fbpx
Connect with us

Mississippi Today

Choctaws fight to preserve authority over Native American adoptions

Published

on

Choctaws fight to preserve authority over Native American adoptions

A to a decades-old federal that aims to keep Native American children and their families together is before the U.S. Supreme Court, and it has the potential to impact tribes around the country, including thosein Mississippi.

The Indian Child Welfare Act governs child custody of Native children. If a child is removed from their parents, the act sets preferences to place the child with another member, another member of the tribe or a different tribe.

The case Brackeen v. Halaand before the Supreme Court challenges these preferences. Three pairs of non-Native foster parents and three states are suing the federal and five tribes, arguing the act discriminates against non-Native people based on race.

Advertisement

Tribes including the Mississippi Band of Choctaw Indians are watching the case and see more at stake than adoption.

“As the only federally recognized tribe in the State of Mississippi, our 11,000 plus members are descendants of those members who chose to remain here in Mississippi to preserve our cultural heritage on our ancestral homelands,” the tribe said in a statement. “Today, just as in the past, the preservation and security of our tribe, and our tribal children and families are of utmost importance.”

The Supreme Court heard oral arguments in November and is expected to make a ruling next year.

ICWA was created in response to the mistreatment of generations of Native American people by the government, including the enrollment of children in boarding schools where they were forced to abandon their religion and culture and the adoption of children out of tribes.

Advertisement

When the act passed in 1978, between 25% and 35% of all Native children were taken from their families and put in foster homes, up for adoption or into institutions, according to surveys by the Association on American Indian Affairs. They were often placed with non-Native and white families.

ICWA gives tribes the opportunity to be notified about cases involving Native American children and to intervene. It established a process for transferring child custody cases to tribal court.

The act recognizes that tribes have sovereignty and exclusive jurisdiction over their members who live on tribal land or are domiciled there. The act's standards also apply to Native child custody proceedings in state court for those who don't live on tribal lands.

During Senate committee hearings about Indian child welfare in the late 1970s, then Choctaw Chief Calvin Isaac testified that raising Native children in non-Native homes reduces tribes' chances of survival.

Advertisement

The tribe still holds a similar view and says ICWA helps tribes maintain sovereignty by ensuring they have the opportunity to protect and preserve the wellbeing of their children.

“Children are tribal communities' most valuable resource since the language, culture, and traditions that make those communities unique are passed down from generation to generation,” the Mississippi Band of Choctaw Indians said in a statement.

The Mississippi Department of Child Protective Services, which oversees foster care and adoption in the state, recognizes ICWA and has developed policies and procedures for how to handle cases with Native children and follow the act.

This includes giving the Mississippi Band of Choctaw Indians or any tribe that a child belongs to the right to assume jurisdiction of the child. The department also signed a memorandum of understanding with the tribe in 2020.

Advertisement

In the Supreme Court case, two couples from and Nevada were successfully able to adopt Native American children, even after challenges from the tribes where the children were eligible for membership.

Another plaintiff, a Minnesota couple, tried to adopt a child who was placed with her grandmother, who is a member of the White Earth Band of Ojibwe. The grandmother eventually adopted the girl.

During oral arguments in November, attorneys representing the plaintiffs challenging ICWA argued a number of issues with the act, including that it violates equal protection through racial discrimination and goes beyond the powers given to Congress to regulate Native American affairs.

Another issue challengers brought up is whether Native Americans should be classified politically through tribes or racially through their ancestry.

Advertisement

Ian Gershengorn, the attorney representing the five tribes in the Brackeen case, told the justices during oral arguments that tribal self-government is at the core of ICWA. All federally recognized tribes and members of those tribes have a common political relationship with the United States, which he said is why a political classification is more appropriate than a racial one.

In court documents, defendants have expressed concerns that a challenge to the act could reduce the legal rights of tribes in issues including environmental regulations, land and gaming.

Ashley Landers is a professor in the human development and family science program at Ohio State University who studies child welfare of Native children. She wonders what protections for Native children will remain if ICWA is overturned or drastically changed. 

“What are the protections in place to try and right this historic wrong?” Landers said. “We need to have ownership of what we've done to Native families.”

Advertisement

Some researchers and advocates want to shift the focus from adoptive parents to adoptees by having the Supreme Court consider the impact on Native American children in foster care and adoption.

Sandy White Hawk, an adoptee from the Sicangu Lakota Tribe in South Dakota, is founder of the First Nations Repatriation Institute in Minnesota. She is also research partners with Landers.

The institute serves as a resource for Native people impacted by foster care or adoption, and it supports family and cultural reunification and community healing and offers technical assistance, research, education and advocacy.

“It's still happening,” White Hawk said about the adoption of Native American children out of their tribal communities. “Children are still being taken.”

Advertisement

She was placed with a white missionary couple who she said saw her adoption as a way of saving her. In that family, White Hawk endured physical and sexual abuse and grew up hearing her Native American heritage spoken about negatively.

White Hawk and Landers have researched the experiences of Native Americans, including mental outcomes of Native adoptees and the kind of abuse they experience in foster care and adoptive homes.

In one of their papers submitted to the Supreme Court in Brackeen v. Haaland, they found that Native American adoptees are more likely to report self harm and suicidal ideation to white adoptees. Their research found Native adoptees have the unique context of historical trauma, assimilation and systemic child removal that suggests their mental health outcomes would differ from adoptees of other races.

“Adoption is complex and has grief and loss and it impacts everyone, but the person who gets the least support and resources is the adoptee,” White Hawk said, adding that adoptees are often expected to feel grateful about their adoptions.

Advertisement

Landers said it's a false narrative that taking Native children from their homes will result in them living a better . Instead, resources should be allocated to families stay together and prevent removal, Landers said.

This isn't the Mississippi Choctaws' first Supreme Court case. Over 30 years ago, the tribe brought a case that helped interpret ICWA and define tribes' role in the custody of Native American children.

In Mississippi Band of Choctaw Indians v. Holyfield, the court ruled that through the ICWA, tribal courts have the power to hear adoption proceedings for Native children.

The case started when the tribe appealed the adoption of twins born to Choctaw tribe members who lived on reservation land in Neshoba County. The children were born hundreds of miles away in Harrison County, and the children's parents agreed to their adoption by a non-native couple, the Holyfields.

Advertisement

The U.S. Supreme Court ruled in 1989 that tribes have jurisdiction over children domiciled on a reservation based on tribe membership or eligible membership, even if they aren't physically present there. As a result, the Harrison County Chancery Court didn't have the jurisdiction to approve the adoption for the twins.

“MBCI was party to the first U.S. Supreme Court case to uphold ICWA and has continued to support Congress's constitutional duty to uphold the sovereignty of Indian tribes by joining a brief supporting the tribes involved in the latest U.S. Supreme Court case challenging ICWA,” the tribe said in a statement.

This article first appeared on Mississippi Today and is republished here under a Creative Commons license.

Did you miss our previous article…
https://www.biloxinewsevents.com/?p=201459

Advertisement

Mississippi Today

On this day in 1973

Published

on

mississippitoday.org – Jerry Mitchell – 2024-03-29 07:00:00

March 29, 1973

The statue of Bradley stands in front of the Tom Bradley International Terminal at the Los Angeles International Airport. Credit: Courtesy of LAX Public Relations

Tom Bradley became mayor of Los Angeles — the first Black mayor of a predominantly white major in the U.S. 

He was born into poverty in , the son of sharecroppers and the grandson of slaves. Seven years after his birth, his moved to Los Angeles. He attended UCLA on a track scholarship and left there to join the Los Angeles Department. 

After his 21 years at the department, he became a lieutenant — the highest rank achieved by a black officer at the time. In 1963, he became the first Black member elected to the Los Angeles City Council. After losing his first race for mayor in 1969, he returned to defeat incumbent Sam Yorty, building a coalition with White voters. 

Advertisement

His 20 years in office marked the longest tenure of any mayor in the city's history. During his time, he oversaw great expansion of the city and the 1984 Summer Olympics. He also appointed Myrlie Evers to the Public Works Commission. 

“His mayoralty was a time in which Los Angeles reconfigured itself, redefined itself,” historian Kevin Starr told the Los Angeles Times

But the humble politician saw his share of disappointment, falling thousands of votes short of becoming California's first Black governor in 1982. He also endured his share of criticism for his “nearly expressionless demeanor,” receiving the nickname “The Sphinx of City Hall.” Criticism came nine years later after four White police beat Rodney King — an assault captured on videotape. 

Bradley died in the hospital in 1998 after suffering an unexpected heart attack — his second. Raphael J. Sonenshein, the author of “ in Black and White: Race and Power in Los Angeles,” called Bradley “the most important political figure in Los Angeles in the last three decades.” 

Advertisement

The Los Angeles International Airport now features a bust of Bradley, and the international terminal bears his name.

This article first appeared on Mississippi Today and is republished here under a Creative Commons license.

Continue Reading

Mississippi Today

Senate passes Medicaid expansion ‘lite’ with veto-proof majority

Published

on

mississippitoday.org – Sophia Paffenroth and Taylor Vance – 2024-03-28 17:37:35

An austere version of Medicaid expansion, which for more than a decade has been blocked by legislative , passed the Senate on Thursday 36-16 – a veto-proof majority – with significant changes to the original bill and now heads back to the House for consideration.

House Bill 1725, with the Senate's strike-all amendment, would increase Medicaid eligibility to those making up to 99% of the federal poverty level, about $15,000 annually for an individual, and would be entirely contingent on the federal approving a work requirement of 120 hours a month. 

That's significantly different from the version of the bill that passed the House, which increased eligibility to those making up to 138% of the federal poverty level, about $20,000 annually for an individual, and would expand Medicaid regardless of whether or not the work requirement was approved. 

Advertisement

Senate Medicaid Chairman Kevin Blackwell, R-Southaven, called the strike-all a more “conservative, responsible” option and described  it a “hand up, not a handout.” The Senate plan turns down roughly $1 billion federal dollars a year since it doesn't qualify as “expansion” according to the Affordable Care Act.

Republican Lt. Gov. Delbert Hosemann, who oversees the Senate, said that covering more low-income under Medicaid would improve the 's dismal labor participation rate – the lowest in the country

“If we as a society, as a state, believe we should have individuals who are working, stay in the workforce, pick up our labor force participation rate, then we need to do what Sen. Blackwell and the Senate did .” 

Senate Democrats introduced several amendments, which , who hold a majority in the chamber, successfully opposed. The amendments called for: increasing the income eligibility threshold, changing the work requirement from 120 hours a month to 80 hours a month, and lowering a recertification requirement from four times a year to twice a year. 

Advertisement

The Democratic senators strongly criticized the Senate plan to reporters after it passed but voted in favor of it to keep the bill alive – in hopes that the plan will improve later during House and Senate haggling. 

“This bill was not perfect,” Senate Minority Leader Derrick Simmons said. “We would love to see more individuals covered. We would love not to have any hurdles or restrictions on additional access to coverage. But we did not want to lose an to keep this bill alive as we work through this process.”

Sen. Joey Fillingane, R-Sumrall, also attempted to amend the bill by removing two of the exemptions to the work requirement – for primary caregivers of children under six years old and those diagnosed by a doctor to have a disability – and requiring co-payments for individuals fulfilling the work requirement. A few hardline conservatives supported his efforts, but both amendments were ultimately shot down by senators. 

Sixteen senators voted ‘No' on the plan: Jason Barrett, R-Brookhaven; Andy Berry, R-Magee; Jenifer Branning, R-Philadelphia; Lydia Chassaniol, R-Winona; Kathy Chism, R-New Albany; Joey Fillingane, R-Sumrall; Angela Burks Hill, R-; Chris Johnson, R-Hattiesburg; Tyler McCaughn, R-Newton; Michael McLendon, R-Hernando; Rita Potts Parks, R-Corinth; Brian Rhodes, R-Pelahatchie; Joseph Seymour, R-Vancleave; Daniel Sparks, R-Belmont; Ben Suber, R-Bruce; Neil Whaley, R-Potts Camp. 

Advertisement

House Medicaid Chair Missy McGee, R-Hattiesburg, told Mississippi Today that she does not intend to agree with the Senate's amendment and plans to hammer out a compromise in a conference committee. 

“I'm happy the Senate passed a bill,” McGee said. 

Though the Senate's plan has stricter eligibility requirements than the House version, Republican Gov. Tate Reeves, a longtime opponent of expansion, privately told senators at the Governor's Mansion on Tuesday that he would veto the bill if it reached his desk.

If the second-term governor does veto the bill, a two-thirds majority of lawmakers in both legislative chambers would need to join together to successfully override him and pass the measure into . Both chambers passed their versions with veto-proof majorities.

Advertisement

Hosemann did not directly answer whether he believes there is an appetite in the GOP-controlled Senate to override a potential veto, but he said the work requirement in the Senate bill is a “good first step” toward addressing Reeves' concerns about the bill. 

“We're going to get with our House counterparts here and maybe that step forward is sufficient for the governor,” Hosemann said. “I don't think there was anybody here that didn't feel the weight of having people who are working have a catastrophic event and not get back into the workforce.” 

House members have until April 19 to either agree with the Senate plan or to work on a compromise in a conference committee.

This article first appeared on Mississippi Today and is republished here under a Creative Commons license.

Advertisement
Continue Reading

Mississippi Today

Judge erred, double jeopardy shouldn’t apply, say AG attorneys seekng to retry acquitted assailant

Published

on

mississippitoday.org – Mina Corpuz – 2024-03-28 13:30:00

Nearly a year after a north Mississippi judge acquitted a 22-year-old who stabbed a man in the neck, nearly killing him, 's office lawyers want to re-prosecute the case. 

They are appealing the ruling, saying the victim's absence at trial, the reasoning the judge used for his ruling, did not violate the defendant's constitutional rights and prevent trial from proceeding.

But legal experts say a retrial can be a high barrier to overcome because of double jeopardy,  a clause in the U.S. and Constitution that prevents defendants from being retried for the same following an acquittal or conviction. 

Advertisement

“This is a textbook case of double jeopardy,” said Matt Steffey, a professor at Mississippi College School of

In his May 11, 2023 dismissal of the attempted murder indictment and acquittal for Lane Mitchell, Union County Circuit Court Judge Kent Smith focused on the victim's absence, finding that it violated the defendant's due and compulsory process rights, which is the ability to subpoena and secure favorable witnesses to testify. 

“This precedent thus makes the state responsible for and unable to go forward on nearly every criminal cause when a recalcitrant victim refuses to appear at trial,” the state wrote in a March 4 appellant's brief filed with the Court of Appeals. 

The victim, Russell Rogers of Tennessee, nearly bled out and suffered a stroke. As a result of the stabbing, he was diagnosed with post-traumatic stress disorder and other mental issues and placed under a conservatorship. 

Advertisement

The state is asking the Court of Appeals to correct the trial court's “misstatements of law.” Alternatively, the state is asking the court to reverse and remand the trial judge's order and in its place issue an order that would allow the state to retry Mitchell. 

The defense has 30 days to respond to the appellant's brief, which is expected sometime early next month if no extensions are granted. The state will then have time to reply, and then the case can be submitted. Oral arguments were not requested. 

The 2019 stabbing

On Feb. 9, 2019, Rogers spent several hours in  Tallahatchie Gourmet in New Albany. When then-18-year-old Mitchell arrived there, he joined his and their friends in the bar area. 

Video presented in court and included in records as pictures shows Mitchell, about an hour after his arrival, taking a knife from the bar and holding it behind his back as Rogers talked with a waitress. The manager  – Mitchell's father – and Rogers then talked, and when Rogers reacted negatively, Mitchell approached from behind and stabbed Rogers in the neck three times. 

Advertisement

Mitchell testified he was trying to defend his father and the waitress, according to court records. The defendant said he thought Rogers had a gun, but in fact he was unarmed. 

Mitchell and Rogers had not met or talked prior to the stabbing, according to court records. 

Months after the stabbing, a Tennessee probate court found Rogers met criteria to be considered disabled and appointed his father, Robert Rogers, as his conservator. Russell Rogers remains under the conservatorship. 

Mitchell enrolled in two colleges while under indictment, first at the University of Mississippi and then Mid-America Baptist Theological Seminary in Cordova, Tennessee, where he graduated days before his 2023 trial began. 

Advertisement

The attorney general's office took over the case in 2021 when the district attorney recused himself from the case. 

Victim testimony central in case 

Mississippi law states victims can exercise their right to be present and heard in court proceedings, but their absence does not prevent the court from moving forward with a proceeding. Victims can be served with a subpoena, which Mitchell's attorneys sought to do with Rogers.

The state argues the trial court seemed to ignore the Tennessee probate court's order quashing the defense's attempt to subpoena Rogers, saying his mental health problems stemming from the attack made him incapable of testifying.

The state argues the trial court only determined Rogers “appear[] to be intentionally unavailable” to testify in court, but it did not find what from his testimony would be favorable to the defense. 

Advertisement

The defense wanted to question Rogers about his behavior the night of the stabbing and prior conduct and mental health issues, but the state wrote these factors “would not be material to a showing that Michell acted reasonably or that [Rogers] was the initial aggressor.”

Additionally, Rogers didn't witness the stabbing because Mitchell approached him from behind, the brief states. Regardless, the state argues, Mitchell's intent to defend others was already presented to the jury through other witnesses. 

The defense has argued in court filings and at trial that the conservator inserted himself into the case, including accusing him of working with the prosecution and denying access to the victim. 

The state had denied these claims, noting Robert Rogers was following his fiduciary duties as conservator when fighting the subpoena and other efforts. 

Advertisement

Acquittal and double jeopardy

 Another issue raised in the state's brief is how the trial court violated the Mississippi Rules of Criminal Procedure by dismissing the indictment against Mitchell and entering an acquittal.

No rule of criminal procedure allows an indictment to be dismissed because a witness failed to appear, and acquittal isn't the proper remedy under the rules, the state argues. Instead, the valid remedies for a discovery violation are continuance or mistrial, which would have needed to have happened before a jury was sworn in and double jeopardy was in place. 

In its alternative remedy, the state asks the Court of Appeals to reverse and remand the trial court's and order a mistrial, which the state says would preserve its right to retry Mitchell. 

Former Mississippi Court of Appeals judge and Supreme Court Justice Oliver Diaz called acquittal an unusual position for a trial court and an example of how Judge Smith of the Union County court acted in a way that other trial courts don't tend to do. 

Advertisement

He said the state may be asking the Court of Appeals to clarify the law and find that the judge ruled improperly, instead of seeking retrial and running into double jeopardy. 

“(A)ny judges in the future who consider this issue can know clearly and [it's] well stated by the court [that] you can't just order an acquittal if a victim doesn't show up,” he said. 

Crime victims' rights

Rogers and his conservator are asking the Court of Appeals to allow them to file an amicus curiae brief for the court to consider additional information, including victim's rights. 

A March 11 proposed amicus brief argues the trial judge's refusal to submit the case to the jury stripped Rogers of his constitutionally-protected rights as a victim. As of Thursday, the brief has not been approved. 

Advertisement

Meg Garvin, executive director of the National Crime Victim Law Institute at Lewis & Clark College in Oregon, provided feedback to craft the amicus brief. 

She said the Mississippi Constitution gives crime victims the right to be treated with fairness, dignity and respect, and just because those terms are broad, it doesn't mean they are empty. 

Mitchell's attorneys want the court to deny the amicus brief, citing a May 2023 Supreme Court order denying an emergency petition filed by the conservator to halt the trial court from filing a judgment of acquittal. In it, Justice Leslie King said the victim and conservator lack standing to contest the disposition of Mitchell's case, or any charge. 

Garvin said this challenge highlights a misunderstanding about what victims' rights are. Victims asking for their rights to be protected doesn't make them a party. 

Advertisement

She said it is possible for someone to exercise another's rights on their behalf, such as what happens for parents acting on behalf of their or on behalf of someone who is mentally incapacitated, including someone under a conservatorship. 

If Mitchell's case is upheld, it would be a sign that Mississippi victims' rights aren't meaningful or are being adequately considered, Garvin said. 

“The statement to the victim would be you actually don't have rights, you are just a piece of evidence in a case against someone else,” she said.

This article first appeared on Mississippi Today and is republished here under a Creative Commons license.

Advertisement
Continue Reading

News from the South

Trending