrong?
Dan in Anc-
Yes, no, maybe…
please read this carefully, especially as relates to Alaska :
http://tm112.community.uaf.edu/unit-3/indian-child-welfare-act-1978/
I can’t tell exactly why you are so upset but a couple things to keep in mind-
1- there are multiple issues at hand, not the least of which is a sorting out of WHO has jurisdiction over termination of parental rights of this man.This started with an emergency placement for a child at risk, arguments over custody of the child from the father after that placement, and as time has gone on , it moved to termination of parental rights and adoption proceedings.
2- there is little dispute AFTER this man beat his partner to within an inch of her life that he is not fit to keep his parental rights.
3- I would submit that his attorney is using this case to strike at the heart of tribal jurisdiction in the State of Alaska on as many fronts as possible well beyond any reasonable interests of the child.
“Although the federal and state cases involve different parties and initially appear to implicate different issues, the federal questions presented in this case are unquestionably intertwined with the questions posed in the state case. Most significantly, as Parks himself has pointed out before the Alaska Superior Court, determining whether Minto and its tribal court have jurisdiction over S.P. under the Indian Child Welfare Act of 1978 (“ICWA”) is critical to determining whether Alaska courts are obligated to give full faith and credit to the tribal court’s judgment. Parks also presented arguments before the state court claiming that the Department of the Interior’s recognition of Minto as a federally recognized tribe was invalid.”
http://www.leagle.com/decision/In%20FCO%2020110715124
4- The State has worked very hard NOT to recognize tribal interests under the ICWA and continues to do so.
5- Minto blew it in not affording at least minimal due process under law to the father’s arguments by disallowing his attorney to argue all the crap he wanted to and has thus pushed this into State courts and the current tug of war over jurisdiction.
6- As per a remark you made above- No tribal member loses their state or federal remedies in court in cases like this, witness this man’s attorney filing everywhere and anywhere and the cases being dealt with.
Somewhere in all of this is a child who deserves a safe secure stable home . I would submit that the father’s attorney could give a rat’s patoot about that as he found himself the vehicle he’d been looking for to attack tribal status in Alaska in the name of defending his client.
Pi – you misunderstand me. I’m not upset at all. On the contrary, I’m learning a lot from you. As it relates to many issues I am skeptical about “separate but equal” status of ethnic groups. But, my mind is by no means made up with regards to tribal courts, and if I appear to be overly confrontational I apologize. Just trying to drill down to the meat so that I can understand. Thanks for your patience.
DaninANC- There has been a confrontational aspect to your remarks but I’ll take you at your word.
separate-but-equal is not exactly what is at stake though there is definitely a separatist aspect to the whole thing.
If you want to step back a few steps and look at civil and political rights from a broader perspective the essay linked below is a good place to start:
from section 1.3
“… civil rights principles played a very different role in the struggle of Native Americans against the injustices perpetrated against them by whites.
Civil rights principles demand inclusion of the individuals from a disadvantaged group in the major institutions of society on an equal basis with the individuals who are already treated as full citizens. The principles do not require that the disadvantaged group be given a right to govern its own affairs. A right of political self-determination, in contrast, demands that a group have the freedom to order its affairs at it sees fit, and, to that extent, political self-determination has a separatist aspect, even if something less than complete sovereignty is involved.”
http://plato.stanford.edu/entries/civil-rights/#Rig
I tend toward the Kymlicka view and think American law since the Indian Self- Determination and Education Assistance Act ,PL 93-638 , has tended that way as well. Alaska is a special case in many ways, not the least of which is the settlements and language of ANCSA.
from section 1.2 :
“There is substantial philosophical controversy over the legitimacy and scope of rights of cultural membership. Kymlicka has argued that the liberal commitment to protect the equal rights of individuals requires society to protect such rights, suitably defined (1989; 1994; 1995). He distinguishes among three sorts of rights that have been claimed as part of this third generation by various groups whose culture differs from the dominant culture of a country: (1) rights of self-government, involving a claim to a degree of political autonomy to be exercised through the minority culture’s own of institutions, (2) polyethnic rights, involving special claims by members of the minority culture to assist in their integration into the larger society, and (3) representational rights, involving a special claim of the minority culture to have its members serve in legislatures and other political bodies (1995: 27–33). Kymlicka argues that these three sorts of group rights can, in principle, be justified for those populations that he designates as “national minorities,” such as native Americans in the United States…”
Wade Hampton…No doubt this census area was named for a famous Alaskan – perhaps even a famous Native Alaskan.
YA THINK!!!
Well, won’t you be surprised to learn that ol’ Wade was one of the wealthiest slave holders of the South and a major defender of the Confederacy. Maybe it is time to rename the area. Not too radical a change… How ’bout the Cap Zero Census Area. The more things change…
Agree, wholeheartedly….!!
Well said, Shannyn. Thank you for saying it.
Parnell is a Puppet for Politics…now how is that Geneva Court hearing going to work out for you? This case just adds fuel to the fire…you protect the perpetrators for “God’s Will” but you will handed your ass in court… thanks Sean…more evidence to enter…say how’s that international fiasco with Assad going? Still God’s Will?
Kingdom of Heaven…let the games begin…what’s with Assad’s sister’s neighbors moving out in the middle of the night…oh right those red white and black trucks line up…nevermind…lol…
???????????
Got cogent thoughts?
i suspect there is more to that, but i can not glean all the meaning or how it is tied ( to gether . )
it means things are not what they seem…politics is corrupted to the core…globally…wonder why Seanny Boy don’t go globe trotting to bring in “revenues” to Alaska? They all live in their bubble words and Shannyn likes to pop them back to reality…this case above sounds like the same deal that made Palin resign…
so it doesn’t surprise me that the same rhetoric resonates in laws of politics in Alaska…what is new?
What happens in Alaska stays in Alaska until someone brings it to the United Nations Courts…OUCH…lol…
The case isn’t about whether the father’s parental rights should be terminated. That’s not the issue. The issue is whether a tribal court can cut off constitutional rights. As WC understands the facts, the tribal court wouldn’t allow the father’s lawyer to argue the case, denying the father the right to counsel. That seems to be what Superior Court Judge Lyle decided, anyway.
Captain Zero isn’t defending the abuser; he’d describe it as defending the Alaska and federal constitutions. It’s true a pretty dreadful human being will get another hearing on termination of his parental rights. A messy side effect, and at least partly the result of the tribal court’s violation of his rights. There’s not much question how it will come out in the end if there is a do-over.
By contrast, the Captain’s tactics in voting in Bush Alaska are indefensible.
You would think
that since Sean Parnell has publicly claimed that he is christian that he would follow christ’s instructions to treat EVERYONE as if they were jesus themselve: you would be wrong.
Apearently that does not apply to the government of “christian nation” !
Thank you, Shannyn, for putting on paper what I’ve been saying aloud.
Choose Respect is a nice slogan, but it’s better to walk the walk than just talk the talk…