Quinnehtukqut Legal News
| A publication of Pine Tree Legal Assistance |
Native American Legal Briefs:
--Federal Acknowlegement--
--Land Claims Settlement --
--Custody of Aboriginal Child--
Table of Contents
Supreme Court of Canada awards custody of aboriginal child to adoptive, non-native grandparents
On May 24, 1999, the Deputy Assistant Secretary for Indian Affairs found that the Golden Hill Paugussett Tribe was entitled to full consideration of its Petition for Federal Recognition. Under Bureau of Indian Affairs regulations, Federal Acknowledgement will be granted to a tribe if it can meet seven required criteria. (See Qunnehtukqut Legal News, Volume 2, Issue 1 for a general description of the Acknowledgement procedure. The Bureau will not give full consideration to a Petition, however, if it finds that a tribe asking for Acknowledgement has presented "little or no evidence" that it meets one of the required criteria.
In June of 1995, the Department of the Interior refused to acknowledge the Golden Hill Paugussetts. It found that the Tribe had not met one of the required criteria. That criterion was that members be descended from a historical Indian tribe.
That decision was appealed to the Interior Board of Indian Appeals. The Board agreed that Acknowledgement should be refused. The Board, however, sent five questions to the Secretary of the Interior concerning this case. The May, 1999 findings by the Assistant Secretary answer those questions. The issue addressed by the Assistant Secretary is whether the Tribe's Petition should be given full consideration. The Assistant Secretary found that the Tribe had in fact produced enough evidence about its descent from an historical Indian tribe. This case does not settle the question whether the Tribe is entitled to Acknowledgement.
The Paugussetts' claim for recognition is based on their descent from William Sherman. One important question is whether William Sherman was in fact an Indian. The evidence provided in this case included the following documents:
census records (which identified Sherman as an Indian one year, but not in other years);
a mortgage of William Sherman's lands held by an agent for the Paugussetts;
both civil and church death records;
William Sherman's obituary; and
two reference materials published in the 1880's identifying William Sherman as a Paugussett.The Assistant Secretary found that this information was enough to allow the Tribe full consideration of its petition. Moreover, during the Assistant Secretary's review of the questions, some more evidence was brought to light by BIA researchers. The Assistant Secretary noted that this additional evidence, which may help to explain some of the documents, was another reason to give the Paugussetts full consideration.
In December of 1998, the Federal District Court in Connecticut, in effect, denied a request by the Mashantucket Pequots to expand their reservation in eastern Connecticut. The decision was criticized by the Tribe in an editorial appearing in the March edition of the Pequot Times. The editorial claimed that the decision was based on "emotionalism and heated headlines" and called on the Department of the Interior to appeal the ruling "in the defense of good law and fairness to all American Indian Nations."
The U.S. Department of Justice filed its appeal in early June of this year.
Specifically, the Tribe had asked the United States Secretary of the Interior to take 165 acres of land into trust for the benefit of the Tribe. Had the Secretary been allowed to take the property into trust, it would have meant that (a) the land would be "Indian Country," outside state civil and criminal jurisdiction; (b) the land would be exempt from state and local taxation; and (c) the land would be exempt from state and local land use regulation.
The Secretary issued a Notice, in 1995, that he intended to take the land into trust. At that point, the State of Connecticut and the three towns where the land was located filed suit. They argued that, under the terms of the Settlement Act which recognized the Mashantucket Pequot Tribe, the Secretary could not take the land into trust. According to the trial judge, this is the first case in which a State has opposed a decision to take land into trust on the grounds that the decision violates the terms of an Indian land claims settlement.
Under general federal Indian law, the Secretary of the Interior may buy land and take that land into trust for the benefit of a tribe. The purpose for this power, according to an earlier case, is "to rehabilitate the Indian's economic life and to give him a chance to develop the initiative destroyed by a century of oppression and paternalism." The question faced by the trial judge in this case was whether the Settlement Act limited this broad power with regard to the Mashantucket Pequots.
The important issue in this case was the language of the Settlement Act. The towns and the State argued that the Secretary could not take land into trust if the land was located outside the so-called "Settlement Lands." These were lands specifically described in the Settlement Act, which include the current reservation. The Tribe and the Department of the Interior, on the other hand, argued that land outside the Settlement lands could be taken into trust if it had not been paid for by "Settlement Funds." These Funds were money set aside for the benefit of the Tribe under the terms of the Settlement Act.
The judge agreed with the State and the towns. He stated the issue as being "[i]n practical terms ... whether the area under the sovereignty of the Tribe can be expanded against the wishes of the State and the Towns without Congressional approval."
The judge's decision divides land bought by the Tribe into three categories: land within the Settlement Lands, land outside the Settlement Lands, and any land bought with Settlement Fund money. According to the decision, land within the Settlement Lands will be held in trust; land outside the Settlement Lands will not be held in Trust; and land bought with Settlement money will not be held in trust, unless the land bought is within the Settlement Lands.
The judge also looked at the legislative history. He believed that that history supported his decision. Therefore, the judge concluded, the Settlement Act does not allow the Tribe to expand its territorial sovereignty beyond the boundaries of the Settlement Lands when the State objects to the expansion.
Supreme Court of Canada awards custody of aboriginal child to adoptive, non-native grandparents
In February of 1999, the Supreme Court of Canada handed down a decision in a child custody case involving the young son of an aboriginal Canadian mother. The mother is a member of the Swan Lakes First Nation of Manitoba. For several years before the decision, the child had been living with his biological, aboriginal grandfather. The decision gave custody of the child to the mother's non-native, adoptive parents who live in Connecticut. The decision has deeply angered many in the Canadian aboriginal community.
According to Vice Chief Dennis White Bird, the Manitoba representative to the Assembly of First Nations in Canada, during the 1960's until the early 80's, the Canadian Government engaged in "exporting" First Nation children to the United States and Europe . Vice Chief White Bird called this policy "genocidal" and said that it resulted in "decimating our population." This case is viewed as part of that policy. Vice Chief White Bird explained that the Assembly of Manitoba Chiefs had been following the progress of this case for an extended period of time and has given its "moral support" to the biological grandfather as well as to the child.
The Supreme Court of Canada decision reinstated a lower court decision in British Columbia, where the trial court judge had ordered that custody be awarded to the Connecticut grandparents. The facts found by the trial court were as follows.
Nancy and Duncan Haimerl were a childless couple living in Montreal. They adopted two Aboriginal sisters, one of whom, Melissa, eventually became the mother of the child in question. A year after the adoption, the Haimerls moved to Connecticut.
Over the years, the trial judge found, Melissa had serious behavioral and psychological problems. In 1994, Melissa became pregnant with her son, Ishmael, and eventually moved back in with her adoptive parents. The possible father, who is African-American, has denied paternity, although he has had some contact with the child.
Melissa cared for Ishmael for the first month, and then started to disappear from home for two to three weeks at a time, leaving her adoptive parents to care for her child. They established a strong bond with the baby over the period.
At about this time, Melissa, with the encouragement of her adoptive parents, contacted her birth parents who lived in Vancouver. She visited them, staying for about 2½ months. She returned to Connecticut in the late summer of 1995. In November, Melissa took Ishmael and moved in with her birth father in Vancouver.
The Haimerls finally located Melissa and the baby. Ishmael was placed in foster care in British Columbia in mid-November of 1995. In February of 1996, however, an interim custody order in British Columbia awarded temporary custody to Melissa's birth father. Melissa has never asked that she be given custody of Ishmael. She has strongly supported her birth father's claim, however. Ishmael was in his birth grandfather's custody from March of 1996 until the Supreme Court of Canada's ruling on the case in February of 1999. Since the ruling, Ishmael has been returned to Connecticut, where he is today.
The trial judge looked closely at both parties asking for custody of the child. He found that both sets of grandparents loved the child and had bonded with him. The judge believed that both sets of grandparents would provide a home and care for the child. In settling on the Haimerls, however, the judge appeared to give great weight to the fact that the Haimerls could offer greater economic security and that they had promised to make Ishmael appreciate his cultural heritage, including his African-American heritage.
In making his decision, the trial judge gave some consideration to the language of the Child and Community Services Act which states that "the cultural identity of aboriginal children should be preserved." He noted, however, that the child's heritage also included his African-American background. The judge concluded that
this is not a case of taking an aboriginal child and placing him with a non-aboriginal family in complete disregard for his culture and heritage. The fact is that Melissa is the daughter of [the Haimerls] and Ishmael is their grandson.
On appeal, the Court of Appeal for British Columbia reversed the earlier decision. The judge there found that the first judge had "placed undue emphasis on economic matters and underemphasized ties of blood and culture." The judge also gave weight to the fact that the child had been living with his biological grandfather for some two years. The Supreme Court decision reversed the Court of Appeal, but did not discuss the case in any detail.
Following the Supreme Court of Canada decision, the Sagkeeng First Nation, an intervenor in the case before the Court of Appeal, asked the Supreme Court to rehear the case. The Tribe claimed that they were never served with a copy of the application for leave to appeal or with a copy of the notice of appeal itself. The Court decided that the Tribe was not officially a party to the case and did not need to be sent the notices. It also considered whether there had been any failure of justice at the original hearing. The Court decided that all of the interested parties had had adequate opportunity to raise questions which they thought were important. No purpose would be served by reopening the proceeding.
